EHRM, 25-06-2020, nr. 60561/14

On 27 September 2012 the applicant came to a police station in Z. and on the record made a criminal complaint against a certain T.M. She alleged that during the summer of 2011 T.M. had physically and psychologically forced her into prostitution.

The applicant submitted that sometime before the summer of 2011 T.M. had contacted her via Facebook and presented himself as a friend of her parents. Following this initial contact, for about a month or two she had continued exchanging messages with T.M. over everyday things. Then sometime in June or July 2011 she had met T.M. and went for a drink with him. On that occasion T.M. had explained that he wanted to help her with finding a job because he knew her parents. For that purpose T.M. left his phone number. Already on that occasion the applicant felt that T.M. was a person who insisted on having things his own way and who could not be contradicted.

The applicant further stated that following this meeting she had continued exchanging messages with T.M. via Facebook. As she had had no reason to question T.M.'s intentions, about two weeks after the first meeting she had contacted T.M. and they had decided to meet again. This time when they met T.M. had said that he would take her to a man to whom she should provide sexual services for money. T.M. had explained that she should charge 400 Croatian kunas (HRK; approximately 50 euros (EUR)) for her services and that she should give him half of that money. She had told T.M. that she did not want to do this. T.M. had then said that she would only have to do this until he found her a proper job. As she had earlier realised that T.M. was not a person to whom one could say ‘no’, out of fear she had agreed to go with him to see the man.

T.M. had then taken her in his car to a place in the proximity of Zap. (a city near Z.) where the man had been waiting for her in a house. The applicant had explained to the man what was happening and the man had not insisted on having intercourse with her but said that he would give her HRK 400. T.M. had listened to this conversation behind the door and, after the man had left the room, T.M. had slapped the applicant saying that she should never talk to clients and that she should listen to him and do only what he told her.

The applicant further explained that after this incident, T.M. would pick her up every day in front of the place where she lived in Z. and he would take her in his car to provide sexual services to men who had answered an advertisement on a social network. After a while, he had given her a mobile telephone so that clients could contact her and had continued to drive her to meet clients in various places. Soon afterwards T.M. had rented a flat in Z. (the applicant provided the address) where she continued rendering sexual services to men. This arrangement had allowed T.M. to have her constantly under control as he had always been in the flat and had also said that he would install cameras so that he could know what was happening. The applicant had been afraid of T.M. as he had said that he had done the same thing with some other girls, whom he would physically punish if they did not listen to him. T.M. had also physically punished her when she opposed him over something. When she had refused to provide sexual services to other men, he had beaten her.

The applicant also stated that at the beginning of September 2011, when she knew that T.M. would be absent from the flat for a longer time, she had left the flat and gone to the house of her friend M.I. She explained to M.I. what had happened to her. After he had realised that she had left him, T.M. had at first started contacting her via Facebook asking her to come back and saying how he loved her and that she would never again have to provide sexual services. As the applicant had not answered these messages, T.M. had started threatening that he would find her and that she and her parents would ‘pay’ for everything. The applicant had continued ignoring these messages so after a while T.M. had stopped sending them. A year later, and two weeks before the applicant lodged her criminal complaint, T.M. had again contacted her via Facebook mentioning her mother. All this had made the applicant feel frightened for her own safety and the safety of her parents and sister.

The applicant finally explained that on average she had had one client per day because when T.M. had not been around she would turn off the phone and deactivate the advertisement so that clients could not contact her. In total she had some thirty clients and she had earned approximately HRK 13,000 (approximately EUR 1,700). Half of this amount she had given to T.M.

On the same day when the applicant made her criminal complaint, the police informed the Z. Municipal State Attorney's Office (hereinafter ‘the State Attorney's Office’) that the complaint had been lodged and that they were conducting a preliminary investigation.

On 10 October 2012, following an order by the Z. County Court (hereinafter ‘the County Court’), the police conducted a search of T.M.'s premises and his car. In the car, the police found and seized condoms. During the search of T.M.'s premises, the police seized two automatic rifles and the accompanying ammunition, a hand grenade and a number of mobile phones.

The police also established that T.M. was registered in the police records as a perpetrator of the criminal offences of procuring prostitution, and rape. His criminal record, obtained by the State Attorney's Office, indicated that in 2005 T.M. had been convicted of the offence of procuring prostitution using coercion, under Article 195 §§ 2 and 3 of the Criminal Code (see paragraph 96 below) and rape under Article 188 § 1 of the Criminal Code, and that he had been sentenced to six and a half years' imprisonment.

On 10 October 2012 T.M. was arrested and questioned by the police. It was established that T.M. had trained as a policeman. He denied the allegations made by the applicant and stated that everything was an attempt by the applicant and her mother to take revenge on him for the difficult relationship he had had with the applicant's mother.

On 11 October 2012 the police sent the applicant's criminal complaint and all the collected evidence to the State Attorney's Office. The police classified the applicant's complaint under Article 195 § 3 of the Criminal Code (procuring prostitution using coercion). T.M. was also brought before an investigating judge of the County Court who ordered his pre-trial detention. He remained in detention until the end of the criminal proceedings against him in the Municipal Court.

On 6 November 2012 the State Attorney's Office indicted T.M. in the Z. Municipal Criminal Court (hereinafter ‘the Municipal Court’) on charges of procuring prostitution using coercion, as an aggravated offence of procuring prostitution, proscribed by Article 195 § 3 of the Criminal Code (see paragraph 96 below).

The indictment alleged that T.M., in order to obtain pecuniary gain, had deceived the applicant into believing that he would find her a job. However, after that he had taken her to provide sexual services to a man in Zap. As the applicant had refused to do that, T.M. had hit her and then, on their way back to Z., had threatened to throw her out of the car. Soon afterwards T.M. had provided the applicant with a mobile phone to answer the clients' calls. He had also instructed her how to charge for sexual services and to give half of the money to him. According to the indictment, the applicant had consented to this out of fear. T.M. had then taken the applicant to the addresses of clients where she had provided sexual services for money and after a while he had rented a flat in Z. where the applicant had continued providing sexual services to a number of men. T.M. had kept the applicant under surveillance and had also told her that he had beaten other girls who did not do what he had requested. When the applicant resisted him saying that she did not want to provide sexual services anymore, T.M. would hit her. She had therefore, out of fear of him, continued providing sexual services to men for money until September 2011, when she had run away from the flat.

The indictment relied on the applicant's statement and considered that it was corroborated by M.I.'s evidence. The indictment also considered that T.M.'s defence, although denying the commission of the offence, essentially made the applicant's statement even stronger.

On 22 November 2012 a three-judge panel of the Municipal Court confirmed the indictment and sent the case for trial.

The first hearing before the Municipal Court scheduled for 12 December 2012 was adjourned because T.M. claimed to be on hunger strike and could not therefore participate in the proceedings. The judge conducting the proceedings commissioned an expert report to establish whether T.M. could participate in the trial.

The expert report established that T.M. had worked as a policeman for a number of years and that he had been a member of the special police forces during the war in Croatia in the 1990s. He had retired from the police in 2001. He suffered from a post-traumatic stress disorder (PTSD) related to his participation in the war and he had also developed a personality disorder. He had received psychiatric treatment over a number of years. According to the report, T.M.'s capacity to understand the nature of the impugned acts had been diminished but not to a significant degree. The report therefore recommended that, in the event of conviction, an order for mandatory psychiatric treatment be made. The report also considered that T.M. could participate in and follow the proceedings.

At a hearing on 14 January 2013 T.M. pleaded not guilty. He denied that he had forced the applicant into prostitution. He confirmed that he had contacted the applicant through Facebook because he had recognised her surname since he had known her mother. After several exchanges of messages via Facebook, T.M. and the applicant had started to see each other and the applicant had told him that she had had no money and needed a job and that she had some debts. She had also said that she was in fear of a certain B., whom T.M. had known from prison and it had therefore been clear to him ‘what the applicant was doing’. Moreover, she had said that she had kept contact details of her clients which she had obtained from B. The applicant had also asked T.M. to lend her money to rent a flat, which he had done and she had later returned the amount she had borrowed in two instalments. The applicant had also said that she would try to find a job.

T.M. further stated that a few weeks after he had met the applicant, they had engaged in a relationship. The applicant had asked him to take her to certain addresses by car and on five or six occasions he had done so. He had known that she was going there to give sexual services for money. However, he had not known how much she had been earning from the provision of her services. T.M. confirmed that he had once hit the applicant because they had had a disagreement over ‘work’ and she had provoked him. He specified that this concerned the fact that the applicant had said that she had found a job in a bakery but that she did not want to work. T.M. had not liked her attitude so there had been an argument and, as he had not been able to control himself, he had hit her. Later on, he had found a job for the applicant in a restaurant in Zap. but then she had disappeared. This had happened in August 2011 and the only thing he had found in the flat she had rented had been a message from the owner of the flat addressed to the applicant.

When questioned by the judge conducting the proceedings, T.M. explained that he had not lived with the applicant in the flat she had rented but only sometimes spent the night there. He had had the keys of the flat. Sometimes the applicant would go alone to see her clients or to see a doctor or her friends, and she would later inform T.M. that she had some money. T.M. could not explain why he had agreed to the applicant providing sexual services to other men when he had been in a relationship with her. He stressed that she had wanted to be independent and to earn her own money so he had not wanted to interfere in that. He also explained that he had only used one mobile phone and that those found by the police during the search had been his old phones which he had no longer used.

