The Prevention of Human Trafficking – Regulating Domestic Criminal Legislation through the European Convention on Human Rights

Abstract

The article displays how human rights law is extending into the sphere of domestic criminal law, as seen through the approach to human trafficking by the European Court of Human Rights. The Court is increasingly demanding the criminalisation of harmful acts to prevent harms and to protect potential victims. The content of domestic laws is also progressively subject to evaluation of the Court, in line with its development of placing positive obligations on states to protect individuals from harm perpetrated by private actors. Human trafficking is an example where the Court has not only found the crime to fall within the ambit of Article 4 of the European Convention on Human Rights, which prohibits slavery, forced labour and servitude, but through case law has concretised various positive obligations for states. These include adopting effective criminal laws that cover the acts included in human trafficking. Such laws must be clear and not open to various interpretations. If the law is similar to that of the Palermo Protocol, it is considered effective. However, it is indicated that other constructions may also reach the required level of effectiveness. It is submitted that the methodology of the Court in delineating state obligations is flawed in that the Court demands effective laws but does not clarify what ‘effectiveness’ entails. The casuistic style of the Court negates its increasingly outspoken goal of developing the rules of the Convention for all Member States. The rather broad margin of appreciation of states in formulating domestic criminal laws conflicts with the demands of ‘effectiveness’ in protection.