ECtHR - Zoletic and Others v. Azerbaijan, Application No. 20116/12, 07/10/2021
| Country of applicant: | Bosnia and Herzegovina |
| Court name: | European Court of Human Rights |
| Date of decision: | 07-10-2021 |
| Citation: | Zoletic and Others v. Azerbaijan - 20116/12 |
| ECLI: | ECLI:CE:ECHR:2021:1007JUD002011612 |
Keywords:
| Keywords |
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Assessment of facts and circumstances
Description
The duty of the state to carry out an individual assessment of all relevant elements of the asylum application according to the provisions of Article 4 of the Qualification Directive, including considering past persecution and credibility; and the duty of the applicant to submit as soon as possible all statements and documentation necessary to substantiate the application. |
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Credibility assessment
Description
Assessment made in adjudicating an application for a visa, or other immigration status, in order to determine whether the information presented by the applicant is consistent and credible. |
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Freedom of movement (right to)
Description
Generally: “This right is made up of three basic elements: freedom of movement within the territory of a country, right to leave any country and the right to return to his or her own country." In an EU context: "A fundamental right of every citizen of an EU Member State or another European Economic Area (EEA) State or Switzerland to freely move, reside and work within the territory of these States. Notes: 1. This is a fundamental right enshrined in Article 45 of the Charter of Fundamental Rights of the European Union. 2. Whilst initially one of the founding rights in the establishment of the European Union, it has also been extended, via various acquis and agreements (e.g. see Protocol 19 of the Treaty on the Functioning of the EU), to other EEA states (i.e. Iceland, Liechtenstein, Norway) plus Switzerland and certain categories of third-country nationals (as outlined in Notes 4. and 5. below). 3. Some Member States have applied transitional arrangements that currently restrict freedom of movement of workers/(citizens) of EU-2 Member States (see http://ec.europa.eu). 4. Whilst third-country nationals have the right to travel freely within the Schengen area, taking up residence in another Member State is covered by specific legal instruments, detailed below. 5. Third-country nationals may take up residence in another Member State depending on their status and subject to the necessary conditions being met. For third-country nationals who are long-term legal residents in an EU Member State, this is covered by Chapter III of Council Directive 2003/109/EC, whilst for third-country nationals with highly qualified employment, this is covered by Article 18 of Council Directive 2009/50/EC.” |
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Obligation/Duty to cooperate
Description
Obligations imposed byMember States upon applicants for asylum to cooperate with the competent authorities insofar as these obligations are necessary for the processing of the application. These may include obligations to: (a) report to the competent authorities or to appear before them in person; (b) to hand over documents in their possession relevant to the examination of the application, such as their passports; (c) to inform the competent authorities of their current place address; (d) to be personally searched and the items he/she carries with him/her; (e) to have ones photograph taken; and (f) to have ones oral statements recorded provided. Alternatively the duty of the decision-maker to cooperate with the applicant in carrying out its assessment of facts and circumstances |
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Trafficking in human beings
Description
"The recruitment, transportation, transfer, harbouring or reception of persons, including the exchange or transfer of control over those persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. A position of vulnerability means a situation in which the person concerned has no real or acceptable alternative but to submit to the abuse involved. Exploitation includes, as a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, including begging, slavery or practices similar to slavery, servitude, or the exploitation of criminal activities, or the removal of organs." |
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Responsibility for examining application
Description
The Member State responsible for examining an application for asylum is determined in accordance with the criteria contained in Chapter III Dublin II Regulation in the order in which they are set out in that Chapter and on the basis of the situation obtaining when the asylum seeker first lodged his application with a Member State. |
Headnote:
Even in the absence of a formal complaint, the repeated notifications of trafficking elements to authorities and broader awareness of migrant worker abuse reported in international resources (ECRI, GRETA reports) triggered a duty to investigate. However, the Government failed to show any effective investigation took place: no attempts were made to identify or question victims or alleged perpetrators, nor were legal-assistance mechanisms used to gather evidence from Bosnia and Herzegovina.
The Court unanimously found a violation of Article 4 § 2 under its procedural limb.
Facts:
33 nationals of Bosnia and Herzegovina were recruited and taken to Azerbaijan to work for a construction. During their time with the company, they alleged they had been victims of forced labour and human trafficking, had worked without contracts or work permits, had their documents taken away from them upon arrival in Azerbaijan, and had their freedom of movement restricted by their employer. Moreover, they alleged they had not been paid their wages starting from May 2009 until their departure from Azerbaijan.
Upon their return to Bosnia and Herzegovina, they brought a civil claim against the company before the Azerbaijani courts, seeking unpaid wages and non-pecuniary damage for ‘breaches of their rights and freedoms’. They evidenced the severity of their situation via a report (ASTRA report) prepared by three NGOs from Serbia, Bosnia and Herzegovina and Croatia in cooperation with the Azerbaijan Migration Centre. Despite this, the civil claim was unsuccessful, and the appeal and cessation appeal were also dismissed.
A criminal investigation into the allegations of forced labour and trafficking was initiated by the Prosecutor’s Office of Bosnia and Herzegovina. Throughout these proceedings, three legal-assistance requests were made by the Bosnia and Herzegovina authorities to Azerbaijan authorities regarding the allegations. The national courts later concluded that while the case could raise labour law issues, the elements of human trafficking had not been proven.
The applicants complained that the respondent State (Azerbaijan) failed to conduct an effective investigation into their claims of cross- border human trafficking and forced labour.
Decision & reasoning:
The obligation of the respondent state to investigate
The court found that the respondent state did have an obligation to investigate. Despite the applicants not lodging a formal criminal complaint themselves, the Court considered that their civil claim had been sufficiently and repeatedly brought to the attention of the relevant domestic authorities in Azerbaijan.