When questioned by the prosecutor, T.M. denied that he had given any mobile phone to the applicant. According to him, she had had her own two mobile phones. T.M. also stated that on two or three occasions the applicant had given him some money for fuel because he had driven her around. However, she had constantly complained that she had no money so he used to give her money as well. T.M.'s impression was not that the applicant had been afraid of him as she had not been the kind of person to be afraid of anybody.

Following T.M.'s questioning, the prosecutor asked that the applicant and M.I. be heard as witnesses. The defence agreed and made no other proposal for the taking of evidence. The trial court accepted the parties' proposal and scheduled the next hearing for 29 January 2013.

The summons for the hearing served on the applicant contained detailed information on her rights as a victim, such as psychological and practical support and the possibility to contact the Department for Organising and Providing Support for Witnesses and Victims within the Municipal Court. The contact details of that Department were also provided.

At a hearing on 29 January 2013 the Municipal Court heard evidence from the applicant and M.I. The applicant was accompanied by a lawyer provided to her by the non-governmental organisation the Rosa Centre.

Before giving her evidence the applicant told the trial court that she was afraid of T.M. He was then removed from the courtroom and the applicant gave evidence in his absence.

At the hearing on 15 February 2013 the applicant was represented by the lawyer provided by the Rosa Centre. T.M. asked the trial court to allow him to make a further statement, which the trial court agreed to.

In his statement, T.M. stated that he knew the applicant's mother because she had also been a prostitute but had lost touch with her when he had started serving his prison sentence. After he had made contact with the applicant via Facebook, the applicant had told him that she had talked to her mother about him. He had wanted to help the applicant to find a job and she had also told him that she was engaged in prostitution because that had been the easiest way to earn money. He had fallen in love with the applicant and wanted to have a relationship with her. He had agreed that she could continue with the prostitution because he was not a jealous person. However, he had told her that she should get a proper job.

T.M. further stated that it was the applicant who had rented the flat and organised everything. He knew that she had charged HRK 400 for half an hour and HRK 600 for an hour but it had been her, not him, who had set that price. He had not constantly stayed in the flat. He also denied that the incident in Zap., as stated in the indictment, had ever happened.

When questioned by the judge conducting the proceedings, T.M. admitted that sometimes he had been in the flat when the applicant had provided sexual services to men and that he had received half of the money which she had charged for her services. He had not wanted to take the money but the applicant had insisted saying that it was for the fuel that he had used when driving her to meet clients away from the flat. T.M. also denied that he had strictly controlled the time the applicant had spent with her clients. However, he admitted that he had given her money to buy a mobile phone but that was because she had asked for it. According to T.M., the applicant could have left the flat whenever she wished. However, he had been surprised to see that one day she had simply left. He assumed that the reason for that was the fact that he had put pressure on her to find a proper job and had even made certain contacts to arrange job interviews for her. T.M. admitted that he had hit the applicant once but the reason had again been related to his insistence that she find a proper job. T.M. also stated that he had not known how many clients the applicant had had in total. He had not always been with her and had not constantly controlled her. He denied any deception or force towards the applicant related to her provision of sexual services.

When asked by the applicant's lawyer why the applicant needed him at all when she had arranged everything on her own, T.M. refused to answer that question saying that he had already explained everything concerning their relationship.

After hearing T.M.'s further statement, the parties made no further proposals for the taking of evidence. The judge conducting the proceedings admitted the documents provided by the prosecution as evidence, heard the parties' and the applicant's lawyer's closing statements and concluded the proceedings.

Following the hearing of 15 February 2013 the Municipal Court acquitted T.M. on the grounds that although it had been established that he had organised a prostitution ring into which he had recruited the applicant, it had not been established that he had forced or pressured her into prostitution, which was a constituent element of the offence he was charged with under Article 195 § 3 of the Criminal Code. In finding this, the court in particular noted the following:

In reaching the above conclusion, the Municipal Court noted that the decisive evidence on which the indictment was based was the applicant's witness statement. However, the Municipal Court considered that it could not give sufficient weight to the applicant's testimony because her statement had been incoherent, in places illogical and contrary to the evidence given by the witness M.I. and also by T.M. in his defence. Moreover, she had been unsure and had paused and hesitated when speaking. On the other hand, the Municipal Court considered that it could rely on the evidence given by M.I. and that it could generally accept T.M.'s defence, despite the fact that he had changed his statement during the proceedings. The court also considered that T.M.'s denial of the use of any coercion against the applicant was confirmed by the evidence given by M.I. as regards her knowledge of the applicant's previous life and the circumstances in which she had engaged in prostitution for T.M.

On 26 March 2013 the State Attorney's Office lodged an appeal against the first-instance judgment with the County Court. It argued that the first-instance court had erred in its factual findings concerning the charges against T.M. in not accepting the applicant's testimony. The State Attorney's Office considered that her statement had been coherent, credible, logical and convincing, given that in all relevant parts she had provided a consistent account of the manner in which T.M. had forced her into prostitution. It also considered that T.M.'s statement could not be taken as credible and stressed that M.I. did not have direct knowledge of the relevant facts of the case.

On 21 January 2014 the County Court dismissed the appeal of the State Attorney's Office and upheld the first-instance judgment, endorsing the reasoning as well as the facts as established by the Municipal Court.

The County Court's judgment was served on the applicant's lawyer on 28 February 2014.

On 13 March 2013 the non-governmental organisation the Rosa Centre complained to the Human Rights Office that the State Attorney's Office had not pursued the applicant's case diligently by collecting and presenting evidence capable of elucidating all the circumstances of the case. In this connection, the Rosa Centre stressed that there had been some inconsistencies in the statements of the applicant and the witness M.I., which required further clarification. It also submitted that the applicant had later explained that certain inconsistencies in her statement had been the result of her wish to protect other persons, namely her roommate, her friend M.I. and her mother.

The Rosa Centre further argued that the trial court, which had not been bound by the prosecution's legal classification of the facts, had not reclassified the charges to the basic form of procuring prostitution under Article 195 § 2 and convicted T.M. of that offence. The Rosa Centre also suggested that after the hearing, in an informal context, the judge conducting the proceedings had said to its lawyer that probably eighty percent of his colleagues would have convicted T.M. but that he had not considered that T.M. should be convicted as charged by the State Attorney's Office. On that occasion, the judge had also stated that the State Attorney's Office should have amended the indictment.

The Human Rights Office forwarded this letter to the State Attorney General's Office and asked for the relevant explanations.

In its report of 14 May 2013 the competent State Attorney's Office explained that it had considered the applicant's statement to be credible and convincing, and that it provided sufficient grounds for T.M.'s conviction under Article 195 § 3 of the Criminal Code. However, the Municipal Court had not agreed with this assessment and had acquitted T.M. The State Attorney's Office still believed that the classification of procuring prostitution using coercion was appropriate and it had therefore lodged an appeal against the first-instance judgment (see paragraph 80 above). In these circumstances, it did not consider that it should have amended the indictment. In any event, it stressed that if the Municipal Court considered that T.M. should have been convicted of the basic form of the offence of procuring prostitution under Article 195 § 2 of the Criminal Code, it could have amended the legal classification of the charges itself.

On the basis of this report, on 21 August 2013 the State Attorney General's Office informed the Human Rights Office of its findings endorsing the assessment of the case by the competent State Attorney's Office.

The case file of the Municipal Court which the Government provided to the Court contains a document indicating that on 4 September 2012 the Office of the Deputy Prime Minister of Croatia forwarded to the Ministry of Social Policy and Youth and the Ministry of the Interior a complaint made by T.M. about the alleged mistreatment of her children by the applicant's mother. The Office of the Deputy Prime Minister asked the relevant ministries to examine the matter and to report back on their findings. A copy of the Office's request was also sent to T.M.

The relevant provisions of the Constitution of the Republic of Croatia (Ustav Republike Hrvatske, Official Gazette no. 56/1990, with further amendments) read as follows:

Article 23

Article 35

Article 134

The relevant part of the Criminal Code (Kazneni zakon, Official Gazette no. 110/1997, with further amendments), as in force at the relevant time, read as follows:

Trafficking in human beings and slavery

Article 175

Procuring prostitution (Podvođenje)

Article 195

The relevant provisions of the Criminal Code (Official Gazette nos. 125/2011 and 144/2012) currently in force read as follows:

Slavery

Article 105

Trafficking in human beings

Article 106

Prostitution

Article 157

The relevant provisions of the Code of Criminal Procedure (Zakon o kaznenom postupku, Official Gazette no. 152/2008, with further amendments), as applicable at the relevant time when a particular procedural action was taken, read as follows:

Article 2

Article 16

Article 38

Victim

Article 43

Article 45

Article 52

Main hearing

Article 419

Article 441

Article 449

The Minor Offences against Public Order and Peace Act (Zakon o prekršajima protiv javnog reda i mira, Official Gazette no. 5/1990 with further amendments) proscribes acts facilitating prostitution (section 7) and prostitution itself (section 12). Both offences are punishable by a fine or thirty days' imprisonment.

A claim for the compensation in respect of damage resulting from an infringement of rights of personality can be made under the Civil Obligations Act (Zakon o obveznim odnosima, Official Gazette nos. 35/2005, with further amendments). Rights of personality within the meaning of that Act are, amongst other, the right to physical and mental health, reputation, honour, dignity, privacy of personal and family life, liberty (section 19).

On 1 July 2013 the Act on Compensation for Damage to Victims of Criminal Offences came into force (Zakon o novčanoj naknadi žrtvama kaznenih djela, Official Gazette, no. 80/2008, with further amendments). It provides for the possibility for the victims of violent offences and offences against sexual integrity to obtain compensation from the State of some forms of damage under certain conditions.

