Resolution CM/ ResDH (2011)210 [1]

Execution of the judgment of the European Court of Human Rights

Siliadin against France

(Application No. 73316/01, judgment of 26/07/2005, final on 26/10/2005)

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”);

Having regard to the judgment transmitted by the Court to the Committee once it had become final;

Recalling that the violation of the Convention found by the Court in this case concerns the lack of specific and effective protection by French criminal law of the applicant against the “servitude” in which the applicant was held (violation of Article 4) (see details in Appendix);

Having invited the government of the respondent state to inform the Committee of the mea s ures taken to comply with its obligation under Article 46, paragraph 1, of the Conve n tion to abide by the judgment;

Having examined the information provided by the government in accordance with the Committee ’ s Rules for the application of Article 46, paragraph 2, of the Convention;

Having satisfied itself that the respondent state paid the a p plicant the just satisfaction provided in the judgment on terms accepted by the applicant (see details in Appendix),

Recalling that a finding of violations by the Court requires, over and above the payment of just satisfaction awarded by the Court in its judgments, the adoption by the respondent state, where appropriate:

- of individual measures to put an end to the violations and erase their consequences so as to achieve as far as possible restitutio in integrum ; and

- of general measures preventing similar violations;

Noting that an application concerning similar complaints was transmitted by the Court to the French government on 19 January 2011 (C.N. and V. against France , No. 67724/09), and without anticipating the findings at which the Court might arrive in this connection;

DECLARES, having examined the measures taken by the respondent state (see Appendix), that it has exe r cised its functions under Article 46, paragraph 2, of the Convention in this case and

DECIDES to close the examination of this case.

Appendix to Resolution CM/ ResDH (2011)210

Information on the measures to comply with the judgment in the case of

Siliadin against France

Introductory case summary

This case concerns the lack of specific and effective protection for the applicant against the “servitude” in which she was held (violation of Article 4 of the Convention).

The applicant, a Togolese national who was a minor and in an irregular situation at the material time, worked for several years from 1994 onwards as an unpaid servant for a couple who made her work seven days a week and had confiscated her passport. The European Court held that Article 4 of the Convention gave rise to positive obligations for states to adopt and effectively implement criminal-law provisions making the practices condemned by this Article a punishable offence. In the present case, the Court found that the applicant, subjected to treatment contrary to Article 4 and held in servitude, could not have the perpetrators of the acts convicted under criminal law (paragraph 145). Thus the criminal-law provisions then in force did not afford the applicant, a minor, specific and effective protection against the acts of which she was a victim. The Court noted that changes had occurred in the legislation, but these were subsequent to the facts and thus not applicable to the applicant ’ s situation.

I. Payment of just satisfaction and individual measures

a) Details of just satisfaction

Pecuniary damage

Non-pecuniary damage

Costs and expenses

Total

-

-

25 196,69 EUR

25 196,69 EUR

Paid on 27/09/2006

b) Individual measures

Under civil law, the domestic courts granted the applicant the sums owed to her in respect of unpaid wages plus an indemnity, and also 15 245 euro in compensation for the “significant psychological trauma” which she had suffered. Under criminal law, the decision acquitting the persons who had held the applicant in “servitude” has the status of res judicata . The applicant made no other request. Consequently, no other individual measure was considered necessary.

II. General measures

As the Court noted in its judgment, Articles 225-13 and 225-14 of the Penal Code (working and living conditions contrary to human dignity) were amended after the events of the Siliadin case by the law of 18 March 2003. The relevant offences are now defined as “obtaining from a person whose vulnerability or state of dependence are obvious or known to the offender the performance of services without payment or for one which clearly bears no relation to the amount of work performed” (Article 225-13) and “subjecting a person, whose vulnerability or dependence is obvious or known to the offender, to working or living conditions incompatible with human dignity ... ” (Article 225-14). To establish these offences, knowledge of the person ’ s vulnerability or dependence replaces the criterion of “abuse” of the person ’ s state of weakness or dependence used in the texts applicable at the material time. The French authorities therefore emphasise that to make a conviction possible it suffices that the state of weakness could not have been unknown to the culprit, which is easier to prove. Moreover, this law instituted a presumption of vulnerability for minors (Article 225-15-1 of the Penal Code) or for persons against whom the offences are committed on arrival in the national territory. Besides, the law of 2003 provided a new aggravating circumstance, the victim ’ s minority (whereas according to the letter of the former provisions, there was only one aggravating circumstance: plurality of victims).

