Case: J. and Others v. Austria
Judgement date: 17 January 2017
Topic: Trafficking in human beings
Aspect: Obligation on States to protect the victims of trafficking

Summary of the facts:
This case concerned the Austrian authorities’ investigation into an allegation of human trafficking. The applicants, two Filipino nationals, who had gone to work as maids or au pairs the United Arab Emirates, alleged that their employers had taken their passports away from them and exploited them. They claimed that this treatment had continued during a short stay in Vienna where their employers had taken them and where they had eventually managed to escape. Following a criminal complaint filed by the applicants against their employers in Austria, the authorities found that they did not have jurisdiction over the alleged offences committed abroad and decided to discontinue the investigation into the applicants’ case concerning the events in Austria. The applicants maintained that they had been subjected to forced labour and human trafficking, and that the Austrian authorities had failed to carry out an effective and exhaustive investigation into their allegations. They argued in particular that what had happened to them in Austria could not be viewed in isolation, and that the Austrian authorities had a duty under international law to investigate also those events which had occurred abroad.

Summary of the Court's findings:
The Court, finding that the Austrian authorities had complied with their duty to protect the applicants as (potential) victims of human trafficking, held that there had been no violation of Article 4 (prohibition of forced labour) and no violation of Article 3 (prohibition of inhuman or degrading treatment) of the Convention. It notably noted that there had been no obligation under the Convention to investigate the applicants’ recruitment in the Philippines or their alleged exploitation in the United Arab Emirates, as States are not required under Article 4 of the Convention to provide for universal jurisdiction over trafficking offences committed abroad. Turning to the events in Austria, the Court concluded that the authorities had taken all steps which could have reasonably been expected in the situation. The applicants, supported by a  government-funded NGO, had been interviewed by specially trained police officers, had been granted residence and work permits in order to regularise their stay in Austria, and a personal data disclosure ban had been imposed for their protection. Moreover, the investigation into the applicants’ allegations about their stay in Vienna had been sufficient and the authorities’ resulting assessment, given the facts of the case and the evidence available, had been reasonable. Any further steps in the case – such as confronting the applicants’ employers – would not have had any reasonable prospect of success, as no mutual legal assistance agreement existed between Austria and the United Arab Emirates, and as the applicants had only turned to the police approximately one year after the events in question, when their employers had long left the country.

The facts:
I. THE CIRCUMSTANCES OF THE CASE
5. The first and second applicants were born in 1984 and 1982 respectively and live in Vienna. The third applicant was born in 1972 and lives in Switzerland.
6. The following summary of the background of the case and the events in Austria is based on the submissions by the applicants. The account of the investigation in Austria is based on the submissions by both parties.
A. Background of the case
7. The applicants are all nationals of the Philippines. The first and third applicants were recruited in 2006 and 2009 respectively by an employment agency in Manila to work as maids or au pairs in Dubai (United Arab Emirates). The second applicant travelled to Dubai in December 2008 for the same purpose, at the suggestion of the first applicant, not via an agency. All of the applicants had their passports taken away by their employers. During the course of their work in Dubai, they allege that they were subjected to ill-treatment and exploitation by their employers, who also failed to pay them their agreed wages and forced them to work extremely long hours, under the threat of further ill-treatment.
1. The first applicant
8. In late 2006 the first applicant contacted an agency in Manila in order to find a job abroad. She is a single mother with one daughter who was eight months old at the time. She signed a contract in which she agreed to work for a family in Dubai for two years, from December 2006 until December 2008. The contract also stipulated that she would be paid 700 United Arab Emirates dirhams (AED – approximately 150 euros (EUR) at that time) per month to work for eight hours each working day. Upon her arrival in Dubai the first applicant was taken to her employers, who were two sisters or sisters-in-law sharing one large residence with their families. One of them took possession of her passport.
9. For most of the initial two-year contract the first applicant was not subjected to physical abuse or direct threats of harm by her employers, and she was paid regularly. However, she had to work from 5 a.m. to midnight throughout the initial two-year period. Her duties included looking after her employers’ children, preparing meals, cleaning the house, doing the laundry and numerous other jobs around the house and garden. During the first nine months she was required to perform this work seven days per week without a single day off, and was not allowed to leave the house unsupervised. She was not allowed to have her own telephone and was only allowed to call her family in the Philippines once a month, the costs of these calls being deducted from her wages. Further, the first applicant was forbidden from speaking to any of the other workers from the Philippines in their native language. She was constantly hungry, as she was generally only given the family’s leftover food. Only when she accompanied the family to the supermarket approximately once a month was she allowed to buy some basic food for herself.
10. After approximately nine months, the first applicant faced the first punishments by her employers. She was forced to sleep on the floor when they found out that she had been talking to another employee from the Philippines in their native language. When she became ill after sleeping on the cold floor, her employers prevented her from buying medicine or contacting a doctor; instead, she had to continue working the same hours.
11. Towards the end of her two-year contract, the first applicant’s employers informed her that they wished her to stay, and offered her better pay, more days off and a telephone of her own, as well as permission to visit her family, provided that she recruited someone to take over her job while she was away. The first applicant finally agreed to extend her contract and returned to the Philippines for three months. Owing to the incentives and the prospect of improved working conditions, she asked the second applicant to take over her role in Dubai during the time she was away.
12. While the first applicant was in the Philippines, she received threats from her employers that if she did not return to Dubai to work, she would be banned from ever going back there, and the second applicant would be subjected to ill-treatment. The first applicant therefore returned to Dubai in April 2009.
13. After she returned to Dubai, she was taught how to drive. After she failed her first driving test, she was forced to pay for further lessons and tests out of her own salary, with four further driving tests costing AED 700 each, a month’s salary. While she was driving, one of her employers hit her on the shoulder on a number of occasions to force her to speed up. The employer also started to slap or hit her regularly for no or little reason. She also repeatedly threatened to let her husband hit the first applicant if she did not follow her orders or made any mistakes.
14. The first applicant accompanied her employers on trips to Europe, Australia, Singapore and Oman, where she spent significant amounts of time locked up in hotel rooms or under the close supervision of her employers. She only had to visit one embassy in person to obtain entry documents, and that was in relation to a trip to London, at which time she was ordered by her employers to lie about her work conditions. When they arrived in London, the first applicant was not allowed at any time to leave the apartment in which they were staying.
2. The second applicant
15. The second applicant was married with three young children in the Philippines. Her husband had no regular work. Because she expected better pay in Dubai, she agreed to work for the same employers as the first applicant. The employers in Dubai arranged a visiting visa for her, under false pretences. As a result of this arrangement, the second applicant did not approach the employment agency in the Philippines and did not have a written contract with her employers. Her understanding was that she would get AED 700 per month, which would be paid directly to her family in the Philippines.
16. In December 2008 the second applicant started to work in Dubai. After the first applicant returned to the Philippines for three months in January 2009 (see paragraph 11 above), the employers significantly changed their conduct towards the second applicant. They threatened not to pay her family if she made any mistakes. They refused to let her leave Dubai, including by refusing to return her passport and ordering her to repay them her travel costs and related expenses. They also told her that she would be put in prison if she ran away or went to the authorities in Dubai for help. They physically and emotionally abused her, and there was one incident when one of her employers struck her across the shoulder using significant force. She was also forced to work from around 5 or 6 a.m. until midnight or 1 a.m. the following day.
17. Between April 2009 and June 2010 the violent and threatening behaviour of the employers increased. The second applicant was punched by one of her employers on one occasion, and in another incident the employer aimed a hard slap at her face, but instead struck her across the shoulder.
3. The third applicant
18. The third applicant’s family were desperate for money to pay for crucial medical treatment for her brother. Therefore, in 2009 she contacted an employment agency in the Philippines and was offered work as a maid in Dubai. She was informed that she would be earning between AED 800 and 1,000 (approximately EUR 160 to 200 at that time) per month, roughly twice her salary in the Philippines. Upon her arrival in Dubai in 2009 she had to hand over her passport and mobile phone to someone supposedly working for the employment agency. She was told that these items would be returned to her when she finished her work in Dubai.
19. The third applicant was working for a family member of the first and second applicants’ employers. The applicants got to know each other, as the two families met every Friday. They secretly shared their experiences on these occasions.
