15 - Exploring the Role of Decisions by Judicial, Quasi-Judicial and Specialised Non-Judicial Bodies in Advancing Anti-Trafficking Efforts

Summary

Over the last two decades, the international community has increasingly turned its attention towards the phenomenon of human trafficking. While the majority of States have adopted legislation criminalising trafficking, and many also passed legislation aimed at protecting trafficked persons, compliance with international and domestic standards is often questioned. This chapter explores processes before, and decisions by, judicial, quasi-judicial and specialised non-judicial bodies as determinants of anti-trafficking efforts – understood as factors shaping governments’ anti-trafficking efforts and influencing compliance with and implementation of international standards. Deploying a comparative approach and building on the results of a large-scale project exploring the determinants of anti-trafficking efforts globally, this chapter evaluates four case studies (Argentina, Brazil, Cyprus and the United Kingdom). It outlines how judicial, quasi-judicial and specialised non-judicial bodies’ role is perceived by anti-trafficking stakeholders, and how these mechanisms interact with other determinants in influencing anti-trafficking efforts at the domestic level.

15.1 Introduction

In the last two decades, the international community has increasingly turned its attention towards the phenomenon of trafficking in human beings. Since the adoption of the 2000 Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children (Palermo Protocol), as well as subsequent regional conventions,¹ many States have progressively sought to align their domestic legislation with the standards required by international law. Although the majority of States have adopted legislation criminalising trafficking in human beings,² and many have also passed legislation aimed at protecting trafficked persons, States’ compliance with international and domestic standards has often been questioned.

This chapter explores proceedings before judicial, quasi-judicial and specialised non-judicial bodies³ as determinants of advances in anti-trafficking efforts. In this context, ‘determinants’ are understood as factors shaping governments’ anti-trafficking efforts and influencing compliance with and implementation of international standards. This contribution outlines how the role of such proceedings is perceived by anti-trafficking stakeholders, and, critically, the various ways in which proceedings influence anti-trafficking efforts. Importantly, the chapter explores how proceedings before judicial, quasi-judicial and specialised non-judicial bodies interact with other determinants in influencing anti-trafficking efforts at the domestic level.

While there is significant analysis of States’ anti-trafficking efforts, it is necessary, in our view, to shift the focus of inquiry towards the determinants of anti-trafficking efforts in trying to understand why States adopt, or comply with, protective and progressive legislation to tackle human trafficking. While some determinants are readily identifiable (e.g., the presence of political will, the ratification of international instruments and pressure by monitoring mechanisms or external donors), others have not yet been sufficiently explored, such as the decisions of judicial, quasi-judicial and specialised non-judicial bodies. The complex, non-linear and often hidden interactions between different factors have equally not been adequately addressed. Decisions of international and regional courts and quasi-judicial bodies are relevant determinants of States’ anti-trafficking efforts, as identified by, inter alia, the Organization for Security and Co-operation in Europe (OSCE).⁴

This chapter builds on existing literature on the role of regional courts in shaping changes in anti-trafficking action,⁵ taking a step beyond the existing focus on judicial bodies and on the European Court of Human Rights (ECtHR) in particular. We have identified 19 individual communications to the United Nations Treaty Bodies,⁶ 342 communications of the United Nations Special Rapporteur on Trafficking in Persons,⁷ 12 judgments of the ECtHR,⁸ and 2 judgments of the Inter-American Court of Human Rights (IACtHR)⁹ that tackle issues related to the implementation of anti-trafficking legislation.¹⁰ Deploying a comparative approach, this chapter evaluates four case studies (Argentina, Brazil, Cyprus and the United Kingdom) in order to assess the role of judicial, quasi-judicial and specialised non-judicial bodies, including supervisory bodies, in effecting change at the domestic level. The chapter draws on a large-scale research project exploring the determinants of anti-trafficking efforts globally.¹¹ The project assesses the links and sequencing of specific factors that have yielded improved political will and capacity in national governments to address trafficking in persons and which have led to sustained and comprehensive anti-trafficking efforts. It explores findings from literature reviews, expert interviews, a global survey and a series of fourteen case studies (of which the above are four).

15.2 Decisions by Judicial, Quasi-Judicial and Specialised Non-Judicial Bodies as Determinants of Anti-Trafficking Efforts

Research on human trafficking and anti-trafficking efforts highlights a broad range of factors which influence governments’ anti-trafficking responses. These encompass factors instrumental in, for example, bringing about compliance and implementation of international standards, as well as causing governments to improve, hinder or regress efforts. Determinants of anti-trafficking efforts do not work in isolation. However, there is no single framework or sequencing; rather, the processes through which anti-trafficking laws, policies and measures emerge and co-exist are particular, varied and, crucially, contextual and inter-dependent.

