6th Instance:

Court: The European Court of Human Rights

Date of decision: 26 October 2005

Reference: Application no. 73316/01

The victim S.S. alleged that the criminal-law provisions applicable in France did not afford her sufficient and effective protection against the “servitude” in which she had been held, or at the very least against the “forced or compulsory” labour she had been required to perform, replying on Article 4 of the European Convention on Human Rights (prohibition of slavery and forced labour).

On the other hand, the government contended that the victim could no longer claim to be the victim of a violation of the Convention within the meaning of Article 34 because the victim afforded sufficient redress for the violation alleged by her and awards in respect of unpaid wages and benefits, her immigration status had been regularized and she had received a residence permit. However, the victim argued that the government provided only a civil remedy and that Articles 225-13 and 225-14 of the Criminal Code were so open and elusive that the victim had not been secured effective and sufficient protection against the practices to which she had been subjected.

The European Court of Human Rights (ECtHR) examined as follows;

(1) Applicability of Article 4 and the positive obligations: after considering relevant international legal instruments, the Court found that limiting compliance with Article 4 of the Convention only to direct action by the State authorities would be inconsistent with the international instruments and would amount to rendering it ineffective. Thus, it concluded that States have positive obligations to adopt criminal-law provisions which penalize the practices referred to in Article 4 and to apply them in practice.

(2) Alleged violation of Article 4: the Court examined whether the victim’s situation fell within Article 4 of the Convention.

(a) Forced or compulsory labour: referring to the 1930 Forced Labour Convention, the term “forced or compulsory labour” shall mean “all work or service which is exacted from any person under the menace of any penalty and for which the said person has not offer himself voluntarily.” It found that although the victim was not threatened by a “penalty”, the fact remains that she was in an equivalent situation in terms of the perceived seriousness of the threat and that she was not given any choice but to work. Thus, the Court considered that the victim was subjected to forced labour within the meaning of Article 4 of the Convention.

(b) Slavery: referring to the 1927 Slavery Convention defining that “slavery is the status or condition of a person over whom any or all of the powers attaching to the right of ownership are exercised,” the Court found that the evidence did not suggest that Mr and Mrs B. exercised a genuine right of legal ownership over the victim.

(c) Servitude: in the light of the relevant case-law, the Court found that it means an obligation to provide one’s service that is imposed by the use of coercion, and is to be linked with the concept of “slavery.” Given the victim’s situation, the Court was of the opinion that she was held in servitude within the meaning of Article 4 of the Convention.

On whether the impugned legislation and its application in the case had such significant flaws as to amount to a breach of Article 4, the Court noted that slavery and servitude were not as such classified as offences under French criminal law as Articles 225-13 and 225-14 of the Criminal Code did not deal specifically with the rights guaranteed under Article 4 of the Convention. Thus, the victim who was subject to treatment contrary to Article 4 and held in servitude was not able to see those responsible for the wrongdoing convicted under the criminal law. Moreover, the Principle Public Prosecutor did not appeal against the Court of Appeal’s judgment, so the Court of Cassation concerned only the civil aspect of the case.

Finally, the Court concluded that the criminal-law legislation in force at the material time did not afford the victim practical and effective protection against the actions of which she was a victim.

According to Article 41 of the Convention, the Court ordered the government to pay EUR 26,209.69 in respect of costs and expenses, plus the taxes that may be chargeable.