20. The third applicant was also bound by working hours going from 6 a.m. to midnight. Her employer forced her to clean her car in the sun and in unbearable heat, and she was prohibited from going to the toilet without letting her employer know. She was only allowed to call her family in the Philippines once a month, and only in the presence of her employer. She did not receive any remuneration at all for the first three months of her employment. Afterwards, she only received approximately AED 750 per month, less than what had been agreed. On one occasion she was slapped by her employer, and on a different occasion she witnessed another employee being hit over the head.
21. When the third applicant told her employer that she wished to return to the Philippines, she was told that she would have to pay the cost of the flight and the agency fees, which her employer knew she could not afford at that point. Her employer also made it clear that, in any event, her passport would not be returned to her until she had completed at least nine months of work in Dubai. Subsequently, the third applicant was too scared to ask to leave Dubai again, owing to her fear that her employer would take her earnings from her or refuse to return her passport for an even longer period.
B. Events in Austria
22. On 2 July 2010 the applicants’ employers took them along on a short holiday trip to Austria. The applicants all stayed at the same hotel in the city centre of Vienna. The applicants slept in their own, separate apartment together with the female children. The male children slept in the same apartment as their parents. As in Dubai, the applicants had to take care of all of the employers’ children and perform numerous other domestic duties. They were still required to work from approximately 5 or 6 a.m. until midnight or even later. The third applicant was regularly shouted at by her employer, for example if she failed to get all the children ready early every morning. In addition, their employers woke the first applicant up at around 2 a.m. and forced her to cook food for them. Furthermore, the first applicant was forced to carry the employers’ twenty suitcases into the hotel by herself. While the applicants were in Austria, their passports remained with their employers. In the hotel in Vienna in which the applicants were staying, they became acquainted with N., an employee at the hotel who could speak Tagalog, the first applicant’s mother tongue.
23. When the applicants accompanied their employers to a zoo one or two days after their arrival in Austria, one of the children went missing for some time. One of the employers started screaming at the first and third applicants in a manner which the applicants had not experienced before. The first applicant found the level of verbal abuse extreme, and this was a particularly distressing and humiliating experience for her. The employer threatened to beat the third applicant, and said that “something bad” would happen to her if the child was not found safe and well. By this stage, the third applicant had formed the impression that this employer, of whom she lived in a constant state of fear, was a dangerous person who might try to hurt her very badly. She had the feeling that the violence towards her was likely to escalate at any time. Therefore, she believed that something bad was going to happen to her if she remained with the family. Similarly, the first applicant believed that they could not live with their conditions of work any longer, and did not want to risk waiting to see what happened if they travelled with their employers from Vienna to London, as they were scheduled to do. The applicants therefore decided to speak to N., the Tagalog-speaking employee at the hotel, to see whether she could help them.
24. The night following the incident – that is, two or three days after their arrival in Austria – the applicants left the hotel with the help of N., who had organised a car to pick them up in a side street near the hotel and take them to a “safe place”. The applicants subsequently found support within the local Filipino community in Vienna.
C. Proceedings in Austria
1. Criminal proceedings against the applicants’ employers
25. In April or May 2011, approximately nine months after they had left their employers, the applicants contacted a local NGO called “LEFÖ” for assistance in reporting their ill-treatment, abuse and exploitation to the police. LEFÖ is actively involved in the fight against trafficking in human beings in Austria. It is financed though government funds, in particular for the provision of assistance to victims of trafficking. In July 2011 the applicants decided to turn to the Austrian police and filed a criminal complaint ( Strafanzeige ) against their employers. They explained that they had been the victims of human trafficking. On 11 and 21 July and 17 August 2011, accompanied by representatives of LEFÖ, they were interviewed at length by officers from the Office to Combat Human Trafficking ( Büro für Bekämpfung des Menschenhandels ) at the Federal Office of Criminal Investigations ( Bundeskriminalamt ). In their report, the officers concluded that the offences had been committed abroad.
26. The applicants were informed that their employers had also made allegations about their conduct, alleging, inter alia, that they had stolen money and a mobile phone from them when they had fled the hotel. Those allegations were subsequently formally recognised by the Austrian authorities as false. The applicants all expressed their willingness to actively cooperate with the authorities and to engage in criminal proceedings against their employers.
27. On 4 November 2011 the Vienna public prosecutor’s office ( Staatsanwaltschaft Wien ) discontinued the proceedings under Article 104a of the Criminal Code ( Strafgesetzbuch – hereinafter “the CC”) relating to human trafficking (see paragraph 35 below), pursuant to Article 190 § 1 of the Code of Criminal Procedure ( Strafprozessordnung – hereinafter “the CCP” – see paragraph 36 below). On 14 November 2011 the public prosecutor gave a short written decision with reasons for the discontinuation of the proceedings. In the public prosecutor’s view, the offence had been committed abroad by non-nationals, and did not engage Austrian interests within the meaning of Article 64 § 1 (4) of the CC.
28. On 30 November 2011 the applicants lodged an application to continue the investigation ( Fortsetzungsantrag ) with the Vienna Regional Criminal Court ( Straflandesgericht Wien ). They submitted that Austrian interests had indeed been engaged, and that their employers had continued to exploit and abuse them in Austria. In their view, the elements of the crime punishable under Article 104a § 1 (2) of the CC had been present.
29. The Vienna public prosecutor’s office then submitted a statement to the Vienna Regional Criminal Court, specifying its reasons for discontinuing the investigation. There had been no indication in the case file that any of the criminal actions exhaustively listed in Article 104a of the CC had occurred in Austria, particularly since the offence had already been completed in Dubai ( zumal das Delikt bereits in Dubai vollendet wurde ), and the accused were not Austrian citizens. Furthermore, from the applicants’ statements (looking after children, washing laundry, cooking food), it did not appear that they had been exploited in Austria, especially since they had managed to leave their employers only two to three days after their arrival in Vienna.
30. On 16 March 2012 the Vienna Regional Criminal Court dismissed the applicants’ application. The relevant parts of the decision read (translation from German):
“The decision to discontinue [criminal proceedings] requires – by implication – that the facts of a case are sufficiently clear, or a lack of indication that investigations would be promising.
There is no reason for further prosecution if, on the basis of the ... results of the investigation, a conviction is no more likely than an acquittal ...
According to Article 64 § 1 (4) of the CC, if Austrian interests have been harmed by the offence or the perpetrator cannot be extradited, Austrian criminal laws apply independently of the criminal laws of the place where the crime was committed, for example in relation to the offence of kidnapping for ransom under Article 104a of the CC. Owing to the fact that the applicants spent approximately three days in Vienna, the conditions regarding the fulfilment of the elements of the crime under Article 104a § 1 (2) of the CC have not been met, since the relevant acts relating to the exploitation of labour must be committed over a longer period of time; therefore, the commission of the offence in Austria is ruled out.
The jurisdiction of the Austrian criminal-law enforcement authorities cannot be deduced from Article 64 § 1 (4) of the CC either.
Austrian interests are engaged if either the victim or the perpetrator is an Austrian citizen, or if the criminal acts have a concrete connection to Austria, or if an obligation arises under international law in relation to the prosecution of certain offences. Austrian interests are, in any event, engaged if a criminal offence under Articles 102, 103, 104 or 217 of the CC is committed against an Austrian citizen, or if Austrian funds or Austrian securities ( Wertpapiere ) are the subject of offences under Article 232, or Article 237 in conjunction with Article 232, of the CC.
The applicants’ argument that the elements of the crime under Article 104a of the CC had also been fulfilled in Austria therefore fails, and the plea that the alleged criminal actions against them by their employers in Dubai ... would lead to an obligation on the part of Austria under international law is likewise not convincing. In relation to the present case, [this latter argument] also cannot be inferred from the quoted [Supreme Court] judgment no. 11 Os 161/81, which affirmed that Austrian interests had been damaged as a result of the import into Austria of a large amount of narcotics for transport...”
This decision was served on the applicants’ counsel on 23 March 2012.
2. Civil proceedings against the applicants’ employers
31. In January 2013 two of the three applicants lodged a civil claim against their employers with the Vienna Labour and Social Court ( Arbeits ‑ und Sozialgericht ) in order to claim their wages. However, they alleged that because of the high risk of having to pay the costs of the proceedings because the employers did not reside in Austria, they withdrew the action.
