Judgment F.M. and Others v. Russia - Multiple State failures to protect Central Asian women from forced servitude

issued by the Registrar of the Court   ECHR [Number eg: 001] (2024)   10.12.2024   Multiple State failures to protect Central Asian women from trafficking and   servitude   In today’s Chamber judgment1 in the case of F.M. and Others v. Russia (applications nos. 71671/16   and 40190/18) the European Court of Human Rights held, unanimously, that there had been:   violations of Article 4 (prohibition of slavery and forced labour) of the European Convention on   Human Rights on three grounds, in respect of: the lack of an adequate legislative framework to   prohibit and prevent trafficking, forced labour and servitude and to protect its victims; the failure   to take operational measures to protect the applicants; and the failure to conduct an effective   investigation, and   a violation of Article 14 (prohibition of discrimination).   The case concerned the alleged trafficking and labour exploitation in Moscow shops of three Kazakh   and two Uzbek nationals, and the authorities’ response in that regard.   The Court found in particular that starting from the first reports in 2010 alerting the authorities to   the applicants’ situation there was a credible suspicion, and in the case of the fourth applicant,   prima facie evidence, that the applicants had been victims of cross-border trafficking for labour   exploitation, which had imposed an obligation on the Russian authorities to take action. It held that   the Russian legal framework had been inadequate, in particular as its criminal law had not effectively   penalised trafficking in human beings, forced labour and servitude, and lacked protection for victims   of trafficking. The authorities had failed to take steps to protect the applicants, instead treating   legitimate efforts to bring the perpetrators to justice as improper and potentially criminal. The   authorities had failed to institute and conduct a criminal investigation into these allegations and to   cooperate with other States concerned.   The Court held that the State’s inaction had amounted to repeatedly condoning trafficking, labour   exploitation and related gender-based violence and had reflected a discriminatory attitude towards   the applicants as women who were foreign workers with an irregular immigration status. That had   created a climate that had been conducive to the applicants’ trafficking and exploitation.   A legal summary of this case will be available in the Court’s database HUDOC (link).   Principal facts   The applicants, F.M., A.M., N.I., G.N., and B.K. are, respectively, three Kazakh and two Uzbek   nationals. They were born between 1978 and 1995 and they live in Kazakhstan, except for B.K., who   lives in Moscow, and G.N., who lives in Uzbekistan. They are all female.   According to the applicants, between 2002-16 they were trafficked from either Kazakhstan or   Uzbekistan to Russia for labour exploitation in shops belonging to Russian nationals in the Golyanovo   district of Moscow. Their periods there lasted from several months to ten years. A.M., who is F.M.’s   sister, was a minor when trafficked into Russia. The sisters were orphans.   1. Under Articles 43 and 44 of the Convention, this Chamber judgment is not final. During the three-month period following its delivery,   any party may request that the case be referred to the Grand Chamber of the Court. If such a request is made, a panel of five judges   considers whether the case deserves further examination. In that event, the Grand Chamber will hear the case and deliver a final   judgment. If the referral request is refused, the Chamber judgment will become final on that day.   Once a judgment becomes final, it is transmitted to the Committee of Ministers of the Council of Europe for supervision of its execution.   Further information about the execution process can be found here: www.coe.int/t/dghl/monitoring/execution.   In the applicants’ detailed accounts, they were subjected to, among other things, the following:   Their IDs were taken from them following their arrival in Russia.   In the shops they worked abnormally long hours, reportedly from 6 a.m. until 2 a.m., with no time   off. The work was hard, including carrying heavy loads. No employment contracts were given, their   status as foreign migrant workers was not regularised, and promised wages were not paid. In   response to their demands for salaries the applicants reported they had been beaten or promised   that the salaries had been accruing and would be paid for the whole period at the end of their   employment.   The applicants were not allowed to leave the shops, were forced to sleep on the floor of the   storerooms, and were given only spoilt food. They were made to drink alcohol. They were prohibited   from talking to each other, and were kept under permanent surveillance by an assigned co-worker   and through video cameras. Control was maintained through beatings.   They were not allowed to talk to customers. Contact with their families was also not allowed except   for rare calls on speakerphone under close supervision.   