On 19 July 2010, the applicants lodged a civil claim against Serbaz before the Sabail District Court. The applicants were seeking payment of USD10,000 in unpaid wages and USD 5,000 in respect of non-pecuniary damage caused by alleged “breaches of their rights and freedoms”. In their claims, they cited, inter alia, Article 4 of the European Convention on Human Rights. 

In their factual submissions, the applicants mentioned, inter alia, one alleged incident where a worker was fined and confined for three days inside a building under construction for having brought some food items to Baku. 

The applicants also noted that because they were not paid since May 2019, they had to buy groceries from the stores in the area on credit and that “those of them who [had] objected to this situation [had been] punished”. 

The applicants submitted as evidence copies of their passports, which also showed the Azerbaijani visa. The applicants’ representative in his submissions before the Court, as well as in the subsequent appeal before the Baku Court of Appeal, noted that he attempted to present the Court a copy from the NGO “ASTRA’” and formally requested the Court to send inquires to several international NGOs and organizations that had helped the workers/applicants before their departure for Azerbaijan. The Court refused to admit the said report and rejected the second request. 

The defendant, Serbaz, submitted that the company had concluded a secondment agreement with Acora Business Ltd (its parent company), according to which, Acora had been responsible for providing the workers’ wages and Serbaz had only been responsible for providing them with accommodation and meals. 

On 21 October 2010, the Court dismissed the applicants’ claim citing the secondment agreement between the two companies, according to which, the seconded staff were considered to be employees of Acora. Accordingly, their claim could only be lodged against Acora. 

The Court also found that the applicants’ claims with regard to the violation of their rights were unsubstantiated. According to the judgment, it appeared from letters submitted by various state authorities that the alleged breaches were not established. 

On 1 December 2010, the applicants’ lodged an appeal before the Baku Court of Appeal against the District Court’s judgment. In their submissions, the applicants reiterated their arguments made before the first-instance court, and also noted that, inter alia, they had been employees of Serbaz which had subjected them to forced labour without having signed employment contracts. They further submitted that an Azerbaijani NGO named the Azerbaijan Migration Centre (Azərbaycan Miqrasiya Mərkəzi – “AMC”) had inquired from the Ministry of Justice whether Acora had really existed as a company, but had received no response. 

The Court of Appeal questioned as a witness a representative from AMC, who had been in the houses that the workers were staying in Azerbaijan. The representative had written a complaint on behalf of the 272 workers about their living conditions and submitted it to the Prosecutor’s General Office. As a result of AMC’s actions, the workers had been paid their wages and returned to their home countries. 

On 8 February 2011, the Court of Appeal upheld the first-instance court’s judgment. Apart from reiterating the District court’s findings, the Court found that the applicants were not “lawful migrant workers”, but they were foreign employees who had been temporarily seconded to Azerbaijan, and thus, the provisions of the Law on labour migration and the International Convention on the Protection of the Rights of All Migrant Workers and Members of their families (ICRMW) were not applicable to them. 

The Court also held that the applicants’ complaints concerning the breach of their rights were not substantiated. The Court did not consider at all the claims concerning the District Court’s refusal to admit the ASTRA report and the rejection of their other requests

The applicants lodged a cassation appeal before the Supreme Court, reiterating their arguments. The applicants further noted that despite the arguments by Serbaz and the lower courts’ findings that they had been working in Azerbaijan for short periods not exceeding three months, they had been working there for six months or longer and this also is proven from their passports.

The Supreme Court rejected their cassation appeal and upheld the Baku Court of Appeal judgment by briefly reiterating the appellate court’s findings. 

On 22 March 2012, the applicants (22 Bosnia and Herzegovina nationals) lodged an application against the Republic of Azerbaijan before the European Court of Human Rights. 

According to the applicants’ version of events, they were recruited to their country, and they were transferred to Azerbaijan by Serbaz in order to work there as temporary foreign construction workers. Most of them stayed in Azerbaijan for periods of six months or longer. Once they arrived to Azerbaijan, Serbaz representatives took away their passports and did not provide them with individual work permits. In Baku, the applicants were staying in dormitories that were not equipped with drinking water, running hot water, gas or heating under unsanitary conditions due to the accumulation of garbage. Furthermore, they were not provided with medical care and had to comply with strict internal rules. Violations of the internal rules were punished with beating, physical threats, fines and detention in a “specially designated area”. As from May 2009, the applicants were not paid any wages and could not meet their basic needs. 

The Government of Azerbaijan challenged the veracity of the applicants’ factual elements. 

In October and November 2009, Serbaz paid (at least) part of the unpaid wages to the workers and took them to the international airport so that they can return to their countries. By the end of November 2009, all the applicants had left Azerbaijan.

The Court initially examined a series of documents concerning complaints and requests addressed to the authorities of Azerbaijan, which were submitted by the government of Bosnia and Herzegovina. The documents included, inter alia, an English translation of a letter from the President of AMC to the Prosecutor General of Azerbaijan which stated that Serbaz officials had committed criminal offences under various provisions of the Criminal Code (trafficking in persons). The Prosecutor was requested to take measures for the matter. 