3. Proceedings concerning the applicants’ residence permits
32. The NGO LEFÖ not only assisted the applicants in filing a criminal complaint against their employers, but also supported them in applying for a special residence permit in Austria for victims of human trafficking, under the former section 69a of the Residence Act ( Niederlassungs - und Aufenthaltsgesetz – see paragraph 46 below).
33. All three applicants were granted a residence permit for special protection purposes in January 2012, valid for one year initially. Subsequently, because of their progressing integration, they were granted other types of residence permits with longer periods of validity.
34. The applicants were officially registered in the Central Register ( Melderegister ) from the point when LEFÖ started supporting them. A personal data disclosure ban was enacted on the Central Register for their protection, so that their whereabouts would not be traceable by the general public.

Relevant law and the Court's assessment:
II. RELEVANT DOMESTIC AND INTERNATIONAL LAW AND PRACTICE
A. Domestic law and practice
35. Article 104a of the CC, entitled “Human trafficking”, as in force at the relevant time, reads:
“(1) Any person who recruits, houses or otherwise accommodates, transports or offers, or passes on to a third party:
1. a minor (under 18 years of age); or
2. an adult, using dishonest means (paragraph 2) against this adult;
with the deliberate intention of sexual exploitation of the minor or adult, exploitation through organ transplant, or labour exploitation, shall be punished by a prison sentence of up to three years.
(2) Dishonest means are defined as: deceit regarding the facts; exploitation of authority, situations of distress, mental disease or any condition rendering the person defenceless; intimidation; or the granting or accepting of an advantage for surrendering control over that person.
(3) A person who commits this criminal act using force or severe threats shall be punished by a prison sentence of a minimum of six months up to five years.
(4) ...”
36. Article 190 of the CCP reads in its relevant parts:
“The public prosecutor’s office shall refrain from pursuing the prosecution of an offence and shall discontinue the investigation if
1. the facts on which the investigation is based cannot be punished under criminal law, or if the further prosecution of the accused is inadmissible for legal reasons ...”
37. Article 193 § 2 of the CCP reads in its relevant parts:
“(2) The public prosecutor’s office may order the continuation of a criminal investigation which had been discontinued pursuant to Articles 190 or 191 [of the CCP] as long as the criminal liability for the offence is not time-barred and if
1. the accused has not been questioned in relation to this offence ... and no coercive measures have been taken against him ...”
38. Article 197 § 1 of the CCP reads:
“If the accused has absconded or his whereabouts are unknown, the investigation must continue in so far as it is necessary to secure traces and evidence. In this case, investigative measures and the taking of evidence, in which the accused has the right to participate ... may be carried out even in his absence. An order may be issued for the determination of the accused’s whereabouts or for his arrest. Thereafter, the public prosecutor’s office must stay the investigation and continue it after the accused has been located.”
39. Article 210 of the CCP provides that if a conviction is likely on the basis of sufficiently clarified facts, and if there are no reasons to discontinue the proceedings or withdraw the prosecution, the public prosecutor’s office has to file an indictment ( Anklage einbringen ) with the competent court.
40. Article 64 of the CC, as in force at the relevant time, provided that offences which were committed abroad could be punishable under Austrian law, inter alia, under the following conditions:
“(1) Austrian law applies irrespective of the law of the country where the crime was committed in respect of the following offences:
...
4. ... slavery (Article 104), human trafficking (Article 104a), ... if Austrian interests are engaged by this offence or the offender cannot be extradited.”
According to Austrian legal practice, Austrian interests are engaged if either the offender or the victim is an Austrian citizen, or the offence has a connection to Austria, or there is an obligation under international law (see Supreme Court judgments in case no. 13 Os 105/03, 24 September 2003, and case no. 15 Os 37/03, 27 March 2003). On 9 December 1981 the Austrian Supreme Court decided in case no. 11 Os 161/81, which concerned the transport and import of narcotics to Austria, that Austrian interests were in any event engaged if narcotics were brought to Austria, even though it was only for a short time. Moreover, the Supreme Court referred to a duty under international law to combat the transport of drugs.
41. Article 363a of the CCP, under the heading “Renewal of criminal proceedings” ( Erneuerung des Strafverfahrens ), provides:
“1. If it is established by a judgment of the European Court of Human Rights that there has been a violation of the Convention for the Protection of Human Rights and Fundamental Freedoms (Official Gazette [ Bundesgesetzblatt ] no. 210/1958) or one of its Protocols on account of a decision or order of a criminal court, a retrial shall be held upon request, in so far as it cannot be ruled out that the violation might have affected the decision in a manner detrimental to the person concerned.
2. All applications for the renewal of proceedings shall be decided by the Supreme Court. Such an application may be filed by the person affected by the violation or the Prosecutor General’s Office; Article 282 § 1 shall be applicable by analogy. The application must be lodged with the Supreme Court. If the Prosecutor General’s Office has lodged an application, the person affected must be heard; if the person affected has lodged an application, the Prosecutor General’s Office must be heard; Article 35 § 1 shall be applicable by analogy.”
42. On 1 August 2007 (in case no. 13 Os 135/06m) the Supreme Court allowed an application for the renewal of criminal proceedings under Article 363a of the CCP, where the applicant had not previously filed a human rights complaint with the Court. In so far as relevant, the Supreme Court stated:
“Given that Article 13 of the Convention requires a Contracting State to provide any person who shows with some plausibility that there has been a violation of his or her rights under the Convention and its Protocols with an effective remedy, in other words to ensure that there is a court at domestic level which examines questions of whether there has been a violation of Convention rights, Article 363a § 1 of the CCP must not be interpreted so as to allow an application for the renewal of criminal proceedings only in those cases where the European Court of Human Rights has already issued a judgment finding a violation of the Convention.”
For an extensive summary of the Supreme Court judgment, see ATV Privatfernseh -GmbH v. Austria (( dec. ), no. 58842/09, § 19, 6 October 2015).
43. In a judgment of 16 December 2010 (in case no. 13 Os 130/10g) concerning an application under Article 363a of the CCP, the Supreme Court clarified:
“According to established case-law, a judgment by the European Court of Human Rights is not required in order to lodge an application for the renewal of criminal proceedings under Article 363a § 1 of the CCP. Persons who plausibly claim that a decision of a criminal court of last instance has violated their fundamental rights, or that they are still victims of a human rights violation by the Criminal Investigation Department, the public prosecutor’s office, or a court, even though all domestic remedies have been exhausted, are eligible to file such an application ...
Persons who are affected by a violation of the Convention in their position as [private] prosecutors ... shall not have the right to lodge an application for the renewal of criminal proceedings. In the light of this intention of the original drafters of the legislation and the scope of protection, the same must apply to victims (Article 65 of the CCP) who are in such a position. Their interests are sufficiently protected by the possibility of lodging an application for the continuation of criminal proceedings (Article 195 of the CCP) ...”
44. In subsequent decisions the Supreme Court has confirmed that victims within the meaning of Article 65 of the CCP are not allowed to file applications for the renewal of criminal proceedings under Article 363a of the CCP (decisions of 15 May 2012, no. 14 Os 37/12s, and 19 February 2014, no. 15 Os 177/13p). Article 65 § 1 (a) of the CCP defines a “victim” as any person who may have been exposed to violence or a dangerous threat, or whose sexual integrity may have been interfered with because of an intentionally committed criminal offence.
45. Article 66 of the CCP, as in force at the relevant time, listed the rights of victims during criminal proceedings, such as the right to: be represented by counsel; inspect court files; be informed of the progress of proceedings; and apply for the continuation of proceedings discontinued by the public prosecutor.
46. Under the heading “special protection”, section 69a of the Residence Act ( Niederlassungs - und Aufenthaltsgesetz ), as in force at the relevant time, made provision for victims of human trafficking to obtain residence permits.
B. Relevant international treaties and other international material
1. The Palermo Protocol
47. The Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children (“the Palermo Protocol”), supplementing the United Nations Convention against Transnational Organised Crime 2000, was adopted on 15 November 2000, and came into force on 25 December 2003. It was ratified by Austria on 15 September 2005. The relevant provisions are set out in the following paragraphs.
48. Article 3 (a) defines “trafficking in persons” as:
“ the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs.”
49. Article 3 (b) provides that the consent of a victim of trafficking to the intended exploitation is irrelevant where any of the means set forth in Article 3 (a) have been used.