In May 2002 the Government of Croatia established the National Board for the Suppression of Human Trafficking as a multidisciplinary inter-departmental body composed of representatives of the relevant authorities and non-governmental organisations working in the field of human trafficking. The Board is in charge of preparing programmes, plans and policy guidelines in this field. Within the Board, there is also an Operative Team for the Suppression of Human Trafficking which ensures the effective functioning and performance of the Board's tasks.

Since 2002 the Government have also adopted several National Plans for the Suppression of Human Trafficking. They are aimed at establishing guidelines and defining policies in particular in relation to the improvement of the normative framework of human trafficking; ensuring a proactive approach to the identification of victims of human trafficking; achieving effective coordination between the prosecuting authorities, other State bodies and civil society; processing of data on cases of human trafficking; raising awareness of and working on the prevention of human trafficking; and ensuring sufficient financial means for these activities. Under the National Plan, the Human Rights Office coordinates the activities in the field of human trafficking.

In addition, the activities and coordination of the work of the national authorities in the suppression of human trafficking is based on three specialised protocols: the Protocol on the identification, assistance and protection of victims of human trafficking (2008); the Protocol on procedures during the voluntary return of victims of human trafficking (2009); and the Protocol on the integration/reintegration of the victims of human trafficking (2011).

The Protocol on the identification, assistance and protection of victims of human trafficking regulates the procedure for recognition of the status of victim of human trafficking. The identification is carried out by specialised bodies of the Ministry of the Interior in cooperation with the Red Cross and representatives of civil society. The decision on identification can be taken by the Ministry of the Interior or the Operative team of the National Board for the Suppression of Human Trafficking. The Human Rights Office formally certifies the decision on identification. The purpose of the procedure is to ensure various rights of assistance and protection to the victim.

The domestic authorities also cooperate actively with civil society and in particular with the ‘Petra’ network of non-governmental organisations dealing with the issues of human trafficking and sexual exploitation of women and children, which is financed by the Human Rights Office. The Rosa Centre is a member of the ‘Petra’ network.

The ILO has adopted two conventions on forced labour, namely the 1930 Forced Labour Convention (‘Convention No. 29’) and the 1957 Abolition of Forced Labour Convention (‘Convention No. 105’), which were ratified by Croatia on 8 October 1991 and 5 March 1997 respectively.

In 2014 two new instruments were adopted by the ILO with a view to providing a comprehensive strategy against all forms of forced labour, including trafficking in persons, namely the Protocol to Convention No. 29 and Recommendation 203 on Supplementary Measures for the Effective Suppression of Forced Labour.

Article 83(1) of the Treaty on the Functioning of the European Union (‘the TFEU’) reads, inter alia, as follows:

In addition, Article 79(1) of the TFEU requires the Union to develop a common immigration policy aimed at the prevention of, and enhanced measures to combat illegal immigration and trafficking in human beings.

Article 5 of the Charter of Fundamental Rights of the European Union is worded as follows:

According to the Explanations relating to the Charter, the right in paragraphs 1 and 2 of Article 5 corresponds to paragraphs 1 and 2 of Article 4 of the Convention and that therefore it has the same meaning and scope as set out therein. As regards paragraph 3 of Article 5 it states as follows:

The relevant parts of the European Parliament's Resolution of 26 February 2014 on sexual exploitation and prostitution and its impact on gender equality (2013/2103(INI)) read as follows:

The Chamber noted that the applicant had alleged before the domestic authorities that she had been psychologically and physically forced by T.M. to participate in a prostitution ring organised by him. This had led to the recognition of her status as a victim of human trafficking by the national authorities. In addition, the national courts had established as uncontested that T.M. had given the applicant a mobile telephone for the purpose of clients' contacting her for sexual services and that T.M. had driven the applicant to the clients or that she had provided sexual services in the flat she had occupied together with him.

In these circumstances, the Chamber considered it unnecessary to identify whether the treatment of which the applicant complained constituted slavery, servitude or forced or compulsory labour. Instead, it concluded that trafficking itself as well as exploitation of prostitution, within the meaning of Article 3(a) of the Palermo Protocol, Article 4(a) of the Anti-Trafficking Convention, Article 1 of the 1949 Convention and the CEDAW, fell within the scope of Article 4 of the Convention.

The Chamber thus decided to assess the present case under Article 4 of the Convention. In this connection, it also noted that it was irrelevant that the applicant was actually a national of the respondent State and that there had been no international element since Article 2 of the Anti-Trafficking Convention encompassed ‘all forms of trafficking in human beings, whether national or transnational’ and the 1949 Convention referred to exploitation of prostitution in general.

Relying, in particular, on the general principles developed by the Court in Rantsev (cited above, §§ 272-289), the Chamber considered that the applicant's complaints had three aspects and assessed them separately. The first aspect was whether there was an appropriate legal and regulatory framework at the domestic level; the second was whether the applicant had been provided with appropriate assistance and support to alleviate the fear and pressure she had felt while testifying against T.M.; and the third was whether in the application of that framework in the applicant's particular case the national authorities had complied with their procedural obligations.

As to the first aspect of the complaint, the Chamber was satisfied that at the time the alleged offence had been committed and prosecuted there was an adequate legal framework at the domestic level concerning trafficking in human beings, forced prostitution and exploitation of prostitution. With regard to the second aspect of the complaint, the Chamber considered that the applicant had been provided with adequate support and assistance.

As regards the third aspect of the complaint, the Chamber held that there had been no indication that the national authorities had made a serious attempt to investigate in depth all the circumstances relevant for assessing whether T.M. had forced the applicant into prostitution. Also, the Chamber considered that the domestic courts' assessment of the applicant's statement had not taken into account the possible impact of psychological trauma on the applicant's ability to consistently and clearly relate the circumstances of her exploitation. In these circumstances, the Chamber considered that the relevant State authorities had not fulfilled their procedural obligation and thus found a violation of Article 4 of the Convention.

Before the Chamber the applicant claimed 20,000 euros (EUR) in respect of non-pecuniary damage. The Government contested this claim as unfounded, excessive and unsubstantiated.

The Chamber decided, on an equitable basis, to award the applicant EUR 5,000 in respect of non-pecuniary damage.

In the proceedings before the Grand Chamber the parties did not alter their submissions under this head. The Court upholds the Chamber judgment in respect of the claim for damage and awards the applicant the same amount as the Chamber: EUR 5,000 in respect of non-pecuniary damage.

In the Chamber proceedings the applicant claimed EUR 4,376.15 for the costs and expenses related to her case before the Court. The Government argued that the applicant had been represented by a lawyer provided by the Rosa Centre, whose relevant activities were largely funded by the State. They also claimed that the applicant's request for costs and expenses was unsubstantiated and excessive.

The Chamber dismissed the applicant's claim for costs and expenses on the grounds that she had not refuted the Government's submission that her representative had already been paid from the State funds.

Before the Grand Chamber the applicant claimed 62,353.85 Croatian kunas for the costs and expenses of the proceedings before the Chamber and the Grand Chamber. The Government contested this claim.

The Court notes that the applicant failed to provide any proof of payment or of an obligation to pay the costs and expenses claimed, whether in respect of the Chamber or the Grand Chamber proceedings. In the absence of such documents, the Court finds no basis on which to accept that the costs and expenses claimed by the applicant were actually incurred by her (compare Merabishvili v. Georgia [GC], no. 72508/13, §§ 371-372, 28 November 2017). The Court also notes that the applicant was granted legal aid for the proceedings before the Grand Chamber. It therefore dismisses the applicant's claim for costs and expenses.

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.

Our first difficulty lies with the scope of the case. As demonstrated ably by judge Koskelo in her dissenting opinion at Chamber level there is a clear risk that the Grand Chamber has examined the case and sought to develop general principles with reference to facts which the applicant neither raised domestically nor relied on in her application (see §§ 2 – 10 of the dissent at Chamber level).

Applications are lodged with this Court by applicants who often act without means and without the benefit of legal representation; although this was not the applicant's case. It is generally accepted that an applicant can clarify or elaborate upon his or her initial submission during the course of the Convention procedure (see § 219 of the Grand Chamber judgment and the authorities cited therein). It is also accepted that the Court has to treat such applications with a degree of flexibility in order for the rights guaranteed by the Convention to be practical and effective. It would be too strict, in our view, to conclude, as the dissenting Judge did at Chamber level, that the applicant raised no issues regarding the investigation of her forced prostitution complaint or in relation to the collection of evidence. If the trial court failed to establish the constituent element of coercion, the applicant in challenging the acquittal was perhaps implicitly, but nevertheless logically, impugning the investigation which led to that result. Her main complaint was nevertheless the failure by the trial and appeal courts to convict the defendant of the lesser charge.

The principle of ne ultra petitum means, quite literally, that a court should not go ‘beyond the request’ or ‘beyond the scope of the dispute’. There is a limit to the flexibility which can be afforded one party without the procedural rights and principles which form the backbone of the Court's own Article 6 case-law being traduced. The Grand Chamber recognises that ‘the applicant did not clearly articulate her complaints as regards the relevant procedural deficiencies and omissions, a circumstance which gave rise to the question regarding the scope of the case before the Court’ (see §§ 220 and 335). One may accept that the ‘bones’ of a complaint about procedural deficiencies regarding her complaint of forced prostitution can be made out in the original application, in which she relied on Articles 3, 6, 8 and 14 and Article 1 of Protocol no. 12 of the Convention. To those bare bones the applicant subsequently added some meat in her written submissions at Chamber level.