Some of the applicants reported having their fingers broken, hair pulled, being punched and kicked,   being hit on the head and all over the body with heavy objects or with a skewer. Workers had also   been forced to beat each other in front of the owners. B.K. suffered brain trauma, broken fingers,   damaged ears, knocked-out teeth, contusions and scars. G.N. also suffered brain trauma and other   injuries and had her feet burnt with boiling water. N.I. had head and rib cage injuries. The physical   and mental toll was heavy.   The applicants were raped by male co-workers on the shop owners’ orders. G.N. became pregnant   and was forced by the owners to have an abortion despite doctors’ advising against it. She was told   to repay the cost of the procedure by working. F.M. had to give birth in the shop when she had   become pregnant. B.K. gave birth to two children in captivity. A.M. gave birth to a rape-conceived   child after her return to Kazakhstan.   According to the applicants, the shop owners took children from the women there, registering some   as their own. Others were disappeared, including B.K.’s daughter.   Much of these versions of events was corroborated by other people who had allegedly been held in   servitude at these shops, by non-governmental organisations, and by the media reports of alleged   exploitation and abuse of female migrant workers in the same shops for many years.   According to the applicants, their contacts with the authorities were problematic. B.K. stated that   she feared the police as much as the shop owners. Throughout their time undergoing forced labour   in Moscow, complaints to the police were in vain, as they took the side of the shop owners,   returning trafficked individuals, including some of the applicants, who had managed to escape, to   the shops. Threats of deportation occurred. The shop owners allegedly paid regular bribes to the   local police.   In response to the multiple reports of the applicants’ situation; the Kazakh authorities’ legal   assistance request; and criminal complaints lodged by the applicants themselves with the help of   NGOs; the Russian authorities conducted preliminary inquiries which resulted in decisions not to   open a criminal investigation.   Even after an intervention by civil-society volunteers on 30 October 2012 leading to the release of a   group of irregular migrant workers from Kazakhstan and Uzbekistan (including B.K. and four other   women) from one of the shops, which was widely reported in the media, the authorities quickly   annulled an initial decision to open a criminal investigation despite having found passports taken   from the potential trafficking victims and mattresses for sleeping in the shop and other evidence. As   reported by Novaya Gazeta, that day B.K. was taken with others to a police station, questioned for   11 hours and threatened with deportation. They were only released following media pressure. B.K.   2 and the other women were reportedly again detained and threatened with deportation when they   appeared on summons before an investigator a week later.   Complaints, procedure and composition of the Court   Relying on Article 4 (prohibition of slavery and forced labour) the applicants alleged, in particular,   that they were trafficked and subjected to forced labour and/or servitude through coercion and   violence, and that the authorities failed to adopt an adequate legislative and administrative   framework to penalise and prevent human trafficking for labour exploitation and to protect its   victims; that they failed to take operational measures to protect the applicants; and that they had   failed to conduct an effective criminal investigation into the crimes committed against them.   The applicants also complained, under Article 14 (prohibition of discrimination), that the Russian   authorities’ failure to protect them and to investigate the crimes committed against them had been   a result of discrimination on the grounds of the applicants’ gender, ethnicity and status as irregular   foreign migrant workers.   The applications were lodged with the European Court of Human Rights on 25 November 2016 and   15 August 2018.   The AIRE Centre was granted leave to intervene as a third party.   Judgment was given by a Chamber of seven judges, composed as follows:   Ioannis Ktistakis (Greece), President,   Peeter Roosma (Estonia),   Lətif Hüseynov (Azerbaijan),   Oddný Mjöll Arnardóttir (Iceland),   Diana Kovatcheva (Bulgaria),   Úna Ní Raifeartaigh (Ireland),   Mateja Đurović (Serbia),   and also Milan Blaško, Section Registrar.   Decision of the Court   Article 4   The Court reiterated that the prohibition of slavery, servitude and forced labour was one of the   fundamental values of democratic societies. Trafficking in human beings, involving treating them as   commodities to be bought and sold and put to forced labour, threatened the dignity and   fundamental freedoms of victims.   Starting from 2010 – when the Russian authorities had been first informed of the situation   concerning F.M. and A.M. – there had been a credible suspicion – indeed in the case of B.K., prima   facie evidence – that the applicants had been victims of human trafficking for labour exploitation by   the shop owners. This could be seen in the multiple reports that women were being kept in the   shops and violently coerced to work. It had been understood that IDs had been taken by the   traffickers. That meant, in line with the Convention, an obligation on the authorities to take action.   