In the case of C.N. v. the United Kingdom,
The European Court of Human Rights (Fourth Section), sitting as
a Chamber composed of:
Lech Garlicki, President,
Nicolas Bratza,
Päivi Hirvelä,
George Nicolaou,
Ledi Bianku,
Zdravka Kalaydjieva,
Nebojša Vučinić, judges,
and Lawrence Early, Section Registrar,
Having deliberated in private on 23 October 2012,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in an application (no.
4239/08) against the United Kingdom of Great Britain and Northern Ireland
lodged with the Court under Article 34 of the Convention for the Protection of
Human Rights and Fundamental Freedoms (“the Convention”) by a Ugandan national,
Ms C.N. (“the applicant”), on 24 January 2008. The Vice-President of the
Section at the time acceded to the applicant’s request not to have her name
disclosed (Rule 47 § 3 of the Rules of Court).
The applicant, who had been granted legal aid,
was represented by Ms G. Morgan of Bindmans LLP, a law firm based in London. The United Kingdom Government (“the Government”) were represented by their Agent,
Ms L. Dauban of the Foreign and Commonwealth Office.
On 11 March 2010 the application was communicated
to the Government. It was also decided to rule on the admissibility and merits
of the application at the same time (Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicant was born in 1979 and lives in Leeds.
The applicant travelled to the United Kingdom from Uganda on 2 September 2002. She claimed that she had been raped several
times in Uganda and that her purpose in travelling to the United Kingdom was to escape from the sexual and physical violence which she had experienced. She
intended to work to support herself in the United Kingdom and to pursue further
education.
According to the applicant’s account, a relative
named P.S. and a Mr Abdul helped her obtain a false passport and a visa to
enable her to enter the United Kingdom. However, the applicant claimed that on
arrival in the United Kingdom P.S. took her passport and travel documents and
did not return them to her.
The applicant lived for a number of months at
various houses belonging to P.S. in London. She claimed that during this time
he constantly warned her that she should not talk to people and that she could
easily be arrested or otherwise come to harm in London. She was also shown violence
on television and told that this could happen to her if she was not careful.
In January 2003 P.S. introduced the applicant to
a man called Mohammed who ran a business providing carers and security
personnel for profit. The applicant attended a short carers’ training course
and thereafter did some overnight shifts as a carer and as a security guard in
a number of locations. The applicant asserted that on each occasion payment was
made by the client to Mohammed, who transferred a share of the money to P.S.’s
bank account in the apparent belief that he would pass it on to her. However, she
claimed that she did not receive any payment for the work that she did.
In early 2003 the applicant began to work as a
live-in carer for an elderly Iraqi couple (“Mr and Mrs K”). She found the role
physically and emotionally demanding as Mr K. suffered from Parkinson’s disease
and she was required to change his clothing, feed him, clean him and lift him
as necessary. As a result, she was permanently on-call during the day and night.
On one Sunday every month she was given a couple of hours leave but on these
occasions she would usually be collected by Mohammed and driven to P.S.’s house
for the afternoon. She accepted that after a couple of years she was permitted
to take public transport but said she was warned that it was not safe and that
she should not speak with anyone.
The applicant claimed that the GBP 1,600 Mr and
Mrs K. paid every month for her services was sent directly to Mohammed by
cheque. A percentage of that money was passed by Mohammed to P.S. on the
apparent understanding that it would be paid to her. However, she received no
significant payment for her labour. Occasionally Mr and Mrs K would give the
applicant presents or second-hand clothes and from time to time P.S. would give
her GBP 20 or GBP 40 when she went to his home on her monthly afternoon of
leave. It was sometimes suggested that P.S. was saving up her income for her
education, but she denied that any money was ever given to her.
In August 2006 Mr and Mrs K. went on a family
trip to Egypt. The applicant was unable to accompany them because she did not
have a passport. In their absence, the applicant was taken to a house belonging
to P.S. When he left for a business trip to Uganda, she remained in the house
with his partner, Harriet. The applicant asserted that Harriet effectively
prevented her from leaving the house and warned her not to speak with anyone.
On 18 August 2006 the applicant left the house.
She went to a local bank, where she asked someone to call the police. Before
the police arrived, she collapsed and was taken to St Mary’s Hospital, where
she was diagnosed as HIV positive. She was also suffering from psychosis,
including auditory hallucinations.
The applicant remained in hospital for one
month. Harriet visited the applicant in hospital and the applicant claimed that
during these visits she tried to persuade her to return to P.S.’s house. In
particular, she warned her that when she left the hospital she would have to
pay for anti-retroviral medication and if she did not return to the house she
would be “on the streets”.
Following her discharge from hospital, the
applicant was housed by the local authority. On 21 September 2006 she made an
application for asylum. The application was refused on 16 January 2007. The
Secretary of State for the Home Department considered that the applicant could
access protection in Uganda to prevent further sexually motivated attacks.
Moreover, he found that if she had been genuinely afraid of P.S., she would
have tried to escape from him earlier. The applicant appealed. Her appeal was
dismissed on 20 November 2007. In dismissing the appeal, the Immigration Judge expressed
serious concerns about the applicant’s credibility and found much of her
account to be implausible.
In April 2007 the applicant’s solicitor wrote to
the police and asked that they investigate her case. The Metropolitan Police
Human Trafficking Team, a police unit specialising in the investigation of
human trafficking offences, commenced an investigation to ascertain whether or
not she had been the victim of a criminal offence. The police interviewed the
applicant on 21 June 2007. During the investigation, the Human Trafficking Team
sought the views of the United Kingdom Human Trafficking Centre in Sheffield, a multi-agency organisation which provided a central point of expertise in the
field of human trafficking. However, the Centre advised that there was no
evidence to substantiate the allegation that the applicant had been trafficked
into the United Kingdom and observed that during her time working with Mr and
Mrs K she had been well looked after.
On 26 September 2007 the police informed the
applicant’s former solicitor that there was “no evidence of trafficking for
domestic servitude in the interview”.
On 26 August 2008 the applicant’s current
solicitor wrote to the police asking for the reasons for discontinuing the
investigation. On 5 September 2008 the police noted that the Head of
Legal Services at the United Kingdom Human Trafficking Centre had advised that
there was no evidence to substantiate the applicant’s allegation that she had
been trafficked into the United Kingdom. He further advised that while the applicant
worked with the K family she was well looked after and given some money. There
was, however, a dispute over money and it may have been that “her cousin kept
more than he should have done”.