50. Article 4 identifies the scope of application of the Palermo Protocol as the “prevention, investigation and prosecution of the offences established in accordance with article 5 of this Protocol, where those offences are transnational in nature and involve an organized criminal group, as well as ... the protection of victims of such offences”.
51. Article 5 (1) provides that “each State Party shall adopt such legislative and other measures as may be necessary to establish as criminal offences the conduct set forth in article 3 of this Protocol, when committed intentionally”.
52. Article 6 deals with the assistance and protection of victims of trafficking in persons and provides, in so far as relevant:
“2. Each State Party shall ensure that its domestic legal or administrative system contains measures that provide to victims of trafficking in persons, in appropriate cases:
(a) Information on relevant court and administrative proceedings;
(b) Assistance to enable their views and concerns to be presented and considered at appropriate stages of criminal proceedings against offenders, in a manner not prejudicial to the rights of the defence ...”
2. The Council of Europe Anti-Trafficking Convention
53. The Council of Europe Convention on Action against Trafficking in Human Beings (“the Anti-Trafficking Convention”) was adopted by the Committee of Ministers of the Council of Europe on 3 May 2005, and entered into force on 1 February 2008. The Anti-Trafficking Convention was ratified by Austria on 12 October 2006. The relevant provisions are set out in the following paragraphs.
54. Article 2 establishes the scope of the Anti-Trafficking Convention and states that it “shall apply to all forms of trafficking in human beings, whether national or transnational, whether or not connected with organised crime”.
55. Article 4 (a) adopts the definition of “trafficking in human beings” which can be found in the Palermo Protocol, and replicates the provision in Article 3 (b) of the Palermo Protocol on the irrelevance of the consent of a victim of trafficking to the exploitation (see paragraphs 48 and 49 above).
56. Article 10 is concerned with the identification of victims and provides, in so far as relevant:
“1. Each Party shall provide its competent authorities with persons who are trained and qualified in preventing and combating trafficking in human beings, in identifying and helping victims, including children, and shall ensure that the different authorities collaborate with each other as well as with relevant support organisations, so that victims can be identified in a procedure duly taking into account the special situation of women and child victims and, in appropriate cases, issued with residence permits under the conditions provided for in Article 14 of the present Convention.
2. Each Party shall adopt such legislative or other measures as may be necessary to identify victims as appropriate in collaboration with other Parties and relevant support organisations. Each Party shall ensure that, if the competent authorities have reasonable grounds to believe that a person has been victim of trafficking in human beings, that person shall not be removed from its territory until the identification process as victim of an offence provided for in Article 18 of this Convention has been completed by the competent authorities and shall likewise ensure that that person receives the assistance provided for in Article 12, paragraphs 1 and 2.”
57. Article 18 requires States to:
“... adopt such legislative and other measures as may be necessary to establish as criminal offences the conduct contained in article 4 of this Convention, when committed intentionally.”
58. Article 27 deals with ex parte and ex officio applications and reads:
“1. Each Party shall ensure that investigations into or prosecution of offences established in accordance with this Convention shall not be dependent upon the report or accusation made by a victim, at least when the offence was committed in whole or in part on its territory.
2. Each Party shall ensure that victims of an offence in the territory of a Party other than the one where they reside may make a complaint before the competent authorities of their State of residence. The competent authority to which the complaint is made, insofar as it does not itself have competence in this respect, shall transmit it without delay to the competent authority of the Party in the territory in which the offence was committed. The complaint shall be dealt with in accordance with the internal law of the Party in which the offence was committed.
3. Each Party shall ensure, by means of legislative or other measures, in accordance with the conditions provided for by its internal law, to any group, foundation, association or non-governmental organisations which aims at fighting trafficking in human beings or protection of human rights, the possibility to assist and/or support the victim with his or her consent during criminal proceedings concerning the offence established in accordance with Article 18 of this Convention.”
59. Article 31 § 1 deals with jurisdiction and requires States to adopt such legislative and other measures as may be necessary to establish jurisdiction over any offence established in accordance with the Anti ‑ Trafficking Convention when the offence is committed:
“(a) in its territory; or
(b) on board a ship flying the flag of that Party; or
(c) on board an aircraft registered under the laws of that Party; or
(d) by one of its nationals or by a stateless person who has his or her habitual residence in its territory, if the offence is punishable under criminal law where it was committed or if the offence is committed outside the territorial jurisdiction of any State;
(e) against one of its nationals.”
60. With regard to Article 31 § 1 (a), the explanatory report accompanying the Anti-Trafficking Convention states:
“328. Paragraph 1 (a) is based on the territoriality principle. Each party is required to punish the offences established under the Convention when they are committed on its territory. For example, a Party in whose territory someone is recruited by one of the means and for one of the exploitation purposes referred to in Article 4 (a) has jurisdiction to try the human-trafficking offence laid down in Article 18. The same applies to Parties through or in whose territory that person is transported.”
3. The Group of Experts on Action against Trafficking in Human Beings
61. In its “Report concerning the implementation of the Council of Europe Convention on Action against Trafficking in Human Beings by Austria, First Evaluation Round” (GRETA(2011)10, 15 September 2011), the Group of Experts on Action against Trafficking in Human Beings (hereinafter “GRETA”) found the following:
“ In recent years, the Austrian authorities have taken a number of significant measures to combat trafficking in human beings (THB) on all fronts: prevention, protection of victims and prosecution of traffickers ...
A series of measures designed to raise awareness on THB and to train relevant professionals have been taken by the Austrian authorities in co-operation with NGOs and intergovernmental organisations. GRETA welcomes the introduction in 2009 of special procedures to prevent THB for the purpose of domestic servitude in diplomatic households. That said, GRETA considers that the Austrian authorities should take further measures to raise awareness on the problem of THB, in particular as regards child trafficking and trafficking for the purpose of labour exploitation. More research is needed to shed light on the extent of these forms of trafficking and to guide the authorities in the development of policies to tackle them. ...
As concerns measures to assist and protect victims of THB, the Austrian authorities have set up facilities and services, in co-operation with civil society, primarily tailored to the needs of female victims. The Federal Ministry of the Interior has introduced by an internal decree a recovery and reflection period of a minimum of 30 days for presumed victims of trafficking, during which time the person concerned should not be removed from Austria. However, the number of persons who have benefited from such a period is very low. ... The access to compensation for victims of THB remains limited in Austria, among other due to the low number of prosecutions and convictions of traffickers. ...
Finally, GRETA considers that the Austrian authorities should review the current provisions criminalising THB with a view to addressing possible overlaps and ensuring the dissuasiveness of the penalties provided for, in order to reflect the fact that THB constitutes a serious violation of human rights. In addition, victims of trafficking should be better protected both during the legal proceedings against traffickers and afterward, in particular by making full use of the witness protection programme in respect to victims of trafficking. ...
A special Central Unit in the Federal Criminal Intelligence Service within the Federal Ministry of the Interior is specialised in investigating THB and migrant smuggling. This unit has the power to conduct criminal investigations and is in regular contact with units of the regional criminal intelligence services specialised in combating THB and other serious criminal activities. In addition, it plays the role of an intermediary between the Austrian police and law enforcement agencies of other countries in the field of information exchange, participation in joint operations, etc. ...
LEFÖ-IBF enjoys a special position compared to other NGOs involved in the fight against trafficking in human beings in Austria. It operates on the basis of an agreement with the Government and is financed though governmental funds, in particular for the provision of assistance to THB victims. ...”
4. The ILO Forced Labour Convention
62. The Convention concerning Forced or Compulsory Labour, adopted in Geneva on 28 June 1930 by the General Conference of the International Labour Organisation (hereinafter “the ILO”), entered into force on 1 May 1932. It was ratified by Austria on 7 June 1960. Pursuant to Article 1, “each Member of the ILO which ratifies this Convention undertakes to suppress the use of forced or compulsory labour in all its forms within the shortest possible period”.
63. Article 2 § 1 defines “forced or compulsory labour” as:
“...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.”
64. Article 25 provides:
“The illegal exaction of forced or compulsory labour shall be punishable as a penal offence, and it shall be an obligation on any Member ratifying this Convention to ensure that the penalties imposed by law are really adequate and are strictly enforced.”
C. European Union Law
1. The EU Fundamental Rights Charter
65. As a Member State of the European Union (hereinafter the “EU”) since 1 January 1995, Austria is bound to respect the rights enshrined in the EU Charter of Fundamental Rights when transposing or applying EU law. Article 5 of the Charter provides:
Prohibition of slavery and forced labour
“1. No one shall be held in slavery or servitude.