According to well-established case-law, the Court has jurisdiction to review the circumstances complained of in the light of the entirety of the Convention and it can view the facts presented in a different manner, requalifying under a Convention article not initially relied on. It is nevertheless limited by the facts presented by the applicants in the light of national law. The system of protection established by the Convention does not enable the Court to seize on facts that have not been adduced by the applicant and to examine those facts for compatibility with the Convention (see Radomilja and others v. Croatia [GC], nos. 37685/10 and 22768/12, §§ 110–125, 20 March 2018; and Foti and others v. Italy, nos. 7604/76, 7719/76, 7781/77 and 7913/77, § 44, 10 December 1982).

However, what an applicant cannot be allowed to do when a case is communicated under a different Convention article than the one originally relied on, in no doubt a well-meaning application of the jura novit curia principle, is seek to expand the case to cover facts and legal arguments which go beyond the scope of the case referred to the Court pursuant to Article 32 of the Convention. Nor can they be allowed to seek to further expand that scope following referral of the case to the Grand Chamber pursuant to Article 43 of the Convention. This is what has happened in the instant case.

At domestic level, six weeks after T.M. was indicted for coerced prostitution, the applicant was identified as a potential victim of human trafficking, an administrative status taken by a multi-disciplinary domestic body. The purpose of that status was to ensure that a possibly vulnerable person receive the necessary assistance as the domestic proceedings advanced. As the Grand Chamber recognises, this does not mean that the three constituent elements of the offence of human trafficking had been made out and is independent of any duty to investigate (see § 322 of the Grand Chamber judgment). Having initially complained of the failure to investigate forced prostitution properly, or convict T.M. of the lesser offence of procuring prostitution if commission of the former offence proved impossible to establish, in her written submissions before the Chamber the applicant complained further, and for the first time, of the failure by the authorities to charge and convict T.M. of the more serious offence of human trafficking under Article 175 of the Criminal Code. This expansion of the scope of her complaint continued in her submissions before the Grand Chamber, where what was criticised was the prosecuting authorities’ erroneous characterisation of her allegations, ‘which undoubtedly suggested that she had been a victim of trafficking, as an issue of forced prostitution’ (see § 250 of the Grand Chamber judgment).

Like the dissenting judge at Chamber level, we do not consider that the principle of jura novit curia can be allowed to operate as an invitation to applicants to alter, as a case proceeds, the factual and legal arguments on which their complaints rest. However flexibly a human rights court finds it has to operate to ensure the voices of the dispossessed and vulnerable are heard, it cannot ignore the fundamental principles of judicial procedure and must continue to operate as a court.

It should be added that at the communication stage, by virtue of the following question — ‘Has there been a violation of the State's obligations under Article 4 of the Convention with regard to the applicant's allegations of human trafficking […]?’ — the Chamber expanded the case to cover human trafficking, despite the absence of any such allegations by the applicant, either before the domestic investigating authorities or in her application before the Court. From then on the focus of the applicant was no longer about the failure to convict T.M. of the charge of forced prostitution or the lesser charge of procurement but rather on the failure to bring what she now argued was the correct charge, namely for the criminal offence of human trafficking. Given this alteration — whether mistaken or deliberate — of the scope of the case first by the Chamber and then by the applicant in response, the Grand Chamber should have proceeded with greater care in its legal characterisation, concentrating on the clear set of factual allegations which had been put forward by the applicant, which related (solely) to forced prostitution. It was after all these factual allegations which had been the subject of the investigation, prosecution and trial.

The second difficulty with the case lies in the consequences for the Court's legal analysis which seem to flow from the inflation of the scope of the case.

As concurring judges, we do not dispute that when the applicant brought her complaint to the attention of the Croatian police, she presented an arguable claim of some treatment which could have been found to be contrary to Articles 3, 8 and even 4 of the Convention.

Instead of concentrating on clarifying the trigger for that positive procedural obligation and what the latter entails for domestic authorities in a case like this, the Grand Chamber judgment expends considerable space and energy exploring the concept of human trafficking. Over one hundred paragraphs of the judgment are devoted to international and EU law and practice mainly on human trafficking. Human trafficking, as the Court already clarified in previous cases, is dependent on the presence of three constituent and cumulative elements: action, means and purpose (see the elaboration of the principles in Rantsev v. Cyprus and Russia, no. 25965/04, §§ 277 – 289, 7 January 2010). As the Grand Chamber judgment in the present case indicates, § 290:

Having emphasised the importance of those three constituent elements, outlined existing case-law on human trafficking, while explaining that the latter can occur at national and transnational level, the judgment avoids providing a clear answer regarding whether the domestic investigating authorities should have been investigating human trafficking, forced prostitution or sexual exploitation generally. The solution to the conceptual vagueness thus developed is to refer vaguely to ‘treatment contrary to Article 4’ (see §§ 308, 325, 328, 332 and 346) and to state that irrespective of whether the Court is (or more importantly the domestic authorities were) in the presence of human trafficking or forced prostitution, the core procedural obligation, namely the duty to investigate effectively, is the same.

The purpose of bringing a case to the Grand Chamber is to bring clarity where it is lacking and to resolve jurisprudential conflict or contradiction. By allowing the scope of the applicant's case to be unnecessarily inflated and insisting on making this case about human trafficking the Grand Chamber has not brought clarity to its Article 4 case-law. The line between forced prostitution and human trafficking is blurred in and by this judgment. This is not helpful and was certainly not necessary, since the Court was only ever going to decide whether there had been a procedural as distinct from a substantive violation of Article 4 in the applicant's case.

Our third difficulty lies in the blanket transposition from Articles 2 and 3 to Article 4 (and in some cases perhaps even Article 8) of the positive procedural obligations developed with reference to the former provisions (see §§ 309–311 of the Grand Chamber judgment).

The nature and scope of positive obligations under Articles 2, 3 and 4 were set out in detail in §§ 283 – 288 of Rantsev, cited above. They encompass, in essence, duties to prevent, protect and punish. However, the first two positive obligations arise where the State authorities were aware or should have been aware of circumstances giving rise to a credible suspicion that an identified individual had been or was at real and immediate risk. In contrast, the procedural obligation to investigate appears to depend on something less. In Rantsev it was triggered ‘once the matter has come to the attention of the authorities’ (ibid, § 288). In the present case the applicant had to make out an arguable claim and/or there had to exist prima facie evidence of ‘treatment contrary to Article 4’ (see §§ 324–325, 331–332 and 346 of the Grand Chamber judgment).

There is a risk that the technique of blanket transposition fails to take into account the specificity of the type of investigation which the authorities would have to initiate when confronted with an ‘arguable claim’ or prima facie evidence under Article 2 as distinct from Articles 3 and 4, as well as the nature of the facts which would constitute such a claim under these different Convention articles. In relation to the first provision, a case like Mustafa Tunç and Fecire Tunç v. Turkey provides a good example of what would generally confront the authorities in an article 2 case ([GC], no. 24014/05, 14 April 2015, § 133):

In an article 2 case, to put matters bluntly, there is generally physical evidence of a death, or concrete elements pointing to the risk thereof. Similarly, in Article 3 cases, the authorities are confronted with allegations of ill-treatment, more often than not including physical manifestations on the body of the alleged victim of the treatment of which they complain. Questions may arise regarding whether the threshold of severity is reached, or the absence of physical evidence may be excused when the complainant has been under the authority and control of the State which alone was in a position to know or establish the facts complained of (see, for a recent example, Ibrahimov and Mammadov v. Azerbaijan, nos. 63571/16 and 5 others, § 89, 13 February 2020).

However, in Article 4 cases, as we see from the facts of the applicant's case, the available evidence with which investigating authorities may be confronted can be of quite a different nature. The present case involved a first connection via Facebook, social drinks, the search for employment, an alleged attempt to coerce into prostitution, continued social contact, a physical relationship carried on over months which may or may not have been consensual or which may have ceased to be consensual with time, allegations of threats and domestic violence, the renting and payment of a flat by the complainant who had been able to leave the flat on certain occasions and who retained use of her identity documents, mobile phone and part of the money earned from the alleged forced prostitution. It also involved, crucially, evidence of a friend of the complainant, with whom she had lived, confirming the threats to which she had been subject but also testifying that her involvement in prostitution had been voluntary.

In the present case, it is unclear what the Court expected the police to do when confronted by the applicant's complaint of forced prostitution. Should they, when confronted by a relatively young woman, who may have engaged in prostitution, and who appears to have been in some sort of relationship with an older, aggressive and allegedly violent man, have sought first to establish whether commission of a higher level offence like human trafficking had to be discounted, before proceeding to investigate the offence complained of, namely forced prostitution? What will an arguable claim that treatment contrary to Article 4 has taken place look like in practice and of what, in the absence of a complaint, will prima facie evidence consist? What concretely will either require of the police and subsequently the prosecution service? The reality of the applicant's case was that the facts she presented did not appear to match the constituent elements of human trafficking, nor did some of the central pieces of evidence subsequently gathered. That does not mean that her complaint of forced prostitution was carefully and sufficiently investigated and prosecuted. The finding of a violation is the result of identified deficiencies. However, it does mean that the domestic decision not to prosecute the more serious charge of human trafficking which the applicant subsequently criticised appears to have been far from arbitrary.