On 5 September 2008 the police informed the
applicant’s solicitor that “a decision was taken not to proceed with the matter
as there was no evidence that she [the applicant] had been trafficked”. On 18
September 2008 the police reiterated that following the interview “it was
decided that there was insufficient evidence to substantiate the allegation of
trafficking and thus further investigation was not warranted”.
On 5 December 2008 the applicant’s solicitor
wrote to the police to ask them to consider prosecutions for other offences,
including a jus cogens offence of slavery or forced labour.
On 18 December 2008 the applicant was assessed by the
POPPY Project, a Government funded project providing housing and support for
victims of trafficking. The POPPY Project concluded that she had been
“subjected to five of the six indicators of forced labour” (as identified by
the ILO). In particular, her movement had been restricted to the workplace, her
wages were withheld to pay a debt she did not know about, her salary was withheld
for four years, her passport was retained, and she was subjected to threats of
denunciation to the authorities.
On 5 January 2009 the police began to conduct
further investigations. On 14 January 2009 the police noted that a statement
had been obtained from the agent who arranged the applicant’s work with
Mr and Mrs K (presumably the man previously identified as Mohammed). He
stated that he had been introduced to the applicant by a person he believed to
be her relative. He was supplied with a passport, a national insurance number
and a criminal records check. The agent stated that the applicant came to the
agreement with her relative that her wages would be paid to him. She only
complained about this arrangement in or around June 2006. The agent also stated
that he feared the applicant’s relative, who was a wealthy and powerful man
well-connected to the Ugandan government.
The police were unable to make contact with Mr
and Mrs K. Eventually they made contact with a member of the K family. However,
no statement appears to have been taken as the (unidentified) woman told the
police that she was leaving the country for medical treatment.
On 25 February 2009 the police informed the
applicant’s solicitor that the evidence did not establish an offence of
trafficking. They noted that “at this stage there is no evidence that would
support exploitation of any kind”.
Police officers met with the applicant and her
representative on 11 March 2009. The applicant’s solicitor asserted that
at this meeting a police officer indicated that it was the Metropolitan Police’s
provisional view, given expressly without formal authority, that there was no offence
in English criminal law which applied to the facts of the case. The solicitor
further asserted that the police apologised for the cursory manner in which the
case had been dealt with previously and confirmed that the applicant’s account
was credible.
In an entry dated 27 March 2009 the police noted
that:
“It is clear that this female was not trafficked into the UK for labour exploitation. She having applied for a visa in her real name to come to the UK was refused. She then in agreement with her father then obtained a false passport with a
forged visa stamp. These false documents were paid for by her father with the
assistance of her uncle...
She willingly commenced work that was arranged by her uncle as
a live-in carer for an elderly couple.
The family at first wanted to pay her wages direct. But on the
request of the victim she stated the money should be paid to the agency and
then the money should then be transferred to her uncle’s account who in turn
would send the money back to Uganda. This agreement was made in order to hide
from the authorities the fact that the victim did not have a national insurance
number. If money was paid to her then she would have had to pay tax and her
false identity would have come to the notice of the tax office and then to the
[United Kingdom Border Agency]. This would then lead to her arrest and eviction
from the UK...
...There is no evidence to show that this female is/was a
victim of slavery or forced labour. She willingly worked and was in fact paid
but she choose that the money should go via her uncle in order to conceal being
in the UK. It is basically a situation that one criminal (her uncle) has taken
all the proceeds of their crime...”
At that meeting the applicant’s solicitor
pointed out that P.S. had taken the applicant’s identity documents from her
upon her arrival in the United Kingdom and that this was grounds to prove
possible forced labour. However, the police indicated that the documents taken
from the applicant were false documents purchased by her and her father to
enable her to enter the United Kingdom.
On 31 March 2009 the police spoke again with the
applicant’s solicitor. While they accepted that not every enquiry had been
carried out, such as production orders relating to relevant bank accounts, it
was important to ensure that the limited resources of the Human Trafficking
Team were used to best effect and they could not, therefore, carry out any
further investigation into the applicant’s complaints.
The applicant was assessed by a clinical
psychologist specialising in violence against women. The psychologist concluded
in her 16 May 2009 report that the applicant was “suffering to a severe degree
from a complex form of chronic Post-Traumatic Stress Disorder (PTSD), in
conjunction with a Major Depressive Disorder and she presents a moderate risk
of suicide.” In particular, she noted that the applicant presented “in ways
consistent with a victim of trafficking and forced labour, in the context of a
history of sexual assaults”.
On 11 August 2009 the police noted that they
would write to the applicant’s solicitor to confirm that “this particular case
does not fulfil the requirements of human trafficking as per UK legislation and
that legislation does not exist in relation to sole and specific allegations of
domestic servitude where trafficking is not a factor”.
On 12 August 2009 the police wrote to the
applicant’s solicitor in the following terms:
“I can confirm that after undertaking an investigation of the
case including interviewing Ms N. a decision has been made to conclude the
investigation. This decision is based on several factors, one being that after
consultation with the legal representative of the Human Trafficking Centre the
circumstances of Ms N.’s case did not appear to constitute an offence of
trafficking people for the purposes of exploitation contrary to the Asylum and
Immigration Act 2004.
I am not aware of any specific offence of forced labour or
servitude beyond that covered by section 4 of the Asylum and Immigration Act
2004 though regulation of working conditions are controlled by such areas as
health and safety legislation and in certain instances the Gangmasters Act 2004...”
Section 71 of the Coroners and Justice Act 2009,
which received Royal Assent on 12 November 2009, made slavery, servitude and
forced or compulsory labour criminal offences punishable by a fine and/or up to
fourteen years’ imprisonment. Section 71 came into force on 6 April 2010 but
did not have retrospective effect.
II. RELEVANT DOMESTIC LAW AND PRACTICE
Section 4 of the Asylum and Immigration
(Treatment of Claimants etc.) Act 2004 created the offence of trafficking
people for exploitation. It provides that:
“(1) A
person commits an offence if he arranges or facilitates the arrival in the United Kingdom of an individual (the “passenger”) and-
(a) he
intends to exploit the passenger in the United Kingdom or elsewhere, or
(b) he
believes that another person is likely to exploit the passenger in the United Kingdom or elsewhere.