2. No one shall be required to perform forced or compulsory labour.
3. Trafficking in human beings is prohibited.”
2. The EU Anti-Trafficking Directive
66. The relevant parts of Article 2 of Directive 2011/36/EU of the European Parliament and of the Council of 5 April 2011 on preventing and combating trafficking in human beings and protecting its victims read as follows:
“1. Member States shall take the necessary measures to ensure that the following intentional acts are punishable:
The recruitment, transportation, transfer, harbouring or reception of persons, including the exchange or transfer of control over those persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation.
2. A position of vulnerability means a situation in which the person concerned has no real or acceptable alternative but to submit to the abuse involved.
3. Exploitation shall include, as a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services including begging, slavery or practices similar to slavery, servitude, or the exploitation of criminal activities, or the removal of organs.
4. The consent of a victim of trafficking in human beings to the exploitation, whether intended or actual, shall be irrelevant where any of the means set forth in paragraph 1 has been used.
...”
67. Article 10 of the Directive deals with jurisdiction and provides, in so far as relevant:
“1. Member States shall take the necessary measures to establish their jurisdiction over the offences referred to in Articles 2 and 3 where:
(a) the offence is committed in whole or in part within their territory; or
(b) the offender is one of their nationals.
...”
THE LAW
I. APPLICATION OF ARTICLE 37 § 1 OF THE CONVENTION
68. By Article 37 § 1 of the Convention, the Court may decide to strike an application out of its list of cases where the circumstances lead to the conclusion that:
“(a) the applicant does not intend to pursue his application; or
(b) the matter has been resolved; or
(c) for any other reason established by the Court it is no longer justified to continue the examination of the application.
However, the Court shall continue the examination of the application if respect for human rights as defined in the Convention and the Protocols thereto so requires.
...”
69. By a letter of 30 January 2015 the applicants’ representative informed the Court that he was no longer in contact with the third applicant. He believed the third applicant to have relocated to Switzerland, but was unable to take her instructions with regard to the Government’s observations.
70. The Government did not comment on this issue.
71. The Court is of the opinion that the third applicant’s failure to inform her representative of her current whereabouts must be taken as indicating that she has lost interest in pursuing her application. Although it is true that she did authorise the AIRE Centre to represent her in the proceedings before the Court, it considers that this authority does not by itself justify pursuing the examination of her application. Given the representative’s inability to establish any communication with the third applicant, the Court considers that the AIRE Centre cannot meaningfully pursue the proceedings before it ( see V.M. and Others v. Belgium [GC], no. 60125/11, § 36, 17 November 2016, with further references).
72. That being so, the Court finds that further examination of the third applicant’s application is not justified. Consequently, it concludes that the third applicant may be regarded as no longer wishing to pursue her application within the meaning of Article 37 § 1 (a) of the Convention (see, mutatis mutandis, Chirino v. the Netherlands ( dec. ), no. 31898/04, 4 May 2006, and Noor Mohammed v. the Netherlands ( dec. ), no. 14029/04, 27 March 2008).
73. The Court also notes that the third applicant has raised the same complaints as the other two applicants in the present case, which it will examine below. In accordance with Article 37 § 1 in fine, the Court therefore finds no reasons relating to respect for human rights, as defined in the Convention and its Protocols, which would require it to continue the examination of the application (see Denizci and Others v. Cyprus, nos. 25316-25321/94 and 27207/95, § 369, ECHR 2001 ‑ V).
74. Accordingly, the Court decides to strike the third applicant’s application out of its list of cases. In the following parts of the present judgment, the expression “the applicants” should be taken to refer to the first and second applicants only.
II. ALLEGED VIOLATION OF ARTICLE 4 OF THE CONVENTION
75. The applicants complained that they had been subjected to forced labour and human trafficking, and that the Austrian authorities had failed to comply with their positive obligations under the procedural limb of Article 4 of the Convention.
76. The relevant parts of Article 4 read:
“1. No one shall be held in slavery or servitude.
2. No one shall be required to perform forced or compulsory labour.
...”
A. Admissibility
1. The parties’ submissions
(a) The Government
77. The Government firstly submitted that it appeared that the applicants had not complied with the six-month time-limit under Article 35 § 1 of the Convention. They stated that while the final domestic decision had been given by the Vienna Regional Court on 16 March 2012 (see paragraph 30 above), the application to the Court was dated 2 November 2012. It was therefore doubtful that the time-limit had been complied with.
78. Secondly, the Government asserted that the case should be declared inadmissible for non-exhaustion of domestic remedies, as the applicants had failed to lodge an application for the renewal of criminal proceedings under Article 363a of the CCP (see paragraph 41 above) against the decision of the Vienna Regional Criminal Court of 16 March 2012.
79. By referring to the Supreme Court’s established case-law, beginning with its ruling of 1 August 2007 (no. 13 Os 135/06m – see paragraph 42 above), the Government argued that an application for the renewal of proceedings under Article 363a of the CCP constituted an effective remedy at domestic level within the meaning of Article 13 of the Convention. The applicants could have complained of a violation of Convention rights and asked the Supreme Court to order the continuation of the criminal investigation proceedings. Lodging such an application would have led to a comprehensive examination of the compatibility of the judicial decision with Convention rights, and could have led to the renewal of the proceedings and subsequently to a new judicial decision.
80. The Supreme Court’s ruling of 1 August 2007, wherein it had held that an application for the renewal of proceedings under Article 363a of the CCP could be lodged even prior to a decision by the Court, had been widely disseminated and discussed not only amongst legal scholars, but also in daily newspapers. Further, statistics showed that people had actually made use of the remedy: 37 times in 2011 and 40 times in 2012 and 2013 respectively.
81. Also, the Supreme Court’s ruling of 16 December 2010 (case no. 13 Os 130/10g – see paragraph 43 above) had not restricted the applicants’ right to lodge an application for the renewal of proceedings, as it had merely referred to the rights of victims within the meaning of Article 66 § 1 of the CCP, and did not affect alleged violations of the Convention.
(b) The applicants
82. Concerning the six-month time-limit, the applicants submitted that the Government’s doubts were mistaken. They had sent the letter of intent on 4 September 2012. The application form had been faxed and sent by post on 5 November 2012, in accordance with the deadline given by the Court. The time-limit under Article 35 § 1 of the Convention had thus been complied with.
83. With regard to the question whether domestic remedies had been exhausted, the applicants pointed to the decision of the Vienna Regional Court of 16 March 2012 (see paragraph 30 above), which expressly stated that, in accordance with Article 196 § 3 of the CCP, there was no right of appeal against that decision. This indicated already that domestic remedies had been exhausted.
84. The applicants argued that an application for the renewal of criminal proceedings under Article 363a of the CCP (see paragraph 41 above) was not an effective remedy. The Government had failed to prove that the proposed remedy had been both effective and available in theory and in practice at the relevant time.
2. The Court’s assessment
85. Regarding the Government’s contention that the application was submitted outside the time-limit provided for by Article 35 § 1 of the Convention (see paragraph 77 above), the Court notes that the applicants’ first letter of intent – which at the time of its submission was satisfactory to stop the six-month time-limit from running – reached the Court on 4 September 2012. The last domestic decision in the matter was served on the applicants’ counsel on 23 March 2012 (see paragraph 30 in fine above), hence less than six months before that date. The Court is therefore satisfied that the admissibility criterion of Article 35 § 1 in fine has been complied with.
86. Turning to the Government’s objection of non-exhaustion of domestic remedies (see paragraphs 78-81 above), the Court observes that in the case of ATV Privatfernseh -GmbH v. Austria (( dec. ), no. 58842/09, §§ 32-37, 6 October 2015) it examined in detail the question whether Article 363a of the CCP was a remedy which was readily available and sufficient to afford redress in respect of an alleged breach of rights under Article 10 of the Convention in proceedings for compensation under section 7 of the Media Act. It found that, in the circumstances of that case, an application under Article 363a of the CCP constituted an effective and sufficient remedy which an applicant would be obliged to use. However, it appears from the Supreme Court’s case-law that victims of crimes and private prosecutors as well as public prosecutors are not entitled to that remedy (see Fürst -Pfeifer v. Austria, nos. 33677/10 and 52340/10, § 31, 17 May 2016, and the judgment of the Supreme Court of 10 December 2010 (no. 13 Os 130/10g), cited in paragraph 43 above). The Government have not provided evidence to show that the availability of the remedy also extends to those groups of persons. It follows that the Government’s objection with regard to the non-exhaustion of domestic remedies has to be dismissed.
87. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
B. Merits
1. The parties’ submissions
(a) The applicants
88. The applicants submitted that the credibility of their claims was highlighted by the fact that the Austrian authorities had dismissed the criminal allegations of theft made against them by their employers after the police had had an opportunity to question the applicants (see paragraph 26 above). They stressed that the authorities had accepted that their treatment fell within the notion of human trafficking, as defined by Articles 4 and 10 of the Council of Europe Anti ‑ Trafficking Convention, and the Court’s judgment in Rantsev v. Cyprus and Russia (no. 25965/04, ECHR 2010 (extracts)).
89. Moreover, the public prosecutor and the Vienna Regional Criminal Court had at no stage queried the veracity of the allegations of forced labour and human trafficking, but had simply stated that the incidents alleged to have taken place on Austrian soil were too short in duration to engage Austrian interests for the purpose of having jurisdiction over a criminal offence. It followed that the events which had occurred outside Austria were also to be considered credible. The incidents which had occurred in Austria – which had remained undisputed by the Government – could not be viewed in isolation, and had been part of an ongoing course of treatment. Indeed, the incidents prior to the applicants’ arrival in Austria had been part of the trafficking chain relevant to the trafficking situation in Austria, and should be examined as part of the respondent State’s procedural obligations (the applicants referred to Rantsev, cited above, § 307). As the applicants had been accepted in Austria as victims of human trafficking, the parts of the trafficking chain prior to their arrival in Austria, that is those parts in the Philippines (their recruitment, deception, and transportation at least) and in the United Arab Emirates (their exploitation and transportation at least), should be examined. Seeing in isolation the events which had occurred in Austria over the course of three days would be an unlawfully narrow window for examination, and was not supported by either authority or common sense. By confining their approach to their duty to investigate and prosecute the incidents in Vienna, the Government were ignoring the fact that the positive identification of a person as a victim of human trafficking was sufficient to trigger the duty under international law to investigate also those events which occurred abroad.
90. The applicants submitted that there was a difference between the duty to identify and provide substantive assistance and support to victims of human trafficking, and the procedural obligation to investigate under international and EU law. While the Government had described a range of measures that had been applied in the applicants’ case in respect of the former duty (see paragraphs 98 - 100 below), they had failed to comply with the latter. The investigation in the present case had been so inadequate as to be in breach of Article 4 of the Convention. The duty to investigate had been triggered by the applicants showing sufficient indicators to raise a credible suspicion of trafficking. In C.N. v. the United Kingdom (no. 4239/08, § 72, 13 November 2012) the Court had held that “the fact that the domestic authorities conducted any investigation into the applicant’s complaints strongly indicates that, at least on their face, they were not inherently implausible”. The applicants contended that that finding applied in their case, given that the public prosecutor had not treated their complaints as incredible or implausible, but had simply discontinued them for technical reasons.
91. In this context, the applicants alleged that the relevant Articles of the CC had been interpreted too strictly and narrowly in their case, or in the alternative, that the Articles had been too narrowly framed to begin with, giving rise to a breach of Article 4 of the Convention.
92. The applicants submitted that the respondent State’s duty to investigate had been triggered in July 2011 (see paragraph 25 above), when they had turned to the police. That duty flowed from Articles 27 and 31 of the Anti-Trafficking Convention (see paragraphs 58 and 59 above), and Articles 4, 5 and 6 of the Palermo Protocol (see paragraphs 50- 52 above). By discontinuing any investigation against the applicants’ employers at such an early stage, the Austrian authorities had failed to satisfy the key aims of the State’s international obligations relating to human trafficking, including ensuring the effective investigation and prosecution of the perpetrators of the crimes against the applicants.
(b) The Government
93. The Government emphasised at the outset that there was no evidence available to them as to whether and to what extent the incidents in the Philippines and the United Arab Emirates, as submitted by the applicants, had actually occurred. Only the events and proceedings in Austria were undisputed.
94. Concerning the general and legislative measures Austria had taken in order to combat human trafficking and labour exploitation, the Government submitted that Austria was a State Party to all the relevant international legal instruments, such as the Council of Europe Anti-Trafficking Convention, the United Nations Convention against Transnational Organized Crime, and the Palermo Protocol. The first Austrian “National Action Plan against Trafficking in Human Beings” had been prepared in close cooperation with civil society organisations, and had been adopted by the Austrian Council of Ministers ( Ministerrat ) in March 2007 for a three-year period. Since then, further national action plans had been adopted. In the period 2010-11 Austria had been among the first Council of Europe member States to be evaluated by GRETA (see paragraph 61 above), whose recommendations, adopted on 26 September 2011 by the Committee of the Contracting Parties to the Anti-Trafficking Convention, had been taken into account and implemented in the National Action Plan 2012-2014, specifically concerning the exploitation of domestic staff. Austria had fully complied with its obligation to protect the victims of human trafficking and forced labour, in particular through the assistance of LEFÖ (the intervention centre which had supported the applicants during the domestic proceedings – see paragraph 25 above), which was active throughout Austria on behalf of the Ministry of the Interior ( Bundesministerium für Inneres ) and the Ministry for Education and Women ( Bundesministerium für Bildung und Frauen ).
95. The Government pointed out that Austria was therefore in full compliance with its obligations under international law. Article 104a of the CC (see paragraph 35 above), in force since 2010, constituted an adequate and efficient legal basis to prosecute and punish trafficking in human beings. In accordance with Article 64 of the CC (see paragraph 40 above), offences committed abroad were punishable even beyond the extent required by Article 31 of the Council of Europe Anti-Trafficking Convention, namely irrespective of whether the offence was punishable under criminal law in the country where it had been committed. Apart from territorial jurisdiction and the extended active and passive personality principle, Austrian laws also included a wider interpretation of the principle aut dedere aut iudicare. Austria assumed jurisdiction not only if an offender’s extradition was rejected because of his or her nationality, but also if Austrian interests were at stake (see Article 64 of the CC). The Government underlined that the Anti-Trafficking Convention did not require its States Parties to establish universal jurisdiction to combat human trafficking and forced labour.
96. The Government asserted that the provisions and measures described above had been applied in the applicants’ case, and that the actions taken by the Austrian authorities had also been in full compliance with the Convention.
97. The incidents with their former employers during their holidays in Austria, as described by the applicants, had occurred over the course of three days in July 2010. The applicants had only notified the police of these incidents approximately one year later. Even though they could not be blamed for turning to the police so late, it had made the investigation of their case more difficult. Owing to the initial investigation against the applicants because of the theft reported by their employers, the authorities had assumed that the applicants had long since left Austria, and could not be interrogated via letters of request ( Rechtshilfeersuchen ) from organs of the United Arab Emirates either. From general experience, the incidents described by the applicants as taking place at the hotel in Vienna (looking after the children, cooking and doing washing at unusual hours and in excessive amounts, intimidating behaviour on the part of their employers, and the confiscation of their passports), and especially the scene in the very popular zoo, could not be ascertained with the certainty required for criminal proceedings more than one year later. Therefore, it could no longer be assessed whether the applicants’ treatment had actually reached an intensity to be qualified as labour exploitation within the meaning of Article 4, or degrading treatment within the meaning of Article 3 of the Convention. The statements made during the questioning of the three presumed victims of human trafficking, and those of the hotel receptionist, who had only witnessed some of the incidents herself, had not seemed sufficient to substantiate such serious criminal charges.
98. The applicants had been supported first by other Filipino nationals living in Vienna, and as of 2011 also by the NGO LEFÖ. After having left their employers, they had no longer been in either a situation of exploitation, or under any conceivable threat of being exploited in the future. On the contrary, it had been with the assistance of the Austrian State that they had been able to reside lawfully in Austria. From the point when they had turned to LEFÖ – an institution financed by public funds – they had been provided with legal representation, procedural guidance, and assistance to facilitate their integration in Austria.