A further reason why clarity on the trigger for the procedural obligation to investigate is so important is that once triggered it becomes an own motion obligation for the domestic authorities. The authorities cannot, according to the Court's case-law, leave it to the initiative of the alleged victim to take responsibility for the conduct of any investigatory procedures (see § 314 of the Grand Chamber judgment). It is not incumbent on an applicant to indicate deficiencies in the collection of evidence by the domestic authorities or omissions regarding possible additional witnesses. In addition, when a complaint in relation to the procedural obligation to investigate comes before the Strasbourg court, the investigation, prosecution and judicial stages of a case all become open to examination; an examination which benefits from hindsight. As stated in § 227 of the Grand Chamber judgment:

In the present case, although the applicant's complaint focussed on deficiencies at the judicial stage, the Court focuses instead on the investigation stage, from where it implies any subsequent prosecutorial and judicial deficiencies arise. As indicated by the dissenting judge at Chamber level, the Court must avoid, not least because it is ill-equipped, to act as a first-hand examiner and first-instance arbiter of the quality of a domestic criminal investigation. However, the transposition of Articles 2 and 3 standards to Article 4 and beyond to Article 8 carries with it just such an inherent risk. The judgment indicates that the flaws in the relevant domestic proceedings must amount to significant flaws in order to raise an issue under Article 4, emphasising that the Court is not concerned with allegations of errors or isolated omissions. However, it remains to be seen what will qualify as a ‘significant’ flaw and the risk of the Court too easily assuming the role of a first-instance tribunal (of fact) is clear. The nature and scope of the own motion investigation obligation which an arguable claim under Article 4 or prima facie evidence of treatment contrary to that article can trigger, sits uneasily with, on the one hand, the substantial deference which the Court says it must pay to national courts in the choice of appropriate measures (Beganović v. Croatia, no. 46423/06, § 78, 25 June 2009, and Pulfer v. Albania, no. 31959/13, § 81, 20 November 2018) and, on the other, the rule precluding the Court from seizing on facts which have not been adduced by the applicant and examining those facts for compatibility with the Convention (see Foti and others, cited above, § 44).

While a procedural violation of Article 4 in this case may have been warranted, given the deficiencies uncovered in the investigation into the applicant's complaint of forced prostitution, we are not convinced that the Grand Chamber has engaged sufficiently with the implications for police and prosecution authorities of the procedural duties outlined (see further, for similar concerns expressed in an Article 3 case by a domestic court, Commissioner of Police of the Metropolis (Appellant) v DSD and another (Respondents) [2018] UKSC 11, Lord Mance at § 142).

In a 2017 report on human trafficking, the European Commission referred to the fact that there were 15, 846 ‘registered victims’ (both identified and presumed) of trafficking in the EU in 2013–2014, that trafficking for the purpose of sexual exploitation is still the most widespread form (67 % of registered victims) and that over three quarters of the registered victims were women (76 %) (Report on the progress made in the fight against trafficking in human beings, COM (2016) 267 final). That report highlighted the fact that the level of prosecutions and convictions for human trafficking remains worryingly low, especially when compared to the number of victims identified, that although investigations in this field require a substantial body of evidence to secure a conviction, the information gathered for the report indicated that Member States are not using enough effective investigative tools and that an excessive burden is placed on victims both before and during criminal proceedings.

The picture painted in the Commission report, in the 9th General report published in April 2020 by GRETA, and that provided by third party interveners in the instant case, may support a further Grand Chamber judgment like Rantsev, highlighting the scourge of human trafficking, developing the Court's case-law and finding, where appropriate, a violation of Article 4 as a result of a failure by a respondent State to prevent, protect against and punish such crimes.

However, while certain deficiencies in the domestic procedure involving the applicant mean it is not possible to vote against the finding of a violation of Article 4, we do not agree with the manner in which the Court decided to approach this case. We also consider that little has been gained in terms of the clarity of the Court's case-law on Article 4 and share some of the concerns expressed by our Chamber colleague regarding the case as presented by the applicant and her legal representatives both domestically and after communication at Strasbourg level.

The Grand Chamber is charged with addressing serious questions affecting the interpretation or application of the Convention or the Protocols thereto and serious issues of general importance. For it to execute its functions effectively, the right case must be chosen as the right vehicle for those questions and issues to be resolved. While we support the finding of a procedural violation, the present case could and should have been disposed of on narrower grounds at Chamber level. It could never successfully serve as the wider jurisprudential vehicle for which it seems to have been intended.

In this case the Grand Chamber found a violation of Article 4 of the Convention in its procedural limb. I subscribe fully to that conclusion.

However, I have some reservations regarding the Grand Chamber's response to the crucial issue concerning the exploitation of prostitution by another person. Whereas the Grand Chamber first asks the question whether ‘exploitation of prostitution … falls within the scope of Article 4 of the Convention’ (see paragraph 277 of the judgment), it ultimately finds that the protection of Article 4 covers ‘instances of serious exploitation, such as forced prostitution’ (see paragraph 300), and goes on to state (paragraph 301) that the ‘force’ in question ‘may encompass the subtle forms of coercive conduct identified in the Court's case-law on Article 4 (see paragraphs 281–285 above), as well as by the ILO and in other international materials (see, in particular, paragraphs 141–144 above)’. Hence, the Grand Chamber refers us to a certain degree of gravity, to its own case-law and to international law. As regards the first requirement, it is of limited usefulness in this context, especially since the Grand Chamber does not delve into the substance of the case. It is therefore a statement of principle. As to the second requirement, none of the cases cited deals specifically with prostitution. These case-law references do not therefore appear to be very relevant. Lastly, the references to the ILO do not relate expressly to prostitution, although it is to be noted that this organisation links the issue of forced labour to the fact that the victim does not offer his or her services ‘voluntarily’.

The Grand Chamber's response appears to me to be too ambiguous. This is evidenced, in particular, by the case-law cited in paragraphs 281 to 285 of the judgment. To date, in order to characterise forced labour, the Court has indeed required the presence of a threat, but also the absence of genuine consent. However, the latter element appears to be ultimately excluded, or at least assigned minimal importance, in the present case since the Grand Chamber concentrates on the notion of force.

Nevertheless, the time has come to address the question whether exploitation of prostitution, as such, remains compatible with the European Convention on Human Rights. As a general rule, I do not believe so. Human dignity cannot be paid for. The principle that the human body is not property also remains incompatible with its commodification (res extra commercium) and unsuited to the context of a contract of employment, which remunerates the persons concerned for their (physical or intellectual) efforts and not for making their own bodies available to others on the instructions of their employer.

Academic research shows that persons who have chosen fully and freely to engage in prostitution are in a minority. Those who do not, or no longer, wish to do so or who, in spite of themselves, have no other option, must be protected by the Convention and by the High Contracting Parties.

The harmful physical consequences and the psychological impact of prostitution are such that no one should be subjected to them without their free and informed consent. In that regard a survey was carried out in 2013 by the French National Federation of Reception and Social Integration Associations (FNARS) and the Health Monitoring Institute (IVS) on the health of persons working in prostitution who were interviewed in social and medical facilities. Of all the individuals surveyed, over half (56%) reported their state of health as fair, poor or very poor, while 35% said that they had a chronic illness (such as HIV) or psychological problems. The majority of those interviewed reported episodes of insomnia, anxiety or depression in the past year. The survey added that ‘[t]he most frequently reported kinds of violence were insults and psychological violence: 64% of respondents had been subjected to such violence at least once in the past twelve months’. The survey added that ‘[o]ver a third of the respondents had been forced to have sexual relations at some point in their lives’. The section dealing with respondents’ social conditions stated as follows: ‘The persons interviewed for the survey combined a number of features of social vulnerability, as evidenced by their social isolation (42% did not have a close relative or friend to call on in the event of difficulties, in particular the women) or their housing conditions (39% lived in precarious accommodation such as hotels, shelters, with friends or family, on the street, or in a squat)’.

To my mind, exploitation of prostitution, in the broad sense in which it is used in paragraph 117 of the judgment, that is to say, the fact of unlawfully obtaining financial or other material benefit from the prostitution of another person, should be presumed to be contrary to Article 4 of the Convention. The sole exception should be prostitution entered into with free, informed and express consent, which cannot be characterised as forced labour. All other forms of prostitution without consent therefore come within the scope of application of Article 4.

As I see it, consent to prostitution can be considered to be free and informed if — and only if — it is expressed and obtained in an indisputable manner. No form of implicit consent can be accepted nor can it justify the exploitation of one person by another. Silence or lack of resistance must never be regarded as implicit consent. Otherwise, the way would be wide open to all manner of abuse, to say nothing of all the evidential difficulties that the victims themselves would face. Giving in is not the same as consenting (Nicole-Claude Mathieu)! Article 3 (b) of the Palermo Protocol and Rule 70 of the International Criminal Court's Rules of Procedure and Evidence reflect this approach.

Article 3 (b) of the Palermo Protocol provides:

Rule 70 of the International Criminal Court's Rules of Procedure and Evidence reads as follows:

Hence, consent cannot be free and informed unless the person engaged in prostitution is capable of giving consent and that consent is not vitiated by, for instance, violence, error or deception. Furthermore, it must be possible for consent to be withdrawn at any time. A person cannot consent to something which he or she knows little or nothing about. Individuals engaged in prostitution may realise subsequently that this activity does not correspond in any way to how they previously imagined it, particularly where they are carrying it out in exhausting conditions, earning less than they had hoped, or in view of the devastating impact on their physical and mental health. The possibility for them to change their minds must be genuine and not merely theoretical. If prostitution is the result of a true choice then it must be possible to leave it behind at any time and without any lasting effects. Likewise, there can be no consent where there is a lack of options. Prostitution is frequently an activity of last resort. Where someone is in a situation of economic hardship, prostitution is not a genuine solution. If, and only if, all these conditions are met can we speak of a truly free choice, made voluntarily and with full awareness.

