Zoletic and Others vs Azerbaijan – Precedents set in the jurisprudence of Article 4 of the European Convention of Human Rights.
Source: Seudin Zoletić at the European Court of Human Rights in Strasbourg. OCCRP 2021. (https://www.occrp.org/en/slaves-to-progress/the-worker)
Author: Hanorah Hardy
In October 2021, the European Court of Human Rights (the Court) delivered the long awaited verdict on Zoletic and Others v. Azerbaijan. The case concerned 33 Bosnia and Herzegovina nationals who alleged to have been trafficked and forced into labor for state-run construction projects in Azerbaijan. The 33 applicants involved in the case represented an estimated 700 migrant workers whose human rights were violated between 2006 and 2009, making this one of the largest cases to have been documented in Europe. The judgement is significant as it sets a precedent within the jurisprudence under article 4 of the European Convention of Human Rights (ECHR) regarding the prohibition of slavery and forced labour. Article 4(1) states that “no one shall be held in slavery or servitude” followed by article 4(2) stating “no one shall be required to perform forced or compulsory labour”.
The case also provides an important focus on inter-state cooperation when addressing human trafficking and forced labour in Europe. The decision comes at an apt time when the COVID-19 pandemic has increased vulnerabilities to trafficking. In a recent report, the United Nations (UN) stated that “action is urgently needed to stop crimes like trafficking in persons from adding to the pandemic’s toll”. The Zoletic case is significant because the judgment helps develop more clear cut jurisprudence that will be relied upon in future cases to enable correct recourse when dealing with human rights abuses.
Facts of the Case
The 33 applicants involved in the case were recruited by Serbaz Design and Construction LLC in 2009. The applicants alleged that they had been victims of forced labour and human trafficking, had worked without correct documentation, had their passports confiscated, and suffered severe punishments such as beatings and had their freedom of movement restricted by their employer. The applicants brought a civil claim against Serbaz before the Azerbaijani courts following their return to Bosnia and Herzegovina, however, this was unsuccessful. Their appeal and cassation appeal were also dismissed.
Following this, a criminal investigation into allegations of forced labour and trafficking by Serbaz management and employees, was brought forward by the Prosecutor’s Office of Bosnia and Herzegovina. Three legal-assistance requests were made by the Bosnia and Herzegovina authorities to the Azerbaijani authorities, to which they did not respond or cooperate. The applicants complained that the respondent State had failed to comply with its procedural obligation to investigate their claims.
The Court ruled that Azerbaijan failed to comply with its obligation to conduct an investigation of the applicants’ claims concerning the forced labour and human trafficking allegations. The state of Azerbaijan was aware that workers were potential victims of human trafficking and forced labour. This information was made available to government officials and authorities based on several reports: (1) ASTRA report (a report based on the testimony of injured workers compiled by ASTRA in cooperation with partner organizations from BiH and Croatia), (2) the 2011 report of the European Commission against Racism and Intolerance ECRI, and (3) the report of the Council of Europe Group of Experts on Trafficking in Human Beings GRETA from 2014. The failure of the authorities to protect the applicants’ interests led to a violation of Article 4(2) and 6 of the ECHR and Article 1 of Protocol No.1 ECHR. In addition to the judgment, the government of Azerbaijan has been obliged to pay compensation of 5,000 euros to all injured workers.
Previous judgements under Article 4 of the ECHR have offered various interpretations of the article, resulting in challenges and irregularities regarding the interrelation between forced labour and human trafficking. The first definitional approach from the Court was considered in Van der Mussele v. Belgium, a judgment where the Court had recourse to the ILO Convention No. 29 regarding forced labour. In another recent ruling, Chowdury and Others v. Greece, the Court conflated human trafficking with forced labour without providing further explainations. However, in Zoletic and Others v. Azerbaijan, the Court addressed this issue. Zoletic constitutes an important step as the Court provided a more specific explanation of the actions and practices that can constitute a violation of Article 4. Furthermore, the Court addressed the vital matter regarding the role of inter-state relations in protecting citizens and ensuring correct actions and appropriate investigations are conducted in line with international obligations so as not to afford impunity to the perpetrators of such human rights abuses.
Distinguishing Human Trafficking and Forced Labour
In Zoletic, the Court highlighted, specifically in subsection 166-168, which aspects of the applicants’ experiences might amount to forced labour. Drawing on the ILO’s definition of forced labour, the Court considered that the “allegations concerning physical and other forms of punishments, retention of documents and restriction of movement explained by threats of possible arrests of the applicants by the local police because of their irregular stay in Azerbaijan (without work and residence permits) were indicative of possible physical and mental coercion and work extracted under the menace of penalty”. Furthermore, the Court used the case of Chowdury to exemplify how, if the circumstances of the work had changed since the applicant gave their initial consent to work, this consent is not sufficient to negate the fact that the work may have amounted to forced labour. Adding to this, and unlike in the Chowdury case, the Court set a precedent in Zoletic by exemplifying how the facts of the case fulfilled the elements of the international trafficking definition (action, means, purpose).