A number of determinants have been discussed in the literature over the last two decades, including political will, international standards and mechanisms, structural conditions, the role of civil society organisations and funding and resource allocation. Although literature may be lacking on the role of the jurisprudence of regional and international courts and bodies due to the limited number of cases in the past two decades, regional and international bodies as well as some scholars have highlighted how decisions by international courts, tribunals and quasi-judicial bodies can be a decisive factor in the implementation of international standards, and in influencing national anti-trafficking responses.¹²

Crucially, decisions by domestic courts can trigger legislative change and oblige legislative compliance with international standards. For example, the general reports of the Council of Europe’s Group of Experts on Action against Trafficking in Human Beings (GRETA) identify specific domestic jurisprudence which has triggered legislative change and pushed governments to adopt the advised change. They highlight, inter alia, Hussein v Labour Court,¹³ which triggered legislative changes in Ireland through the enactment of the Employment Permits (Amendment) Act 2014 on 27 July 2014, and NN v Secretary of State for the Home Department,¹⁴ where a United Kingdom Home Office policy was found to be unlawful and incompatible with the Council of Europe Convention on Action against Trafficking in Human Beings (ECAT) and which resulted in the introduction of a new process and guidance to assess the support needs of survivors beyond the previous exit timescales. More recently, and beyond the European context, in the case of LVCO v AG,¹⁵ the Colombian Constitutional Court ordered structural measures to improve protection of trafficked persons at the national level, including: designing a protocol to identify trafficked persons; training public servants with functions related to human trafficking; and protecting the human rights of trafficked persons as soon as signs of trafficking are detected, independently of what occurs in criminal proceedings.

The OSCE has further noted that the reasoning and findings of domestic courts, for example, can be instrumental ‘to ensure consistency of judicial practice and correct understanding and interpretation of anti-trafficking legislation’.¹⁶ Interpretation and clarifications by higher courts also play an important role, especially when they are binding on lower courts.¹⁷ Such decisions also reinforce international legal obligations and encourage harmonisation and co-operation across different judicial interpretations.

With respect to the role of regional courts, an evaluation by Duffy found that courts reinforce ‘duties to prevent, regulate, investigate, cooperate, criminalize and punish’.¹⁸ Her analysis focusses on decisions by the ECtHR, the African Commission on Human and Peoples’ Rights, the Court of Justice of the Economic Community of West African States, the Inter-American Commission on Human Rights (IACmHR) and the IACtHR. According to Duffy, these decisions can shed light on the shortfalls of legal frameworks and State policies, and they can be instrumental in clarifying and underlining States’ positive obligations.¹⁹ Duffy highlights four key examples:

In some cases, such as CN v. UK or Fazenda Brasil Verde, the litigation has led to legislative changes to enhance criminal law and jurisdiction over these offences. Many other cases, however, including Mani, or Periera v. Brazil, reveal something quite different, which is laws that exist on paper but are not understood or given effect in practice, for varying reasons including the lack of capacity and knowledge of prosecutors or judges themselves, the insensitive and ineffective handling of investigations or direct corruption and collusion of state agents.²⁰

The sustained impact of strategic litigation before regional courts is further explored by Milano, with specific reference to the ECtHR. Milano recognises the influence of the ECtHR’s landmark case Rantsev v Cyprus and Russia, ²¹ although she is critical of the Court’s ruling in LE v Greece, ²² which, she argues, failed to meet the expectations set out in Rantsev and therefore represents a regression.²³

The role of decisions of regional courts has also been highlighted in a series of expert interviews conducted as part of the research that informed this chapter. A member of the secretariat of the ECAT emphasised how the ECtHR has triggered positive changes through the judgments of, inter alia, Rantsev v Cyprus and Russia,²⁴ Chowdury and others v Greece²⁵ and Siliadin v France,²⁶ causing changes in national laws and the adoption of action plans.²⁷ The same reasoning could be applied in the future to the more recent cases of VCL and AN v the United Kingdom²⁸ and Zoletic and others v Azerbaijan.²⁹ Other participants in the research project also noted that judicial reviews have the potential to trigger direct change in obliging the enforcement of international or regional legal obligations.³⁰ A similar observation was made with respect to strategic litigation, which interviewees argued can be an influential tool in creating legal and policy changes.³¹ With regards to the influence of UN Special Procedures, including UN Special Rapporteurs, the system of country visits and subsequent reports and recommendations have been deemed influential when rapporteurs focus on a specific policy area. Governments are responsive because country visits take place in the context of broader discussions and engagements about legislative change and improvements. Concerns of reputation and international relations are at play, but what is important to enable such influence is trust and dialogue. While there is minimal influence from governments who do not engage and co-operate with country visits, where there is a dialogue and a receptiveness to visits, changes are likely to follow.³²

