Critically analyse the judgement of the European Court of Human Rights
This essay will critically analyse the judgement made by the European Court of Human Rights (ECHR) in the case of Siliadin v France (2006) 43 EHRR 16. To do this it will run through the relevant facts of the case and marry them with the court’s procedures and their subsequent findings. It will assess and define the interpretation of Slavery, Servitude, Forced and Compulsory Labour which has been used to consider whether or not the reasoning of the court was justified. It will conclude by determining whether other provisions or precautionary measures could have been contemplated or whether there is a basis for legislation to be restructured to incorporate modern day definitions in defining other ‘slavery-like’ infringements.
This case covers an appeal made by a child of Togolese origin who allegedly became a victim of domestic exploitation in France for a period of four years upon arriving in the country in 1994. The main points and facts within this case are: Siliadin was under 18 years of age and from Togo. Her air fare had been paid for by Mrs D, a French National of Togolese origin. Arrangements discussed between Siliadin’s father, uncle and Mrs D was that Siliadin would work as a domestic servant, in Mrs D’s home, until the cost of her airfare had been reimbursed. In return Mrs D would arrange for Siliadin to receive an education and that her immigration status would be regularised. Once in France, Siliadin’s passport and tourist visa were confiscated. Her immigration status was never regularised nor did she attend education as per agreement. Siliadin was loaned out to a couple (Mr & Mrs B) who were friends of Mrs D. Mr & Mrs B kept Siliadin on, as ‘Maid of all work’ (ECHR: Siliadin v. France Publication: 2005-VII). Siliadin again received no payment, and her immigration status remained unchanged. She worked from 7.30am till 10.30pm, 7 days a week with no holidays, nor time off. Siliadin was afraid of being arrested due to her immigration status; she had limited freedom of movement and became solely dependent on Mrs & Mrs B, which reinforced the state of her vulnerability.
It is fair to say that the interpretation of slavery in Article 1 of the Slavery Convention is vague and does not cover all the conditions which constitute modern slavery. It states that:-
(1) “Slavery is the status or condition of a person over whom any or all the powers attaching to the right of ownership are exercised"
(2) “The slave trade includes all acts involved in the capture, acquisition or disposal of a person with intent to reduce him to slavery; all acts involved in the acquisition of a slave with a view to selling or exchanging him; all acts by sale or exchange of a slave acquired with a view to being sold or exchanged, and, in general, every act of trade or transport in slaves" (OHCHR, 1996-2007).
In Siliadin’s case, her status in regards to ownership, did not fully fit into the criteria of her being defined as a slave: This definition was too limited as it did not encompass all elements of slavery such as forced or compulsory labour; Siliadin was controlled and coerced into domestic service but not “owned" in comparable to being bought or an object. Critics may suggest that more clarity is required when determining slavery as opposed to using its generic definition as described in the above Article 1.
Moreover, in 1930, protocol no 29 of the International Labour Organisation (ILO) was introduced which broadened its former definition of slavery (Article 1 of the Slavery Convention) to include “Forced or Compulsory labour" (OHCHR, 1996-2007).
The ILO Convention (No. 29) article 2.1 states that Forced or Compulsory Labour is “all work or service [which] is exacted from any person under the menace of any penalty and for which the said person has not offered himself voluntarily." (Human Rights Education association, 1996-2011).
According to the International Labour Organisation (ILO), Slavery includes “(1) The practices and institutions of debt bondage, (2) Serfdom, (3) Servile forms of marriage and (4) the exploitation of children and adolescents. (Human Rights Education association, 1996-2011). In Siliadin’s case clause (1) debt bondage was an issue, as she was put to work as a domestic servant by Mrs D to repay her air fare and was afterwards loaned to Mr & Mrs B. Clauses (2) and (3) are not necessarily relevant – but Siliadin could have fitted into the condition of being a tenant bound to live and labour on the land (Serfdom). She definitely did not comply with clause (3) she was not promised or given in marriage. Nevertheless clause (4) was overly significant: Siliadin was still a minor (child under the age of 18) and her current situation was one of child exploitation: Working long hours and receiving no payment for the services she provided.
When considering the Rights of the Child, The International Convention on the Rights of the Child (CRC) came into force in France On 6th September 1990, encompassing the following articles:- Article 19, (1) deals with appropriate legislation, administrative, social and educational measure to protect the child against “exploitation, abuse and neglect." Article 32, (1) recognises that the child needs to be protected from performing any work likely to interfere with their education and (2.b) provision for appropriate regulation of the hours and conditions of employment. Article 32 “states parties shall protect the child against all other forms of exploitation prejudicial to any aspects of the child’s welfare" (CRIN-Child Rights Information Network, 2010). In assessing the above CRC articles, Siliadin’s welfare under the guardianship of both Mrs D and Mr & Mrs B had been tainted with corruption and inappropriate protection. Siliadin, even though in a foreign country without legal immigration status still had the right as a child to attend education, have access to healthcare and be free from exploitation, none of the above rights and conditions were put in place.
It was only when Siliadin disclosed her current situation to a neighbour in 1998, that instigated France’s Committee against Modern Slavery to help raise the alleged proceedings against the couple for breaching Siliadin’s “rights to human dignity and for obtaining her services without payment" (Nicholson, 2010, p. 706). Under French Criminal Law, Mr & Mrs B were charged with (i) Article 225-13 “obtaining the performance and services without payment by taking advantage of a person’s vulnerability or state of dependence" and (ii) Article 225-14 “subjecting an individual to working and living conditions incompatible with human dignity by taking advantage of a person’s vulnerability or state of dependence" (CRIN-Child Rights Information Network, 2010). Mr & Mrs B were subsequently convicted of violating article 225-13 and sentenced accordingly.