Subsequently, the Court examined several documents submitted by the Government of Bosnia and Herzegovina with regard to criminal proceedings concerning persons affiliated with Serbaz and the related legal assistance correspondence between the authorities of Bosnia and Herzegovina and Azerbaijan.  According to these documents, it appears that in 2009, the Prosecutor’s Office in Bosnia and Herzegovina initiated a criminal investigation with 

regard to the allegations of trafficking in persons by Serbaz employees. During the investigation, the competent authorities of Bosnia and Herzegovina sent three requests for legal assistance to the Azerbaijani authorities. After the completion of the investigation, on 7 July 2014, a total of thirteen nationals of Bosnia and Herzegovina were indicted. Eleven of them were charged with the criminal offences of organised crime in conjunction with trafficking in human beings, one with the organised crime in conjunction with trafficking in human beings and money, and one with the organised crime in conjunction with money laundering. The Court convicted four of the thirteen accused persons. By a different judgment, the Court of Bosnia and Herzegovina, acquitted the remaining nine persons of all charges. 

The Court, subsequently, analyzed the relevant domestic and international legal framework. It noted, inter alia, that Azerbaijan is party to the Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children (“the Palermo Protocol”), supplementing the United Nations Convention against Transnational Organised Crime of December 2000.

The Court also examined relevant reports concerning the situation at Serbaz and migrant constriction workers in Azerbaijan in general. Specifically, the ASTRA Report as well as the GRETA Report concerning the implementation of the Council of Europe Convention on Action against Trafficking in Human Beings in Azerbaijan highlighted the poor living conditions, the physical and mental abuses that the workers were subjected to. It was mentioned that the workers were not paid at all for a period of four months (May to August 2009). The reports also contained several accounts of detentions of workers for periods up to three days and physical force used on workers by the supervisors and the management.

The applicants, apart from their complaint concerning the fact that they were ‘subjected to forced labour’, also complained before the Court that their grievances had not been properly assessed by the domestic courts whose judgments were unreasoned. In doing so, they relied on Art. 6 of the Convention, Art. 1 of Protocol No. 1 to the Convention, and Art. 2 of Protocol No.  4 of the Convention. By the virtue of the jura novit curia principle, the Court considered that the applicants’ submissions amounted to a complaint under Art. 4 par. 2 of the Convention as it can be derived from the application as a whole, the applicants referred to their treatment allegedly amounting to human trafficking and forced labour as well as to the alleged State’s failure to take measures against that treatment (alleged failure to comply with the procedural obligation under Art. 4 par. 2 to investigate potential human trafficking and forced labour). 

The Court in examining whether the circumstances of the present case gave rise to an issue under Art. 4 par. 2 of the Convention, followed the Court’s approach in general, in cases where the complaint is essentially of a procedural nature, i.e., it examined whether the applicants made an arguable claim or whether prima facie evidence for the violation of Art. 4 was brought to the authorities’ attentions. According to the judgment, the applicants had complained before the domestic civil courts with regard to their situation and their treatment by Serbaz and their description of the conditions, although not detailed, pointed to several indicators of potential; treatment contrary to Art. 4. In addition, the detailed ASTRA Report, the letter by the Danish Refugee Council, the AMC’S letter to the law-enforcement authorities, and the information contained in the legal assistance requests by the Prosecutor’s 

Office in Bosnia and Herzegovina were brought to the attention of the courts. The Court held that all the above allegations amount to an arguable claim of “forced or compulsory labour” within the meaning of Art. 4 par. 2. 

Subsequently, the Court examined whether the constituent elements of human trafficking are present (action, means, purpose). As to the element of “action” the Court held that the facts that the applicants were recruited In Bosnia Herzegovina and then transferred to Azerbaijan and settled collectively to an accommodation, which they could not leave without the employer’s permissions, could have constituted “recruitment, transportation, transfer, harbouring, or receipt of persons”. With regard to the constituent element of “means”, the fact that the employers signed questionnaires instead of contracts and were promised higher wages than actually paid may have amounted to recruitment by means of deception or fraud. Lastly, as for the element of “purpose”, the employers’ conduct and the fact that they abused their power and took advantage of the vulnerability of the workers in order to exploit them discloses the potential purpose of exploitation in the form of forced labour. 

Having regard to the above, the Court found that the applicants had demonstrated an “arguable claim” that they were victims of transnational human trafficking and to forced labour in the territory of Azerbaijan. 

The Court, at the merits, reiterated the States’ substantive and procedural positive obligations under Art. 4 of the Convention. It also noted that whereas state’s positive obligations differ between cases where the treatment contrary to the Convention has been inflicted through state officials and cases where it has been inflicted through private individuals, the procedural obligations, i.e., the obligation to effectively investigate, remain the same. 

Since the complaint is of a procedural nature concerning the lack of response of the national authorities towards the human trafficking allegations, the Court limited its assessment to the procedural state’s positive obligation.  According to the judgment, the circumstances of the cases was “sufficiently drawn to the attention of the relevant authorities” in various ways and that constituted an arguable claim. Accordingly, the authorities must have acted on their own motion and initiate an investigation. Since there has not been an effective investigation, the Court rejected the Government’s objection concerning the exhaustion of domestic remedies and found that there has been a violation of Article 4 par. 2. 

In respect of pecuniary damage, the Court found that the applicants’ claims are unsubstantiated and were not made on the basis of precise calculation, and, thus, they must be rejected. The Court awarded each applicant the sum of EUR 5,000 in respect of non-pecuniary damage, plus any tax that may be chargeable.