More broadly, judicial and quasi-judicial decisions can be decisive in identifying gaps in national legislation and outlining where the law needs to be improved.³³ However, the impact of litigation, and more broadly of decisions, depends on whether there is a system of precedent, or whether or not such decisions are binding. It has been noted, for example, that in Southeast Asia, court decisions are rarely written, published or translated, reducing the influence that precedent-setting may have in the region (even if influential within the specific country).³⁴ A similar issue was raised in the context of our research in Guyana.³⁵ In addition, integral to the influence of judicial and quasi-judicial decisions are judges’, or more broadly, decision-makers’, own understanding and awareness of trafficking in persons and anti-trafficking law.³⁶ Examples have emerged of judges having a lack of awareness and understanding of how international legal instruments ratified by their country apply,³⁷ as well as a lack of understanding around specific provisions (with the non-punishment principle being a key example).³⁸ Moreover, sight should not be lost of the fact that social and cultural contexts may influence judges and decision-makers. For example, it has been suggested that in Brazil judges and decision-makers do not always see ‘the gravity of the situation’ because of an underlying and embedded ‘culture of exploitation’,³⁹ a reality that would seem to normalise certain behaviours that fall within the scope of the trafficking definition. These socio-cultural contextual factors, alongside the limits to judges’ understandings and the difficulties of ensuring victim co-operation in prosecutions, limit the impact of courts and judges.⁴⁰

Indeed, judicial and quasi-judicial decisions do not operate in a vacuum; their influence is determined by several other factors beyond understanding of the law and social and cultural contexts. Other determinant factors identified are, for example, a State’s political situation and political will to act in the aftermath of a judicial or quasi-judicial decision.⁴¹ For example, it has been noted that the rule of law in the United Kingdom facilitates a role for court decisions, which are often based on the ECAT, in enforcing regional obligations domestically.⁴² In contrast, in Moldova and Cambodia (amongst other countries), it has been noted that the courts have minimal impact due to corruption, thus limiting their ability to trigger policy or legislative change.⁴³

Against this background, however, it is relevant to note that the impact of judicial and quasi-judicial decisions, as well as of specialised non-judicial bodies’ observations, can be amplified when decisions are used as levers and accountability tools by, inter alia, civil society and the media. This is demonstrated, for example, by the cases of fishermen from Indonesia being trafficked to New Zealand on Korean boats where ‘fishing companies were bringing these migrant labourers into New Zealand under a very specific provision of the Fisheries Act’.⁴⁴ International Law Aid and the International Transport Workers’ Federation, as well as other non-governmental organisations (NGOs), joined forces in pressuring the New Zealand Government to change specific provisions of the Fisheries Act 1996 – pressure that resulted in a ministerial inquiry. In parallel, the Supreme Court in New Zealand also heard cases in relation to wage claims. Together, these factors brought about significant changes in practice.⁴⁵

15.3 The Role of Judicial, Quasi-Judicial and Specialised Non-Judicial Bodies in Argentina, Brazil, Cyprus and the United Kingdom

For the purpose of this chapter, we have selected four case studies (Argentina, Brazil, Cyprus and the United Kingdom) from amongst the fourteen undertaken as part of the broader project on determinants of anti-trafficking efforts.⁴⁶ These four were selected because they represent different levels of engagement of judicial, quasi-judicial and specialised non-judicial bodies across two distinct geographical areas. These are four exploratory, or hypothesis-generating, case studies, selected according to three baseline criteria: the presence of engagement of judicial, quasi-judicial or specialised non-judicial bodies; the availability of proof of such engagement; and the presence of different qualitative levels of engagement of such bodies.⁴⁷

15.3.1 Argentina

As recognised by the United Nations Office on Drugs and Crime in its Global Report on Trafficking in Persons of 2018, Argentina reported the highest numbers of prosecution and convictions of trafficking and trafficking-related offences in the South American region.⁴⁸ By July 2020, Argentina had reported a total of 405 decisions on human trafficking and exploitation, of which 282 were convictions for human trafficking, 62 were convictions for exploitation and 61 were acquittals. ⁴⁹ Argentina was one of the countries that promoted the adoption of the Palermo Protocol, driven by its political will to fight human trafficking in minors and by its strategic motivations of dealing with human trafficking as a form of transnational organised crime.⁵⁰ Argentina ratified the Palermo Protocol in August 2002 through Law 25.632,⁵¹ and in 2008 it enshrined the crime of human trafficking in domestic law through Law 26.364.⁵²

In the Argentinian context, the influence of judicial cases as determinants for public policies and legislation on anti-trafficking has always been critical. Indeed, judicial cases influenced the enactment of all three of the main anti-trafficking laws, namely Law 26.364 (2008) creating the crime of human trafficking; Law 26.842 (2012)⁵³ modifying Law 26.364, including eliminating the ‘means’ element from the crime; and Law 27.508 (2019),⁵⁴ creating a fund to assist and compensate trafficked persons.

At the time of the first landmark case involving Marita Verón, Argentina did not have any criminal provision punishing human trafficking. Marita Verón was kidnapped and subjected to sexual exploitation in 2002. Through the establishment of the NGO Fundación María de los Ángeles, Marita’s mother advocated for the case of her daughter and for the recognition of human trafficking in Argentina. Although the defendants were at first acquitted in 2012, the acquittal was met with widespread outrage, and on appeal the Supreme Court of Tucumán convicted ten out of the thirteen suspects (seven men and six women). The case of Marita Verón exposed the inadequacy of the Argentinian legal framework, the absence of legal provisions enabling an effective investigation into her disappearance, and difficulties in the prosecution of her alleged traffickers. Though the trial did not start until 2012, the legislators – taking into account the events of this particular case – were prompted to recognise the need to adopt provisions criminalising trafficking in persons, which led to the adoption of Law 26.364. When the first instance Court acquitted the thirteen defendants in 2012, extraordinary legislative debates were summoned, and Law 26.842 was adopted in December 2012. Amongst the modifications introduced, the law eliminated the ‘means’ element from the definition of the crime of human trafficking – which is now only considered to be an aggravated circumstance. According to the legislative debates, it is evident that the poor decision rendered in the case of Marita Verón was one of the main determinants for the enactment of Law 26.842.

