Human Trafficking, SM v Croatia and the Conceptual Evolution of Article 4 ECHR
| Published date | 01 July 2022 |
| Author | Kirsty Hughes |
| Date | 01 July 2022 |
| DOI | http://doi.org/10.1111/1468-2230.12703 |
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Modern Law Review
DOI:10.1111/1468-2230.12703
Human Tracking, SM v Croatia and the Conceptual
Evolution of Article 4 ECHR
Kirsty Hughes∗
Over the last decade the European Court of Human Rights has sought to reinterpret Article
4 ECHR in ways that render it applicable to human tracking and modern slavery. Yet whilst
this accorded Article 4 ECHR a vital role,ambiguity pervaded the question of what constitutes
‘human tracking’; an issue that came to the forein SM vCroatia, ultimately culminatingin the
rst Grand Chamber human tracking judgment. This analysis piece responds to these devel-
opments by drawing out and reecting upon the conceptual framework for human tracking
and Article 4 ECHR, identifying what we now know, and equally what remains unknown,
about this important right. In this regard it highlights signicant dierences of opinion within
the Court. Underpinning those dierences are diverging views as to both the scope of Article
4 ECHR, and the role of the Court,such that radically dierent future directions remain both
possible and contested.
INTRODUCTION
Although it is notoriously dicult to obtain accurate data on modern slav-
ery and human tracking,1there is no doubt that these practices are vast and
pernicious.2Examples in the UK3include the tragic deaths of Chinese cockle
pickers at Morecambe Bay,4British teenagers forced to trac drugs (county
∗Associate Professor,University of Cambridge, Faculty of Law. I am grateful to Stevie Martin and to
the anonymous MLR reviewer for their generosity and insights. Any remaining errors are,of course,
my own.
1 As noted by the Oce of National Statistics ‘Because of its hidden nature,producing an accurate
measure of prevalenceis dicult. Currently,there is no denitivesource of data or suitable method
available to accurately quantify the number of victims of modern slavery in the UK.’ Oce for
National Statistics, Modern Slavery in the UK (March 2020). This was also acknowledged in Joint
Committee on Human Rights, Human Tracking Twenty-sixth Report of Session 2005-2006 at
[78]. All URLs were last visited 29 September 2021.
2 The Director of the National Crime Agency thus emphasised in 2017 that ‘[t]he growing body of
evidence we arecollecting points to the scale being f ar larger than anyonehad previously thought.
The intelligence we are gaining is showing that there arelikely to be far more victims out there,
and the numbers of victims in the UK has been underestimated.’National Crime Agency, ‘Law
Enforcement Steps Up Response to Modern Slavery’ (August 2017).
3 For further insight into the nature of modern slavery in the UK see V. Mantouvalou,‘The UK
Modern Slavery Act 2015 Three Years On’ (2018) 81 MLR 1017.
4 ‘Five Charged Over Morecambe Bay Disaster’ The Guardian 22 December 2004 at https://www.
theguardian.com/uk/2004/dec/22/1. This tragedy led to the Joint Committee on Human
Rights Report, n 1 above.
© 2021 The Author.The Modern Law Review © 2021 The Modern Law Review Limited. (2022) 85(4) MLR 1044–1061
Kirsty Hughes
lines),5children tracked to the UK to work in drug factories,6and the discov-
ery of those who were homeless and/or those with learning disabilities working
for little or no pay and living in squalor for over a decade.7The picture is sim-
ilarly bleak within broader Europe,where it is estimated that the annual ow
of new victims for sexual exploitation is in the region of 70,000.8A horrifying
statistic,and yet one that reects only a subset of those tracked,not accounting
for those already within Europe,nor those tracked for other purposes.
In the light of the devastating nature and scale of such practices it is striking
that whilst we recently celebrated the 70th anniversary of the European Con-
vention on Human Rights (ECHR), and the 60th anniversary of the European
Court of Human Rights (ECtHR), the ECtHR has only found a violation of
Article 4 ECHR (Article 4) (the right which prohibits slavery, servitude and
forced or compulsory labour) in a handful of cases.9Indeed at one time the na-
ture of the case law was such that a leading human rights scholar declared that
Article 4 ‘is largely irrelevant in modern European democracies’.10 She went
on to state that the problem derives from ‘its restrictive wording [as] it has not
proved possible to interpret Art 4 in such a way as to allow it to cover rights
unthought of when it was conceived.’11 Over the last decade, however, the EC-
tHR has sought to reinterpret the right in a manner that renders it (alas) highly
relevant to ‘modern European democracies’.The gateway for this was the EC-
tHR’s determination in Rantsev vCyprus and Russia (Rantsev) that Article 4 is
not limited to its express wording as it also encompasses ‘human tracking’.12
Yet whilst the incorporation of human tracking accorded a contemporary
5 National Cr ime Agency,‘County Lines’ at https://www.nationalcrimeagency.gov.uk/what-we-
do/crime-threats/drug-tracking/county-lines.
6 Apps No 77587/12 and 74603/12 VCL and AN vUnited Kingdom (ECLI:CE:ECHR:2021:0216
JUD007758712 (VCL and AN).
7 ‘UK family found guilty of enslaving homeless and disabled people’ The Guardian 11 Au-
gust 2017 at https://www.theguardian.com/uk-news/2017/aug/11/uk-family-found-guilty-
of-enslaving-homeless-and- disabled-people.
8 United Nations Oce on Drugs and Cr ime,Tracking in Persons to Europe for Sexual Exploitation
(2010).
9 App No 13580/88 Karlheinz Sc hmidt vGermany ECLI:CE:ECHR:1994:0718JUD001358088,
App No 73316/01 Siliadin vFrance ECLI:CE:ECHR:2005:0726JUD007331601, App No
17209/02 Zarb Adami vMalta ECLI:CE:ECHR:2006:0620JUD001720902, App No 25965/04
Rantsev vCyprus and Russia (2010) 51 EHRR 1 (Rantsev), App No 67724/09 CN and V
vFrance ECLI:CE:ECHR:2012:1011JUD006772409, App No 4239/08 CN vUK ECLI:CE:
ECHR:2012:1113JUD000423908, App No 51637/12 Chitos vGreece ECLI:CE:ECHR:2015:
0604JUD005163712,App No 71545/12 LE vGreece ECLI:CE:ECHR:2016:0121JUD0071545
12, App No 58216/12 JvAus tria ECLI:CE:ECHR:2017:0117JUD005821612, App No
21884/15 Chowdury and others vGreece ECLI:CE:ECHR:2017:0330JUD002188415, App No
60561/14 SM vCroatia Chamber judgment (2019) 68 EHRR 7 (SM(Chamber)), SM v
Croatia (Grand Chamber) (2021) 72 EHRR 1 (SM(GC)), App No 40311/10 TI vGreece
ECLI:CE:ECHR:2019:0718JUD004031110, VCL and AN n 6 above. It is also worth noting
that awards of damages remain within the range of 5,000-15,000 euros,with the exception of
Rantsev (£40,000 where the applicant’sdaughter had died), CN vFrance (30,000 euros where the
applicant a child had been subjected to servitude for about a decade),and VCL and AN where the
Court recently awarded £25,000 in respect of a violation of the procedural obligations relating
to prosecution of victims of human tracking.
10 H. Fenwick, Civil Liberties and Human Rights (London: Routledge, 2007) 50.
11 n 10 above.
12 n 9 above.
© 2021 The Author.The Modern Law Review © 2021 The Modern Law Review Limited.
(2022) 85(4) MLR 1044–1061 1045
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