The vast majority of the Council of Europe member States criminalise involvement in the provision by another person of sexual services even where there is no coercion on the person providing the services (see paragraph 211 of the judgment). This is not necessarily a moral issue, as no one emerges unscathed from the experience of prostitution (see point 6 above). However, the Grand Chamber appears to disregard this consensus. It is true that some States regulate the exploitation of prostitution (Germany, the Netherlands, Slovenia, Spain and Switzerland, for example). However, detailed legal regulation of an activity does not suffice to make it compatible with the Convention. The fact that it is regulated does not in any way mean that the person's consent is entirely free, informed and express, and above all verified. I note in that connection the legislation initiated by several European countries which have opted to define sexual violence on the basis of lack of consent rather than just on the basis of violence or threats (Sweden, Iceland, the United Kingdom and Ireland, for example). Consequently, the absence of violence does not necessarily denote consent.

Lastly, Article 4 also imposes positive obligations on the High Contracting Parties. In that regard they should, at the very least, establish a legal framework that is sufficient to make the prohibition of slavery and forced labour effective; investigate thoroughly where there are credible suspicions that the rights of persons enjoying protection have been breached; and, finally, take operational steps to protect potential or actual victims. With regard to this last aspect, this would entail, firstly, strengthening the guarantees and safeguards surrounding legal prostitution, in other words, ascertaining whether the consent given is genuine. Secondly, the list of States’ positive obligations under Article 4 should be expanded by the introduction of preventive measures such as identifying and supporting persons in a precarious or vulnerable situation (the vast majority of them women) who are in danger of falling into the trap of forced prostitution, and affording assistance and protection to those who wish to escape the spiral of prostitution.

In his 1862 work Les Misérables, Victor Hugo observed as follows: ‘We say that slavery has vanished from European civilisation, but it is not true. Slavery still exists, but now it applies only to women and its name is prostitution’. The Convention is a living instrument. It is up to the Court to show the way.

The judgment undertakes at length the difficult task of providing definitions of ‘human trafficking’ and ‘exploitation of prostitution’, a task which it sees as essential in order to determine whether the treatment complained of by the applicant falls within the scope of Article 4 § 2 of the Convention. With due respect, I consider such an undertaking unnecessary. These concepts, which in any event are not specifically mentioned in Article 4 § 2, are only instances or sub-categories of ‘forced or compulsory labour’ and they do not cover the full breadth of the latter. As it appears from the case-law of the Court (see paragraphs 281–85 of the judgement), ‘forced or compulsory labour’, in general, means any work or service which is extracted from a person without his or her will by way of force (that is, using a physical or mental constraint or both) or compulsion (that is, using a menace of any penalty or a serious threat, or both).

I consider the approach taken in the judgment problematic for two key reasons: firstly, it disproportionately devotes the major part of its legal analysis to determining whether the treatment complained of falls within the definition of ‘human trafficking’ and/or ‘exploitation of prostitution’, thus distracting from the more general issue of ‘forced or compulsory labour’ which is at the heart of the case; and, secondly, such examination has the effect of unduly narrowing the scope of Article 4 § 2. I will briefly explain this in more detail, in order to clarify why I favour the direct methodological approach.

Firstly, as already mentioned, the major proportion of the legal analysis of the judgment is devoted to providing a definition of ‘human trafficking’ and ‘exploitation of prostitution’. This may be relevant in determining whether the treatment complained of falls within the scope of Article 4 § 2, yet this should be undertaken by considering the full breadth of the concept of ‘forced or compulsory labour’, rather than limiting the scope of this provision to only these two sub-categories of forced or compulsory labour. The excessive focus on defining ‘human trafficking’ and ‘exploitation of prostitution’ diverts attention from the central and more general issue, as explained above.

Secondly, the approach taken in the judgment has the effect of limiting the scope of Article 4 § 2 by equating ‘forced or compulsory labour’ with ‘human trafficking’ and ‘exploitation of prostitution’. The methodology adopted in the judgment could lead to a situation where an authorisation, a kind of ‘visa’, has to be requested bearing the words ‘human trafficking’ and/or ‘exploitation of prostitution’ in order for a complaint to be allowed to fall within Article 4 § 2.

Consequently, such methodology is: (a) erroneous, as the scope of ‘forced or compulsory labour’ is wider and is not confined to these two sub-categories, something which the judgment seem to overlook; (b) highly restrictive; and (c) contrary to the object and purpose of Article 4 § 2, namely the practical and effective protection of the right not to be subjected to ‘forced or compulsory labour’, and thus in contravention of the principle of effectiveness. Again, the approach taken in the judgment is unnecessary and not in the spirit of Article 4 § 2.

For the reasons stated above, I favour the direct methodological approach which avoids the above-mentioned problems. To my mind, the question to be asked is whether the applicant's complaint (that is, her factual allegations) can be considered to amount to ‘forced or compulsory labour’ within the meaning of Article 4 § 2 of the Convention. This concept is a generic and autonomous one, susceptible to evolutive interpretation, allowing the living instrument to be developed. The generic nature of the concept is reinforced by the provisions of the next paragraph of the Article, namely paragraph 3 (a)-(d), which expressly excludes from the concept of ‘forced or compulsory labour’ four categories or kinds of work or service.

‘Human trafficking’ and ‘exploitation of prostitution’ by their very nature fall within the concept of ‘forced or compulsory labour’, as such behaviour is a very serious means of coercing an individual to perform labour against his or her will. ‘Forced or compulsory labour’ may occur in many different contexts and is not limited to ‘human trafficking’ and/or ‘exploitation of prostitution. The very nature of the appalling exploitation of human beings involved in ‘human trafficking’ and/or ‘exploitation of prostitution’ is such that it must automatically fall within the scope of Article 4 § 2.

In view of the above, the direct methodological approach obviates the need to attempt, as the judgment does, to define the concepts of ‘human trafficking’ and/or ‘exploitation of prostitution’, which are very difficult concepts to define, and instead shifts the focus back to the actual and more general issue which the Court has to decide, as stated above.

To further explain the scope of Article 4 § 2 of the Convention, I will consider the meaning of ‘forced or compulsory labour’ in the light of its twofold dimension in logic. This will illuminate how the direct methodological approach I favour is more compatible with the intension and extension of the term, and how the approach taken in the judgment would have the effect of unduly narrowing its scope.

As stated above, in my humble opinion the lengthy examination of whether the applicant's complaint (that is, her factual allegations) can be considered as ‘human trafficking’ and/or ‘exploitation of prostitution’ within the meaning of Article 4 § 2 of the Convention was, with due respect, unnecessary. In my view, like any other Convention term or concept, the scope of ‘forced or compulsory labour’ in Article 4 § 2 of the Convention can be better understood if it is examined in the context of its twofold dimension in logic, thus in its intension and extension2., as well as in the light of the relationship between these dimensions3..

In logic, the intension (otherwise: connotation, comprehension, definition or depth), consists of the essential qualities, properties or characteristics of a term, and extension (otherwise: denotation, classification or breadth) consists of the matters or instances to which the term refers. An easy distinction between the two can be illustrated through the example of the term ‘ship’. The intension of this term would be a ‘vehicle for conveyance on water’, whereas its extension would embrace cargo ships, passenger ships, battleships, and sailing ships4..

These two dimensions are important in interpreting a term in the Convention because they assist in offering a holistic idea of its meaning: in depth and in breadth. A deeper understanding of Convention terms is required for effective protection of human rights. This holistic approach to interpreting a Convention provision is an aspect or property of the principle of effectiveness as a norm of international law and a method of interpretation. H.E. Cunningham aptly observes that ‘[e]xtension and intension as applied to terms may, in a sense, apply to relations’5.. Hence, in my view, the same applies to human rights, which are based on and concern human relations in society. Although the intension of a term is also described as a definition of the term, it should be pointed out that the concepts of relations and human rights may be very difficult to define or may sometimes even be undefinable6..

Having said that, it can easily be explained why the Court prefers not to define rights, or terms concerning Convention rights. Unless it is very general, any definition of the rights would leave no room for the Convention to be developed as a living instrument, a doctrine followed by the Court. Yet, closer enquiry into the two dimensions may assist in this evolution in order to appropriately establish the meaning of the right in relation to a specific set of circumstances, while ensuring conformity with the underlying protection the Article seeks to guarantee.

I submit that the determination of the right not to be subjected to ‘forced or compulsory labour’ must follow this twofold meaning which the term has in logic. The intension of the term ‘forced or compulsory labour’ is any labour which can be characterised as forced or compulsory and therefore taking place against the will of the individual. ‘Human trafficking’ and ‘exploitation of prostitution’ undoubtedly fall within the extension of the term, but its extension is not limited to just these two examples. These are only some instances falling within the extension or breadth of the term ‘forced or compulsory labour’ and, as stated above, they do not cover the full breadth of the latter.

Thus, in my humble view, if the applicant's complaint had to be classified as ‘human trafficking’ or ‘exploitation of prostitution’, in order for it to be considered ‘forced or compulsory labour’ under Article 4 § 2, as is done by the judgment, this would unduly narrow the application of that provision. Not seeing the whole extension of ‘forced or compulsory labour’, by fixating on two of its sub-categories, can be likened to not seeing the wood for the trees.

Furthermore, this or any similar attempt to delimit the extension of ‘forced or compulsory labour’ will not only erroneously result in the extension being stagnant and diminished, but will also increase the intension of the term ‘forced or compulsory labour’ to such a degree as to equate it to these two instances of extension. This will have the end result of removing the distinction between intension and extension since both will be identified with ‘human trafficking’ and ‘forced prostitution’. As will be explained below, such a result runs counter to the relationship required by logic between the extension and intension of a term as well as to the principle of effectiveness which supports this relationship for the benefit of the effective protection of a right.

