Human Trafficking: The rise (and fall?) of the Strasbourg case law-Prof Marie Benedicte Dembour

My book, When Humans Become Migrants: Study of the European Court of Human Rights with an Inter-American Counterpoint (OUP, 2015), revealed a subtle bias operating against the applicant in much of the Strasbourg migrant case law. However, the book did not examine the case law on human trafficking. So, do its findings also apply to this case law?

In the leading cases of Siliadin v. France and Rantsev c. Cyprus and Russia, the European Court of Human Rights did not hesitate to apply the prohibition of slavery and servitude contained in Article 4 ECHR to situations of human trafficking. These well-known judgments of 2005 and 2010 saw the Court reiterate the importance of making safeguards practical and effective. In order to achieve this, the Court stressed that the state must protect individuals from infringements of Article 4 by other individuals. This led it to find a series of positive obligations that are binding on the state.

This approach seems most promising for the protection of trafficked victims. However, a less positive picture emerges, once subsequent struck out cases and decisions of inadmissibility are taken into account. The originally flexible framework that emerged from Rantsev, which could have been expanded further, appears to have become quickly ossified. As a result, victims of trafficking who fear being returned to Nigeria where they had been made to undertake juju ceremonies prior to their journey to Europe are, for example, left unassisted. Too often, the applicant is not believed by the Court, whilst state mistakes or oversight are not sanctioned. The Court’s reasoning is sometimes weak. There are also unfortunate procedural decisions on its part that leave trafficking practices unaddressed.

In the last analysis, it can therefore be said that the recent human trafficking Strasbourg case law displays somewhat of a pro-state bias, despite three additional verdicts of violation of Article 4 having been adopted since Siliadin and Rantsev.

This event is being co-hosted with Border Crimnologies.