Information Note on the Court’s case-law 203

January 2017

J. and Others v. Austria - 58216/12

Judgment 17.1.2017 [Section IV]

Article 4

Positive obligations

Article 4-1

Trafficking in human beings

Decision of prosecutor not to pursue investigation into alleged human trafficking offences committed abroad by non-nationals: no violation

Facts – The applicants, Filipino nationals recruited from the Philippines, wo rked as maids and nannies for different families in Dubai. In July 2010 they accompanied their employers to Austria. During their stay there the applicants left the families and reported to the Austrian police alleging that they had been subject to human t rafficking and forced labour. The public prosecutor later discontinued investigations on the grounds that the offences had been committed abroad by non-nationals. No offence had been committed in Austria. The prosecutor’s decision was upheld by the regiona l criminal court.

In the Convention proceedings, the applicants complained that the Austrian authorities had failed to comply with their positive obligations to them under the procedural limb of Article 4 as victims of trafficking.

Law – Article 4: The cas e raised two questions. Firstly, whether the Austrian authorities complied with their positive obligation to identify and support the applicants as potential victims of human trafficking, and secondly, whether they fulfilled their positive obligation to in vestigate the alleged crimes.

(a) Positive obligation to identify and support the applicants as potential victims of human trafficking – From the point when the applicants turned to the police, they were immediately treated as potential victims of human t rafficking. They were interviewed by specially trained police officers, granted residence and work permits in order to regularise their stay in Austria, and a personal data disclosure ban was imposed on the central register so that their whereabouts were u ntraceable by the general public. During the domestic proceedings the applicants were supported by an NGO, funded by the Government to provide assistance to victims of human trafficking. The applicants were also given legal representation, procedural guida nce and assistance to facilitate their integration in Austria. The legal and administrative framework in place concerning the protection of potential victims of human trafficking in Austria thus appeared to have been sufficient and the authorities had take n all steps which could reasonably have been expected in the given situation.

(b) Positive obligation to investigate the allegations of human trafficking – The public prosecutor’s office had initiated an investigation after the applicants had given their statements to the police. The investigation was discontinued as the public prosecutor’s office was of the opinion that the applicants’ employers’ alleged conduct on Austrian territory did not fulfil the relevant legal provisions. The office observed that the alleged crime of trafficking in human beings had been committed abroad, the accused were non-nationals, and Austrian interests were not engaged. The de cision to discontinue the proceedings was confirmed by the regional criminal court which added that there was no reason to prosecute if, on the basis of the results of the investigation, a conviction was no more likely than an acquittal. It its view, there was also no obligation under international law to pursue the investigation in relation to the events allegedly committed abroad.

In the context of its positive obligations, the questions arose as to whether Austria was under a duty to investigate the cri mes allegedly committed abroad and whether the investigation into the events in Austria was sufficient. Under its procedural limb, Article 4 did not require States to provide for universal jurisdiction over trafficking offences committed abroad. The United Nations Protocol to Prevent, Suppress and Punish Trafficking in Persons was silent on the matter of jurisdiction, and the Council of Europe Anti-Trafficking Convention only required State parties to provide for jurisdiction over any trafficking offence committed on their own territory, or by or against one of their nationals. In the present case, there was no obligation incumbent on Austria to investigate the applicants’ recruitment in the Philippines or their alleged exploitation in the United Arab Emirates.

The applicants had been given the opportunity to provide a detailed account of the events to specially trained police officers and over thirty pages of statements had been drawn up. Based on the descriptions given, the authorities had concluded that the events – as reported by the applicants – did not am ount to a criminal action. In the light of the facts of the case and the evidence that the authorities had at their disposal, the assessment that the elements of the relevant offence had not been fulfilled did not appear unreasonable. The authorities had o nly been alerted approximately a year after the events in Austria, when the applicants’ employers had long since left Austria and presumably returned to Dubai. The only further steps the authorities could possibly have taken would have been to request lega l assistance from the United Arab Emirates, attempting to question the applicants’ employers by means of letters of request and issuing an order to determine their whereabouts. However, the authorities could not have had any reasonable expectation of even being able to confront the applicants’ employers with the allegations made against them, as no mutual legal assistance agreements existed between Austria and the United Arab Emirates. It did not appear that these steps, albeit possible in theory, would hav e had any reasonable prospects of success and would therefore have been required. As such, the investigation conducted by the Austrian authorities in the applicants’ case was sufficient for the purposes of Article 4 of the Convention.

Conclusion : no viola tion (unanimously).

The Court also concluded (unanimously) that there had been no violation of Article 3 of the Convention, as the test of the State’s positive obligations under the procedural limb of Article 3 of the Convention was very similar to that un der Article 4 which had been comprehensively examined and no violation found.

(See Rantsev v. Cyprus and Russia , 25965/04, 7 January 2010, Information Note 126 ; Siliadin v. France , 73316/01, 26 July 2005, Information Note 77 )

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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