(2) A person
commits an offence if he arranges or facilitates travel within the United
Kingdom by an individual (the “passenger”) in respect of whom he believes that
an offence under subsection (1) may have been committed and-
(a) he
intends to exploit the passenger in the United Kingdom or elsewhere, or
(b) he
believes that another person is likely to exploit the passenger in the United Kingdom or elsewhere.
(3) A person
commits an offence if he arranges or facilitates the departure from the United Kingdom of an individual (the “passenger”) and-
(a) he
intends to exploit the passenger outside the United Kingdom, or
(b) he
believes that another person is likely to exploit the passenger outside the United Kingdom.
(4) For the
purposes of this section a person is exploited if (and only if)-
(a) he is the
victim of behaviour that contravenes Article 4 of the Human Rights Convention
(slavery and forced labour),
(b) he is
encouraged, required or expected to do anything as a result of which he or
another person would commit an offence under the Human Organ Transplants Act 1989 (c. 31) or the Human Organ Transplants (Northern
Ireland) Order 1989 (S.I. 1989/2408 (N.I. 21)),
(c) he is
subjected to force, threats or deception designed to induce him-
(i) to
provide services of any kind,
(ii) to
provide another person with benefits of any kind, or
(iii) to
enable another person to acquire benefits of any kind, or
(d) he is
requested or induced to undertake any activity, having been chosen as the
subject of the request or inducement on the grounds that-
(i) he is
mentally or physically ill or disabled, he is young or he has a family
relationship with a person, and
(ii) a person
without the illness, disability, youth or family relationship would be likely
to refuse the request or resist the inducement.
(5) A person
guilty of an offence under this section shall be liable-
(a) on
conviction on indictment, to imprisonment for a term not exceeding 14 years, to
a fine or to both, or
(b) on
summary conviction, to imprisonment for a term not exceeding twelve months, to
a fine not exceeding the statutory maximum or to both.”
On 12 November 2009 the Coroners and Justice Act
2009 received Royal Assent. Section 71, which will come into force “on
such day as the Secretary of State may by order appoint”, provides as follows:
“71 Slavery, servitude and forced or
compulsory labour
(1) A person
(D) commits an offence if-
(a) D holds
another person in slavery or servitude and the circumstances are such that D
knows or ought to know that the person is so held, or
(b) D
requires another person to perform forced or compulsory labour and the
circumstances are such that D knows or ought to know that the person is being
required to perform such labour.
(2) In
subsection (1) the references to holding a person in slavery or servitude or
requiring a person to perform forced or compulsory labour are to be construed
in accordance with Article 4 of the Human Rights Convention (which prohibits a
person from being held in slavery or servitude or being required to perform
forced or compulsory labour).
(3) A person
guilty of an offence under this section is liable-
(a) on
summary conviction, to imprisonment for a term not exceeding the relevant
period or a fine not exceeding the statutory maximum, or both;
(b) on
conviction on indictment, to imprisonment for a term not exceeding 14 years or
a fine, or both.
(4) In this
section-
“Human Rights Convention”
means the Convention for the Protection of Human Rights and Fundamental
Freedoms agreed by the Council of Europe at Rome on 4 November 1950;
“the relevant period”
means-
(a) in
relation to England and Wales, 12 months;
(b) in
relation to Northern Ireland, 6 months.”
III. RELEVANT INTERNATIONAL LAW AND PRACTICE
1. The ILO Forced Labour Convention
Articles 1 and 2 of the Convention provide as
follows:
“Article 1
1. Each Member of the International Labour Organisation which
ratifies this Convention undertakes to suppress the use of forced or compulsory
labour in all its forms within the shortest possible period.
2. With a view to this complete suppression, recourse to forced
or compulsory labour may be had, during the transitional period, for public
purposes only and as an exceptional measure, subject to the conditions and
guarantees hereinafter provided.
3. At the expiration of a period of five years after the coming
into force of this Convention, and when the Governing Body of the International
Labour Office prepares the report provided for in Article 31 below, the said Governing
Body shall consider the possibility of the suppression of forced or compulsory
labour in all its forms without a further transitional period and the
desirability of placing this question on the agenda of the Conference.
Article 2
1. For the purposes of this Convention the term forced or
compulsory labour shall mean 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.
2. Nevertheless, for the purposes of this Convention, the term forced
or compulsory labour shall not include--
(a) any work or service exacted in virtue of compulsory
military service laws for work of a purely military character;
(b) any work or service which forms part of the normal civic
obligations of the citizens of a fully self-governing country;
(c) any work or service exacted from any person as a
consequence of a conviction in a court of law, provided that the said work or
service is carried out under the supervision and control of a public authority
and that the said person is not hired to or placed at the disposal of private
individuals, companies or associations;
(d) any work or service exacted in cases of emergency, that is
to say, in the event of war or of a calamity or threatened calamity, such as
fire, flood, famine, earthquake, violent epidemic or epizootic diseases,
invasion by animal, insect or vegetable pests, and in general any circumstance
that would endanger the existence or the well-being of the whole or part of the
population;
(e) minor communal services of a kind which, being performed by
the members of the community in the direct interest of the said community, can
therefore be considered as normal civic obligations incumbent upon the members
of the community, provided that the members of the community or their direct
representatives shall have the right to be consulted in regard to the need for
such services.”
2. The ILO indicators of forced labour
The ILO
has developed indicators
of forced labour which provide a valuable
benchmark in the identification of forced
labour. These
indicators are:
“1. Threats or actual physical harm to the worker.
2. Restriction of movement and confinement to the work place
or to a limited area.
3. Debt bondage: where the worker works to pay off a debt or
loan, and is not paid for his or her services. The employer may provide food
and accommodation at such inflated prices that the worker cannot escape the
debt.
4. Withholding of wages or excessive wage reductions, that
violate previously made agreements.
5. Retention of passports and identity documents, so that the
worker cannot leave, or prove his/her identity and status.
6. Threat of denunciation to the authorities, where the
worker is in an irregular immigration status.”
3. The Council of Europe Convention on
Action Against Trafficking
. The United Kingdom ratified the Convention on 17 December 2008 and it came into force on 1
April 2009.