A second landmark case, Montoya, highlighted the lack of provisions with respect to adequate redress for trafficked persons. In this case the claimant, who had been trafficked for the purpose of sexual exploitation, acted as a querellante (complainant) in the trial against the traffickers, seeking civil damages. She also sued the municipal State for lack of prevention and for the facilitation of the exploitation. The tribunal sentenced three individuals to up to seven years in prison, and most notably it ruled in favour of the querellante in the civil damage case, ordering the municipality to pay 780,000 pesos (ca. €7,000). As in the case of Marita Verón, the Montoya case exposed gaps in the domestic anti-trafficking legal framework. Following the judgment, the Federal Council for the Fight against Human Trafficking and Exploitation and for the Protection and Assistance of Victims⁵⁵ proposed the creation of a fund to allow for the compensation of trafficked persons. In 2019, Law 27.508 was enacted, establishing a trust fund comprised of traffickers’ seized assets. Notably, Law 27.508 also introduced a requirement for criminal courts to award trafficked persons restitution at the time of the traffickers’ conviction and provided for the possibility of filing civil suits to receive additional restitution. In the year of its enactment, criminal courts applied Law 27.508 in seven cases, granting restitution to trafficked persons.

In 2010, the United Nations Special Rapporteur on Trafficking in Persons, Especially Women and Children, Joy Ngozi Ezeilo, conducted a country visit to Argentina at the invitation of the government.⁵⁶ The Special Rapporteur welcomed the adoption of Law 26.364 and the creation of dedicated offices within the executive to provide trafficked persons with assistance and to investigate trafficking in persons, but also observed a number of challenges. In particular, she noted the weak co-ordination of anti-trafficking activities, and the lack of identification and referral mechanisms for trafficked persons. The Special Rapporteur called on the Argentinian Government to, inter alia, establish:

… a federal central agency to enhance coordination, not only among federal offices and units that have already been set up to combat trafficking in persons and assist victims, but also between them and authorities at the provincial and municipal levels [and to consider establishing] a special fund for the compensation of trafficked persons.⁵⁷

UN Treaty Bodies have also raised concerns, over the years, with particular reference to the implementation of existing legislation. The Committee on the Elimination of Discrimination Against Women, in its 2016 Concluding Observations on the Seventh Periodic Report of Argentina, recommended that the State party ‘[e]stablish a referral and identification mechanism, increase funding for shelters and provide counselling, rehabilitation services and psychosocial assistance for women and girls who are victims of trafficking and exploitation of prostitution’.⁵⁸ In 2018, the Committee on Economic, Social and Cultural Rights (CESCR) made similar recommendations in the context of exploitation beyond forced prostitution, and with respect to trafficked persons regardless of biological sex. The CESCR noted that ‘most of the State party’s mechanisms for combating trafficking in women are geared towards emergency care and there are no programmes of sustained medium- or long-term assistance for victims’.⁵⁹ The Committee recommended ‘that the State party strengthen public policies for the prevention and punishment of trafficking in persons [and] that the principle of exemption from criminal liability be respected and that, accordingly, victims of trafficking in persons not be detained or prosecuted’.⁶⁰ Similar recommendations were also made as recently as 2020 by the Committee on the Protection of the Rights of all Migrant Workers and Members of Their Families (CMW). In its Concluding Observations on the Second Periodic Report of Argentina, the CMW recommended that Argentina ‘[a]llocate sufficient resources in each province for the provision of psychological, legal and medical assistance to victims, in addition to shelters or specialized care centres for child, adolescent and women victims of trafficking in persons’.⁶¹

While the Special Rapporteur’s recommendation to establish a federal central agency to enhance anti-trafficking co-ordination was addressed in 2012 through Law 26.842, a special fund was only created in 2019, following the judgment in the Montoya case, and the recommendations from UN Treaty Bodies have had limited impact, including in terms of pressure, in effecting change. The Argentinian case study highlights the role of judicial decisions in improving anti-trafficking efforts – including where a ‘negative’ judicial decision is reached – and it reflects both the cumulative effect of various determinants and the broader context and timescales within which determinants must be considered.