While definitional issues will still exist regarding Article 4, Zoletic offers a clearer and more consistent approach of the Court regarding human trafficking and forced labour. The Court’s clarification of the elements defining what constitutes forced labour and trafficking demonstrates their efforts to create a more settled and reliable body of jurisprudence under Article 4. We also see the Court actively engaging with other human rights mechanisms and definitions which will provide more clarification on future judgements and enable perhaps a quicker solution to victims.
Another important issue addressed by the Court is the duty of States to cooperate in investigations both domestic and international. The preamble to the 2000 Protocol of the United Nations Convention against Transnational Organized Crimeclearly states that:
“…Effective action to prevent and combat trafficking in persons, especially women and children, requires a comprehensive international approach in the countries of origin, transit and destination that includes measures to prevent such trafficking, to punish the traffickers and to protect the victims of such trafficking, including by protecting their internationally recognized human rights”.
As stated in previous judgements regarding trafficking, the Court highlighted in the Zoletic case that, “member States are also subject to a duty in cross-border trafficking cases to cooperate effectively with the relevant authorities of other states concerned in the investigation of events which occurred outside their territories”. The fact that the Azerbaijani authorities were made aware that criminal proceedings had been launched against Serbaz representatives in Bosnia and Herzegovina, but still failed to respond to legal assistance demonstrated to the Court that Azerbaijan had not “cooperated effectively” in the investigations and therefore failed to uphold their obligations as prescribed in international law.
In addition, the Court recognised the pivotal role played by the government of Bosnia and Herzegovina as a third party, assisting the Court in finding violations by Azerbaijan under Article 4. The third-party submissions “eliminated certain factual omissions and obscurities in the submissions by the applicants…relating to the issue of the alleged failure by the respondent State to comply with its positive obligations under Article 4(2) of the Convention”. The recognition by the court of the effort made by the government of Bosnia and Herzegovina to hold the Azerbaijani government accountable for failing to effectively secure the human rights of migrant workers signals the significance of inter-state obligations in line with international treaty law. The Court specifically discusses how Azerbaijan’s inaction resulted in human rights violations and therefore highlights how states have a positive obligation to protect migrant workers and citizens. The decision exemplifies to other member states the importance of interstate cooperation and highlights a proactive and preemptive duty to prevent violations under Article 4.
Zoletic and Others v. Azerbaijan is therefore a significant contribution to the Court’s Article 4 jurisprudence. It is a judgment in which we see the Court highlight and define some important general principles under this provision. Beyond this, it also points out the positive obligations of States to investigate alleged abuses coupled with the importance of interstate cooperation. Seudin Zoletic, on the day of the judgment, stated “there is no money that can reimburse for what I have gone through, our intention was to fix the wrong and inform the world about it, so that this never happens again to anyone”. The 2021 judgment has been long-awaited since the case was brought in 2009, but going forward, the jurisprudence will be sure to contribute to effective and more time-efficient redress for those affected by human rights violations.
Bibliography and Further reading:
Astra (2021, October 08) Finally, justice for some of the workers of the SerBaz case. https://www.astra.rs/en/finally-justice-for-some-of-the-workers-of-the-serbaz-case/
International Labour Organisation (ILO) (2010, April 15) Action plan for preventing future trafficking cases in Eastern Europe https://www.ilo.org/global/topics/forced-labour/news/WCMS_126195/lang–en/index.htm
Council of Europe (1953, September 03) European Convention for the Protection of Human Rights and Fundamental Freedoms, as amended by Protocols Nos. 11 and 14, 4 November 1950, ETS 5
International Labour Organization (ILO) (1930, June 28) Forced Labour Convention, C29 available at: https://www.refworld.org/docid/3ddb621f2a.html
UN General Assembly (2000, November 15) Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, Supplementing the United Nations Convention against Transnational Organized Crime, available at: https://www.refworld.org/docid/4720706c0.html
OCCRP (2021, October 08) European Court: Azerbaijan Must Pay Bosnian Victims of Forced Labor. Available at: https://www.occrp.org/en/daily/15299-european-court-azerbaijan-must-pay-bosnian-victims-of-forced-labor
UNODC (2020) Global Report on Trafficking Persons Available at: https://www.unodc.org/documents/data-and-analysis/tip/2021/GLOTiP_2020_15jan_web.pdf
Chowdury and Others v. Greece, no. 21884/15, 30 March 2017
Rantsev v. Cyprus and Russia, no. 25965/04, ECHR 2010
Van der Mussele v. Belgium, Series A no. 70, ECHR, 23 November 1983
Zoletic and Others v. Azerbaijan no. 20116/12, ECHR, 2021 October 7