. Article 4 defines
“trafficking in human beings" as follows:
“(a) the recruitment, transportation, transfer, harbouring or
receipt of persons, by means of the threat or use of force or other forms of
coercion, of abduction, of fraud, of deception, of the abuse of power or of a
position of vulnerability or of the giving or receiving of payments or benefits
to achieve the consent of a person having control over another person, for the
purpose of exploitation. Exploitation shall include, at a minimum, the
exploitation of the prostitution of others or other forms of sexual
exploitation, forced labour or services, slavery or practices similar to
slavery, servitude or the removal of organs;
(b) The consent of a victim of “trafficking in human
beings” to the intended exploitation set forth in subparagraph (a) of this
article shall be irrelevant where any of the means set forth in subparagraph
(a) have been used;
Article 19 provides that:
“Each Party shall consider adopting such legislative and other
measures as may be necessary to establish as criminal offences under its
internal law, the use of services which are the object of exploitation as
referred to in Article 4 paragraph (a) of this Convention, with the knowledge
that the person is a victim of trafficking in human beings.”
4. The Slavery Convention 1926
Article 5 of this Convention, which the United Kingdom ratified in 1927, provides that:
“The High Contracting Parties recognise
that recourse to compulsory or forced labour may have grave consequences and
undertake, each in respect of the territories placed under its sovereignty,
jurisdiction, protection, suzerainty or tutelage, to take all necessary
measures to prevent compulsory or forced labour from developing into conditions
analogous to slavery.
It is agreed that:
(1) Subject to the transitional
provisions laid down in paragraph (2) below, compulsory or forced labour may
only be exacted for public purposes.
(2) In territories in which
compulsory or forced labour for other than public purposes still survives, the
High Contracting Parties shall endeavour progressively and as soon as possible
to put an end to the practice. So long as such forced or compulsory labour
exists, this labour shall invariably be of an exceptional character, shall
always receive adequate remuneration, and shall not involve the removal of the
labourers from their usual place of residence.
(3) In all cases, the responsibility
for any recourse to compulsory or forced labour shall rest with the competent
central authorities of the territory concerned.”
5. Recommendations 1523 (2001) and 1663 (2004) of the
Parliamentary Assembly of the Council of Europe
Recommendation 1523 (2001) provides, as
relevant, that:
“1. In the last few years a new form of slavery has appeared in
Europe, namely domestic slavery. It has been established that over 4 million
women are sold each year in the world.
2. In this connection the Assembly recalls and reaffirms
Article 4, paragraph 1 of the Convention for the Protection of Human Rights and
Fundamental Freedoms (ECHR), which prohibits slavery and servitude, and also
the definition of slavery derived from the opinions and judgments of the
European Commission of Human Rights and the European Court of Human Rights.
3. The Assembly also recalls Article 3 of the ECHR, which
provides that no one shall be subjected to torture or to inhuman or degrading
treatment or punishment, and Article 6, which proclaims the right of access to
a court in civil and criminal matters, including cases where the employer
enjoys immunity from jurisdiction.
... ... ...
5. It notes that the victims’ passports are systematically
confiscated, leaving them in a situation of total vulnerability with regard to
their employers, and sometimes in a situation bordering on imprisonment, where
they are subjected to physical and/or sexual violence.
6. Most of the victims of this new form of slavery are in an
illegal situation, having been recruited by agencies and having borrowed money
to pay for their journey.
7. The physical and emotional isolation in which the victims
find themselves, coupled with fear of the outside world, causes psychological
problems which persist after their release and leave them completely disoriented.
... ... ...
9. It regrets that none of the Council of Europe member states
expressly make domestic slavery an offence in their criminal codes.
10. It accordingly recommends that the Committee of Ministers
ask the governments of member states to:
i. make slavery and trafficking in human beings, and also
forced marriage, offences in their criminal codes;
... ... ...
vi. protect the rights of victims of domestic slavery by:
a. generalising the issuing
of temporary and renewable residence permits on humanitarian grounds;
b. taking steps to provide them
with protection and with social, administrative and legal assistance;
c. taking steps for their
rehabilitation and their reintegration, including the creation of centres to
assist, among others, victims of domestic slavery;
d. developing specific programmes
for their protection;
e. increasing victims’ time limits
for bringing proceedings for offences of slavery;
f. establishing compensation funds
for the victims of slavery.”
Recommendation 1663 (2004) further provides, as
relevant, that:
“The Assembly thus recommends that the Committee of Ministers:
i. in general:
a. bring the
negotiations on the Council of Europe draft convention on action against
trafficking in human beings to a rapid conclusion;
b. encourage
member states to combat domestic slavery in all its forms as a matter of
urgency, ensuring that holding a person in any form of slavery is a criminal
offence in all member states;
c. ensure that
the relevant authorities in the member states thoroughly, promptly and
impartially investigate all allegations of any form of slavery and prosecute
those responsible;
d. recommend that
member states review their immigration and deportation policies, granting
victims of domestic slavery at least temporary residence permits (if possible,
in conjunction with work permits) and allowing them to file complaints against
their abusive husbands or employers if they wish to do so;
e. urge member
states to provide an efficient support network for victims (including emergency
accommodation, health care, psychological and legal counselling services) and
attribute funds to non-governmental organisations working in this area;
f. ensure that
victims of slavery are provided with reparation, including compensation,
restitution, rehabilitation, satisfaction and guarantees of non-repetition;
ii. as concerns domestic servitude:
a. elaborate a
charter of rights for domestic workers, as already recommended in Recommendation 1523 (2001)
on domestic slavery. Such a charter, which could take the form of a Committee
of Ministers’ recommendation or even of a convention, should guarantee at least
the following rights to domestic workers:
- the recognition of domestic work in private households as
“real work”, that is, to which full employment rights and social protection
apply, including the minimum wage (where it exists), sickness and maternity pay
as well as pension rights;
- the right to a legally enforceable contract of employment
setting out minimum wages, maximum hours and responsibilities;
- the right to health insurance;
- the right to family life, including health, education and
social rights for the children of domestic workers;
- the right to leisure and personal time;
- the right for migrant domestic workers to an immigration
status independent of any employer, the right to change employer and to travel
within the host country and between all countries of the European Union and the
right to the recognition of qualifications, training and experience obtained in
the home country;
b. recommend the
introduction of a system of accreditation for agencies placing domestic
workers, which would commit these agencies to certain minimum standards, such
as charging reasonable fees, tracking the employees they have placed and
providing emergency help in cases of difficulty. Accredited agencies could have
visa applications put forward on their behalf validated automatically;
c. ensure regular
monitoring by appropriate authorities of the agencies accredited under the
system referred to in sub-paragraph b above.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 4 OF THE
CONVENTION
The applicant complained that at the time of her
ill-treatment the Government were in breach of their positive obligations under
Article 4 of the Convention to have in place criminal laws penalising forced
labour and servitude. Article 4 of the Convention provides as follows:
“1. No one shall be held in slavery or servitude.