15.3.2 Brazil

Over the past two decades, Brazil has seen notable shifts in developing trafficking policy, legislation and initiatives. Brazil ratified the Palermo Protocol in 2004, through Decree n. 5.017. Upon coming into force, a series of anti-trafficking efforts were undertaken domestically. For example, in March 2005, Law n. 11.106 amended the Brazilian Criminal Code, specifically Article 231, which criminalised the ‘traffic of women’, and changed it to the offence of ‘traffic[king] in persons for sexual exploitation’.⁶² In addition, internal traffic in persons for sexual exploitation was criminalised under Article 231-A. Similarly, in 2006, Decree n. 5.948 was enacted, which approved the National Policy to Combat Trafficking in Persons and established an inter-ministerial working group to draft a proposal for a national plan.⁶³ The first National Plan for Combating Human Trafficking was then approved by Decree n. 6.347 in 2008.⁶⁴

While decisions of judicial, quasi-judicial and non-judicial bodies have not been identified as key determinants of anti-trafficking efforts broadly in the Brazilian context, interviewees have highlighted the role played by such decisions in a particular sphere – that of trafficking for the purpose of forced labour. Labour trafficking is widely recognised as an issue in Brazil, so there is a pre-existing, well-developed legislative background for protecting workers’ conditions,⁶⁵ in addition to an established network to tackle modern slavery (or ‘work analogous to slavery’, as described by Article 149 of the Brazilian Criminal Code).⁶⁶ The underlying motivation for labour protection is rooted in Brazil’s history and links with slavery,⁶⁷ and supplemented by external factors, including the IACmHR decision in José Pereira v Brazil.⁶⁸ As part of the amicable settlement agreement through which the government of Brazil accepted responsibility for the wrongdoings in this case, Brazil was called upon to, inter alia, pay financial compensation for the damages suffered by the claimant; commit to prosecute and punish the individuals responsible; and institute preventive measures, including legislative amendments, and measures to monitor and repress slave labour in Brazil. With regard to compensatory measures, the Brazilian State forwarded a bill to the National Congress which, adopted as a matter of urgency following a symbolic vote, allowed the claimant to be compensated. Through the case, it became apparent that there was a need for amendments in domestic legislation to provide a more precise definition of forced labour, which was prioritised and finally introduced through Law 10.803/2003, with the José Pereira case acting as a catalyst for this process.

Caso Trabalhadores da Fazenda Brasil Verde v Brazil,⁶⁹ a landmark judgment of the IACtHR, also dealt with practices of forced labour and debt bondage, but in a different context – a cattle ranch located in the municipality of Sapucaia, in the south of the state of Pará. Although the Brazilian Government made efforts to address slave labour during the 2000s, largely in response to key recommendations from the IACmHR in the José Pereira case, the anti-trafficking legal and policy framework in Brazil was – and remains – not fully compliant with the Palermo Protocol, nor the American Convention on Human Rights (ACHR). In 2016, the IACtHR ruled in this case that Brazil had violated the right not to be subjected to slavery, forced labour and human trafficking (Articles 6(1) and 6(2) of the ACHR), among several other rights. The Court further ruled that the Brazilian government had to investigate the case, pay reparations to victims and stop applying the statute of limitations to cases that fell under the definition of slavery in international law. The decision was referred to in the context of two significant changes in anti-trafficking efforts. With respect to the duty to prosecute, following the IACtHR judgment, the Brazilian Government created a task force of prosecutors to identify and investigate situations of trafficking. With respect to the non-pecuniary measures ordered by the Court, an amendment to the Constitution was introduced in April 2017 to establish that the submission of a person to a condition analogous to slavery constitutes an imprescriptible crime. Although the owners of the cattle ranch filed a motion to dismiss in the Federal Court for the First Region, arguing that the statute of limitations had expired, in 2018 the Federal Court ruled that the statute of limitations did not apply, upholding the 2016 ruling by the IACtHR.

However, while important, the case of Fazenda Brasil Verde cannot be directly or conclusively linked with any substantive legislative anti-trafficking development in Brazil. Indeed, Law n. 13.344 (2016) was enacted in the same month as the IACtHR’s decision, and only gave the judgment a ‘symbolic weight’. There has also been very limited engagement of UN Treaty Bodies with respect to anti-trafficking efforts in Brazil. A rare instance has been the 2015 Concluding Observations on the Combined Second to Fourth Periodic Reports of Brazil by the Committee on the Rights of the Child (CRC). The CRC affirmed that it was ‘deeply concerned about the trafficking in children, particularly girls, for the purposes of sexual exploitation and forced labour’ and that it was ‘particularly concerned about the high vulnerability of indigenous children to trafficking for the purposes of domestic labour, slave labour and sexual exploitation’.⁷⁰ Building on a recommendation issued by the Special Rapporteur on Contemporary Forms of Slavery, including its Causes and Consequences,⁷¹ the CRC recommended that the State party ‘amend its Penal Code with a view to criminalizing all forms of trafficking, including for the purpose of economic exploitation’, and that it ‘[e]stablish specialized shelters with adequate human, technical and financial resources’.⁷² Yet, it appears that the determinants that influenced the 2016 legislative process pre-dated the result in the case of Fazenda Brasil Verde, and were not directly related to the recommendations of UN Treaty Bodies – in contrast with the impact the IACtHR had on anti-modern slavery efforts in Brazil through the case of José Pereira, which was identified as a key determinant by several in-country expert interviewees. The Brazilian case study highlights how the relevance and effectiveness (level of influence) of a determinant can vary across the range of anti-trafficking efforts, including in distinct areas of anti-trafficking law and policy. Regional judicial and quasi-judicial decisions have been significant in Brazil in influencing actions against trafficking for the purpose of forced labour, arguably compensating for a lack of interest and engagement with the phenomenon on the part of law-makers and domestic courts, but less significant in actions against other forms of trafficking (although some changes achieved through decisions on forced labour have had an impact across all types of exploitation, including the establishment of a task force of specialised prosecutors).

