The European Court of Human Rights (ECtHR) has made a rare ruling under Article 4 of the European Convention on Human Rights (ECHR) which distinguishes between a State’s obligation to investigate human trafficking and the obligation to identify and assist victims of human trafficking.
The three applicants in this case all were employed as au pairs in Dubai. Upon arrival, their passports were confiscated and they were subjected to ill-treatment and exploitation as they worked extremely long hours with less pay than promised. In particular, they were subject to extreme verbal abuse after one of their employers’ children went missing on holiday in Austria. At this point the applicants escaped, but did not report to the police until a year later. The police declined to investigate as the perpetrators were not citizens and the incidents did not take place in Austria. The applicants subsequently brought a case to the ECtHR on the basis that the State did not effectively investigate their claims that they were victims of human trafficking.
A key question was whether or not Austria was under an obligation to investigate crimes committed outside of its territory. The applicants contended that it did, under the Convention on Action Against Human Trafficking and under the principle of passive nationality. The Court found that there was no breach in this regard and that there was no obligation on Austria to investigate the allegations of abuse in Dubai.
A further question put to the Court was whether the State had discharged its obligation to investigate the claims made by the applicants regarding the “harbouring and receipt” of persons for their exploitation in Austria. The Court in this instance found that the Austrian authorities had discharged their obligation as the allegations were investigated and, importantly, the complaint was made almost a year after the alleged offence had occurred.
Perhaps the most important point made by the Court in this case is the distinction made between the obligation on the State to investigate allegations of human trafficking and the identification and assistance of victims of human trafficking. The Court ruled that Article 4 of the European Convention of Human Rights imposes a positive obligation on the State to identify and support victims of human trafficking separately from criminal proceedings. Although this is a positive development, it may cause confusion as to how far the State needs to go and how victims of human trafficking are to be identified and so clarification on this point may be necessary.
In spite of the fact that the applicants were unsuccessful, the Court has given useful guidance in relation to the obligations of the State when investigating incidents of human trafficking. The Court has also made a distinction between the obligation of the State to investigate trafficking and supporting the victims of human trafficking.
Click here for the full judgment in J and others v Austria.