Dancing on the Borders of Article 4: Human Trafficking and the European Court of Human Rights in the Rantsev Case
| DOI | 10.1177/016934411203000203 |
| Date | 01 June 2012 |
| Author | Vladislava Stoyanova |
| Published date | 01 June 2012 |
| Subject Matter | Part A: Article |
Netherlands Q uarterly of Human R ights, Vol. 30/2, 163–194, 2012.
© Netherlands I nstitute of Human Rig hts (SIM), Printed in the Net herlands. 163
DANCING ON THE BORDERS OF ARTICLE4:
HUMAN TRAFFICKING AND
THE EUROPEAN COURT OF HUMAN
RIGHTS IN THE RANTSEV CASE
V S *
Abstract
is article points to four worr isome aspects of the Court ’s reasoning in Rantsev v. Cyprus
and Russia. First, the Cour t takes on board the concept of human tra cking without
o ering any meaningful legal analysis as to the elements of the human tra cking
de nition. Second, the adoption of the human tra cking framework implicates the
ECtHR in anti-immigration and anti-prostitution agenda . e heart of this article is
the argument that the human tra cking framework should be discarded and the Court
should focus and develop the prohibition s on slavery, servitude and forced labour. To
advance this argument, the relation betwe en, on the one hand, human tra cking and,
on the other hand, slavery, ser vitude and forced labour is explained. e article s uggests
hints as to how the Court could have engage d and worked with the de nition of slavery
which requires exercise of ‘powers at taching to the right of ownership’, in relation to the
particular facts in Rantsev v. Cyprus and Russia . Lastly, it is submitted that the legal
analysis as to the state positive obligation to take protective operation measures is far
from persuasive.
Keywords: Art icle4 of the European Convention on Human Rights; Europea n Court
of Human Rights; forced labour; human t ra cking; Rantsev v. Cyprus and Russia;
servitude; slavery
* Doctoral Ca ndidate, Lund Univer sity, Sweden; adv.LLM, Leiden Univer sity, the Netherla nds.
For more information: vladislava.stoyanova@gmail.com and vladislava.stoyanova@jur.lu.se. I
would like to th ank Prof. Gregor Noll and prof. Johanna Niem i for their support and comments.
Responsibilit y for the views expressed is on ly mine. e title of this ar ticle was inspired by Prof.
Audrey Mackl in’s article ‘Danci ng Across Borders: ‘Exot ic Dancers,’ Tra cking, and Canadian
Immigrat ion Policy’ which is cited below.
Vladislava Stoyanova
164 Intersentia
1. INTRODUC TION
With Rantsev v. Cyprus and Russia1 t he European Cour t of Human Rights (the
ECtHR or the Court) joined the ‘ ght’ and the legal debate as to how the ‘ ght’ should
be fought against human tra cking. e nal pronouncements by the ECtHR in this
case which condemned both Cy prus and Russia for human rights violations have
been very positively endorsed.2 e endorsement has been so positive that the road
taken by the Cour t for reaching its conclusions has escaped a critical ga ze. But for Jean
Allain, no one has o ered critical comments on the case. 3 e objective of this a rticle
is to point to four problems which permeate the ECtHR’s legal ana lysis on Article 4
of the ECHR. e rst quest ion raised is on what basis t he Court concluded that the
case of Oxana Rantseva is one of human tra cking. In relation to this question, it is
suggested that not only the a nalysis of the factual circumstances is contestable, but
also the legal a nalysis on Article 4 is awed. In t he section “Dancing across Borders”,
an argument is developed t hat framing the case a s one of human tra cking implicates
the Court in anti-immigration and anti-prostitution agenda. Most importantly, the
article submits that t he Court should disca rd the human tra ck ing framework and
should focus on the actual abuses prohibited under Article 4. For t he purposes of
the last submission, an exa mination of the relationship between, from the one hand,
human t ra cking and, from the other hand, slavery, servitude and forced labour, is
necessary. It is advanced how Article 4 should be progressively interpreted without
resort to the human tra cking framework and how the Court should have made use
of the concept of slavery. Lastly, the article quest ions whether the ECtHR o ered a
persuasive legal ana lysis as to States’ positive obligat ions under Article 4 of ta king
protective oper ation measures.
