S.M. v Croatia (application no. 60561/14) is an odd case to read. It is very long, running to 356 paragraphs and several concurring judgments, and refers to a wide variety of international law sources. But its conclusion is straightforward: forced prostitution falls within the scope of Article 4 of the European Convention on Human Rights, either as an instance of trafficking or as an instance of forced labour, slavery or servitude, depending on the facts. The court went on to find that the Croatian criminal justice system had failed SM in a variety of ways, violating her Article 4 rights.

SM is a Croatian woman subjected to forced prostitution. A former police officer contacted her via Facebook claiming to be able to help her find a job. Instead, he forced her to have sex for money and kept half of it. He used a variety of means to coerce her into having sex with clients, including force, threats of force and close monitoring. The man also made all the arrangements for her meetings with clients and lent her money. It was pretty clear from the outset that the three elements of trafficking were present. The act of recruitment had taken place, various coercive means were used and the purpose was exploitation and forced labour.

The court began its judgment by confirming that trafficking under Article 4 ECHR does not need to be transnational in nature. It explained that the wider definition of trafficking used in the European Convention Against Trafficking should be preferred to the more limited decision in the Palermo Protocol, which was drafted to specifically target trafficking by transnational organised crime groups:

this is dictated by the fact that excluding a group of victims of conduct characterised as human trafficking under the Anti-Trafficking Convention from the scope of protection under the Convention would run counter to the object and purpose of the Convention as an instrument for the protection of individual human beings, which requires that its provisions be interpreted and applied so as to make its safeguards practical and effective.

The court then went onto to decide that forced prostitution would fall within Article 4 ECHR either because it amounted to trafficking or because it fulfilled the explicit requirements in the text of Article 4 of forced labour, servitude or slavery. It stressed the distinction between these two routes to engaging Article 4:

… the question whether a particular situation involves all the constituent elements of “human trafficking” (action, means, purpose) and/or gives rise to a separate issue of forced prostitution is a factual question which must be examined in the light of all the relevant circumstances of a case.

But the judgment does not identify the circumstances in which forced prostitution would not amount to trafficking. Judges O’Leary and Ravarani point out in their concurring judgment that far from clarifying what difference if any exists between the two, the Grand Chamber’s judgment adds to the confusion.

The big issue which the Grand Chamber did not comment on is whether non-coercive involvement in the provision of sexual services should be permitted under the Convention. As Judge Pastor Vilanova pointed out, the vast majority of Council of Europe states already criminalise it. The countries that do not are Germany, the Netherlands, Slovenia, Spain and Switzerland — perhaps the court is waiting for a case involving one of those countries before addressing the issue.