15.3.3 Republic of Cyprus

The Republic of Cyprus (RoC) enacted anti-trafficking legislation criminalising all major trafficking offences in 2014 through Law 60(I)/2014,⁷³ which transposes European Council Directives 2011/36/EU and 2004/81/EC. The 2014 legislation includes provisions on victim protection and the establishment of a national co-ordinator for anti-trafficking efforts and a multidisciplinary co-ordination group to provide more holistic insights into the State’s and civil society’s anti-trafficking initiatives and co-operation. Law 60(I)/2014 was amended in 2019,⁷⁴ to increase the maximum sentences for the crime of trafficking in persons. According to interviewees in the RoC, it was international pressure, including in the form of regional courts’ case law (ECtHR), that led to the 2014 legislative changes. Increasingly, they also argued, international standards are being used to draw attention to and demand better implementation of the law.

In Rantsev v Cyprus and Russia,⁷⁵ in assessing Cyprus’ positive obligation to put in place an appropriate legislative and administrative framework, the ECtHR noted the applicant’s complaint as to the inadequacy of Cypriot trafficking legislation but did not consider that the circumstances of the case gave rise to any concern in this regard. According to the Court, Cyprus’ domestic anti-trafficking legislation reflected the provisions of the Palermo Protocol, prohibited trafficking and sexual exploitation, with consent providing no defence to the offence, and provided for a duty to protect trafficked persons, inter alia, through the appointment of a guardian.⁷⁶ The Court, however, noted, ‘as regards the general legal and administrative framework and the adequacy of Cypriot immigration policy, a number of weaknesses’,⁷⁷ finding that ‘the regime of artiste visas in Cyprus did not afford to Ms Rantseva practical and effective protection against trafficking and exploitation’.⁷⁸ The ECtHR’s reference to ‘artiste visas’ relates to the existence at the time of a visa system that allowed women to come to the country and work as dancers in cabarets – although it was widely acknowledged that many of these women were forced into prostitution. Rantsev, which was specifically concerned with trafficking for sexual exploitation purposes, has not only sensitised the RoC authorities to this type of trafficking and its victims (almost always women),⁷⁹ but also international organisations and local NGOs are more likely to place emphasis on this issue because of the RoC’s history with it.

The ECtHR’s finding was instrumental in abolishing the artiste visa. When the law changed, cabarets stopped being financially viable and most of them closed, which provides an example of how one anti-trafficking determinant (international standards) contributed to another (economic conditions) in a way that had a positive impact on anti-trafficking efforts. The standards communicated to the RoC, including in the form of a decision of the ECtHR, pressured the RoC to change the existing legislative framework and to undertake more consistent and genuine efforts to address human trafficking. The impact of international pressure – which also continued to be exerted in the form of international reporting from the United States Department of State, GRETA and UN Treaty Bodies⁸⁰ – on the enactment and monitoring of anti-trafficking legislation was acknowledged in interviews by key stakeholders working for the government. Yet this only appears to have had a superficial or transient effect: the decrease in sexual exploitation in clubs and cabarets has been followed by an increase in prostitution and sexual exploitation in private houses and flats.⁸¹

While there are no individual complaints before UN Treaty Bodies with respect to the RoC and trafficking, the 2017 Law on Societies and Institutions,⁸² regulating, inter alia, the operations of civil society organisations, was subject to scrutiny through UN Special Procedures. In March 2021, several mandates, including the mandate of the Special Rapporteur on Trafficking in Persons, Especially Women and Children, addressed with concern the information received on the deteriorating environment for civil society organisations in Cyprus in the context of a 2020 amendment to the Law on Associations and Foundations and Other Related Issues. In particular, the letter was concerned with the alleged deregistration of Action for Support, Equality and Antiracism (KISA) from the Register of Associations and Foundations on 14 December 2020.⁸³ KISA is an NGO that, inter alia, provides support to migrants, asylum seekers and trafficked persons. In addressing the government of Cyprus, the Special Rapporteurs drew attention to the Palermo Protocol, ratified by the RoC in 2003, which obliges State Parties to refrain from acts which would defeat or undermine the Protocol’s objectives and purposes, including to prevent and combat trafficking in persons, to ensure assistance to trafficked persons and to provide effective remedies.

The Cypriot case study highlights the significant influence of regional judicial decisions in improving anti-trafficking efforts. Yet it also highlights that without a meaningful and holistic follow-up and without political will among State actors, the change(s) derived from such judicial decisions might be formalistic or superficial changes that conceal a reality of continued exploitation and weak responses in practice.

