In September 2012 the victim, a Croatian national, filed a criminal complaint against the defendant, T.M, who allegedly had forced the victim into prostitution over several months in mid-2011.
The defendant, a former police officer, initially contacted the victim thorough Facebook, stating he would find a job for her. Instead, he arranged for her to provide sexual services either in the flat rented by him or by driving her to the clients. He had made her give him half of the money she had earned from providing sexual services and had threatened her and punished her if she did not comply with his demands.
At the end of 2012, the man was indicted and the applicant was officially given the status of victim of human trafficking. After an investigation, the man was brought to trial in 2013.
However, the Municipal Criminal Court acquitted the defendant on the basis that it could not conclude T.M had forced or pressured the victim into prostitution. The courts found the applicant’s testimony incoherent and unreliable. They therefore concluded that the prosecution had failed to provide sufficient evidence for a conviction, and that the applicant had given sexual services voluntarily.
An appeal by the State Attorney’s Office was dismissed in January 2014, while a constitutional complaint by the applicant was declared inadmissible in June of the same year.
Relying in particular on Article 4 (prohibition of slavery / prohibition of forced labour), the applicant complained of the lack of a legal framework to deal with the issues raised by her case and about the official response to her allegations.
The application was lodged with the European Court of Human Rights on 27 August 2014.
The victim alleged that the national authorities had failed to effectively apply the relevant criminal-law mechanisms concerning her allegations of human trafficking and exploitation of prostitution. Specifically, the shortcoming related to the investigative process, which did not follow correct lines of enquiry and several witnesses were not called to testify. This led to the impunity of the defendant, T.M.
In June 2020 the Grand Chamber delivered its decision. This concluded that the national criminal investigation and the criminal proceedings against the defendant were defective to such a degree that they amounted to a violation of procedural obligations under Article 4 of the Convention for the Protection of Human Rights and Fundamental Freedoms.
As to the factual scope of the case, the Court notes that the applicant’s complaint raises issues of alleged impunity for human trafficking, forced or alternatively non-forced prostitution relating to a deficient application of the relevant criminal-law mechanisms. It is thus essentially of a procedural nature. This finding, as already stressed above, is without prejudice to the further assessment and conclusion as to the actual applicability and scope of protection guaranteed under the Convention for the acts complained of by the applicant.
The Croatian police carried out a search T.M.’s flat and car, and found condoms, two automatic rifles, a hand grenade and a number of mobile phones.
Municipal Criminal Court (Croatia)
The Municipal Court acquitted the defendant. Whilst it established that T.M. had ‘organised a prostitution ring into which he had recruited the applicant’, it found the victim’s testimony incoherent and unreliable and could not conclude T.M had forced or pressured the victim into prostitution.
County Court (Croatia)
The appeal by the State Attorney’s Office was dismissed.
Constitutional Court (Croatia).
The Constitutional Court declared the victim’s complaint inadmissible, owing to the fact that she did not have the right to bring a constitutional complaint concerning the criminal proceedings against T.M. as said proceedings concerned a criminal charge against him.
Grand Chamber, European Court of Human Rights
The case originated in an application (no. 60561/14) against the Republic of Croatia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Croatian national, Ms S.M. (“the applicant”), on 27 August 2014. The President of the Grand Chamber upheld the decision not to have the applicant’s name disclosed (Rule 47 § 4 of the Rules of Court).
The applicant alleged, in particular, that the domestic authorities had failed to apply effectively the relevant criminal-law mechanisms concerning her allegations of human trafficking and/or exploitation of prostitution, contrary to Articles 3, 4 and 8 of the Convention.
The Grand Chamber concluded that the Croatian national authorities, whilst providing adequate assistance to the victim, failed to fulfil their obligations under Article 4 of the Convention for the Protection of Human Rights and Fundamental Freedoms. The failure related to the defective investigation carried out by the competent authorities which did not gather all relevant evidence and the subsequent failure of the national courts to address the deficiency in the procedure utilized for gathering evidence and convict the perpetrator of the crime.
The victim had lived with a foster family and subsequently in a public home for children.
The defendant was a police officer. He had been convicted before of procuring prostitution through coercion and rape.
Article 195 § 3 of the Criminal Code
Procuring prostitution using coercion
The defendant, T.M., had contacted the victim via Facebook and had met her for coffee on a few occasions. He had deceived her into believing that he would find her a job. Instead, he had rented a flat for himself and the victim, where the victim provided sexual services and had also driven the victim to the clients on several occasions.
According to the indictment, the victim had agreed to this out of fear.
Violation of Article 4 of the European Convention on Human Rights
Related to the Chamber's decision:
- Referring to international law in the area of human trafficking, the Court found that it was irrelevant that there had been no international element and that the applicant was actually a national of the respondent State. It cited in particular the Council of Europe’s Anti-Trafficking Convention, which had been ratified by Croatia, and which encompassed “all forms of trafficking in human beings, whether national or transnational”.