The authorities also draw attention to the heavier penalties under the new law: the penalties provided, which were 2 years in prison and 500 000 francs (76,225 euro) fine, have been increased to 5 years in prison and 150 000 euro fine, or 7 years in prison and 200 000 euro fine where the offences defined in Articles 225-13 and 225-14 are committed against a minor or a number of persons.

In addition, the law of 20 November 2007 defined a new criminal offence of trafficking in human beings. Under the terms of Article 225-4-1, “Trafficking in human beings is the offence, committed in exchange for remuneration or for any other advantage or promised remuneration or advantage, of recruiting, transporting, transferring, accommodating or receiving a person in order to place him or her at one ’ s own or a third party ’ s disposal, even where that party is unidentified, in order to allow the offences of procuring, sexual assault, exploiting destitution, or living and working conditions contrary to human dignity to be committed against the person, or to compel that person to commit any crime or offence. Trafficking in human beings is punishable by seven years of imprisonment and a fine of 150 000 euro.” Article 225-4-2 provides that this offence “is punishable by ten years ’ imprisonment and a fine of 1 500 000 euro where it is committed against a minor”, for instance. The United Nations Human Rights Committee, in the “Positive aspects” part of its report of 22 July 2008 (CCPR/C/FRA/CO/4) moreover “[took] note that France has defined a new criminal offence of trafficking in persons for purposes of sexual exploitation or by imposing living or working conditions inconsistent with human dignity. The State party convicted 130 offenders under this statute in the first four years following its creation.”

The French authorities state that these provisions, interpreted by the courts in the light of the Convention and of this judgment, allow the criminal conviction of persons committing acts similar to those inflicted on Ms Siliadin , thus avoiding similar violations of Article 4.

Accordingly, steps were taken to make the case of Siliadin known, in particular to the courts. The judgment was published on the Legifrance public website and sent out to all national courts via the website of the Department of European and International Affairs. The judgment was also disseminated by the Observatoire de droit européen of the Court of Cassation on its intranet site (accessible to all courts), in its bulletin of June ‑ July-August 2007; it was also posted on 30 September 2007 by the Ministry of Justice on its own intranet site (accessible to all courts). Finally, the judgment was published with commentary in legal journals.

After the decision taken by the Committee of Ministers to conclude the examination of this case at the 1078th meeting (DH) (March 2010), the Comité Contre l ’ Esclavage Moderne (a non-governmental organisation) submitted a communication to the Committee of Ministers under Rule 9 of the Rules of the Committee of Ministers for the supervision of the execution of judgments and of the terms of friendly settlements. This communication stated that insufficient penalisation by the courts of the exploitation of others resulted from the implementation of the above-mentioned texts, and referred to an opinion on trafficking in and exploitation of human beings in France, adopted on 18 December 2009 by the Commission nationale consultative sur les droits de l ’ homme (a national human rights institution).

The French authorities considered that this communication did not discredit their conclusion that measures had been adopted sufficing to guard against similar violations to that found in Ms Siliadin ’ s case, which was due to the fact that the persons who had kept her in servitude while a minor had not received a criminal conviction.

They stress that the texts implemented in the exemplary precedents cited by the Comité Contre l ’ Esclavage Moderne pre-date the legislative reforms described above. They also draw attention, inter alia, to a recent Court of Cassation judgment relating to the application of Articles 225-13 and 225-14 of the Penal Code as amended by the law of 18 March 2003, upholding the criminal conviction of a person charged in a case of domestic slavery (judgment no. 3662 of 15 June 2010).

The authorities also recall that on 9 January 2008, France deposited the instrument of ratification of the Council of Europe Convention on Action against Trafficking in Human Beings. This Convention is the first international instrument with the object of safeguarding and upholding the fundamental rights of victims of trafficking in human beings. The Convention took effect in respect of France on 1 March 2008.

In addition, the authorities continue their efforts as regards the fight against trafficking in and exploitation of human beings, and for the protection of victims, in the framework of their co ‑ operation with the Group of Experts on Action against Trafficking in Human Beings ( G R E TA ), responsible for ensuring the implementation of the Council of Europe Convention on Action against Trafficking in Human Beings. These efforts will also be continued in the context of the authorities ’ co-operation with the special rapporteurs and the treaty committees dealing with the matter in the United Nations framework.

III. Conclusions of the respondent state

The government considers that the individual measures adopted have fully remedied the consequences for the applicant of the violation of the Convention found by the European Court in this case, that the general measures will prevent similar violations and that France has thus complied with its obligations under Article 46, paragraph 1, of the Convention.

[1] Adopted by the Committee of Ministers on 2 December 2011 at the 1128th Meeting of the Ministers’ Deputies