In logic, there is an inverse relationship between extension and intension; as the intension diminishes, the extension increases, and, conversely, as the extension diminishes, the intension increases7.. In brief, to use the words of Horace William Brindley Joseph, ‘the extension and intension of words vary inversely’8.. The less specific the definition, the more instances and objects are likely to fit within the scope of that definition. A good example given by A. Wolf9. of the inverse relationship between intension and extension is the following. If we qualify the intension of the word ‘triangle’ by adding the adjective ‘equilateral’, the intension of ‘triangle’ increases and its extension decreases. Conversely, if we omit from the term ‘equilateral triangle’ the adjective ‘equilateral’, the intension of the term decreases and its extension increases.

In the present case, the meaning of ‘forced or compulsory labour’ allows a broad array of situations and contexts to be classified as such; this requires a broad extension and a narrow intension. However, if instead one were to identify ‘forced or compulsory labour’ as ‘human trafficking’ and ‘exploitation of prostitution’, then this would severely restrict the extension, and consequently the term would not cover other instances of ‘forced or compulsory labour’. Such an interpretation would be a contra legem since the generic term contained in Article 4 § 2 would be unjustifiably qualified. Instead, the direct methodological approach outlined above allows Article 4 § 2 to protect individuals from exploitation of labour occurring against their will.

In my view, the consideration of these two dimensions of ‘forced or compulsory labour’ is apt to illustrate that the direct methodological approach which I discussed above is preferable, maintaining a narrow intension and thus not erroneously limiting the extension of the complaints that can be brought forward under Article 4 § 2. Unlike the approach taken in the judgment, the proposed direct methodological approach is compatible with the principle of effectiveness, which after all is based upon logic and fairness. This principle, both in its capacity as a norm of international law and as a method of interpretation, serves to make a term in the Convention wider, within, of course, the limits of the text and the object of the relevant Convention provision. This can be achieved either by decreasing its intension or increasing its extension. By doing either, the result will be the same, namely the widening of the overall meaning of the term.

In the light of the above considerations, I decided to follow the direct methodological approach to dealing with the applicant's complaint under Article 4 § 2 of the Convention. I did this in combination with the approach I borrowed from the science of logic, consisting in determining ‘forced or compulsory labour’ in the light of its intension and extension and maintaining the requisite inverse relationship between these dimensions, in accordance with the principle of effectiveness.

By way of conclusion, apart from the different methodological approach which I have followed, I am in agreement with the judgment that the respondent State was in breach of its procedural obligation under Article 4 of the Convention, and for that reason I voted in favour of all five of the operative provisions. To my mind, however, this breach was the result of failure to apply the criminal-law mechanism allowing for the investigation, prohibition and punishment of ‘forced or compulsory labour’ in such a way as to facilitate protection using the entire breadth of this term, instead of limiting protection to the framework of ‘human trafficking’ or ‘forced prostitution’ as the judgment did.

The relevant provisions of the Constitution of the Republic of Croatia (Ustav Republike Hrvatske, Official Gazette nos. 56/1990, 135/1997, 113/2000, 28/2001, 76/2010 and 5/2014) read as follows:

Article 14

Article 23

Article 29

Article 35

Article 134

The relevant part of the Criminal Code (Kazneni zakon, Official Gazette nos. 110/1997, 27/1998, 50/2000, 129/2000, 51/2001, 111/2003, 190/2003, 105/2004, 84/2005, 71/2006, 110/2007, 152/2008, 57/2011 and 143/2012) which was in force when the alleged offence was committed reads as follows:

Trafficking in human beings and slavery

Article 175

Pandering

Article 195

The relevant provisions of the Criminal Code in force in the Republic of Croatia (official Gazette nos. 125/2011 and 144/2012) read as follows:

Slavery

Article 106

Trafficking in human beings

Article 106

Prostitution

Article 157

The relevant part of the Code of Criminal Procedure (Zakon o kaznenom postupku, Official Gazette nos. 152/2008, 76/2009, 80/2011, 91/2012 and 143/2012) which was applied in the proceedings against T.M., reads as follows:

Article 2

Article 9

Article 16

Article 38

1. Victim

Article 43

Article 45

2. Injured party

Article 47

Article 438

Article 449

In Rantsev v. Cyprus and Russia (cited in paragraph 51 of the present judgment), the Court held that human trafficking, within the meaning of Article 3(a) of the Palermo Protocol and Article 4(a) of the Anti-Trafficking Convention, fell within the scope of Article 4 of the Convention (see Rantsev, § 282). The words cited in italics are significant, because they link the scope of Article 4 with the definition of human trafficking as set out in the provisions referred to (cited in paragraphs 31 and 33 of the present judgment) and limit that scope accordingly.

What is important to note is that the definition of human trafficking in the above instruments consists of three cumulative elements, all of which must be present, namely the ‘action’, the ‘means’ and the ‘purpose’1.. The ‘action’ comprises ‘recruitment, transportation, transfer, harbouring or receipt of persons’. The ‘means’ comprise ‘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 of or the giving or receiving of payments of benefits to achieve the consent of a person having control over another person’. Finally, the purpose consists of ‘exploitation’. The latter is not defined but ‘shall include, as 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 or organs’.

Three points are particularly essential. Firstly, in the above instruments relied on in Rantsev, the notions of ‘exploitation of the prostitution of others’ and ‘other forms of sexual exploitation’ are relevant only as parts of the ‘purpose’ element of the definition of trafficking. Secondly, the terms ‘exploitation of the prostitution of others’ and ‘other forms of sexual exploitation’ are not defined in those instruments. This is a deliberate choice in order for these instruments to remain without prejudice to how States Parties deal with prostitution in their domestic law2.. Thirdly, while it is correct that according to Article 4(b) of the Anti-Trafficking Convention, the consent of the victim is irrelevant, this does not have the effect of diluting the ‘means’ elements in the definition of trafficking. On the contrary, the provision states that ‘the consent of the victim of ‘trafficking in human beings’ to the intended exploitation of the prostitution of others or other forms of exploitation … shall be irrelevant where any of the means set forth … have been used’. In other words, the victim's consent is no valid defence, and cannot have the effect of exonerating the perpetrator, where it is established that the ‘means’ element is present (cf. paragraph 79 of the present judgment, where the majority appear to confuse the issues; in the present case the domestic courts did not find that there was sufficient evidence to establish that the applicant had been forced into prostitution, such that the issue of consent — in terms of consent not being capable of constituting a valid defence — could not even arise).

Whereas in Rantsev the Court was careful to link its interpretation of the scope of Article 4 expressly and exclusively to the notion of human trafficking as defined in the Palermo Protocol and the Anti-Trafficking Convention, the majority in the present case go far beyond that position by holding that both trafficking and the exploitation of prostitution fall within the scope of Article 4 (see paragraph 54 of the present judgment). Notably, as explained above, neither the Palermo Protocol nor the Anti-Trafficking Convention purport to ban the ‘exploitation of prostitution’ as a phenomenon distinct from its place as an element of the ‘purpose’ component of human trafficking, nor is it defined in those instruments. By considering now that the ‘exploitation of prostitution’ — whatever is meant by it — falls within the prohibition enshrined in Article 4, the majority introduce an enlargement of the scope of that Article that is both significant and obscure. The latter aspect is particularly problematic in the light of the requirement that such exploitation be qualified as a criminal offence (see paragraph 63 of the present judgment) which, in the absence of any further definition, cannot but raise concerns under Article 7 of the Convention.

It is well known that there is no uniform understanding of what should qualify as ‘exploitation of prostitution’ or ‘sexual exploitation’. While some would consider that prostitution always involves exploitation, such a view is not shared by others, nor do differences of opinion necessarily follow gender lines. Likewise, the policy approaches adopted in the member States of the Council of Europe vary, as has been recognised in the Anti-Trafficking Convention mentioned above and also in the court's case-law (see V.T. v. France, cited above, § 24).

Interestingly, the majority refer to Article 1 of the older, 1951 UN Convention for the Suppression of Traffic in Persons and the Exploitation of the Prostitution of Others, which indeed lays down a more generally formulated obligation to ‘punish any person who, to gratify the passions of another… exploits the prostitution of another person’ (see paragraphs 27 and 54 of the present judgment). It is, however, important to note that quite a large number of member States of the Council of Europe have not ratified this particular Convention (unless I am mistaken, 26 of the 47 member States are parties to it), whereas all of them have ratified the more recent and less comprehensively formulated Anti-Trafficking Convention (to which reference was made in Rantsev).

What is also striking is that the new, significant development in the scope of Article 4 is introduced without any real analysis, without proper discussion or explanation, and without clarity or openness. On the contrary, the subsequent presentation of general principles blurs the issue by citations of case-law which refer to trafficking (see paragraphs 58 and 60). It would also be problematic to suggest that the initial recognition of a person as a victim of trafficking, for the purpose of qualifying for various measures of support, was in itself sufficient to engage the application of Article 4 regardless of any further developments in the course of the case (see paragraph 52 of the present judgment).

Furthermore, in the questions on which the Court invited the parties to submit observations, reference in respect of issues under Article 4 was only made to Rantsev (§§ 283-89). Nothing suggested to the parties that they should address a possible further extension of the scope of that Article. There has thus been no reason for the parties, or any other interested circles, to anticipate that the scope of Article 4 would now be detached from the criteria that define human trafficking (on which there is consensus among the member States) and extended to cover situations without the elements of coercion, deception or abuse that are required in the context of human trafficking. Notably, the Contracting States most concerned by the issue, namely those where the current legislative policy for the regulation of prostitution is different from that of the respondent State (the latter entailing that prostitution and the purchase of sexual services are illegal, see paragraph 65 of the present judgment), will be taken by complete surprise, and will not even have any possibility of requesting a referral of the case to the consideration of the court's Grand Chamber, this right being reserved to the parties to the case. Transparency and legal certainty do not appear to have much bearing on the approach taken.