2. No one shall be required to perform forced or
compulsory labour.
3. For the purpose of this article the term ‘forced
or compulsory labour’ shall not include:
(a) any work required to be done in the ordinary
course of detention imposed according to the provisions of Article 5 of
[the] Convention or during conditional release from such detention;
(b) any service of a military character or, in case
of conscientious objectors in countries where they are recognised, service exacted
instead of compulsory military service;
(c) any service exacted in case of an emergency or
calamity threatening the life or well-being of the community;
(d) any work or service which forms part of normal
civic obligations.”
The Government contested that argument.
A. Admissibility
The Government submitted that the application
was manifestly ill-founded and therefore inadmissible because there was
insufficient evidence to conclude that the applicant had been subjected to the
kind of treatment prohibited by Article 4 and because the protection afforded
by English law against conduct prohibited by Article 4 was sufficient to
discharge the positive obligation on the State.
The Court finds that the question of whether or
not the applicant’s complaint under Article 4 is manifestly ill-founded is a
matter to be determined on the merits.
It notes that the application is not manifestly
ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It
further notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
1. The
parties’ submissions
(a) The applicant
The applicant submitted that the Government were
under a positive obligation to enact domestic law provisions specifically
criminalising the conduct prohibited by Article 4; they failed to enact such
provisions until 2009; and, as she had made a credible allegation of
ill-treatment contrary to Article 4 in 2006, any investigation into her
complaints was ineffective as it was not directed at determining whether or not
she had been a victim of treatment contrary to Article 4 and could not therefore
result in a prosecution.
The applicant noted that in Siliadin v. France, no. 73316/01, § 123, ECHR 2005-VII the Court defined servitude as a
“particularly serious form of denial of freedom” which included “in addition to
the obligation to perform certain services for others ... the obligation for
the ‘serf’ to live on another person’s property and the impossibility of
altering his condition”. She submitted that she was required to live with Mr
and Mrs K., who demanded difficult care and needed her to be “on call”
twenty-four hours a day. She did so under coercion by P.S. and Mohammed and she
received no notable remuneration. Her working hours and conditions, and the
removal of her travel documents, were such as to render her unable to alter her
own situation.
In Siliadin the Court defined forced or
compulsory labour with reference to the International Labour Organisation
Forced Labour Convention, which included “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”. The Court itself noted that the term
brought to mind the idea of “physical or mental constraint”. In Siliadin
the Court found this element to be present where the applicant was an
adolescent girl, unlawfully present in a foreign land and living in fear of
arrest by the police. In the present case, in light of the definition adopted
by the Court and the ILO, and taking into consideration the reports by the
POPPY Project and the consultant psychiatrist, the applicant submitted that the
police’s conclusion that the lack of payment for the applicant’s work was no
more than an absence of “honour among thieves” betrayed a fundamental disregard
of the ILO’s key indicators of forced labour and a troubling ignorance of the
vulnerabilities of illegal immigrants.
The applicant submitted that the relevant
domestic law provisions did not, at the relevant time, include the criminal
offence of forced labour or servitude. Indeed, the police confirmed to the
applicant in writing that there was no offence known to them which encapsulated
her situation. As a result, notwithstanding the strong evidence of treatment falling
within the scope of Article 4 of the Convention, no effective investigation
could be conducted into her treatment and no person had been arrested or
prosecuted in relation to it. Moreover, there was not even a domestic offence
akin to those relied on by the French Government in Siliadin, namely
provisions criminalising the obtaining of performance of services for no
payment or for manifestly disproportionate underpayment, and the subjection of
another to living or working conditions incompatible with human dignity. The
best that could be advanced by the British Government were general offences
such as kidnapping, fraud, or psychological assault, none of which fulfilled
the positive obligation under Article 4 of the Convention.
The applicant submitted that the decision of the
Court in Siliadin made it clear that what was required was legislation
specifically criminalising conduct falling within the scope of Article 4.
Ancillary offences which might also be committed during the course of forced
labour or servitude did not provide sufficient protection under the Convention.
Finally, the applicant submitted that in
introducing section 71 of the Coroners and Justice Bill, which created specific
offences of slavery, servitude and forced or compulsory labour, the Government
had accepted that there was a “lacuna in the law” which needed to be filled.
(b) The Government
The Government did not accept that the applicant
had been subjected to slavery, domestic servitude or forced or compulsory
labour. First, an investigation into her complaints had been conducted by a
specialist police unit. Having investigated the complaint, they reached three
important conclusions: that the evidence was insufficient to establish that the
applicant had been trafficked into the United Kingdom; that the evidence was
insufficient to establish that whilst in the United Kingdom she had been held
in slavery or required to perform forced or compulsory labour; and that the
evidence was insufficient to establish that she had been the victim of any
criminal offence.
Secondly, the Government submitted that the
police did not terminate the investigation or decide not to bring a prosecution
on the basis that there was no specific offence in English law which
criminalised the conduct complained of. On the contrary, the crime report of 26
March 2009 made it clear that the decision to terminate the investigation was
taken on a substantive assessment of the evidence, which led to the conclusion
that it could not be established that the applicant had been trafficked, held
in slavery or required to perform forced or compulsory labour.
Thirdly, the Government submitted that the
conclusions of the police were reasonable and proper and were, in fact,
reinforced by the Asylum and Immigration Tribunal, which found most of the
applicant’s account to be implausible and had serious concerns about her
credibility.
In any case, the Government submitted that in
the applicant’s situation the protections offered by domestic law were
sufficient to comply with the positive obligation to have in place criminal law
provisions which penalised the conduct falling within the scope of Article 4. Article
4 did not require that the effective protection against the prohibited conduct
should be achieved by means of the adoption of a single, specific criminal
offence. At the time of the conduct alleged by the applicant there were a
number of offences in English law which criminalised the essential aspects of
slavery, servitude and forced or compulsory labour. These included false
imprisonment, for which the maximum sentence was life imprisonment; kidnapping,
for which the maximum sentence was also life imprisonment; grievous bodily
harm, which carried a maximum sentence of life imprisonment; assault, battery
and causing physical or psychiatric harm, the more serious offences of which
carried a maximum sentence of five years’ imprisonment; blackmail, which
carried a maximum sentence of fourteen years’ imprisonment; harassment, which
carried a maximum sentence of five years’ imprisonment; and a number of
employment-related offences, such as those relating to the national minimum
wage and working time limits.