The Court noted the applicants’ accounts of serious mistreatment and how similar they were. The   applicants had been irregular foreign migrant workers whose identity documents had been seized.   There was specific evidence of the workers’ being forced to sleep in the shop and of video   surveillance in B.K.’s case, and of violence shown in the medical records of B.K., N.I. and G.N. G.N.’s   allegations of systematic rape and forced abortion were consistent with the submissions of the other   3 applicants and their female co-workers. There were consistent allegations of kidnapping of children,   including F.M.’s and B.K.’s, and medical evidence of the abuse of the latter’s son. The accounts are   particularly credible as they were confirmed accounts of other people who had been trafficked,   media reports, and the ties between the owners of the shops in question.   The women had been poor and had been recruited expecting acceptable conditions and payment,   yet had ended up isolated in a foreign country. It was satisfied, owing to this and other evidence,   that the applicants had been victims of cross-border trafficking in human beings and servitude.   Adequate legislative framework   Safeguards set out in national legislation had to be adequate to ensure the effective protection of   the rights of victims or potential victims of trafficking, obliging States, in accordance with Article 4, to   prosecute effectively acts aiming to maintain a person in slavery, servitude or forced or compulsory   labour. Compliance with this obligation required a legislative and administrative framework to   prohibit and punish trafficking. A comprehensive approach to combat trafficking included further   measures to prevent trafficking and protect its victims.   Article 127.1 (human trafficking) of the Russian Criminal Code had been the relevant provision, but it   had not been applied to the applicants’ cases, with the authorities stating that the applicants had in   effect “chosen” to stay in the shops and do the work. The Court considered that consent had no   relevance as to whether people-trafficking had occurred. In any event, provisions on the role of   consent were absent from Article 127.1.   Furthermore, forced labour had not been listed in the note on Article 127.1 on the meaning of   “exploitation of a person”, nor was it dealt with elsewhere in Russian criminal law. The definition of   “use of slave labour” in Article 127.2 of the Russian Criminal Code required the exercise of the   “authority inherent in the right of ownership”, which corresponded more to the “classic” meaning of   slavery and not to that of servitude. The definition did not refer to the absence of voluntariness to   carry out work (than “reasons outside [one’s] control”) which characterises forced labour according   to the Court’s case-law.   The Court considered that Russian criminal law had not effectively penalised trafficking in human   beings, forced labour and servitude.   The Court noted that no law providing for measures to combat and prevent human trafficking and to   protect and assist its victims had been enacted in Russia, despite regular calls on Russia to do so.   Moreover, even though Russia was a destination country of labour migration on a large scale from   Commonwealth of Independent States countries, in particular those in Central Asia, with which   there was a visa-free border regime, repeated reports of the shop owners' exploiting and abusing   female migrant workers from Central Asia and regular inspections of the shops by the authorities,   the traffickers in this case had been able to operate unhindered in exploiting the applicants between   2002 and 2016.   Overall the Court considered that Russia had failed to put in place an adequate legislative and   administrative framework to prohibit and prevent trafficking, forced labour and servitude and to   protect its victims, and to give the applicants, one of whom had been a minor when trafficked to   Russia, effective protection against those crimes. There had accordingly been a violation of Article 4.   Operational measures to protect trafficking victims   States were required, in some circumstances, to take measures to remove individuals from a   situation or risk of trafficking or exploitation, where the authorities were aware or ought to have   been aware of a credible suspicion of such risk.   The Court noted that the Russian authorities had been contacted by the International Organization   for Migration and by the Kazakh authorities in the summer of 2010 regarding a credible suspicion   4 that A.M., an orphan, had been trafficked into Russia as a minor and had been in a continuing   situation of exploitation and violence since 2007. The Court found that the Russian authorities had   not taken any of the steps which could reasonably have been expected of them in the given   circumstances: the only action taken had been to interview her alleged trafficker. In 2013 an   investigator interviewed A.M., who had been brought to him to give statements exonerating her   trafficker, and allowed her to be taken away without taking any measures to protect her. In the case   of B.K., the authorities had had prima facie evidence of her exploitation and so had had an obligation   to intervene. She had been given no assistance or protection. Instead, she had been subjected to   intimidation and threats of deportation. Similarly, no protection had been given to F.M., G.N. and   N.I. while their alleged abusers had remained at large.   