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Press Release: CN & V. v FRANCE

19 October 2012

European Court of Human Rights condemns failure to punish human traffickers

The AIRE Centre is pleased to announce that the European Court of Human Rights has delivered its judgment in the case of C.N. and V. v France (application no.67724/09), in which the AIRE Centre intervened as a third party.

The case concerned allegations of children held in servitude or forced or compulsory labour, in violation of the prohibition encapsulated in Article 4 of the European Convention on Human Rights. Article 4 is particularly important as it ‘enshrines one of the basic values of a democratic society”.  Despite the apparently large numbers of cases of victims of these practices, Article 4 is rarely invoked, making this an important judgment for victims.

Under Article 4 of the Convention, States have positive obligations, ‘for example, to adopt criminal-law provisions which penalise the practices referred to in Article 4 and to apply them in practice’ (Siliadin, §89). Therefore, States can be held responsible for a violation of Article 4 if they fail to protect effectively  victims of slavery, servitude or forced or compulsory labour. (C.N. and V. v France, §69; Rantsev v. Cyprus and Russia (no 25965/04, CEDH 2010 (extracts)), §284-288.)

The AIRE Centre placed information before the Court on the notion of ‘control’ in the forced labour context, arguing that this notion is a crucial element, common to every form of exploitation under Article 4.  to the AIRE Centre also highlighted the need to interpret States’ obligations under Article 4 in a particular way when dealing with cases of children, pointing to the psychological aspects of this ‘control’, as it is exercised in relation to the vulnerability of the victim.  The Court’s analysis reflects the AIRE Centre’s position and represents a significant advance in our understanding of what kind of treatment triggers States’ obligations under Article 4.

 More about the case

C.N. and V. are sisters,  born in 1978 and 1984 (respectively) in Burundi. They left their country following the 1993 civil war, during which their parents were killed, and were taken to France by their aunt and uncle.

C.N. and V. were made to live in the basement of their aunt and uncle’s house, where they lived in unhygienic conditions, and not being provided bathroom facilities, were forced to use a makeshift toilet. C.N., the oldest sister, was never sent to school and did not receive any training. She was forced to stay at home everyday in order to complete household and domestic chores, including taking care of the couple’s disabled son. V. went to school and was allowed to do her homework when she returned, but was then required to help her sister carry out all household chores. Neither received any remuneration or any leave. Their aunt regularly threatened to send them back to Burundi, and constantly subjected them to physical and verbal harassment.

In 1995, an investigation by the French child protection team was carried out, following a report on children in danger, which had been submitted by the social action department to the public prosecutor. However, no further action was taken. In 1999, an NGO drew the attention of the public prosecutor’s office to the applicant’s situation, a judicial investigation was opened, and the diplomatic immunity enjoyed by their uncle  – a former Burundi government minister, and their aunt - a UNESCO employee, was lifted.

In September 2007, the State’s Criminal Court found the applicant’s aunt and uncle guilty of having subjected the individuals concerned to working and living conditions that were incompatible with human dignity by taking advantage of their vulnerability or state of dependence, and found against the victims’ aunt for of aggravated assault. However, in June 2009, the Court of Appeal invalidated the decision, finding only that Mrs M. was guilty of aggravated assault against V. The public prosecutor did not appeal any of the points of law in the judgment, and on June 2010, the Criminal Division of the Court of Cassation dismissed any appeals on points of law lodged by the parties.

In deciding whether C.N. and V. were victims of servitude or forced or compulsory labour, the European Court of Human Rights reiterated the meaning of ‘forced or compulsory labour’ under Article 4(2). As the Court stated in Siliadin (supra, § 116) and Van der Mussele v. Belgium (23 November 1983, § 32, series A no. 70), the term ‘forced or compulsory labour’ means ‘all work or service which is exacted from any person under the menace of any penalty and for which the said person has not offered himself voluntarily’. Therefore, when deciding whether the applicants are victims of forced or compulsory labour, the Court examines two questions: 1) Did the applicant perform the work against his will? 2) Was the work required under the menace of any penalty?

The case of C.N and V. v France is an important addition to the Court’s case-law in this regard, as the Court does not simply answer these questions, but provides clarification of the notion of ‘work’ under Article 4 of the Convention. The Court stated that:

‘any work or service which is exacted from any person under the menace of any penalty and for which the said person has not offered himself voluntarily is not necessarily forced or compulsory labour under Article 4 of the Convention. It is appropriate to take into account, among other things, the nature and volume of activity. These circumstances distinguish a "forced labour" of work which could reasonably be required in respect of mutual family assistance or cohabitation’ (§74).

As for concept of the ‘menace of any penalty’, the Court stated that the notion of ‘penalty’ is to be understood in a broad sense, including a psychological aspect. In this case, C.N. performed work under the threat of being sent back to Burundi, a country that was synonymous for her with the death and abandonment of her young sisters. The Court found that being sent back to Burundi was considered by C.N. as a penalty (§78). The Court therefore concluded that she had been subjected to ‘forced or compulsory work’ within the meaning of Article 4 (2).

The Court went on to consider the existence of ‘servitude’ within the meaning of Article 4(1), by clarifying this notion and the difference with ‘forced labour’. The Court stated that ‘servitude’ must be regarded as ‘aggravated’ forced or compulsory labour, based on the fact that it was impossible for the individual concerned to change his or her situation. In the present case, the essential feature distinguishing servitude from forced or compulsory labour was the victim’s feeling that her condition could not be altered and that there was no potential for change (§90-94).

Finally, the Court reiterated that Article 4 of the Convention involved positive obligations for States (Siliadin, § 89), including putting in place an adequate legislative and administrative framework to combat servitude and forced labour effectively. In the Siliadin case, the Court found that there had been a violation of the State’s positive obligation. However, there had been no change in the French legislative and administrative framework to combat servitude and forced labour effectively. Moreover, it seems that France had not drawn any lessons from the previous case, as, in addition to not having changed its legislative framework, the public prosecutor did not appeal on points of law against the Court of Appeal’s judgment of 29 June 2009, having the effect that the appeal to the Court of Cassation had concerned only the civil aspect of the case, just as had occurred in the Siliadin case.

Nonetheless, the Court put emphasis on the growing level of demand for the protection of human rights, involving a greater firmness in assessing breaches of the fundamental values​​ (§106-108). Therefore, as in the Siliadan case, the Court concluded that there has been a violation of France’s positive obligations under Article 4 of the Convention.

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