The ruling of the Inter-American Court of Human Rights of October 20, 2016 in the case of the Organization Fazenda Brasil Verde Workers v. Brazil (Series C, No. 318).
The applicants were assisted in preparing a complaint to the Inter-American Commission on Human Rights (Washington, USA).
Subsequently, the Inter-American Commission on Human Rights referred the applicant's complaint to the Inter-American Court of Human Rights (San Jose, Costa Rica) for consideration. Then the complaint was communicated to Brazil.
The case has successfully examined a complaint about modern forms of slavery and human trafficking.
Modern forms of slavery and human trafficking.
Circumstances of the case
The facts of the case are connected with the organization "Fazenda Brasil Verdi" (Brazil Verdi farm), located in the state of Para (Brazil). Since 1988, a series of complaints have been filed with the federal police and the Human Rights Protection Council alleging the existence of slave trade practices there.
In March 2000, two young people managed to escape from the hacienda. After they reported the situation, the Ministry of Labor organized an inspection, during which the workers expressed a desire to leave. The audit noted that the workers were in slavery. The inspectors ordered the manager to return to the workers their work permits and to pay them the amounts necessary to terminate the labor contracts.
The workers were attracted to the hacienda by a recruiter who offered good wages and even an advance payment in the state of Piaui, one of the poorest in the country. They traveled for several days by bus, train, and truck. Upon arrival at the hacienda, work permits were withdrawn and they were forced to sign document forms. The regimen provided for a 12-hour working day with a half-hour lunch break and one weekend per week. Dozens of workers slept in hanging beds on farms without electricity, beds, or sanitary equipment. The food was inadequate, of poor quality, and deductions were made for it from the salary. Workers were regularly ill and did not receive medical attention. Work was carried out on orders, under the influence of threats and armed surveillance. In addition, in order to receive a salary, they had to fulfill a production plan, which was difficult to do, so the work of some was not paid. These conditions gave rise to a desire to hide. However, vigilance, lack of salary, isolated location of hacienda and its surroundings in the presence of wild animals kept the workers from escaping.
QUESTIONS OF LAW
(a) Articles 6 (1) (freedom from slavery) in relation to Articles 1 (1) (obligation to respect and respect rights without discrimination), 3 (right to recognition of legal personality), 5 (right to personal inviolability), 7 (right to personal freedom), 11 (right to privacy) and 22 (freedom of movement and residence) of the American Convention on Human Rights (hereinafter - ACHR). The Inter-American Court has expanded the content and scope of the concepts of slavery, servitude, slave trade and trafficking in women, and forced labor, which are prohibited by the ACHR. After reviewing the applicable provisions of international instruments and decisions of international courts regarding the international crime of slavery (or enslavement), the Inter-American Court recalled its absolute and universal prohibition in international law and indicated that its legal definition had not changed significantly since the adoption of the 1926 Slavery Convention.
However, the concept of slavery and its similar forms has evolved and is not limited to ownership of a person, but also covers the loss of a person’s own will or a significant decrease in personal autonomy. This manifestation of the exercise of property attributes in modern times should be understood as control that significantly restricts or denies individual freedom with the intention to exploit the use, management, benefit, transfer or disposal of the person, usually as a result of violence, deception or coercion.
An Inter-American court recalled that the ACHR uses the expression "slave trade and trafficking in women." However, given the development of international law, the most favorable interpretation and the pro persona principle, this expression should be understood as “trafficking in persons in person”, which also brings the current definition into line with the Palermo Protocol. This probably refers to the Protocol “On the Prevention, Suppression and Punishment of Trafficking in Persons, Especially Women and Children,” to the Convention against Transnational Organized Crime.
In the present case, the Brazilian authorities did not prove that they had taken specific measures or acted with due diligence to prevent the modern form of slavery suffered by the victims and to end the situation. This violation of the guarantee obligation was particularly serious given (a) the state's awareness of the context and (b) the special situation of vulnerability and threat to these workers. Thus, the state was responsible for violating the prohibition of slavery and servitude. Additionally, given the context of the recruitment of workers from the poorest regions of the country due to deception, cunning and false promises, the workers who escaped in March 2000 were personally victims of trafficking. Finally, the Inter-American Court also found that these events took place in the context of historical structural discrimination, based on the economic status of 85 workers identified and rescued by the Department of Labor in March 2000.
The case has violated the requirements of the Convention (unanimously), with regard to structural discrimination, the case has violated the requirements of the Convention (adopted by five votes in favor and one against).
(b) Articles 8 (1) (right to a fair trial) and 25 (1) (right to remedy) of the ACHR in conjunction with articles 1 (1) (obligation to respect and respect rights) and 2 (meaning of domestic law) of the ACHR. None of the domestic legal procedures defined criminal liability, provided redress to victims and did not investigate the problem in depth. A limitation period was applied, despite the inapplicability of such restrictions in international law for the crime of slavery. According to the Inter-American Court, the lack of action and sanctions for these facts was a consequence of the process of normalizing the conditions that people with certain characteristics were exposed to for a long time in the poorest states of Brazil. Thus, the Inter-American Court found that the state violated the right of access to justice to 85 victims, as well as 43 other workers who escaped in 1997 and did not receive adequate judicial protection.
The case has violated the requirements of Article 8 (1) of the ACHR (unanimously) and Article 25 of the ACHR (adopted by five votes in favor and one against).
(c) Compensation. The Inter-American Court of Human Rights found that the decision itself constituted a form of reparation, and ordered the state, in particular: (i) to publish the decision and its official summary, (ii) to resume, with due diligence, the investigation and / or criminal proceedings in respect of the facts in a reasonable time period and, if necessary, punishing the perpetrators, (iii) take the necessary measures to ensure that the statutory limitation period does not apply to the crime of slavery and similar forms prescribed by international law, and (iv) pay compensation for non-pecuniary damage, as well as legal expenses costs.
(See also the review of the case-law of the European Court of Human Rights regarding slavery and human trafficking, the thematic leaflet on slavery, servitude and forced labor and the case-law guide on Article 4 of the European Convention for the Protection of Human Rights and Fundamental Freedoms.).