CONCURRING OPINION OF JUDGE PASTOR VILANOVA

(Translation)

1. In this case the Grand Chamber found a violation of Article 4 of the Convention in its procedural limb. I subscribe fully to that conclusion.

2. However, I have some reservations regarding the Grand Chamber’s response to the crucial issue concerning the exploitation of prostitution by another person. Whereas the Grand Chamber first asks the question whether “ exploitation of prostitution ... falls within the scope of Article 4 of the Convention ” (see paragraph 277 of the judgment), it ultimately finds that the protection of Article 4 covers “ instances of serious exploitation, such as forced prostitution ” (see paragraph 300), and goes on to state (paragraph 301) that the “ force ” in question “ may encompass the subtle forms of coercive conduct identified in the Court’s case-law on Article 4 (see paragraphs 281-85 above), as well as by the ILO and in other international materials (see, in particular, paragraphs 141-44 above) ”. Hence, the Grand Chamber refers us to a certain degree of gravity, to its own case-law and to international law. As regards the first requirement, it is of limited usefulness in this context, especially since the Grand Chamber does not delve into the substance of the case. It is therefore a statement of principle. As to the second requirement, none of the cases cited deals specifically with prostitution. These case-law references do not therefore appear to be very relevant. Lastly, the references to the ILO do not relate expressly to prostitution, although it is to be noted that this organisation links the issue of forced labour to the fact that the victim does not offer his or her services “voluntarily”.

3. The Grand Chamber’s response appears to me to be too ambiguous. This is evidenced, in particular, by the case-law cited in paragraphs 281 to 285 of the judgment. To date, in order to characterise forced labour, the Court has indeed required the presence of a threat, but also the absence of genuine consent. However, the latter element appears to be ultimately excluded, or at least assigned minimal importance, in the present case since the Grand Chamber concentrates on the notion of force.

4. Nevertheless, the time has come to address the question whether exploitation of prostitution, as such, remains compatible with the European Convention on Human Rights. As a general rule, I do not believe so. Human dignity cannot be paid for. The principle that the human body is not property also remains incompatible with its commodification ( res extra commercium ) and unsuited to the context of a contract of employment, which remunerates the persons concerned for their (physical or intellectual) efforts and not for making their own bodies available to others on the instructions of their employer.

5. Academic research shows that persons who have chosen fully and freely to engage in prostitution are in a minority. Those who do not, or no longer, wish to do so or who, in spite of themselves, have no other option, must be protected by the Convention and by the High Contracting Parties.

6. The harmful physical consequences and the psychological impact of prostitution are such that no one should be subjected to them without their free and informed consent. In that regard a survey was carried out in 2013 by the French National Federation of Reception and Social Integration Associations (FNARS) and the Health Monitoring Institute (IVS) on the health of persons working in prostitution who were interviewed in social and medical facilities. Of all the individuals surveyed, over half (56%) reported their state of health as fair, poor or very poor, while 35% said that they had a chronic illness (such as HIV) or psychological problems. The majority of those interviewed reported episodes of insomnia, anxiety or depression in the past year. The survey added that “[t]he most frequently reported kinds of violence were insults and psychological violence: 64% of respondents had been subjected to such violence at least once in the past twelve months ”. The survey added that “[o]ver a third of the respondents had been forced to have sexual relations at some point in their lives ”. The section dealing with respondents’ social conditions stated as follows: “ The persons interviewed for the survey combined a number of features of social vulnerability, as evidenced by their social isolation (42% did not have a close relative or friend to call on in the event of difficulties, in particular the women) or their housing conditions (39% lived in precarious accommodation such as hotels, shelters, with friends or family, on the street, or in a squat) ”.

7. To my mind, exploitation of prostitution, in the broad sense in which it is used in paragraph 117 of the judgment, that is to say, the fact of unlawfully obtaining financial or other material benefit from the prostitution of another person, should be presumed to be contrary to Article 4 of the Convention. The sole exception should be prostitution entered into with free, informed and express consent, which cannot be characterised as forced labour. All other forms of prostitution without consent therefore come within the scope of application of Article 4.