In addition, English criminal law now had a
well-established offence of human trafficking introduced by section 4 of the
Asylum and Immigration (Treatment of Claimants etc) Act 2004. Section 4 made
provision for offences of trafficking into, within and from the United Kingdom a person who had been exploited and, for the purposes of the offences,
exploitation meant behaviour that contravened Article 4.
Moreover, in England there was now a specific
offence relating to the prohibition in Article 4. Section 71 of the Coroners
and Justice Act 2009, which came into force on 6 April 2010, made provision for
an offence of holding a person in slavery or servitude or requiring a person to
perform forced or compulsory labour. The Government rejected the applicant’s
assertion that this offence was introduced to fill a lacuna in the domestic
law; rather, they submitted that Parliament had considered it “useful to
introduce a further bespoke offence” even though the new offences were “already
covered by extensive legislation and regulations”. In any case, the Government
submitted that even if the offence under section 71 had applied at the time of
the conduct alleged by the applicant, the evidence in her case would have been
insufficient to bring a prosecution.
Finally, the Government submitted that the
positive obligation under Article 4 of the Convention was discharged in the
applicant’s case by the carrying out of an effective official investigation
which went directly to the heart of her Article 4 complaint. The applicant was
extensively and carefully questioned and further enquiries were undertaken. A witness
provided a statement indicating that the applicant had agreed that her wages
should be paid to P.S. and that she did not complain about this arrangement for
over three years. On reviewing the evidence, the police concluded that it was
not sufficient to establish that the applicant had been the victim of conduct
prohibited by Article 4 of the Convention. Rather, the police concluded that
she had entered the United Kingdom voluntarily, had worked voluntarily, and had
agreed that her wages should be paid to a family member in order to avoid her
detection by the authorities as an illegal immigrant.
Consequently, the Government submitted that in
the circumstances there was no arguable case that the applicant’s rights under
Article 4 had been violated.
(c) The third party interveners
α. The Aire Centre
The Aire Centre invited the Court to expand upon
the notion of positive obligations which it had developed in its case-law on
Article 4. It stressed that victims of human trafficking were particularly
unlikely to be identified by the authorities as victims of crime and that
States must therefore take a pro-active approach. An effective deterrent must
mean an approach to human trafficking and any other conduct contrary to Article
4 that recognised the subtle ways in which individuals might fall under the
control of another. It also required a considered response to allegations of
such treatment in all cases.
β. The Equality and Human Rights Commission
The Commission submitted that since the
ratification of ILO Convention no. 29 in 1931 the United Kingdom had been under
a positive obligation to formally penalise the exaction of forced labour and to
adequately enforce such penalties. However, until 6 April 2010 there was no
specific prohibition on servitude and forced labour despite strong evidence of
severe exploitation and forced labour within the United Kingdom. Indeed, the
Commission indicated that from 1 December 2004 to March 2010 there were 22
prosecutions under section 4 of the Asylum and Immigration (Treatment of
Claimants etc.) Act 2004, and yet 207 individuals were recognised as victims of
trafficking between 1 April 2009 and 1 April 2010 alone. In fact, in a number
of cases, particularly involving domestic workers, victims had to resort to
judicial review because of a lack of investigation of their complaints by the
police.
The Commission further submitted that there had
been a number of cases which in substance concerned forced labour or servitude
but which had not been adequately investigated or prosecuted and there was
therefore a need for clarity on what amounted to forced labour as distinct from
exploitation. Moreover, the Commission did not consider section 71 of the
Coroners and Justice Act 2009 to be of assistance because it merely reproduced
the text of the Convention without explaining it in light of present day
conditions. There was therefore a risk that the new statute would not result
either in clear deterrence or effective prosecutions, and would not improve the
failures in investigation.
Finally, the Commission submitted that there was
no adequate system of compensation for victims of servitude and forced labour.
2. The
Court’s assessment
(a) General principles
The Court reiterates that, together with
Articles 2 and 3, Article 4 enshrines one of the basic values of the democratic
societies making up the Council of Europe (Siliadin, cited above, § 82).
Unlike most of the substantive clauses of the Convention, Article 4 makes no
provision for exceptions and no derogation from it is permissible under Article
15 § 2 even in the event of a public emergency threatening the life of the
nation.
In its Siliadin judgment the Court
confirmed that Article 4 entailed a specific positive obligation on member
States to penalise and prosecute effectively any act aimed at maintaining a
person in a situation of slavery, servitude or forced or compulsory labour
(cited above, §§ 89 and 112; see also C.N. and V. v. France, no. 67724/09, § 105, 11 October
2012). In order to fulfil this obligation,
In its Rantsev judgment, the Court
held that as with Articles 2 and 3 of the Convention, Article 4 may, in certain
circumstances, require a State to take operational measures to protect victims,
or potential victims, of treatment in breach of that Article (see, mutatis
mutandis, Osman,
cited above, § 115; and Mahmut
Kaya v. Turkey, no. 22535/93, § 115, ECHR 2000-III). In
order for a positive obligation to take operational measures to arise in the
circumstances of a particular case, it must be demonstrated that the State
authorities were aware, or ought to have been aware that an identified individual
had been, or was at real and immediate risk of being subjected to such
treatment. In the case of an answer in the affirmative, there will be a
violation of Article 4 of the Convention where the authorities fail to take
appropriate measures within the scope of their powers to remove the individual
from that situation or risk (see, mutatis
mutandis, Osman,
cited above, §§116 to 117; and Mahmut
Kaya, cited above, §§ 115 to 116).
Bearing in mind the difficulties involved in
policing modern societies and the operational choices which must be made in
terms of priorities and resources, the obligation to take operational measures
must, however, be interpreted in a way which does not impose an impossible or
disproportionate burden on the authorities (see, mutatis
mutandis, Osman,
cited above, § 116).