- The Court went on to examine the circumstances of the applicant’s case and whether they showed if Croatia had met its obligations under the Convention, firstly, to have a legislative and administrative framework to prohibit and punish trafficking and to protect victims, and, secondly, to investigate allegations of trafficking:
As to the first set of obligations, the Court was satisfied that at the time there had been an adequate legal framework in Croatia for dealing with the offence alleged by the applicant, having regard to national legislation criminalising matters such as trafficking in human beings, forced prostitution and exploitation of prostitution. Furthermore, the applicant had been recognised as a victim of human trafficking by the Croatian authorities and provided with various forms of support and help, including the right to counselling and free legal aid. Moreover, during the hearing on her case, the accused had been removed from the courtroom immediately upon her request and she had given evidence in his absence.
However, as concerned the investigation into the applicant’s complaint, the Court found several shortcomings. Among other things, it observed that the authorities had not interviewed key witnesses, including the applicant’s clients and other individuals who might have been able to testify as to the true nature of her relationship with the accused. Nor had they made any serious attempt to investigate her allegation of threats and of being financially dependent on him. Lastly, they had not assessed the possible impact of psychological trauma on her ability to clearly and consistently relate the circumstances of her exploitation, simply dismissing her testimony as unreliable.
In any case, by finding that the applicant had provided sexual services voluntarily and had not been coerced, the domestic courts had not taken into account international law in the area of human trafficking, including the Council of Europe Anti-trafficking Convention, according to which the consent of the victim was irrelevant.
Therefore the Court was not satisfied that the prosecuting authorities and the courts had submitted the applicant’s case to the careful scrutiny required by Article 4 of the Convention to avoid undermining the deterrent effect of the criminal-law system in place. There had therefore been a procedural breach of Article 4.
Related to the Grand Chamber decision:
The Court has not so far had many opportunities to consider the extent to which treatment associated with human trafficking and/or exploitation of prostitution falls within the scope of the Convention. At the same time, attention to trafficking in human beings and exploitation of prostitution as global phenomena has increased significantly in recent years. As the overview of international material shows, different international legal instruments and supervision mechanisms have dealt with these issues and elaborated on the central tenets of their effective prevention and suppression.
Regard being had to the parties’ submissions and the third parties’ comments, the present case allows the Court to clarify certain aspects of its case-law on human trafficking for the purpose of exploitation of prostitution. It also requires the Court to address the statement in paragraph 54 of the Chamber judgment according to which “trafficking itself as well as exploitation of prostitution ... fall within the scope of Article 4 of the Convention” (emphasis added).
The Court held that Croatia was to pay the applicant 5,000 euros (EUR) in respect of non-pecuniary damage.
European Court of Human Rights
The Court has already had to address the issue of human trafficking in several judgments, but this case is the first occasion on which it has had to consider whether Article 4 was applicable to the trafficking and exploitation of women for the purposes of prostitution. It ruled that not only trafficking itself but also exploitation of prostitution fell within the scope of Article 4 of the European Convention.
Furthermore, the Grand Chamber made numerous references not only to the Trafficking in Persons Protocol but also to various UNODC tools, such as the Model Law on Trafficking in Persons, the Handbook for Parliamentarians and the Issue Paper "The Role of ‘Consent’ in the Trafficking in Persons Protocol".
Conclusion on the material scope of Article 4
303. In conclusion, having regard to the above considerations, the Court finds the following:
(i) Human trafficking falls within the scope of Article 4 of the Convention. This, however, does not exclude the possibility that, in the particular circumstances of a case, a particular form of conduct related to human trafficking may raise an issue under another provision of the Convention (see paragraph 297 above);
(ii) It is not possible to characterise conduct or a situation as an issue of human trafficking under Article 4 of the Convention unless the constituent elements of the international definition of trafficking (action, means, purpose), under the Anti-Trafficking Convention and the Palermo Protocol, are present. In this connection, from the perspective of Article 4 of the Convention, the concept of human trafficking relates to both national and transnational trafficking in human beings, irrespective of whether or not connected with organised crime (see paragraph 296 above);
(iii) The notion of “forced or compulsory labour” under Article 4 of the Convention aims to protect against instances of serious exploitation, such as forced prostitution, irrespective of whether, in the particular circumstances of a case, they are related to the specific human trafficking context. Any such conduct may have elements qualifying it as “slavery” or “servitude” under Article 4, or may raise an issue under another provision of the Convention (see paragraphs 300-301 above);
(iv) The question whether a particular situation involved all the constituent elements of “human trafficking” and/or gives rise to a separate issue of forced prostitution is a factual question which must be examined in the light of all the relevant circumstances of a case (see paragraph 302 above).