Instead of providing cooperation and assistance to the civil-society representatives who had assisted   the applicants, the authorities had treated the legitimate efforts to bring the perpetrators to justice   and to obtain redress as improper and potentially criminal and had conducted an inquiry into their   activities and detailed interrogations B.K. and other involved individuals.   Overall, the Court found that there had been a violation of Article 4 owing to the State’s failure to   take operational measures to protect the applicants as (potential) victims of cross-border trafficking   in human beings.   Effective investigation   There had been a credible suspicion that the applicants had been victims of cross-border trafficking   for labour exploitation. The authorities had therefore been required to effectively investigate alleged   offences and cooperate with the relevant authorities of other States concerned.   However, for more than a decade between 2010 and 2021 the police and the Investigative   Committee had done nothing more than superfluous “pre-investigation inquiries”, a framework   within which the authorities could not establish facts, or identify those responsible. Their multiple   similar refusals to open criminal proceedings and to carry out a criminal investigation were so poorly   reasoned that they had been routinely set aside. Investigators had often justified their refusals to   open criminal proceedings by the fact that the applicants were foreigners not residing in Russia and   could not therefore participate in an investigation. Inter-State legal assistance requests as a means,   for example, to interview the applicants had never been used.   The authorities had accepted without scrutiny statements by the alleged perpetrators and by   individuals under their control, potentially themselves victims of trafficking, denying crimes against   the applicants. Credible allegations of gender-based physical, sexual and reproductive violence,   supported by medical and other evidence, had been disregarded, as had been the strong indications   of the seizure of IDs, the lack of employment contracts, and the fact of no salary payments being   made or accommodation being provided.   Despite plausible allegations of kidnapping of the applicants’ and others’ children, the investigating   authorities had failed to make any assessment of the circumstances in B.K.’s case and to undertake   even such basic steps as obtaining information from the hospital in Moscow to elucidate the   circumstances in which her children had been born.   Consistent allegations of corruption of the local police had likewise been dismissed without a   criminal investigation being conducted. The likelihood that the traffickers had used the applicants’   vulnerability as female migrants in order to exploit them had been left without any assessment, in   breach of the authorities’ duty to take all reasonable steps to unmask possible discriminatory   motives. At no point had specially trained police officers, investigators, prosecutors or judges been   involved in the applicants’ cases.   By failing in its duty to carry out an effective investigation, the respondent State had fostered a   sense of impunity among the traffickers and precluded the applicants’ recovery from their traumatic   5 experiences. The applicants had also been denied the opportunity to seek compensation, including   for the earnings from their traffickers, to assist with their recovery.   The Court found overall that there had been a violation of Article 4 owing to the lack of an effective   investigation into the applicants’ cases. It therefore considered it unnecessary to examine separately   under Article 13 the applicants’ closely linked complaint about the lack of effective remedies.   Article 14   The Court reiterated that a general policy that had disproportionately prejudicial effects on a   particular group could be considered discrimination, even if there was no discriminatory intent.   The Court considered that the State’s inaction vis-à-vis its Article 4 obligations had amounted to   repeatedly condoning trafficking, labour exploitation and related gender-based violence and had   reflected a discriminatory attitude towards the applicants as women who were foreign workers with   an irregular immigration status. The Russian authorities’ general and discriminatory passivity had   created a climate that had been conducive to the applicants’ trafficking and exploitation.   There had therefore been a violation of Article 14 taken in conjunction with Article 4.   Just satisfaction (Article 41)   The Court held that Russia was to pay, in respect of non-pecuniary damage, 52,000 euros (EUR) each   to F.M., G.N. and N.I.; and EUR 78,000 each to A.M. and B.K. It also had to pay EUR 7,731.75 in   respect of costs and expenses jointly to A.M., G.N., and B.K.   The judgment is available only in English.   This press release is a document produced by the Registry. It does not bind the Court. Decisions,   judgments and further information about the Court can be found on www.echr.coe.int. 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