Like Articles 2 and 3, Article 4 also entails a
procedural obligation to investigate where there is a credible suspicion that
an individual’s rights under that Article have been violated. The requirement
to investigate does not depend on a complaint from the victim or next-of-kin:
once the matter has come to the attention of the authorities they must act of
their own motion (see, mutatis
mutandis, Paul
and Audrey Edwards v. the United Kingdom, no. 46477/99, § 69, ECHR
2002-II). For an investigation to be effective, it must be independent from
those implicated in the events. It must also be capable of leading to the
identification and punishment of individuals responsible, an obligation not of
result but of means. A requirement of promptness and reasonable expedition
is implicit in all cases but where the possibility of removing the individual
from the harmful situation is available, the investigation must be undertaken
as a matter of urgency. The victim or the next-of-kin must be involved in the
procedure to the extent necessary to safeguard their legitimate interests (see,
mutatis
mutandis, Paul
and Audrey Edwards, cited above, §§ 70 to 73).
(b) Application of the general principles to the
present case
In the present case the applicant alleges that
there was a failure properly to investigate her complaints and that this
failure was at least in part rooted in defective legislation which did not
effectively criminalise treatment falling within the scope of Article 4 of the
Convention.
The Court observes that in Rantsev, in
the context of trafficking, it held that in order for an obligation to
investigate to have arisen, the circumstances must have given rise to a
“credible suspicion” that the applicant had been trafficked. Likewise, it
considers that for an obligation to have arisen in the present case, it must be
satisfied that the applicant’s complaints to the domestic authorities gave rise
to a credible suspicion that she had been held in domestic servitude.
The Court notes that the authorities were first
made aware of the applicant’s claim to have been kept in conditions amounting
to domestic servitude after she collapsed at the HSBC bank in Kilburn in August
2006. On 21 September 2006 she made an application for asylum, in the course of
which she complained, inter alia, that she had been forced to work for
the K family without remuneration. Furthermore, in April 2007 the
applicant’s solicitor wrote to the police and asked that they investigate her
case. She was interviewed by the Human Trafficking Team on 21 June 2007 and
gave a detailed statement in which she set out her domestic servitude
complaints. The Court does not consider that the applicant’s complaints
concerning her treatment by P.S. and Mohammed were inherently implausible.
Indeed, it notes that the circumstances which she described were remarkably similar
to the facts of the Siliadin case, the only notable differences being
that the applicant was older than the applicant in Siliadin and that it
was an agent - and not her “employers” - who she claimed were responsible for
the treatment contrary to Article 4 of the Convention. Although the Government
have submitted that the applicant’s account was not in fact credible, the Court
observes that this was a conclusion reached following further investigation of
her complaints. Indeed, the fact that the domestic authorities conducted any
investigation into the applicant’s complaints strongly indicates that, at least
on their face, they were not inherently implausible. Consequently, the Court
considers that the applicant’s complaints did give rise to a credible suspicion
that she had been held in conditions of domestic servitude, which in turn
placed the domestic authorities under an obligation to investigate those
complaints.
It is clear that the domestic authorities did
investigate the applicant’s complaints. However, the applicant submits that the
investigation was deficient because the lack of specific legislation
criminalising domestic servitude meant that it was not directed at determining
whether or not she had been a victim of treatment contrary to Article 4 of the
Convention.
It is not in dispute that at the time the
applicant alleged that she was subjected to treatment falling within the scope
of Article 4 of the Convention, such conduct was not specifically criminalised
under domestic law. There were, however, a number of criminal offences which
criminalised certain aspects of slavery, servitude and forced or compulsory
labour. In particular, the Government directed the Court’s attention to the
offences of trafficking, false imprisonment, kidnapping, grievous bodily harm,
assault, battery, blackmail and harassment.
In Siliadin, the Court found that the
increasingly high standard being required in the area of the protection of
human rights and fundamental liberties correspondingly and inevitably required
greater firmness in assessing breaches of the fundamental values of democratic
societies. (Siliadin v. France, cited above, § 148). In that case, the
Court found that Articles 2250-13 and 225-14 of the French Criminal Code, which
concerned exploitation through labour and subjection to working and living
conditions incompatible with human dignity, were not sufficiently specific and
were too restrictive to protect the applicant’s rights under Article 4 of the
Convention.
In view of the Court’s findings in Siliadin,
it cannot but find that the legislative provisions in force in the United
Kingdom at the relevant time were inadequate to afford practical and effective
protection against treatment falling within the scope of Article 4 of the
Convention (see, mutatis mutandis, M.C. v. Bulgaria, no. 39272/98, § 179, ECHR 2003-XII). Instead of enabling the authorities
to investigate and penalise such treatment, the authorities were limited to
investigating and penalising criminal offences which often - but do not
necessarily - accompany the offences of slavery, servitude and forced or
compulsory labour. Victims of such treatment who were not also victims of one
of these related offences were left without any remedy.
Consequently, the Court considers that the
criminal law in force at the material time did not afford practical and
effective protection against treatment falling within the scope of Article 4 of
the Convention.
Nevertheless, the Government have submitted that
the reason no action was taken following investigation of the applicant’s
complaints was not the absence of appropriate legislation but rather the
absence of evidence to support the facts alleged by her. In short, the domestic
authorities simply did not believe the applicant’s account. The Court must
therefore consider whether the lack of specific legislation criminalising
domestic servitude prevented the domestic authorities from properly
investigating the applicant’s complaints, or whether her complaints were
properly investigated but no evidence was found to support them. In carrying
out this assessment, the Court reiterates that it is not its task to replace
the domestic authorities in the assessment of the facts of the case.
The Court recalls that the investigation into
the applicant’s complaints was commenced by the Metropolitan Police Human
Trafficking Team, a police unit specialising in the investigation of human
trafficking offences. On 26 September 2007 they informed the applicant’s solicitor
that there was “no evidence of trafficking for domestic servitude”. Likewise,
on 5 September 2008 they noted that there was “no evidence to substantiate the
applicant’s allegation that she had been trafficked into the United Kingdom”. She had been well looked after by the K family, although there had been a dispute
over money and it may have been that “her cousin kept more than he should have
done”. Again, on 18 September 2008 the police stated that “it was decided that
there was insufficient evidence to substantiate the allegation of trafficking
and thus further investigation was not warranted” and on 25 February 2009 they
noted that “there is no evidence that would support exploitation of any kind”.