15.3.4 United Kingdom

Over the last decade, the United Kingdom’s anti-trafficking response has undergone considerable development and progression. Dedicated statutes have been enacted: the Modern Slavery Act 2015 (‘MSA 2015’)⁸⁴ in England and Wales, the Human Trafficking and Exploitation (Scotland) Act 2015⁸⁵ and the Human Trafficking and Exploitation (Criminal Justice and Support for Victims) Act (Northern Ireland) 2015.⁸⁶ These statutes have, inter alia, created the role of the Independent Anti-Slavery Commissioner⁸⁷ and introduced new provisions designed to tackle labour exploitation in supply chains,⁸⁸ to place the principle of non-prosecution of trafficked persons on a statutory footing⁸⁹ and to better support child victims through the appointment of Independent Child Trafficking Guardians.⁹⁰ These measures are supported by statutory and non-statutory guidance.⁹¹ Central and devolved governments have also produced modern slavery strategies⁹² and published annual reports.⁹³

The ratification of international and regional legal frameworks, combined with the sustained efforts of civil society organisations and survivor networks and the role of regional and domestic courts in holding the government to account, have placed significant pressure on the United Kingdom’s government to develop its anti-trafficking domestic law and policy. The adoption of the National Referral Mechanism (NRM) in 2009, for example, was a result of the obligations flowing from the ECAT. The ECAT was also instrumental in the ECtHR’s analysis in the case of CN v United Kingdom,⁹⁴ where the core of the claim was whether the absence, at the time of the events, of a specific prohibition on servitude and forced labour was at the basis of the failure to properly investigate the applicant’s complaints. Indeed, although domestic authorities did investigate the applicant’s complaints, it was submitted that the investigation was deficient because the lack of specific legislation criminalising domestic servitude meant that it was not directed at determining whether or not she had been a victim of treatment contrary to Article 4 of the European Convention on Human Rights (ECHR).⁹⁵ The ECtHR found, similar to Siliadin v France,⁹⁶ that the offences existing at the time of the events (trafficking, false imprisonment, kidnapping, grievous bodily harm, assault, battery, blackmail and harassment) were ‘inadequate to afford practical and effective protection against treatment falling within the scope of Article 4 of the Convention’.⁹⁷ In other words, according to the Court, ‘the criminal law in force at the material time did not afford practical and effective protection against treatment falling within the scope of Article 4 of the Convention’.⁹⁸ Although section 71 of the Coroners and Justice Act 2009 was enacted on 6 April 2010,⁹⁹ hence before the decision of the ECtHR in 2012, the 2013 Draft Modern Slavery Bill ECHR Memorandum confirms that the ‘offence in section 71 was enacted to addresses the criticisms of the United Kingdom in the [ECtHR’s] CN v UK’.¹⁰⁰ This is a situation where the filing of the case, highlighting deficiency in the law and policy, was enough to engage positive change.

Section 71 of the Coroners and Justice Act 2009 is not the only development in anti-trafficking efforts heavily influenced by decisions (and processes) of courts, tribunals or non-judicial bodies in the United Kingdom. Lawyers and the courts, in applying regional legal frameworks to enforce victim’s rights enshrined in ECAT, ultimately compelled government action in several other instances. Domestic courts have also played an important role in shaping law and policy. The following are non-exhaustive examples of significant case law: Atamewan v Secretary of State for the Home Department led to amended guidance ensuring the proper identification of historic victims of trafficking;¹⁰¹ L v Children’s Commissioner for England resulted in new Crown Prosecution Service guidance on the non-punishment of victims provisions in ECAT and the EU Directive;¹⁰² Hounga v Allen enabled some employment law rights to be applicable to irregular migrants insofar as the Supreme Court held that the doctrine of illegality arising from the employment of an ‘illegal migrant’ did not defeat a claim of employment discrimination brought by the same trafficked migrant worker;¹⁰³ in Benkharbouche and Janah the Supreme Court found the application of State immunity to employment claims brought by members of embassy staff in the United Kingdom to be incompatible with Article 6 of the ECHR, and led to the disapplication of those provisions to claims founded in EU law;¹⁰⁴ in PK (Ghana) v Secretary of State for the Home Department, the Court declared the government’s policy guidance relating to the grant of discretionary leave for victims of trafficking to be unlawful for failure to give effect to the objectives of Article 14(1)(a) of the ECAT, and emphasised that new guidance should make clear that a renewal residence permit should be issued to a trafficked person where their stay is necessary, through a test that is simply one of necessity – meaning that there is no additional requirement for the individual to show compelling circumstances;¹⁰⁵ in K and AM v Secretary of State for the Home Department the Court found the reduction of 42 per cent in subsistence rates for trafficked persons to be unlawful, and an employment contract change which took effect on 1 March 2018 was quashed;¹⁰⁶ and the case of NN v Secretary of State for the Home Department resulted in the introduction of a new process and guidance to assess the support needs of survivors beyond the previous NRM exit timescales.¹⁰⁷