e critique of the ECtH R’s legal reasoning should not be mistaken as a denial
of the abuses and su ering which many migrant women and speci cally women
working as art istes and/or prostitutes in Cyprus go through. On the contrary, the
issue which this article is intended to put forward is whet her the adopted reasoning
and the human tra cking framework are the right mechanism to address those
abuses. It has to be also pre-emptively cla ri ed that whereas the Cour t’s reasoning on
1 ECtHR, Rantsev v. Cypr us and Russia, 7Ja nuary 2010 (Appl. no. 25965/04).
2 For commentaries a nd articles touching on the ca se see Farrior, S., ‘Human Tra cking Violates
Anti-Slavery Provision: Introductory Note to Rantse v v. Cyprus and Ru ssia’, International Legal
Materials, Vol. 49, 2010, pp. 415–473; Pati, R., ‘St ates’ Positive Obligations wit h Respect to Human
Tra cking: t he European Cou rt of Human R ights Breaks Ne w Ground in Rants ev v Cyprus
and Russia’, Boston Universit y International L aw Journal, Vol. 29, 2011, pp. 79–142; McGeehan,
N., ‘Misunderstoo d and Neglecte d: the Margi naliz ation of Slavery in Inte rnational Law ’, e
Internationa l Journal of Human Rights , Vol. 16, No. 3, 2011, pp. 1–25.
3 See Allain, L ., ‘Rantsev v. Cyprus a nd Russia: e Europea n Court of Human R ights and Tra cking
as Slavery’, Human Right s Law Review, Vol. 3, No. 10, 2010, pp. 546–557.
Human Tra cking and the Europe an Court of Human R ights
Netherlands Q uarterly of Human Ri ghts, Vol. 30/2(2012) 165
Article 4 is chal lenged, the ultimate rea rmation of States’ positive obligations under
Article 4 of the ECtHR i s viewed as favourable.4
Before immersing into detai led formal legal ana lysis, the fact ual circumstances
in Rantsev v. Cyprus and Russia have to be brie y described. Miss Oxana Rantseva
le Russia and entered Cyprus on an artiste visa to work as an artiste in a cabaret.
Under the Cypriot legislation an ar tiste is ‘any alien who wishes to enter Cyprus in
order to work in a cabaret, musical-da ncing place or other night entertainment place
and has attained t he age of 18 years’.5 She le her place of employment th ree days a er
starting. e manager of the cabaret found her in a discotheque and took her to the
police asking t he police to declare her as illegal in the cou ntry, supposedly in v iew of
her being deported.6 e police concluded that Rantseva was not il legal. Instead of
releasing her, the police called t he manager and asked hi m to come and collect her
from the police station. Rantse va was taken by the cabaret manager to the apar tment
of another employee, where she was taken to a room on the si xth oor. In t he morning
of the following day, Rantseva was found dead i n the street below the apar tment’s
balcony. A bedspread was found looped through t he railing of the apar tment’s balcony.
Based on a complaint by Rantseva’s father to the ECtH R, the Court found violations of
Article 2 (right to life), Article 4 (prohibition on slavery, servitude a nd forced labour)
and Article 5 (right to liber ty and security) of the ECHR. Under Ar ticle 2, Cyprus was
found responsible for its failure to ful l its positive obligation to carr y on an e ective
investigation into Rantseva’s death.7 e ECtHR found that Rantseva’s detention at
the police station and her subsequent con nement to the private apart ment to which
con nement the state authorities acqu iesced, amounted to deprivation of liberty.
Cyprus was decla red to be in violation of Article 5 since the depr ivation of liberty had
no basis in the domestic law.8 As al ready mentioned, it is the factual and lega l analysis
concerning Art icle 4 which is henceforth an object of detailed invest igation.
2. A CASE OF HUMAN TRAFFICKING?
e ECt HR has developed a methodology that it follows when there is an a llegation of
a violation of a Convention right. It discusses the general material scope of the right
4 However, even the endorsement of the a rmation of states’ posit ive obligations under Ar ticle4 has
to be quali ed due to t he ECtHR’s pronouncements on the ar tiste visa regi me. e section ‘Danci ng
across Borders’ clari es t his position in more deta il.
5 Rantsev v. Cypr us and Russia, at pa ra. 113.
6 Pursuant to t he artiste regi me established in Cy prus, the numb er of artistes who cou ld be employed
in a single caba ret is limited (Rants ev v. Cyprus and Russ ia, at para. 116). If an artis te failed to come
to work or breached her contrac t, she would be deported a nd the expenses would b e covered by the
bank gua rantee which the cabaret m anager was required to deposit i n advance (Rantsev v. Cypr us
and Russia, at para. 117).
7 Rantsev v. Cypr us and Russia, at pa ras. 234–242.
8 Rantsev v. Cypr us and Russia, at pa ras. 322–325.
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