The European Court of Human Rights has recently decided a number of important cases on the scope of Article 4 of the European Convention on Human Rights. In its seminal decision in Siliadin v France (Judgment of 26 July 2005)(previously discussed by David Keane on Human Rights in Ireland here) the Court confirmed that States have positive obligations under Article 4 to protect individuals from slavery, servitude and forced or compulsory labour. These positive obligations entail both the effective criminalisation of treatment contrary to Article 4 and the effective investigation of complaints of such treatment. In two decisions handed down in late 2012, CN and V v France (Judgment of 11 October 2012) and CN v United Kingdom (Judgment of 13 November 2012), the Court again considered the scope of States’ duties under Article 4 and clarified certain aspects of the law. All of these cases decided by the Strasbourg Court to date have been taken by migrant domestic workers, illustrating the vulnerability of this category of this group to exploitation and abuse.
CN and V v France concerned two young Burundian girls who had been taken in by relatives in Paris (a Burundian UNESCO official and his wife) after the Civil War in Burundi and who performed all the domestic work of the household for a number of years, including looking after the couple’s seven children (including a disabled child). They were accommodated in makeshift, sub-standard accommodation and constantly threatened with expulsion to Burundi. The Court found that the older sister had been subjected to forced labour and servitude and that France was in breach of its duties under Article 4 in failing to have in place an effective criminal prohibition on this treatment. It confirmed that forced labour was labour performed against a person’s will under the menace of some penalty, and that servitude has the additional element of the person feeling that their situation was unchanging and unlikely to alter. Importantly, the Court recognised the links between immigration status and vulnerability, finding that the “menace of some penalty” could, in certain circumstances, include the threat of expulsion.
In CN v UK (discussed on the UK Human Rights Blog here), the Court found that the legislative framework in place in the UK prior to the introduction of section 71 of the Coroners and Justice Act 2009 did not permit the police to carry out an effective investigation of the applicant’s complaints. Article 4, the Court found, requires the effective investigation of any ‘credible’ complaint of treatment amounting to slavery, servitude or forced labour.
Certain aspects of CN and V v France, in particular, are open to criticism. It was found that the younger sister in that case, V, had not been subjected to servitude or forced labour, as the work which she had been required to perform did not go beyond ‘normal’ family obligations. ‘Forced labour’ was to be distinguished from activities related to ‘mutual family assistance or cohabitation’, particular regard being had to the nature and volume of the activity in question. It seems that the reasoning behind this conclusion that the work performed by V did not meet this threshold was that she had some days off from her household chores and she was allowed to attend school. This finding was made despite the Court’s acceptance that V had been seriously ill-treated, both physically and psychologically.
On the basis of the Court’s approach in CN and V, it seems that it will be difficult for applicants to show that treatment reaches the threshold of severity required to show ‘forced labour’, meaning that Article 4 will only ‘kick in’ in the most severe and unusual cases. In addition, the reference to activities related to ‘mutual family assistance or cohabitation’ is vague, with no real indication of how far normal family obligations might stretch, or how this is to be measured. In addition to these difficulties with the interpretation of Article 4, potential Article 13 (right to an effective remedy) aspects of these cases remains under-explored. In particular, it has not been argued or considered as yet whether inadequate access to employment law remedies, including employment tribunals, could constitute a violation of states’ positive obligations under Article 4. It is to be hoped that these issues will be more fully expanded upon in future cases.
Notwithstanding the unresolved issues in the case law, Ireland remains in breach of its positive obligations under Article 4 in its continued failure to criminalise forced labour, servitude and slavery, a point which has been made previously by this writer, among many others, including the Migrant Rights Centre of Ireland. In December 2012, a heads of Bill for the Criminal Law (Human Trafficking) (Amendment) Bill 2012, which proposes to extend the definition of ‘human trafficking’ in Irish legislation to include subjecting a person to forced labour, enslavement or servitude, was approved by Cabinet. However, question marks remain over the adequacy of the anti-trafficking framework generally to deter trafficking and adequately identify and protect victims. Thus, while the proposed bill would be an improvement on the current position, situating this reform within anti-trafficking legislation may not be sufficient to meet the exacting standards relating to deterrence, the facilitation of prosecutions and protection required by the European Court.