Chowdury and Others v Greece (Application number 21884/15 – the judgment is only available in French. An English-language press summary is available.)

The European Court of Human Rights has found that strawberry-pickers in Greece were subjected to forced labour. The Court found that the authorities failed to prevent forced labour and protect the migrant workers.

The case raises novel points about the scope of the right not to be subjected to forced labour, and the state’s obligations to investigate potential instances of forced labour and trafficking.

The facts

The applicants in this case are 42 Bangladeshi men who worked on a strawberry farm in Nea Manolada, Greece from 2012-2013. They had irregular immigration status and did not have permission to work.

The men had been promised payment of 3 euros per hour for their work. They had not been paid over a period of 6 months. They lived in tents made of cardboard boxes, and worked 12-hour long days.

Armed men stood guard over the workers as they worked. The workers were afraid to leave the farm because of the risk of arrest posed by contact with the police and the loss of wages.

At the beginning of 2013 the workers went on strike three times to demand their pay. The employers recruited a new group of workers to work as strike-breakers. The striking workers approached the employers. One of the employer’s guards shot at the workers, injuring 30 men.

Two employers and two guards were charged by police with human trafficking and dangerous bodily harm. Only the 30 workers who had been shot were included as parties to the civil claim for human trafficking. The other workers applied to be included but their request was rejected.

The defendants were acquitted of human trafficking in July 2014. The court considered that as the workers were free to leave the farm, the claim was not made out.

Importantly, state authorities in the region had been aware of the employment situation in farms in Manolada. In April 2008, the Greek Ombudsman had asked five government departments to take action regarding the risk of forced labour and trafficking. The Greek Ombudsman reiterated his concerns some five years later in April 2013. The Ministry of Labour had recommended prosecution in May 2008 following a visit, but no action was taken.

One of the Interveners in the case, Anti-Slavery International, were represented by Kathryn Cronin and Shu Shin Luh of Garden Court Chambers.

Article 4 ECHR

Article 4(2) of the European Convention on Human Rights provides that

No one shall be required to perform forced or compulsory labour

The Court began by recalling that that the prohibition on forced labour applied to both state and non-state actors. Article 4 places a series of positive obligations on the state, particularly regarding prevention of slavery, the protection of victims of slavery, and the repression of the trade in forced labour.

The Court focused on two obligations on the state arising from Article 4(2).

‘Operational measures’

First, the Court held that states are obliged to take a comprehensive approach to the fight against forced labour. These are described as ‘operational measures.’ These include measures to sanction traffickers, to prevent trafficking, and to protect victims.

The Court outlined the scope of the duty as regards prevention, which includes

measures to strengthen nation-wide coordination between agencies responsible for anti-trafficking, to discourage demand for all forms of exploitation, including border control to detect trafficking.

(All translations are intended as a guide for comprehension only.)

The Court also outlined protective measures which states are obliged to take. These include:

facilitating the identification by trained persons and assisting victims in their physical, psychological and social recovery.

The Greek authorities had failed to take the operational measures required by Article 4(2). Notably, there had been a number of reports and articles on the issue. A debate on the topic had taken place in Parliament. A number of Greek ministries had ordered inspections which had not been carried out.

This judgment widens the scope of the state’s obligations towards those at risk and victims of forced labour by the state. It is important that it is now clear that states have an obligation to assist victims in their recovery. The requirements are described in broad terms, and it remains to be seen whether the UK’s National Referral Mechanism satisfies the requirement for recovery, as well as identification.

The procedural obligation

Second, if state authorities knew or ought to have known of circumstances raising reasonable doubt that an individual is subjected to forced labour, or there is a real and immediate risk of them being so, the state is under a positive obligation to protect those victims. States are under a procedural obligation to investigate potential cases of trafficking once their attention has been drawn to a particular instance.

A number of workers had complained to the police of ill-treatment which amounted to forced labour. However, they were not permitted to bring an action alleging forced labour. Only those workers who were shot were so permitted. The Court found that the Greek authorities had violated the procedural obligation to conduct an effective investigation into trafficking and forced labour required by Article 4(2).

Forced labour and the ability to leave

The Court clarified the meaning of forced labour within the meaning of Article 4. The question was whether an absolute inability to protect oneself, or a restriction on the ability to leave, was required to constitute treatment which violated article 4.

The Court considers that a restriction on the ability to leave is not a sine qua non of forced labour or slavery. This kind of restriction does not relate to the provision of work itself, but to certain aspects of the life of a victim of a situation contrary to article 4 of the convention.

On this point, the Greek domestic court had erroneously accepted the argument that the fact the workers could have left the farm precluded their finding of a situation contrary to article 4.

While it is clear that the ambit of article 4 is wider than that applied by the Greek court, the “certain aspects of the life of a victim” are not elaborated by the court. It is worth considering some aspects of the workers’ situation which are referred to by the Court in its decision:

1. The workers’ pay was withheld for an extended period of time;
2. The workers’ pay was an unlawfully low amount;
3. The living conditions, particularly regarding accommodation, were very poor;
4. The employers had threatened violence against the workers, and had threatened to kill them;
5. The employers had armed guards watch over the workers.

It is now clear that a combination of factors similar to the above is capable of being sufficient to constitute forced labour. There is no requirement that the employer restrict the physical movement of the worker. This is a welcome development. The requirement of physical restriction is based on an outdated assumptions about chattel slavery, and does not reflect the reality of those engaged in forced labour as demonstrated by this case.

The procedural obligation in English law

The judgment sits uneasily with the position in English law as explained by the Court of Appeal in Secretary of State for the Home Department v Minh [2016] EWCA Civ 565. In that case, the Court ruled that the procedural obligations outlined in the Anti-Trafficking Convention do not form part of the procedural obligations under Article 4.

Chowdury describes a broader procedural obligation to investigate than that described in Minh. The fact that state authorities acted in contravention of the Anti-Trafficking Convention forms part of the Court’s consideration of the article 4(2) breach in Chowdury.

The Convention is invoked in two respects. First, the Convention provides for a “period of recovery and reflection” following an allegation by an alleged victim. Second, the Convention requires contracting states to provide for compensation for victims. Neither requirement was followed by the Greek authorities. This suggests that the Convention can form part of the consideration of the procedural obligations under Article 4.

This case, along with the general statements of procedural obligations made in J and Ors v Austria (Application number 58216/12), seems to form part of a new line of case law on procedural obligations under Article 4. The scope of the obligation and the role of the Anti-Trafficking Convention requires further clarification in English courts.