Later, on 27 March 2009, the police recorded that “there is no evidence to show
that this female is/was a victim of slavery or forced labour”. Finally, on 12
August 2009 the police wrote to the applicant’s solicitor, indicating that her
case did not appear to constitute an offence of trafficking for the purposes of
exploitation and that they were “not aware of any specific offence of forced
labour or servitude”.
While the Court notes the credibility concerns
voiced by the domestic authorities, it cannot but be concerned by the
investigating officers’ heavy focus on the offence of trafficking for
exploitation as set out in section 4 of the Asylum and Immigration (Treatment
of Claimants etc.) Act 2004. In particular, it observes that the investigation
into the applicant’s complaints was carried out by a specialist trafficking
unit and while investigators occasionally referred to slavery, forced labour
and domestic servitude it is clear that at all times their focus was on the
offence enshrined in section 4 of the 2004 Act. As indicated by the Aire Centre
and the Equality and Human Rights Commission in their third party
interventions, domestic servitude is a specific offence, distinct from
trafficking and exploitation, which involves a complex set of dynamics, involving both
overt and more subtle forms of coercion, to force compliance. A
thorough investigation into complaints of such conduct therefore requires an
understanding of the many subtle ways an individual can fall under the control
of another. In the present case, the Court considers that due to the absence of
a specific offence of domestic servitude, the domestic authorities were unable to
give due weight to these factors. In particular, the Court is concerned by the
fact that during the course of the investigation into the applicant’s
complaints, no attempt appears to have been made to interview P.S. despite the
gravity of the offence he was alleged to have committed (see, by way of
comparison, M. and Others v. Italy and Bulgaria, no. 40020/03, §§ 104 - 107, 31 July 2012). For
the Court, the lacuna in domestic law at the time may explain this omission,
together with the fact that no apparent weight was attributed to the applicant’s
allegations that her passport had been taken from her, that P.S. had not kept
her wages for her as agreed, and that she was explicitly and implicitly
threatened with denunciation to the immigration authorities, even though these
factors were among those identified by the ILO as indicators of forced labour.
Consequently, the Court finds that the
investigation into the applicant’s complaints of domestic servitude was
ineffective due to the absence of specific legislation criminalising such
treatment.
Accordingly, there has been a violation of Article
4 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 8 OF THE
CONVENTION
The applicant further complained under Article 8
of the Convention that her right to respect for her private and family life was
profoundly violated by the treatment she was subjected to between 2002 and
2006.
The Court does not consider the applicant’s
complaint under Article 8 to be manifestly ill-founded within the meaning
of Article 35 §§ 3 of the Convention. It further notes that it is not
inadmissible on any other grounds and must, therefore, be declared admissible.
However, having regard to its findings under Article 4 (see paragraphs 70 - 82,
above), the Court considers that no separate issue arises under Article 8 of
the Convention.
III. ALLEGED VIOLATION OF ARTICLE 13 OF THE
CONVENTION
. Finally,
the applicant complained that the absence of any specific criminal offence of domestic
servitude or forced labour denied her an effective remedy in respect of her
complaints under Articles 4 and 8 of the Convention.
. The
Court does not consider the applicant’s complaints under Article 13 to be
manifestly ill-founded within the meaning of Article 35 §§ 3 of the Convention.
It further notes that they are not inadmissible on any other grounds and must,
therefore, be declared admissible. However, having regard to its findings under
Article 4 (see paragraphs 70 - 82, above), the Court considers that no separate
issue arises under Article 13 of the Convention.
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
Article 41 of the
Convention provides:
“If the 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 party.”
A. Damage
The applicant claimed ten thousand euros (EUR
10,000) in respect of non-pecuniary damages. She considered this figure to be
appropriate in light of the recent case of M.C. v. Bulgaria (cited at paragraph
76, above) and K.U. v. Finland, no. 2872/02, ECHR 2008, and taking into
account the duration of the ill-treatment.
The Government submitted that the finding of a
violation would in itself provide just satisfaction and that it would not be
necessary for the Court to make an award of non-pecuniary damages. In the
alternative, they submitted that if the Court considered an award of damages to
be appropriate, it should not exceed the sum of EUR 8,000 awarded in M.C.
v. Bulgaria.
In view of its recent findings in M.C. v.
Bulgaria, the purely procedural nature of the violation found, and the
Government’s genuine concerns about the applicant’s credibility, the Court
awards her EUR 8,000 in respect of non-pecuniary damage.
B. Costs and expenses
The applicant also claimed GBP 38,275.86 for
costs and expenses incurred before the Court.
The Government submitted that this figure was excessive.
The Government did not consider it necessary for the applicant to have
instructed Queen’s Counsel. However, having appointed Queen’s Counsel, they
considered the solicitor’s hourly rate of GBP 240 to be excessive. Moreover,
the total number of hours claimed by the three representatives - 157 hours in
total - appeared to be more than was reasonable for a case which was not
exceptionally complicated. They therefore submitted that recovery of the
applicant’s legal costs should be capped at GBP 9,000.
According to the Court’s case-law, an applicant
is entitled to the reimbursement of costs and expenses only in so far as it has
been shown that these have been actually and necessarily incurred and are
reasonable as to quantum. In the present case, regard being had to the
documents in its possession and the above criteria, the Court considers it
reasonable to award the sum of EUR 20,000 for the proceedings before the Court.
C. Default interest
The Court considers it appropriate that the
default interest rate should be based on the marginal lending rate of the
European Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Declare the application admissible;
2. Holds that there has been a violation of
Article 4 of the Convention;
3. Holds that no separate issues arise under
Article 8 or Article 13 of the Convention.
4. Holds
(a) that the respondent State is to pay the applicant,
within three months from the date on which the judgment becomes final in
accordance with Article 44 § 2 of the Convention, the following
amounts, to be converted into British Pounds at the rate applicable at the date
of settlement:
(i) EUR 8,000 (eight thousand euros), plus any tax
that may be chargeable, in respect of non-pecuniary damage;
(ii) EUR 20,000 (twenty thousand euros), plus any
tax that may be chargeable to the applicant, in respect of costs and expenses;
(b) that from the expiry of the above-mentioned three
months until settlement simple interest shall be payable on the above amounts
at a rate equal to the marginal lending rate of the European Central Bank
during the default period plus three percentage points;
5. Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 13 November
2012, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Lech Garlick
Registrar President
