Prohibition of Slavery and Forced Labour

Article 4 of the European Convention on Human Rights (ECHR) prohibits slavery, servitude, and forced labor. These practices violate fundamental human rights and are considered one of the gravest crimes against humanity. Article 4 states:

This article is an essential part of the ECHR as it affirms the dignity of all human beings and seeks to protect the most vulnerable members of society. Despite this, these practices continue to occur in many parts of the world. According to the International Labour Organisation (ILO), there are approximately 49.6 million people living in modern slavery and in forced labor globally, generating an estimated $150 billion in illegal profits annually.

In the case of Siliadin v France [2005], the applicant was a textbook modern slave. She was trafficked to France from Togo at age 15 where, upon arrival, she was forced to work until the cost of her air ticket had been reimbursed. The applicant’s passport was actually taken from her and she became an unpaid maid. The case found its way to the ECtHR due to the French criminal courts finding the individuals who trafficked the applicant, not guilty of several offences regarding slavery. The Court, unsurprisingly, found that the applicant was in fact a slave per the Convention and formally defined slavery as:

Furthermore, the Court also dealt with the issue of servitude, defining it as:

And finally, the Court provided that forced or compulsory labour is:

Article 4 makes no mention of human trafficking, despite this being a prevalent element of many modern slavery cases, and only refers to three concepts mentioned above. In S.M v Croatia [2020], the Court clarified that certain conduct or a specific situation may give rise to an issue of human trafficking under the scope of Article 4, but only where pre-existing international law concepts were engaged:

Put simply, these three constituent elements are:

An action – What is actually done e.g. the recruitment, transportation, harbouring or receipt of a person.

The means – How it is actually done e.g. by means of threat, use of force, abduction or fraud.

The purpose – Why is it actually done, this must be exploitative in nature e.g. sexual exploitation, forced labour, slavery, servitude or organ harvesting.

Whilst the Convention is not entirely helpful in regards to human trafficking, international law already proscribes this in the form of the Palermo Protocol which has been signed by 175 states. Furthermore, many countries implement domestic legislation to combat human trafficking; Section 2 of the Modern Slavery Act 2015 makes it an offence punishable by life imprisonment to arrange or facilitate the travel of another person with a view to that person being exploited.

The prohibition of slavery, servitude, forced labour is not absolute. The Convention recognises that certain forms of work or service may be required in four specific circumstances.

(1) Work during detention or conditional release

Any such work which is to be done in the ordinary course of detention, or during conditional release from such detention, will not be a breach of Article 4. This is, in so far as the somewhat uncertain law establishes, precedented on the requirement that the work to be done is equitably remunerated in some way, essentially a degree of quid pro quo. This does not have to be monetary, for example, in Floroiu v Romania (2013), prisoners were able to carry out either paid work or, where the tasks were in assistance of the day to day running of the prison, reduction in sentence. This reduction in sentence is compatible with the requirement for equitable remuneration.

A current gap in this respect is that of prisoners who must work but who have nonetheless reached the national retirement age. The most recent case analysing this matter was in 2016 and held that there is no consensus on this matter, however, Article 4 does not absolutely prohibit a prisoner who has reached retirement age from being required to work. It is important to note that, the law in this respect is currently uncertain.

(2) Military or substitute civilian service

Forced or compulsory labour is not prohibited where it is in support of military service or, where conscientious objectors are concerned, substitute civilian service. This includes where a person voluntarily joins the military and is then prevented from leaving due to their contractual requirement (under threat of criminal conviction for going AWOL). In W, X, Y and Z v the UK, the Court made the distinction that this is only in respect of forced or compulsory labour and does not extend to that which might fall under servitude or slavery.

Interestingly, this provision does not apply to career servicemen seeking to leave service. It follows that, the Court may eventually develop this law to solely apply to specific conscription.

(3) Service required during an emergency

Where an emergency threatens the life or well-being of the community, Article 4 does not apply in respect of any forced or compulsory labour with the goal of combating that emergency. In S v Germany (1984), the Court held that compelling the applicant to take part in the gassing of fox-holes as part of a campaign against a nationwide epidemic, despite reaching the threshold of forced labour, was not a breach of Article 4.

Whilst no reported cases have relied on this element, it is likely that any labour compelled as part of the efforts to tackle the Covid-19 pandemic would not be considered a breach of Article 4.

(4) Normal civic obligations

Compulsory ‘labour’ obligations of a civil duty nature, will not be a breach of Article 4. The Court have held that several civic duties are excluded from Article 4 in respect of forced or compulsory labour, these are:

• Jury service (Zarb Adami v Malta [2006])
• Compulsory fire service (Karlheinz Schmidt v Germany [1994])
• Obligation to conduct free medical examinations (Reitmayr v Austria (1995))
• Obligation to participate in a medical emergency service (Steindel v Germany [2010])
• Legal obligations to withhold taxes and state contributions (Four Companies v Austria [1976])
• Compulsory legal advocacy (Van Der Mussele v Belgium [1983])

Similarly to the above, this element is likely to be relevant to medical professionals compelled to work in combat of the Covid-19 pandemic.

The ECHR requires not only the negative obligations as stated in the Convention, but also requires states to take active steps to combat the practices prohibited under Article 4. States are required to adopt effective measures to prevent, investigate, and punish instances of slavery, servitude, forced labor, and human trafficking. These measures must be enforced with due diligence and must be aimed at eradicating these practices. Such a measure implemented in the UK, is the above mentioned Modern Slavery Act 2015.

States also have to be sure to have adequate measures in place regulating businesses which are often used as fronts for human trafficking. The States national immigration policies and procedures must also address concerns of human trafficking and relevant training must be provided to immigration officials.

In two decisions flowing from State decisions in the UK, VCL and AN v the UK [2021] and G.S v the UK (2021), the Court have held that, generally, the prosecution of victims of trafficking, such as under immigration enforcement, should be a secondary matter and that taking such decisions to prosecute may infringe the rights of the victims to be protected from such harm in the first place. Essentially, Article 4 in one respect must be balanced against Article 4 in another respect, the individual in question must have their status as a potential victim assessed prior to any prosecution decision. Following these decisions, the UK government introduced s.60 of the Nationality and Borders Act 2022, though this is not yet in force at the time of writing.

Initially appearing simple, the prohibition on slavery, servitude, and in particular, forced or compulsory labour, is a very complex matter and one which, particularly in recent years, has begun to develop in an entirely unintended way with regards to human trafficking. In short, Article 4 prohibits slavery and servitude entirely, and forced or compulsory labour in the majority of circumstances aside from those which may be considered exceptional in nature.

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