Moreover, the Court noted that the request for inter-State legal assistance from Bosnia and Herzegovina to Azerbaijan triggered its duty to investigate the allegations concerning the alleged criminal offences, which were committed on their territory.
The Azerbaijani authorities were also aware of the 2011 report of the European Commission against Racism and Intolerance on Azerbaijan, and the 2014 Report of the Group of Experts on Action against Trafficking in Human Beings of the Council of Europe. Both reports noted the illegal employment practices in the country, and how law‐enforcement officials in Azerbaijan reportedly tended to regard potential cases of human trafficking for labour exploitation as mere labour disputes. Consequently, the Court found that the general context described in both these reports was relevant in the assessment of the facts of the present case.
As such, the Court found that the Azerbaijan authorities had an obligation to conduct an effective investigation.
The existence of an effective investigation
The Government had not submitted any information or comments about any investigation conducted by the domestic law- enforcement authorities. The Court, therefore, concluded that the respondent State failed to comply with its procedural obligation to institute and conduct an effective investigation of the applicants’ claims concerning the alleged forced labour and human trafficking.
Human trafficking and forced labour claims
The Court found that the applicants had been subjected to cross-border human trafficking and forced or compulsory labour on the territory of Azerbaijan. Relying on the information provided in the applicants’ civil claim and the expertise of NGOs involved in the ASTRA report, namely their assistance to migrant workers and combating human trafficking, the Court found that the information provided material corroboration to the applicants’ submissions. Moreover, the allegations concerning non-payment of wages and restricted movement painted a general picture of a coercive and intimidating atmosphere within the company. As such, the Court considered that all the above allegations, taken together, amounted to an arguable claim that the applicants had been subjected to forced labour.
The Court further noted that the three elements of human trafficking were present in this case. Put simply, the workers were deceived when recruited in Bosnia and Herzegovina and then transported by a private company to designated accommodations in Azerbaijan where their freedom was restricted. Given the facts of the case, the Court deducted this was done for the purpose of exploitation in the form of forced labour.
As such, the court concluded that there had been a violation of Article 4 on the Prohibition of slavery and forced labour and the applicants had been subject to human trafficking and forced labour on the territory of Azerbaijan.
Outcome:
There was a failure by the respondent State to conduct an effective investigation into arguable claims of cross- border human trafficking and forced labour.
There was a violation of Article 4 on the Prohibition of slavery and forced labour.
Relevant International and European Legislation:
Cited National Legislation:
Cited Cases:
| Cited Cases |
| ECtHR - Rantsev v. Cyprus and Russia, Application no. 25965/04, 10 October 2010 |
| ECtHR - C.N. and V. v France, no 67724/09 |
| ECtHR - C.N. v. United Kingdom, no 4239/08 |
| ECtHR - Chowdury and Others v Greece, Application No. 21884/15, 30 March 2017 |
| ECtHR – M. and others v. Italy and Bulgaria, 31 July 2012, 40020/03 |
| ECtHR – L. E. v Greece, Application No. 71545/12, 21 January 2016 |
| ECtHR - S.M. v. Croatia [GC], no. 60561/14, 25 June 2020 |
| Radomilja and Others v Croatia [GC], nos. 37685/10 and 22768/12, 20 March 2018 |
| ECtHR, Molla Sali v. Greece [GC], Application No. 20452/14, 19 December 2018. |
| ECtHR - J. and Others v. Austria, Application No. 58216/12, 17/01/2017 |
| ECtHR (Grand Chamber) - Lambert and Others v. France, Application No. 46043/14, 05/06/2015 |
| ECtHR (Grand Chamber) - Merabishvili v. Georgia, Application No. 72508/13, 28/11/2017 |
| ECtHR (Grand Chamber) - Satakunnan Markkinapörssi Oy and Satamedia Oy v. Finland, Application No. 931/13, 27/06/2017 |
| ECtHR - Shukurov v. Azerbaijan, Application No. 37614/11, 27/10/2016 |
| ECtHR - T.I. and Others v. Greece, Application No. 40311/10, 18/07/2019 |
| ECtHR (Grand Chamber) - Tănase v. Moldova, Application No. 7/08, 27/04/2010 |
| ECtHR - Tibet Menteş and Others v. Turkey, Applications Nos. 57818/10 and 4 others, 24/10/2017 |
| ECtHR - Van der Mussele v. Belgium, 23/11/1983 |
| ECtHR (Grand Chamber) - X and Others v. Bulgaria, Application No. 22457/16, 02/02/2021 |
Other sources:
Geneva Convention to Suppress the Slave Trade and Slavery of 25 September 1926
Convention No. 29 of the International Labour Organisation (ILO) of 28 June 1930 on Forced Labour
Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery of 30 April 1956
International Covenant on Civil and Political Rights
International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families of 18 December 1990
Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children, supplementing the United Nations Convention against Transnational Organised Crime, December 2000
Council of Europe Convention on Action against Trafficking in Human Beings of 16 May 2005
Third report of the European Commission against Racism and Intolerance on Azerbaijan (fourth monitoring cycle), adopted on 23 March 2011 and published on 31 May 2011
Report of the Group of Experts on Action against Trafficking in Human Beings of the Council of Europe concerning the implementation of the Council of Europe Convention on Action against Trafficking in Human Beings by Azerbaijan, first evaluation round adopted on 21 March 2014 (published on 23 May 2014)
Report by ASTRA, La Strada and Cooperation for Social Development in cooperation with Azerbaijan Migration Centre of 27 November 2009