As in the case of the RoC, while there are no individual complaints before UN Treaty Bodies, the UN Special Procedures have engaged with the UK Government on a number of occasions with respect to anti-trafficking efforts.¹⁰⁸ In May 2021, for example, the Special Rapporteurs on Contemporary Forms of Slavery, on Human Rights of Migrants and on Trafficking in Persons addressed concerns around changes to the overseas domestic worker visa and the Immigration Act.¹⁰⁹ Under the amended Immigration Rules, all migrant domestic workers were granted the option to change employer, but only for the remaining term of their six-month visa, which was non-renewable. Migrant domestic workers found to be trafficked were granted the possibility of applying for limited leave to remain in the United Kingdom for up to two years, with permission to work as domestic workers. In its response to the letter, the government acknowledged that ‘the UK gives careful considerations to all recommendations by human rights bodies’ and that, on the basis of such recommendations, ‘officials in the Home Office are in the process of developing proposals to reform the [tied visa] route from next year’.¹¹⁰

UN Special Procedures also engaged in March 2021 with the alleged role of Omegle, a live video-chat website based in the United States, in facilitating self-generated and live video-streamed sexual activities and material online that depicts or otherwise represents children appearing to engage in sexually explicit conduct.¹¹¹ In June 2021, the government provided its response, mentioning the intention ‘to introduce legislation on tackling online harms, including child sexual abuse’ and the publication of draft legislation in May 2021 (currently under parliamentary discussion).¹¹²

It is also worth mentioning that in January 2021 several mandates issued a letter to, inter alia, the UK Government with respect to the situation of the Al-Hol and Roj camps located in north-east Syria.¹¹³ The letter called on States to be particularly mindful of ‘the potential for coercion, co-opting, grooming, trafficking, enslavement and sexual exploitation when examining [womens’ and girls’] agency, or lack thereof’ in the context of their association with terrorist groups. The letter further emphasised the positive obligation on States to identify trafficked persons, as ‘a failure to identify a trafficked person correctly is likely to result in a further denial of that person’s right’. Although the government only partially agreed with the assertions made by the Special Rapporteurs, its response provided justifications of existing practices and policies that allow for a better understanding of, and arguably provide for better counter-argumentation against, such practices and policies. The engagement by the government with these assertions also reflects the weight given to the same by the government and their potential for influencing government discussions.

The UK case study provides, amongst the four case studies presented in this chapter, the most complex and comprehensive picture of how judicial, quasi-judicial and specialised non-judicial bodies influence anti-trafficking efforts, alone or in conjunction with one another. Decisions of judicial bodies tend to result in tangible changes in anti-trafficking efforts while the engagement of specialised non-judicial bodies has been instrumental in opening and fostering dialogue with State actors on activities or developments – in policy and in law – considered at risk, or as producing risks, of trafficking and exploitation.

15.4 Conclusion

In all four case studies, decisions of judicial bodies – either domestic or regional – have played a significant role in advancing anti-trafficking efforts and protecting trafficked persons’ rights. The jurisprudence of regional human rights courts has influenced both government actions and domestic courts’ interpretation of anti-trafficking law, as well as human rights law provisions relevant to anti-trafficking efforts. They have resulted in the introduction of new measures, the withdrawal of existing measures and more human rights-conformant interpretations of existing legislation. Quasi-judicial human rights bodies, including the UN Treaty Bodies, are not yet consistently engaged in human trafficking cases and – in their non-judicial role, do not consistently engage with anti-trafficking concerns during periodic reviews. Yet the potential of their impact on the improvement of anti-trafficking efforts should not be ignored. Indeed, quasi-judicial bodies can be viewed as contributors to international lawmaking – influencing the interpretation, clarification and refinement of State duties and responsibilities.¹¹⁴ While courts and quasi-judicial human rights bodies tend, by their very nature, to be reactive in nature, and the burden of initiating proceedings remains with individuals whose rights have been violated, specialised non-judicial bodies, including UN Special Procedures and Treaty Bodies in their reporting function, are, and can be, more proactive in nature. The engagement of the UN Special Rapporteurs, both in terms of country visits and thematic reports as well as through letters, has increased sharply in recent years. While responses from governments to communications of Special Rapporteurs might be circumstantial and may be labelled ‘empty promises’, our research has shown that the engagement that governments need to show – and for which they could be held accountable, at least in terms of international reputation – is a meaningful element in the development of anti-trafficking efforts.¹¹⁵

The analysis of decisions and observations in different contexts has shown the inter-dependence of judicial, quasi-judicial and specialised non-judicial bodies, which rely on each other – insofar as interpretation and standards are concerned – to safeguard the rights of trafficked persons and steer governments to comply with their international, regional and domestic obligations. It has also shown that the variety in the type of external pressure applied – for example, binding judgments and ‘soft’ pressure – can be used strategically to promote change and to ensure that change is sustainable. Because determinants of anti-trafficking efforts, understood as the factors shaping government responses, do not work in isolation, but rather are part of a broader process, it would be wrong to assume that decisions and observations of judicial, quasi-judicial and specialised non-judicial bodies can in isolation yield the improved political will and capacity in national governments to address trafficking in persons. Yet, as demonstrated by the cases of Argentina, Brazil, the RoC and the United Kingdom, they are external points of pressure which can contribute to positive change.