However, on 19th October 2000, the Paris court of appeal reversed the verdict and released the defendants because under French criminal law “Slavery and Servitude" are offences which are not classified as such, therefore articles 223-13 and 223-14 only dealt with general exploitation through labour and working conditions. It later transpired that the French Criminal law had no comparable case to base its verdict on and therefore were unable to produce a concrete decision for this case.
It is of interest to note, that the Principal Public Prosecutor’s Office on behalf of France and Siliadin declined to appeal against the acquittal. This prompted Siliadin to make a further appeal against the civil aspects of the decision which was heard in the Versailles Court of Appeal 15th May 2003.
The judgment made in the Versailles Court of Appeal overruled the decision by the Paris Court which meant that Mr & Mrs B were found guilty of making a vulnerable and dependant person, work unpaid; they had breached Article 225-13 (FCC), but not article 225-14 (FCC) as the Versailles Court of Appeal considered that her living conditions were not detrimental to her well being. Siliadin received compensation from the couple who were required to pay her arrears of salary, holiday and notice pay. However, Siliadin was unable to see Mr & Mrs B convicted correctly under French Criminal Law because no positive obligations enshrined by the ECHR had been brought into force at that time, hence the French criminal court could not punish anyone for Slavery, Servitude or Forced labour under their current legal system.
This concurrently led to a change in ECHR legislation, whereby Article 4(1) ‘no one shall be held in slavery or servitude’ was necessary to carry the same positive obligations (with no exceptions and non-derogable rights) as Article 3 ‘no one shall be subjected to torture or to inhuman or degrading treatment’ and furthermore that the French criminal law and all states are required to furnish the victim with just satisfaction (Article 41 ECHR). Insofar they had been correctly offered a satisfactory level of justice and that the perpetrators had been justifiably punished in accordance with their crime.
‘ If he court finds that there has been a violation of the convention or the protocols thereto, and if the internal law of the High Contracting party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured part’ (Article 41 of the European Commission of Human Rights).
Siliadin made a further claim to the ECtHR, on civil grounds, alleging that the French authorities had not protected her from treatment which fell in the extremes and exploitation of ‘Servitude’ and from ‘Forced and Compulsory Labour’. The courts found that France had failed to comply with its obligation under Article 4, and Article 41 to prevent and punish the perpetrators of slavery, servitude or forced or compulsory labour. Which ultimately concluded that Siliadin’s rights had been violated and as she was still a minor, considered to be vulnerable and as a consequence was deprived and subjected to forced labour ( (CRIN-Child Rights Information Network, 2010) (Netherlands Institute of Human Rights)).
The court, therefore, “devised its position on the basis of the Conventions in regards to slavery, servitude and forced labour and with reference to the court’s jurisprudence on Article 3 of the European Convention, concerning torture and inhuman and degrading treatment" (Nicholson, 2010, p. 707)
The case of Siliadin v France was ultimately unique and significant; not only did the French criminal law not have a case to base a decision on, with regards to slavery, but it was the first case in which the ECtHR had found a breach of Article 4 of the convention (CRIN-Child Rights Information Network, 2010; CRIN-Child Rights Information Network, 2010)
The question whether or not she was trafficked never arose in any of the court hearings. In comparison, this case is similar to that of Rantseva v. Cyprus and Russia, in particular Article 4 - where trafficking is alleged to be a violation to human rights insofar as being obtained and unlawfully held (exploited) under protest to provide a service or cheap labour. In Rantseva v. Cyprus and Russia the court’s findings acknowledged that “Cyprus had violated Article 4 due to its failure to afford Ms Rantseva practical and effective protection against trafficking and exploitation in general and by not taking the necessary specific measures to protect her" (Nolan, 2010).
In both these cases, there is a definite indication that inconsistency in defining Article 4 has been paramount and has caused the case to be on occasion unclear and ambiguous. With any case it appears to be dependent upon how the case is judged and which interpretation is used. This is mainly because most laws and or legislations inter-relate with each other which tend to cause a degree of confusion. To combat this one can only suggest that the courts use one law and one interpretation to provide a complete and final judgement on the outcome of a case. This would help illuminate bias in differing opinions which tend to run independently throughout all cases where there is claim that some facts can be misused and misinterpreted: a prime example is the definition of “slavery" and “serfdom" and the “degree of exploitation" persistent in Siliadin v France and other cases such as Rantseva v. Cyprus and Russia.
In my view not all the factors pertaining to Siliadin’s case had been dealt with fairly nor had been covered; one could have argued a case of Trafficking, Child exploitation, as well as Servitude and Forced or Compulsory labour. Within Siliadin’s situation there were suitable grounds for all of the above. There was never any mention that Mr & Mrs B knew anything about Siliadin’s current situation. Had her debt to Mrs D been repaid? If so, why did Mr & Mrs B continue to exploit Siliadin? Once in the possession of Mr & Mrs B they should have sorted out her education and regularised her status. This would have meant that Siliadin was no longer an illegal immigrant, was receiving an education, and could obtain payment for her services albeit under international law and guidelines for agreed working hours for children, which meant that she was no longer being exploited.
I am not sure whether a formal contract between the Togolese family, Siliadin and Mrs D would have made much difference as Siliadin was still a child and may not have been fully aware of the predicament she was entering into or to the service she was expected to provide. There was also no mention of a written agreement in place, for repayment of air fare (debt), the regularisation of immigration papers, nor education for Siliadin. How would Siliadin know when her debt had been paid and when would she be free to leave on her own accord without being obligated to Mrs D or her family?