Resolution of the ECHR of July 19, 2018 in the case of “S.M. (S.M.) v. Croatia” (application No. 60561/14).
In 2014, the applicant was assisted in the preparation of the application. Subsequently, the application was communicated to Croatia.
The case complains about the lack of an effective investigation into the fact of human trafficking and sexual exploitation for the purpose of engaging in prostitution. The case was a violation of Article 4 of the Convention.
THE CIRCUMSTANCES OF THE CASE
The applicant lodged a complaint against a certain TM, a former police officer, claiming that from summer to September 2011, he physically and psychologically forced her into prostitution. Subsequently, TM He was accused of forcing others to engage in prostitution as an aggravating circumstance of the crime of organizing prostitution. In 2013, the criminal court acquitted TM. on the grounds that, although it was established that he organized a group of persons engaged in prostitution, in which he included the applicant, it was not proven that TM forced the applicant into prostitution. The complainant was only charged with aggravated crime and, therefore, could not be accused of simply being sexually exploited for the purpose of prostitution. The prosecutor’s complaint against the court’s decision was rejected, and the applicant’s constitutional complaint was declared inadmissible for consideration on the merits.
QUESTIONS OF LAW
Note. The text of the document seems to be a typo: referring to paragraph a of Article 2 of the Palermo Protocol, and not paragraph a of the Palermo Protocol.
Regarding compliance with Article 4 of the Convention. Human trafficking and involvement in prostitution threatened the human dignity and fundamental freedoms of victims of such acts and could not be considered as complying with the norms of a democratic society and the values guaranteed by the Convention. The Court did not consider it necessary to determine whether the treatment complained of by the applicant was “slavery”, “service” or “forced and compulsory labor”. Instead, it was decided that trafficking in itself, as well as the exploitation of prostitution within the meaning of paragraph "a" of the Palermo Protocol, paragraph "a" of Article 4 of the Council of Europe Convention on Action against Trafficking in Persons, Article 1 of the Convention on Action against Trafficking in Persons and the Exploitation of Prostitution by third parties and the Convention on the Elimination of All Forms of Discrimination against Women (hereinafter - CEDAW) were within the scope of Article 4 of the Convention. In this regard, it did not matter that the applicant was in fact a citizen of the respondent state and that there was no international element, since Article 2 of the Convention on Combating Trafficking in Persons referred to “all forms of trafficking in persons committed at the national or transnational level”, and the Convention with trafficking in persons and the exploitation of prostitution by third parties, spoke about the exploitation of prostitution in general.
Protocol of the General Assembly of the United Nations dated November 15, 2000 "On prevention and suppression of trafficking in persons, especially women and children."
The European Court noted that three issues were raised in the applicant's complaint and examined them separately.
(i) Whether there was a proper legal framework and regulatory mechanisms — prostitution was illegal in Croatia. Both the exploitation of prostitution, including coercion to engage in prostitution as an aggravating form of the first activity, and the personal offer of sexual services entailed criminal punishment in the respondent state. Human trafficking, slavery, forced labor and pimping were criminal offenses and were prohibited. The consent of the victim was not important for establishing the fact of committing a crime in the form of trafficking in persons, and since 2013 the same approach was explicitly stated in the Criminal Code regarding pimping. In addition, since 2013, the use of sexual services for a fee has been a criminal offense. The prosecution carried out a charge against all the criminal acts indicated. The Croatian Penal Code also contained provisions on the rights of victims of crimes, in particular, crimes against freedom in the sphere of sexual relations. In addition, the Croatian authorities adopted a number of strategic documents aimed at preventing and combating trafficking in persons, and formed special teams that provide assistance to victims of traffickers. In view of the above, the European Court agreed that at the time of the commission of the crime in question and the investigation of it in Croatia, there existed an adequate legal basis for assessing the crime in the context of trafficking in persons, forcing them to engage in prostitution and for the exploitation of prostitution.
(ii) Support provided to the applicant. The applicant never objected to and did not appeal against the actions of the domestic authorities, including the consideration of the criminal case against TM, or any other state authority by the courts, and did not file any complaints about her rights as a victim of trafficking in persons assistance, support or any form of advice or lack thereof. During the trial, the applicant was informed that she had the opportunity to apply to the Department at the criminal court on the organization and support of witnesses and victims of crime. There is no evidence that the applicant would have applied to the indicated department. In such circumstances, the Court agrees that the applicant was indeed provided with support and assistance, as noted by the authorities of the respondent State. First of all, this meant the recognition of the status of a victim of trafficking by the applicant. In this status, she was provided with advice from the Croatian branch of the Red Cross Committee and free legal assistance to a non-governmental organization on a government-sponsored program. In addition, immediately after the request of the applicant the defendant was taken out of the courtroom, and the applicant testified in his absence.
(iii) Whether the authorities of the respondent state have fulfilled their procedural obligations. The police and the prosecutor's office acted without delay, in particular when conducting a search at the place of residence of TM, during the interrogation of the applicant and the presentation of TM. the charges. On the other hand, the only witnesses questioned during the investigation and the trial were the applicant herself and her friend. Although the applicant's friend did not fully confirm her testimony, there was evidence that the applicant did not seek help from her friend, but to her mother, and it was with her that she spoke on the phone the day she ran away. After the applicant fled from TM, she lived with her friend and her mother for several months. However, the investigators did not question the mother of the applicant's friend. They also did not question the girlfriend’s friend’s friend, who took the applicant by car to that friend. This proved that the domestic authorities did not make serious efforts to thoroughly investigate all relevant circumstances and collect all available evidence. They made no attempt to ascertain the identity of the applicant's clients and interrogate them. They also did not take evidence from the applicant's mother, from the apartment owners and neighbors of the applicant and TM, who all had certain information about the true nature of the relationship between the applicant and TM, about the applicant’s alleged beatings and that she was allegedly locked up in the apartment.
No evidence was provided that the Croatian authorities seriously tried to thoroughly investigate the following circumstances, which were important in assessing whether TM was forced. the applicant to engage in prostitution: the applicant's allegations that she was financially dependent on TM, and on various forms of coercion that TM. applied to her, such as reminders that he (TM) was a former police officer who had a “pile of weapons”, threats of harm to the applicant’s family and manipulating the applicant with false promises to find her “decent job” as well as the testimony of the applicant's friend that the applicant was extremely upset and was afraid of TM, who continued to threaten her through social networks after her escape. Apparently, the fact that during the search of the apartment TM was not taken into account in any way. police officers found several machine guns with him. The domestic courts did not attach particular importance to this circumstance and concluded that the applicant voluntarily provided sexual services. In addition, under Croatian law, the United Nations Convention against Trafficking in Persons and the Exploitation of the Prostitution of Others and the Council of Europe Convention on Action against Trafficking in Persons did not matter the consent of the victim. At the same time, the domestic courts rejected the applicant's testimony as unreliable and inconsistent, since she acted uncertainly, made pauses in the story, expressed doubts. The domestic courts did not assess in any way the possible consequences of the applicant's psychological trauma on her ability to consistently and clearly state the circumstances of her case. Given the vulnerability of victims of crimes related to sexual relations, a meeting in the courtroom with TM could have a negative impact on the applicant regardless of the fact that shortly thereafter TM brought out of the courtroom.
As a result, the relevant Croatian authorities failed to fulfill their procedural obligation, as provided for in Article 4 of the Convention.
In the case of a violation of the requirements of Article 4 of the Convention (made by six votes "for" with one - "against").
In application of Article 41 of the Convention. The European Court awarded the applicant EUR 5,000 in respect of non-pecuniary damage.