Uncovering labour exploitation: lights and shadows of the latest European Court of Human Rights' case law on human trafficking

Abstract

[eng] For the first time, the European Court of Human Rights (ECtHR) qualified two labour exploitation cases as human trafficking. In examining these two latest judgments in the light of the Court's earlier trafficking case law, this study highlights that, despite some positive contributions, a regressive trend prevails. The Court fails to establish a clear distinction between the concepts of human trafficking and forced labour - the very existence of the latter being threatened by its conflation with trafficking - and substantially lowers standards with respect to states' positive obligations, mainly in relation to the establishment of an adequate normative framework and to judicial cooperation in cross-border trafficking cases. Worryingly, while confusion persists around the understanding of the international definition of trafficking and its relevance under Article 4 ECHR, the holistic approach to positive obligations initially taken by the Court in Rantsev is progressively being eroded, in full contradiction with its positive obligations doctrine and European anti-trafficking law.