99. In accordance with Article 10 of the Anti-Trafficking Convention (see paragraph 56 above), the applicants had not been questioned by ordinary police officers, but by officers specially trained and experienced in cases of cross-border human trafficking and labour exploitation. During the questioning, they had been accompanied by representatives of LEFÖ (see paragraph 25 above). The applicants had not been expelled to their country of origin, nor had any other measures been taken to terminate their stay in Austria. Rather, they had been granted special protection under section 69a of the Residence Act (see paragraph 46 above), thus enabling them to reside lawfully in Austria. The applicants had therefore not only been treated in a manner going beyond Austria’s obligations under Article 10 of the Anti ‑ Trafficking Convention, but had also been given the opportunity to work and secure their own livelihood in Austria. Furthermore, a personal data disclosure ban had been imposed on the Central Register, so their whereabouts were not traceable by the general public (see paragraph 34 above).
100. The Government submitted that the Austrian authorities had also complied with their obligations under Article 27 of the Anti-Trafficking Convention (see paragraph 58 above). As described above, the applicants had been supported by LEFÖ before the police authorities, within the meaning of Article 27 § 3, and by lawyers before the Vienna public prosecutor’s office. It had not been possible to institute proceedings earlier, since the applicants’ allegations against their former employers had only been brought to the authorities’ attention in July 2011.
101. The Government contended that the applicants’ situation had thus differed significantly from the situation of applicants in previous cases before the Court, where an immediate and intensive investigation into the circumstances would have been required (the Government referred, notably, to Rantsev, cited above, § 289). In a case such as the instant one, there appeared to be no duty to cooperate with the competent authorities of the other State concerned (here, the United Arab Emirates) in the investigation of events which had occurred in that State (they cited, mutatis mutandis, Rantsev, loc. cit. ). The legal assistance necessary for conducting criminal investigations against the applicants’ former employers could not be obtained from the United Arab Emirates, as no mutual legal assistance agreement between Austria and the United Arab Emirates yet existed. Even simple requests for legal assistance had repeatedly been rejected in the past without discernible reason. There were also no indications that the applicants’ former employers were still staying in the United Kingdom, where they had allegedly planned to travel after their stay in Vienna. However, for further investigative measures, it would have been indispensable to inform the former employers of the allegations made and give them an opportunity to comment on the accusations. Under Austrian law, in the absence of an accused, it was not possible to conduct proceedings to determine the offences at issue.
102. The Government concluded by saying that there had been no violation of Article 4 of the Convention, because the general obligation to take operational measures, as detailed above, did not impose an impossible or disproportionate burden on the authorities, but required them to endeavour to provide for the physical safety of victims of trafficking in human beings, which they had done (the Government referred, mutatis mutandis, to Rantsev, cited above, § 287).
2. The Court’s assessment
(a) General principles
103. The Court refers to its relevant case-law on the general principles governing the application of Article 4 of the Convention in the specific context of trafficking in human beings and forced labour (see Rantsev, cited above, §§ 272-289). It reiterates that Article 4 enshrines one of the fundamental values of democratic societies. The first paragraph of this Article makes no provision for exceptions, and no derogation from it is permissible under Article 15 § 2, even in the event of a public emergency threatening the life of a nation (see C.N. v. the United Kingdom, no. 4239/08, § 65, 13 November 2012 ).
104. The Court noted in Rantsev that trafficking in human beings was often described as a form of modern slavery, and it therefore took the view that it was in itself an affront to human dignity and incompatible with democratic and Convention values, and thus within the prohibition of Article 4, without needing to classify it as “slavery”, “servitude” or “forced labour”. The identified elements of trafficking – the treatment of human beings as commodities, close surveillance, the circumscription of movement, the use of violence and threats, poor living and working conditions, and little or no payment – cut across these three categories (see Rantsev, cited above, §§ 279-282). The Court has held that trafficking in human beings, by its very nature and aim of exploitation, is based on the exercise of powers attaching to the right of ownership. It treats human beings as commodities to be bought and sold and put to forced labour, often for little or no payment, usually in the sex industry but also elsewhere. It implies close surveillance of the activities of the victims, whose movements are often circumscribed. It involves the use of violence and threats against victims, who live and work under poor conditions ( ibid., § 281; see also M. and Others v. Italy and Bulgaria, no. 40020/03, § 151, 31 July 2012 ).
105. Trafficking in human beings is a problem which is often not confined to the domestic arena. When a person is trafficked from one State to another, trafficking offences may occur in the State of origin, any State of transit and the State of destination. Relevant evidence and witnesses may be located in all States. Although the Palermo Protocol (see paragraphs 47 - 52 above) is silent on the question of jurisdiction, the Anti-Trafficking Convention (see paragraphs 53- 59 above) explicitly requires each member State to establish jurisdiction over any trafficking offence committed in its territory. Such an approach is, in the Court’s view, only logical in light of the positive obligation incumbent on all States under Article 4 of the Convention to investigate alleged trafficking offences. Member States are also subject to a duty in cross-border trafficking cases to cooperate effectively with the relevant authorities of other States concerned in the investigation of events which occurred outside their territories (see Rantsev, cited above, § 289).
106. The Court has held that a State may be held responsible under Article 4 of the Convention not only for its direct actions, but also for its failure to effectively protect the victims of slavery, servitude, or forced or compulsory labour by virtue of its positive obligations and to conduct a comprehensive investigation (see Siliadin v. France, no. 73316/01, §§ 89 and 112, ECHR 2005 ‑ VII). It follows that States are also under an obligation to put in place a legislative and administrative framework to prohibit and punish trafficking, as well as to take measures to protect victims, in order to ensure a comprehensive approach to the issue, as required by the Palermo Protocol and the Anti-Trafficking Convention (see Rantsev, cited above, § 285). States are also required to provide relevant training for law-enforcement and immigration officials ( ibid., § 287).
107. As with Articles 2 and 3, the positive obligation to investigate is triggered as soon as a matter has come to the attention of the authorities; the investigation must fulfil the requirements of independence and impartiality, promptness and reasonable expedition, and urgency where there is a possibility of removing the individual concerned from a harmful situation. The investigation must also be capable of leading to the identification and punishment of the individuals responsible – an obligation concerning the means to be employed, and not the results to be achieved ( ibid., § 288). In addition, authorities must take all reasonable steps available to them to secure evidence concerning the incident (see, in relation to Article 3 of the Convention, Nikolay Dimitrov v. Bulgaria, no. 72663/01, § 69, 27 September 2007). Finally, the positive obligation must not be interpreted in such a way as to impose an impossible or disproportionate burden on the authorities (see, mutatis mutandis and in relation to Article 2 of the Convention, Maiorano and Others v. Italy, no. 28634/06, § 105, 15 December 2009).
(b) Application of these principles to the instant case
108. At the outset, the Court considers that the applicants’ allegations fall within the ambit of Article 4 of the Convention, as established by its case-law on the subject (see, among other authorities, Siliadin, cited above, and Rantsev, cited above). The alleged treatment prohibited by Article 4 was not imputed to organs of the Austrian State, but to private individuals, namely the applicants’ employers, over a period of several years in Dubai and two to three days in Austria. Therefore, the present case concerns the positive obligations arising under this provision, rather than the negative obligations.
109. The Court considers that the instant case essentially raises two questions: whether the Austrian authorities complied with their positive obligation to identify and support the applicants as (potential) victims of human trafficking, and whether they fulfilled their positive obligation to investigate the alleged crimes.
( i ) Whether the positive obligation to identify and support the applicants as victims of human trafficking has been complied with
110. Concerning the first question, having regard to the applicants’ statements to the police (see paragraph 25 above), the Court notes that the authorities appear to have considered their claims credible. From the point when the applicants turned to the police, they were immediately treated as (potential) victims of human trafficking. They were interviewed by specially trained police officers (see paragraphs 25 and 99 above), were granted residence and work permits in order to regularise their stay in Austria (see paragraphs 32-33 above), and a personal data disclosure ban was imposed on the Central Register so their whereabouts were untraceable by the general public (see paragraph 34 above). During the domestic proceedings, the applicants were supported by the NGO LEFÖ, which is funded by the Government especially to provide assistance to victims of human trafficking. According to the uncontested statements of the Government (see paragraph 98 above), the applicants were given legal representation, procedural guidance and assistance to facilitate their integration in Austria.
