European Court of Human Rights

Information Note on the Court’s case-law No. 154

July 2012

M. and Others v. Italy and Bulgaria - 40020/03

Judgment 31.7.2012 [Section II]

Article 4

Article 4-1

Trafficking in human beings

Trafficking of a young Bulgarian girl in Italy not supported by sufficient evidence: inadmissible

 

Facts - The applicants are Bulgarian nationals of Roma origin. The first applicant is the daughter of the second and third applicants. In 2003 the family travelled to Italy, allegedly to work as domestics. There the daughter married a Serbian citizen, possibly after a sum of money (several thousand euros) was paid by the groom to the bride’s father. The applicants claim that the parents were forced to return to Bulgaria while their daughter remained in Italy, where she was ill-treated and forced to work for her husband. The mother came back to Italy and complained to the police. Complaints were also made to various Bulgarian and Italian authorities. The Italian police then raided the groom’s house, where they found the first applicant and made a number of arrests. However, the authorities decided not to bring criminal proceedings after finding that the evidence indicated that the marriage was consensual.

Law

Article 3: The Court found a violation by Italy of the procedural aspect of Article 3 in respect of the authorities’ failure to conduct an effective investigation into the first applicant’s allegations of ill-treatment, but no violation of that provision by Italy in respect of her complaint that the Italian authorities had not taken sufficient steps to secure her release from her alleged captivity.

Article 4: The parties to the case had presented diverging factual circumstances and regrettably the lack of investigation by the Italian authorities had led to little evidence being available to determine the case. The Court therefore had no alternative but to take its decisions on the basis of the evidence that had been submitted by the parties.

(a)  Complaint against Italy

(i)  Circumstances as alleged by the applicants: The circumstances as alleged by the applicants could have amounted to human trafficking. However, from the evidence submitted there was not sufficient ground to establish the veracity of this version. It followed that the allegation that there had been an instance of actual human trafficking had not been proved and the positive obligations under Article 4 to penalise and prosecute trafficking in the ambit of a proper legal or regulatory framework could not come into play. As to the obligation to take appropriate measures to remove the individual from risk, the Court had already found under Article 3 that the Italian authorities had taken all the required steps to free the first applicant from the situation she was in. As to the procedural obligation to investigate situations of potential trafficking, the Court had already found a violation of Article 3 in respect of the Italian authorities’ failure to undertake an effective investigation of the case. In consequence, it was not necessary to examine this limb of the complaint.

Conclusion: inadmissible (manifestly ill-founded).

(ii)  Circumstances as established by the authorities: Even assuming the applicant’s father had received a sum of money in respect of the alleged marriage, such a monetary contribution could not be considered to amount to a price attached to the transfer of ownership such as to bring into play the concept of slavery. The payment could reasonably have been accepted as representing a gift from one family to another, a tradition common to many different cultures. Nor was there any evidence to indicate that the first applicant had been subjected to “servitude” or “forced or compulsory” labour. Furthermore, the post facto medical records submitted were not sufficient to determine beyond reasonable doubt that the first applicant had actually suffered some form of ill-treatment or exploitation as understood in the definition of trafficking and the sole payment of a sum of money did not suffice to establish that trafficking had taken place. There was no evidence either to suggest that the union had been contracted for the purposes of exploitation, sexual or otherwise, and no reason to believe that it had been undertaken for purposes other than those generally associated with a traditional marriage. There was not sufficient evidence to indicate that the union had been forced on the first applicant, who had not testified that she had not consented to it and had emphasised that she had not been forced to have sexual intercourse. Accordingly, it could not be said that the circumstances as established by the authorities raised any issue under Article 4.

Conclusion: inadmissible (manifestly ill-founded).

(b)  Complaint against Bulgaria - Had any alleged trafficking commenced in Bulgaria it would not have been outside the Court’s competence to examine whether Bulgaria had complied with any obligation it may have had to take measures within the limits of its own jurisdiction and powers to protect the first applicant from trafficking and to investigate the possibility that she had been trafficked. In addition, member States were also subject to a duty in cross-border trafficking cases to cooperate effectively with the relevant authorities of other States concerned in the investigation of events which occurred outside their territories. However, as had already been established, the circumstances of the case had not given rise to human trafficking. Moreover, the applicants had not complained that the Bulgarian authorities had not investigated any potential trafficking. Lastly, the Bulgarian authorities had assisted the applicants and had maintained constant contact and cooperation with the Italian authorities.

Conclusion: inadmissible (manifestly ill-founded).

(See also Rantsev v. Cyprus and Russia, no. 25965/04, 7 January 2010, Information Note no. 126)

 

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