C N v The United Kingdom, Application No. 4239/08, Judgment, 13 November 2012

By Dr Noelle Quenivet, ILHRU, UWE

C.N. is an Ugandan national who came to the United Kingdom on false documents to flee violence which she had experienced in her country. Whilst in the UK she lived with a relative, S., in London, was kept in his house, her documents were taken off her and she was told not to talk to anyone. She was employed with an agency providing carers but payments were made to S. She worked as a live-in carer for a couple who occasionally gave her presents whilst the money was transferred to the agency and a part of it to S. As the family went on holidays she stayed in one of S.’s houses but escaped to get in touch with the police. As she was in poor health she was in hospital and upon discharge was housed by the local authority. She then applied for asylum but her claim was denied. Upon her request, her case was investigated by the Metropolitan Police Human Trafficking Team which closed the case on the basis there was no proof of human trafficking.

The applicant submitted an application to the European Court of Human Rights in which the Aire Centre and the Equality and Human Rights Commission acted as third party interveners. The Equality and Human Rights Commission was particularly interested in the Court clarifying the definition of slavery. C.N. alleged violations of Articles 4, 8 and 13 of the Convention. As the Court found a violation of Article 4 it did not examine the Articles 8 and 13 claims.

After enunciating that Article 4 contains a non-derogable right, the Court reiterated its jurisprudence in relation to Article 4. First it appears that the treatment suffered by C.N. was not at the time of the dispute specifically criminalised in English law. Other available offences did not catch the essence of the acts prohibited under Article 4 (para. 76). In light of the Siliadin case (Siliadin v France, Application No. 73316/01, ECHR 2005-VII) which specified that the State was under the positive duty to penalise and prosecute slavery, servitude and forced or compulsory labour, English law was « inadequate to afford practical and effective protection » (para. 76). As a result the authorities could only investigate offences that accompany the offences of slavery, servitude and forced or compulsory labour. This has now been remedied with the introduction of Section 71 of the Coroners and Justice Act 2009 which came into force on 6 April 2010 and which makes slavery, servitude and forced or compulsory labour criminal offences punishable by a fine and/or up to 14 years’ imprisonment. No further cases should thus be brought before the ECtHR for lack of legislation covering acts in violations of Article 4.

As the government claimed the main reason for closing the investigation was the absence of evidence, the Court examined whether indeed the Police had properly investigated the case. Indeed under the Edwards jurisprudence the State is under a procedural obligation to investigate where there is a credible suspicion that an individual’s right has been violated (Paul and Audrey Edwards v. The United Kingdom, Application No. 46477/99, ECHR 2002-II). Whilst the Court accepted that it cannot « replace the domestic authorities in the assessment of the facts of the case » (para. 79) it can verify that the investigation was properly conducted. The Court understands the credibility concerns expressed by the government but notes that this is mainly due to the absence of specific legislation and the focus on trying to demonstrate a human trafficking offence. For example the investigators did not interview S. and did not make any use of the indicators of forced labour of the International Labour Organisation  despite the fact that the POPPY project (a project set up by the UK Government to support  victims of trafficking) concluded that C.N. had been subjected to five of the six ILO indicators. Consequently the investigation was ineffective (para. 81). 

This case must be welcome as a further step towards examining modern slavery in Europe that often takes the form of female migrants working in households as noted in the Siliadin case (para. 88). It is noteworthy that in the section entitled « relevant international law and practice » the Court lists and cites not only the ILO Forced Labour Convention but also two recommendations (1535 (2001) and 1663 (2004) of the Parliamentary Assembly of the Council of Europe, both dealing with new forms of slavery. It is remarkable that paras 5 and 6 of Recommendation 1535, adopted in 2001, so aptly and sadly describe C.N.’s situation in 2002-2006: passport confiscated, in an illegal situation, vulnerable to her employer (in this case a relative who exploited her via an agency) and in a situation bordering on imprisonment. 

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