I would like to underline that the above criticism is not linked with the specific subject matter of the case or any personal views in that regard. Rather, these are more general concerns about such a manner of judicial activity, which I find highly problematic.

It is well established that States have a positive obligation inherent in both Articles 3 and 4 of the Convention to enact criminal-law provisions effectively punishing serious acts prohibited under those provisions, even where they are not committed by State agents but by private individuals, and to apply them in practice through effective investigation and prosecution (see M.C. v. Bulgaria, no. 39272/98, § 153, ECHR 2003-XII, and L.E. v. Greece, no. 71545/12, §§ 65 and 68, 21 January 2016). Concerning such serious acts, the State's positive obligation to safeguard the individual's physical integrity may also extend to questions relating to the effectiveness of the criminal investigation (see, for instance, Y. v. Slovenia, no. 41107/10, 28 May 2015 ) and to the possibility of obtaining reparation and redress (see C.A.S. and C.S. v. Romania, no. 26692/05, 20 March 2012).

As regards the Convention requirements relating to the effectiveness of an investigation, the Court has held that it should in principle be capable of leading to the establishment of the facts of the case and to the identification and punishment of those responsible. This is not an obligation of result, but one of means. The authorities must have taken the reasonable steps available to them to secure the evidence concerning the incident, such as witness testimony and forensic evidence, and a requirement of promptness and reasonable expedition is implicit in this context (see, for instance, Y. v. Slovenia, cited above, § 96, with further references). The promptness of the authorities’ reaction to the complaints is an important factor (see Labita v. Italy [GC], no. 26772/95, §§ 133 et seq., ECHR 2000-IV). Consideration has been given in the court's judgments to matters such as the opening of investigations, delays in identifying witnesses or taking statements (see Mătăsaru and Saviţchi v. Moldova, no. 38281/08, §§ 88 and 93, 2 November 2010), the length of time taken for the initial investigation (see Indelicato v. Italy, no. 31143/96, § 37, 18 October 2001), and unjustified protraction of the criminal proceedings resulting in the expiry of the statute of limitations (see Angelova and Iliev v. Bulgaria, no. 55523/00, §§ 101-03, 26 July 2007). Moreover, notwithstanding its subsidiary role in assessing evidence, the Court has held that where allegations are made under Article 3 of the Convention the Court must apply a particularly thorough scrutiny, even if certain domestic proceedings and investigations have already taken place (see Cobzaru v. Romania, no. 48254/99, § 65, 26 July 2007).

In the present case, the applicant brought a criminal complaint against T.M. alleging that the latter had forced her into prostitution. An investigation was conducted and led to charges being brought against T.M. for having forced another person into prostitution. The applicant chose not to participate in the proceedings as the injured party and did not exercise the requisite procedural rights, although she did appear as a witness. The trial court acquitted T.M. on the grounds of insufficiency of evidence. The prosecution lodged an appeal, but the acquittal was upheld by the Court of Appeal.

Under such circumstances, the Court would need a solid basis for the conclusion that the respondent State has failed in its duties of investigation and in the enforcement of the relevant criminal law provisions. In the present case, I consider that for several reasons, the Court does not have a sufficient basis for such a finding.

Firstly, the applicant has not raised any specific complaints regarding the investigation. At the domestic level the applicant, who was provided with free legal assistance (see paragraph 72 of the present judgment), refrained from engaging in the criminal proceedings as the injured party, which would have included the right for her to point out facts and present evidence (see paragraph 26 of the present judgment). It does not appear that the applicant or her legal representative raised any concerns, or attempted to address, any shortcomings in the identification of possible witnesses.

Secondly, and more fundamentally, neither the applicant's complaint nor her observations before this Court contain any allegations regarding a failure to identify or obtain evidence from witnesses other than those actually heard in the domestic proceedings. (As discussed above, this aspect of the case should therefore not have been admissible for examination by the Court in the first place.) Consequently, the Court has not received any party's submissions that could provide a basis for its consideration of the question whether or not there were any unjustified omissions in the investigation or in the taking of evidence from possible witnesses.

Thirdly, as a result of the above, the Court in the present case has delved into the case file, of its own motion and without input from the parties, in order to identify persons who might have been, or ought to have been, involved as witnesses in the domestic investigation. As no shortcomings in this regard have been alleged or specified at the domestic level or before this Court, or otherwise addressed at either level, the majority are here taking on the role of a first-hand examiner and first-instance arbiter of the quality of the domestic criminal investigation.

Yet the Court has no direct, or under the circumstances even indirect, information about the reasons which may lie behind, or explain, the steps that were taken, or not taken, or not pursued, in the course of a given investigation. Among other things, a possible explanation may lie in the fact that the applicant did not lodge her criminal complaint until a year after the events complained of, and the fact that both the identification of, and the receipt of testimony from, the applicant's clients would presumably have encountered difficulties, as the purchase of sexual services in itself is criminalised under the domestic law. The Court is, inevitably, on a very fragile and treacherous ground if it ventures into the kind of exercise that the majority have undertaken in the present case — totally on its own, with no input even from the parties. Normally, the Court should be conducting a review of how the issues referred to it in a complaint have been dealt with, assessed and addressed at the domestic level, and it should be doing so on the basis of the specific allegations raised and the submissions made by the parties before it. In the present case, the majority are operating outside such a normal scenario and without the requisite adversarial basis.

Fourthly, the domestic case file is available only in the national language. In a case such as the present, most of the judges composing the Chamber are not, for linguistic reasons, in a position to examine the case file on their own, or to form any independent opinion of the elements in it. In the present kind of situation, where the Court is not operating in a normal scenario, as referred to above, but has entered of its own motion, without the benefit of either prior domestic assessments or party input, into a first-hand scrutiny of a domestic criminal investigation, the lack of independent access to the elements that are being examined is quite problematic from the point of view of the requirements inherent in the judicial role. All I can know about the domestic case file is what is included in the judgment. To determine on that basis whether a failure to engage certain persons as witnesses represents non-compliance with the State's procedural obligations, or that there was ‘no serious attempt to investigate in depth all relevant circumstances and to gather all available evidence’ (see paragraphs 78 and 79) is too flimsy, at least by my standards. If there was no serious attempt to investigate the case and if relevant witnesses were not heard, one must wonder why the applicant, through her legal representative, did not raise any complaint based on such factual allegations either domestically or before this Court.

Turning now to the assessment of the evidence before the domestic courts, in this respect I consider that the majority enter into a very problematic fourth-instance mode. It is asserted that the applicant's testimony was ‘dismissed’ as unreliable without ‘any assessment of the possible impact of psychological trauma on her ability to consistently and clearly relate the circumstances of her exploitation’ (see paragraph 80 of the present judgment). Such a statement implies that the majority perceive ‘her exploitation’ as a fact, whereas the purpose of the trial was to establish whether, as charged, T.M. had indeed forced the applicant into prostitution, and the conclusion reached by the domestic courts on the evidence was that this had not been the case.

The majority further suggest that when assessing the evidence before them, the domestic courts failed to take into account the applicant's situation and its possible impact on her demeanour when giving testimony. I have no idea how, and on what basis, the majority are able to make an assessment to conclude that the domestic court made no assessment of those aspects of the applicant's testimony. Domestic criminal courts are frequently called upon to take and assess evidence given by persons who are vulnerable and in distress. This Court has not heard any of the domestic evidence, nor does it have any access to records of testimonies as given at the domestic trial, nor can it be privy to the deliberations where an assessment of evidence has been conducted. Yet the majority consider that they are in a position to determine that the domestic courts failed to take into account ‘the possible impact of psychological trauma on her ability to consistently and clearly relate’ the events. I have not seen any tenable basis for such a finding.

Finally, the majority ‘accept’ that the initial presence of T.M. in the courtroom could have had an adverse effect on the applicant although he was not there when the applicant gave her evidence. Yet a defendant normally has a right to be present at his own trial, and the domestic courts can hardly be criticised, without more, for this having been permitted at the outset. The record shows that T.M. had been removed from the courtroom ‘immediately upon the applicant's request’ (see paragraph 72 of the present judgment). It is also established that prior to the trial, the applicant had been officially given the status of victim of (alleged) human trafficking, and had received both psycho-social support, counselling and free legal aid (see paragraph 12 of the present judgment).

I would also note that while the majority cite extensively from the pre-trial statements (see paragraphs 9–10 of the present judgment), the domestic courts (in line with Convention requirements) were called upon to adjudicate the case on the evidence presented at the trial and not on the records from pre-trial interviews.

My conclusion, in the light of the above, is that I do not see a sufficiently solid basis for the Court to make the kind of findings in which the majority consider that there has been a failure by the respondent State's authorities to comply with the procedural obligations incumbent on them.

Lastly, on a point of law, I would reiterate that in my view, the statement made by the majority at the end of paragraph 79 of the present judgment is based on a misconception of the norm according to which the victim's consent is irrelevant. As mentioned in paragraph 17 above, that norm entails that where coercion or another form of the ‘means’ element of trafficking has been established, the victim's consent is incapable of operating as a valid defence to the effect of exonerating the perpetrator. Where no coercion has been established, this issue does not arise. Thus, in the context of the present case, the statement at the end of paragraph 79 is beside the point.