by Tya Gitanjali Raikundalia

i) The Approach of Police Investigation

Each case will have different facts; consequently, it can be reasonably assumed that the police’s approach to investigation will differ greatly as well. They will differ based on the individual facts and the domestic law of the State where the case takes place. Therefore, the best approach would be to examine the approach from recent cases and compare the details.

Rantsev v Cyprus and Russia [2010]

It could be said that this case is more unusual because the victim unfortunately passed away when attempting to escape from her situation of exploitation. Due to this, much of the investigation was centred around the circumstances surrounding her death. But, before dying, the victim was taken to the police station by her employer and no efforts were made by police authorities to question her about her situation, evidencing a general intolerance by the authorities of trafficking.^[1]  This implies that this sort of trafficking situation was more common than expected, and the police had become so accustomed to its presence that they had developed an ignorance to it.  This could be considered ironic because just six years before, the Office for Protection and Combatting Human Trafficking was set up.  This seems like something that would have aided the victim in this case. Ultimately, the ECtHR held that there was a procedural violation of Article 2 of the ECHR due to a lack of investigation surrounding her death.  It was also found that a lack of investigation before meant that the victim’s situation was not brought to light, leading to more drastic measures being taken by the victim, resulting in her death. As a result, it can be said that fault could be found in the ignorance shown by the police.

C.N v The United Kingdom [2012]

This case showed an inherent lack of interest for the police to investigate at an initial stage.  This lack of interest stemmed from the fact that the applicant was interviewed by the police which lead to the police concluding that there was no evidence of trafficking or domestic servitude.^[2]  A study conducted by Harvard Medical School on trafficking victims found that even without the trafficker physically present, fear and shame prevented victims from disclosing their situation or using the interview as an attempt to escape. This same situation could have applied to the victim, but no further action was taken by the police at the time. A proper investigation was conducted when the victim sought help from the government funded POPPY Project^[3].  It was then found that the applicant had been subjected to five out of the six indicators of forced labour (as indicated by the International Labour Organisation)^[4].

Though the application to the court contained no complaint about the approach from the police, the approach to the investigation can still be noted.   As well as this, it can be contended that an extra step was needed for a thorough investigation to be conducted.  This is important because a violation of human rights was clearly taking place, but it can only be legally established when there is sufficient evidence collected from a police investigation.

J and Others v Austria [2017]

In this case, the police initially did not investigate because the offence had been committed by non-nationals and did not engage Austrian interests.^[5]Despite the victims needing help because they were being exploited and threatened, the police offered no support to them.  The approach was deemed wrong by the ECtHR when they stated

“By discontinuing any investigation against the applicants’ employers at such an early stage, the Austrian authorities failed to satisfy the key aims of the State’s international obligations relating to human trafficking, including the effective investigation and prosecution of crimes against the appellants”^[6]

Consequently, it can be argued that the domestic law in Austria was more State-centred because there was no focus on the fact victims were having their rights violated.  A proper investigation took place only when an NGO (LEFÖ) intervened.

Comments

Despite not focusing specifically on human trafficking and domestic servitude, the domestic approach of police is able to provide an insight into whether the law is State-centred or victim-focused.   All the aforementioned cases show the police not investigating for a variety of reasons: a seeming lack of evidence, no initial public interest or ignorance about the fact that people may be victims of human trafficking in the first place.  Again, each case differed, but there was a common factor that linked them all: an extra step was needed for a thorough investigation to be conducted, whether that was intervention from a third party or the victim passing away.  It was only then that sufficient evidence was gathered to establish that a violation of human rights had indeed taken place.

(d) Conclusion

It can be said that the scenario helped to demonstrate the many ways that international human right law differed from State to State.  The different case studies go to prove that current domestic law in the European sphere isn’t always suited to deal with matters in a manner that primarily focuses on the rights of the victims.  This is especially seen in cases where domestic decisions end up being overturned by international courts such as the ECtHR. A proposed solution to this problem would be to impose a standard on States to follow when approaching cases of this nature.   This standard would be created with international human rights mechanisms and instruments in mind, thus eliminating a level of ambiguity found in domestic law when it comes to matters such as defining human trafficking or determining the existence of domestic servitude.  Therefore, when all domestic remedies have been exhausted and cases are elevated to an international level, they can be compared to cases that were investigated to the same standard.  It will be easier to fight human trafficking when governments look at the problem not just as a security threat requiring law and order, but also as a socioeconomic problem^[7], thus shifting the focus from the State to the victim.   By doing this, the rights of victims become a higher priority than the self-interests of States when, currently, international human rights law is more State-centred.

by Tya Gitanjali Raikundalia

References

Articles and Books

Androff D. K, ‘The Problem of contemporary slavery: An international human rights challenge for social work’ [2010] 54(2) International Social Work, 209-210

Fowler J, Che N, Fowler L, ‘Innocence Lost: The Rights of Human Trafficking Victims’ [2010] 2 Procedia Social and Behavioural Sciences

Kara S, ‘Designing more effective laws against human trafficking’ [2011] 9 Nw. U. j. Int’l. Hum. Rts. 123, 125

Nicholson A, ‘Reflections on Siliadin v France: Slavery and Legal Definition’ [2010] 14 International Journal of Human Rights 5

Shaver D and Zwaak L, ‘Rantsev v. Cyprus and Russia: Procedural obligations of third-party countries in human trafficking under Article 4 ECHR’ [2011] 4 Int. Am. And Eur. Hum. Rts. J. 118

Smith C. J. and Kangaspunta K, ‘Defining Human Trafficking and Its Nuances in a Cultural Context’ in John Winterdyk, Benjamin Perrin and Philip Reichel (eds), Human Trafficking: Exploring the International Nature, Concerns and Complexities) [Taylor & Francis Group 2012]

Legislation and Statutory Instruments

General Comment No 31.

Modern Slavery Act 2015

Palermo Protocol, Article 31, § 1

The European Convention on Human Rights

The UN Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children

Universal Declaration of Human Rights

Cases

C.N. v The United Kingdom(4293/08) [2012] 11 WLUK 355

J and Others v Austria (58216/12) [2017] ECHR 17

Rantsev v Cyprus and Russia (25965/04) [2010] 1 WLUK 30

Siliadin v France (73316/01) {2005] 7 WLUK 810

[1] Donald Shaver and Leo Zwaak, ‘Rantsev v. Cyprus and Russia: Procedural obligations of third-party countries in human trafficking under Article 4 ECHR’ [2011] 4 Int. Am. And Eur. Hum. Rts. J. 118

[2] C.N. v The United Kingdom (4293/08) [2012] 11 WLUK 355

[3] The POPPY Project provides support for women who are victims of trafficking and specialise in domestic servitude and sexual exploitation.

[4] Ibid 25, p20

[5] J and Others v Austria (58216/12) [2017] ECHR 17, p27

[6] Ibid, p92

[7] Jeana Fowler, Nicolette Che, Lindsay Fowler, ‘Innocence Lost: The Rights of Human Trafficking Victims’ [2010] 2 Procedia Social and Behavioural Sciences, 1348