111. For the purposes of Article 4 of the Convention, it is paramount that the applicants’ claims as a whole were taken seriously and the applicable legal framework was applied, in accordance with the State’s obligations under the Convention. From that point of view, the Court considers that the legal and administrative framework in place concerning the protection of (potential) victims of human trafficking in Austria appears to have been sufficient, and that the Austrian authorities took all steps which could reasonably have been expected in the given situation. This was not contested by the applicants. The Court is therefore satisfied that the duty to identify, protect and support the applicants as (potential) victims of human trafficking was complied with by the authorities.
(ii) Whether the positive obligation to investigate the allegations of human trafficking was complied with
112. Concerning the second question, namely the procedural obligation incumbent on the Austrian authorities to investigate the applicants’ allegations and to prosecute cases of human trafficking, the Court notes that the applicants were given the opportunity to describe in detail what had happened to them and how they had been treated by their employers. The public prosecutor’s office initiated an investigation after the applicants had given their statements to the police in July and August 2011. It would not have been possible to initiate the investigation earlier, as the applicants only decided to turn to the police approximately one year after leaving their employers. However, the investigation was discontinued in November 2011, as the public prosecutor’s office was of the opinion that the applicants’ employers’ alleged conduct on Austrian territory did not fulfil the elements of Article 104a of the CC. As far as the events abroad were concerned, the public prosecutor’s office observed that the alleged crime of trafficking in human beings had been committed abroad, the accused were non-nationals, and Austrian interests were not engaged (see paragraph 27 above). The decision to discontinue the proceedings was confirmed in December 2011by the Vienna Regional Criminal Court, which added that there was no reason to prosecute if, on the basis of the results of the investigation, a conviction was no more likely than an acquittal. In its view, there was also no obligation under international law to pursue the investigation in relation to the events that had allegedly taken place abroad (see paragraph 30 above). In their observations, the Government added that requests for legal assistance had repeatedly been rejected in the past by the United Arab Emirates without discernible reason, implying that making such a request would have been of no use in the instant case (see paragraph 101 above).
113. The Court considers that, in the context of Austria’s positive obligations in the instant case, questions arise as to whether Austria was under a duty to investigate the crimes allegedly committed abroad, and whether the investigation into the events in Austria was sufficient.
(α) Alleged events abroad
114. Concerning the alleged events in the United Arab Emirates, the Court considers that Article 4 of the Convention, under its procedural limb, does not require States to provide for universal jurisdiction over trafficking offences committed abroad (compare Rantsev, cited above, § 244, in relation to Article 2 of the Convention). The Palermo Protocol is silent on the matter of jurisdiction, and the Anti-Trafficking Convention only requires States Parties to provide for jurisdiction over any trafficking offence committed on their own territory, or by or against one of their nationals (ibid., § 289 – see paragraph 105 above). The Court therefore cannot but conclude that, in the present case, under the Convention, there was no obligation incumbent on Austria to investigate the applicants’ recruitment in the Philippines or their alleged exploitation in the United Arab Emirates.
(β) Events in Austria
115. The applicants argued that the Austrian authorities had accepted that they were victims of the crime of human trafficking by treating them as such (see paragraphs 88-91 above). However, the Court does not consider that the elements of the offence of human trafficking had been fulfilled merely because the Austrian authorities treated the applicants as (potential) victims of human trafficking (see paragraphs 110-11 above). Such special treatment did not presuppose official confirmation that the offence had been established, and was independent of the authorities’ duty to investigate. Indeed, (potential) victims need support even before the offence of human trafficking is formally established; otherwise, this would run counter to the whole purpose of victim protection in trafficking cases. The question whether the elements of the crime had been fulfilled would have to have been answered in subsequent criminal proceedings.
116. The Court reiterates that the applicants were given the opportunity to provide a detailed account of the events to specially trained police officers. Over thirty pages of statements were drawn up by the police. Based on the descriptions given, the authorities concluded that the events – as reported by the applicants – which had taken place over a maximum of three days in Vienna did not in themselves amount to any of the criminal actions exhaustively listed in Article 104a of the CC (see paragraphs 29-30 above). No ill-treatment in Austria was reported by the applicants. The Court considers that, in the light of the facts of the case and the evidence the authorities had at their disposal, the assessment that the elements of Article 104a of the CC had not been fulfilled in relation to the events in Austria does not appear to be unreasonable.
117. Next, the Court will examine the applicants’ argument that the events in the Philippines, the United Arab Emirates and Austria could not be viewed in isolation (see paragraph 89 above). However, even if the alleged events were taken together, for the following reasons, the Court considers that there is no indication that the authorities failed to comply with their duty of investigation. The Austrian authorities were only alerted approximately one year after the events in Vienna, when the applicants’ employers had long left Austria and had presumably returned to Dubai. Therefore, the only further steps the authorities could possibly have taken were: requesting legal assistance from the United Arab Emirates; attempting to question the applicants’ employers by means of letters of request, hence giving them the opportunity to make a statement in their defence; and issuing an order to determine their whereabouts ( zur Aufenthaltsbestimmung ausschreiben ) under Article 197 of the CCP (see paragraph 38 above). From the information submitted, the Court considers that the authorities could not have had any reasonable expectation of even being able to confront the applicants’ employers with the allegations made against them, as no mutual legal assistance agreement exists between Austria and the United Arab Emirates. In this regard, the Government referred to their experience that even simple requests for legal assistance had been refused in the past without discernible reason (see paragraph 101 above). It does not appear that the steps described above, albeit possible in theory, would have had any reasonable prospects of success and would therefore have been required. In addition, the Court emphasises that, under Austrian law, the public prosecutor’s office has a certain margin of appreciation – based on the principle of proportionality – when deciding which cases to pursue and which to discontinue (Article 210 of the CCP, see paragraph 39 above). Moreover, in accordance with Article 197 of the CCP (see paragraph 38 above), it is not possible to conduct criminal proceedings in the absence of the accused. Lastly, in accordance with Article 193 § 2 of the CCP (see paragraph 37 above), the public prosecutor can – within the statute of limitations – reopen and continue the investigation into the applicants’ allegations if there are legal and factual grounds to do so. The foregoing considerations enable the Court to conclude that the investigation conducted by the Austrian authorities in the applicants’ case was sufficient for the purposes of Article 4 of the Convention.
(iii) Conclusion
118. In the light of the above, the Court considers that the Austrian authorities complied with their duty to protect the applicants as (potential) victims of human trafficking. In finding that they did not have jurisdiction over the alleged offences committed abroad, and in deciding to discontinue the investigation into the applicants’ case concerning the events in Austria, they did not breach their positive obligation under the procedural limb of Article 4 of the Convention.
Therefore, there has been no violation of that provision.
III. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
119. The applicants further submitted that the treatment they had suffered met the minimum level of severity under Article 3 of the Convention, and that there had been a breach of the respondent State’s procedural obligation to duly investigate their case. Article 3 reads:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
120. The Court notes that this complaint is linked to the one examined above, and must therefore likewise be declared admissible.
121. The applicants submitted in their observations that, strictly speaking, it would be unnecessary to consider the same set of facts under Article 3 if the Court examined the failure to investigate under Article 4 of the Convention.
122. The Government submitted essentially the same observations in relation to the applicants’ complaints under Articles 3 and 4 of the Convention (see paragraphs 78-102 above).
123. In line with the applicants’ submissions, the Court considers that the test of the State’s positive obligations under the procedural limb of Article 3 of the Convention is very similar to that under Article 4, which has been comprehensively examined above (compare, for example, Jeronovičs v. Latvia [GC], no. 44898/10, § 107, 5 July 2016 in relation to Articles 2 and 3, and Rantsev, cited above, §§ 232, 288-89 and 299-300 in relation to Article 4). For essentially the same reasons (see paragraphs 112 ‑ 18 above), the Court concludes that there has been no violation of the State’s positive obligations under Article 3 of the Convention.
IV. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
124. The applicants submitted that, even though in their specific case Austria had identified them as victims of human trafficking, the lack of a formal recognition system was in itself capable of giving rise to a breach of Article 8 of the Convention.
125. As the Court has set out in its findings concerning Article 4 of the Convention, it is satisfied that the applicants have been treated as (potential) victims of trafficking in human beings, in line with Austria’s domestic and international legal obligations (see paragraphs 110-11 above). In the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds no appearance of a violation of the rights and freedoms set out in the Convention or its Protocols arising from this complaint. It must therefore be declared inadmissible pursuant to Article 35 §§ 3 and 4 of the Convention.