The European Court of Human Rights condemns the Croatian Government for failure to hold effective investigation into allegation of human trafficking and exploitation of prostitution. 

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The European Court of Human Rights condemns the Croatian Government for failure to hold effective investigation into allegation of human trafficking and exploitation of prostitution

Facts : The applicant lodged a criminal complaint against a certain T.M., a former policeman, alleging that in the period between the summer of 2011 and September of the same year he had physically and psychologically forced her into prostitution. T.M. was subsequently indicted on charges of forcing another to prostitution, as an aggravated offence of organising prostitution. In 2013 the criminal court acquitted T.M. on the grounds that, although it had been established that he had organised a prostitution ring in which he had recruited the applicant, it had not been established that he had forced her into prostitution. He had only been indicted for the aggravated form of the offence at issue and thus he could not be convicted for the basic form of organising prostitution. The State Attorney’s Office appeal against the decision was dismissed and the applicant’s constitutional complaint was declared inadmissible.

Law – Article 4 : The trafficking and exploitation of prostitution threatened the human dignity and fundamental freedoms of its victims and could not be considered compatible with a democratic society and the values expounded in the Convention. It was considered unnecessary to identify whether the treatment of which the applicant complained constituted “slavery”, “servitude” or “forced and compulsory labour”. Instead, it was concluded that trafficking itself as well as exploitation of prostitution – within the meaning of Article 3(a) of the Palermo Protocol, Article 4 (a) of the Council of Europe Convention on Action against Trafficking in Human Beings (Anti-Trafficking Convention), Article 1 of the UN Convention for the Suppression of the Traffic in Persons and the Exploitation of the Prostitution of Others and the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) – fell within the scope of Article 4. In this connection it was irrelevant that the applicant was actually a national of the respondent State and that there was no international element since Article 2 of the Anti-Trafficking Convention encompassed “all forms of trafficking in human beings, whether national or transnational” and the Convention for the Suppression of the Traffic in Persons and the Exploitation of the Prostitution of Others referred to exploitation of prostitution in general.

The Court noted that the applicant’s complaints had 3 aspects and assessed them separately:

▶ Whether there was an appropriate legal and regulatory framework. 

Prostitution in Croatia was illegal. Both exploitation of prostitution including forced prostitution, as the aggravated form of the former, and personal offering of sexual services were criminalised. The criminal offences of trafficking in human beings, slavery, forced labour and the criminal offence of pandering were prohibited. The consent of a victim was irrelevant for the existence of the criminal offence of trafficking in human beings and since 2013 the same was expressly stated in Criminal Code for pandering. Furthermore, since 2013 purchase of sexual services constituted a criminal act. Prosecution in respect of all of the above offences was undertaken by the State Attorney’s Office. The Croatian Code of Criminal Procedure also contained provisions on the rights of victims of criminal offences and in particular the victims of offences against sexual freedom. Further to this, the Croatian Government had adopted various strategic documents aimed at preventing and combating trafficking in human beings and had established specialised teams designated with providing assistance to the victims of trafficking in human beings. The Court was therefore satisfied that at the time the alleged offence had been committed and prosecuted there was an adequate legal framework in Croatia for its examination within the context of trafficking in human beings, forced prostitution and exploitation of prostitution.

▶ Support given to the applicant. 

The applicant had never objected to or brought any complaint as to the conduct of the national authorities, including the court conducting the criminal proceedings against T.M., or any other authority, or any complaint whatsoever concerning her rights as a victim of human trafficking, or concerning the assistance, support and any form of counselling provided to her or the lack of it. During the trial the applicant had been informed of the possibility to contact the Department for Organising and Providing Support for Witnesses and Victims within the criminal court. There was no evidence that the applicant had contacted the said Department. In those circumstances the Court accepted that the applicant had indeed been provided with the support and assistance as submitted by the Government. That included in the first place recognition of her status as a victim of human trafficking. As such she had been provided counselling by the Croatian Red Cross and free legal assistance through the State-funded programme carried out by a non-governmental organisation. Furthermore, immediately upon the applicant’s request the accused had been removed from the courtroom and the applicant had given evidence in his absence.

▶ Whether the State authorities complied with their procedural obligations.

The police and the prosecuting authorities had acted promptly, in particular in carrying out searches of T.M.’s premises, interviewing the applicant and indicting T.M. On the other hand the only witnesses interviewed during the investigation and heard at the trial were the applicant herself and her friend. Whereas it was true that her friend had not entirely corroborated the applicant’s statement, there was indication that it was her friend’s mother and not her friend to whom the applicant had turned for help and with whom she had spoken on the telephone on the day she had fled. Immediately after having run from T.M., the applicant had spent several months with her friend and the latter’s mother. However, the investigating authorities had not obtained a statement from the mother. Likewise, they had not interviewed her friend’s boyfriend, who had driven her to her friend’s flat. Those elements demonstrated that the national authorities had not made a serious attempt to investigate in depth all relevant circumstances and gather all the available evidence. They had not made further attempts to identify the applicant’s clients and interview them. They also had not heard evidence from the applicant’s mother, the landlord and neighbours of the applicant and T.M., all of whom could have had some relevant knowledge of the true relationship between the applicant and T.M., alleged beatings and locking her up in the apartment.

There was no indication that the national authorities had made a serious attempt to investigate in depth the following circumstances, which all had been relevant for assessing whether T.M. had forced the applicant into prostitution: the applicant’s allegations of being economically dependent on T.M. and of various forms of coercion he had allegedly used against her, such as stressing being a former policeman who had “an arsenal of weapons”, making threats of hurting her family and manipulating her with false promises that he would find her a “proper job”, as well as her friend’s statement that the applicant had been very distressed and scared of T.M. who had continued to threaten her through social media network after she had fled. It appeared that no consideration had been given to the fact that during the search of T.M.’s premises the police had found several pieces of automatic rifles. The national courts had not given adequate attention to those elements and concluded that the applicant had given sexual services voluntarily. Furthermore, according to Croatian law, the United Nations Convention for the Suppression of the Traffic in Persons and the Exploitation of the Prostitution of Others and the Council of Europe Anti-trafficking Convention, the consent of the victim was irrelevant. In addition, the national courts had dismissed the applicant’s testimony as unreliable and incoherent, given that she had been unsure, paused and hesitated when speaking. The national authorities had not made any assessment of the possible impact of psychological trauma on the applicant’s ability to consistently and clearly relate the circumstances of her exploitation. Given the vulnerability of the victims of sexually-related offences, the encounter with T.M. in the courtroom could have had an adverse effect on the applicant, regardless of T.M being subsequently removed from the courtroom.

In sum, the relevant State authorities had not fulfilled their procedural obligations under Article 4 of the Convention.

Conclusion: violation (six votes to one).

Article 41 : EUR 5,000 in respect of non-pecuniary damage.

This case “S.M. v. Croatia” was first judged by a Chamber of the European Court of Human Rights, on 19th July 2018. The Court held a Grand Chamber hearing in the case of “S.M. v. Croatia” on 15th May 2019. This case is now being deliberated.

Learn more : Case of the European Court of human Rights, 19th July 2018.