8. As I see it, consent to prostitution can be considered to be free and informed if – and only if – it is expressed and obtained in an indisputable manner. No form of implicit consent can be accepted nor can it justify the exploitation of one person by another. Silence or lack of resistance must never be regarded as implicit consent. Otherwise, the way would be wide open to all manner of abuse, to say nothing of all the evidential difficulties that the victims themselves would face. Giving in is not the same as consenting (Nicole-Claude Mathieu)! Article 3 (b) of the Palermo Protocol and Rule 70 of the International Criminal Court’s Rules of Procedure and Evidence reflect this approach.

Article 3 (b) of the Palermo Protocol provides:

“The consent of a victim of trafficking in persons to the intended exploitation set forth in subparagraph (a) of this article shall be irrelevant where any of the means set forth in subparagraph (a) have been used”.

Rule 70 of the International Criminal Court’s Rules of Procedure and Evidence reads as follows:

“In cases of sexual violence, the Court shall be guided by and, where appropriate, apply the following principles:

...

(b) Consent cannot be inferred by reason of any words or conduct of a victim where the victim is incapable of giving genuine consent;

(c) Consent cannot be inferred by reason of the silence of, or lack of resistance by, a victim to the alleged sexual violence;

(d) Credibility, character or predisposition to sexual availability of a victim or witness cannot be inferred by reason of the sexual nature of the prior or subsequent conduct of a victim or witness.”

9. Hence, consent cannot be free and informed unless the person engaged in prostitution is capable of giving consent and that consent is not vitiated by, for instance, violence, error or deception. Furthermore, it must be possible for consent to be withdrawn at any time. A person cannot consent to something which he or she knows little or nothing about. Individuals engaged in prostitution may realise subsequently that this activity does not correspond in any way to how they previously imagined it, particularly where they are carrying it out in exhausting conditions, earning less than they had hoped, or in view of the devastating impact on their physical and mental health. The possibility for them to change their minds must be genuine and not merely theoretical. If prostitution is the result of a true choice then it must be possible to leave it behind at any time and without any lasting effects. Likewise, there can be no consent where there is a lack of options. Prostitution is frequently an activity of last resort. Where someone is in a situation of economic hardship, prostitution is not a genuine solution. If, and only if, all these conditions are met can we speak of a truly free choice, made voluntarily and with full awareness.

10. The vast majority of the Council of Europe member States criminalise involvement in the provision by another person of sexual services even where there is no coercion on the person providing the services (see paragraph 211 of the judgment). This is not necessarily a moral issue, as no one emerges unscathed from the experience of prostitution (see point 6 above). However, the Grand Chamber appears to disregard this consensus. It is true that some States regulate the exploitation of prostitution (Germany, the Netherlands, Slovenia, Spain and Switzerland, for example). However, detailed legal regulation of an activity does not suffice to make it compatible with the Convention. The fact that it is regulated does not in any way mean that the person’s consent is entirely free, informed and express, and above all verified. I note in that connection the legislation initiated by several European countries which have opted to define sexual violence on the basis of lack of consent rather than just on the basis of violence or threats (Sweden, Iceland, the United Kingdom and Ireland, for example). Consequently, the absence of violence does not necessarily denote consent.

11. Lastly, Article 4 also imposes positive obligations on the High Contracting Parties. In that regard they should, at the very least, establish a legal framework that is sufficient to make the prohibition of slavery and forced labour effective; investigate thoroughly where there are credible suspicions that the rights of persons enjoying protection have been breached; and, finally, take operational steps to protect potential or actual victims. With regard to this last aspect, this would entail, firstly, strengthening the guarantees and safeguards surrounding legal prostitution, in other words, ascertaining whether the consent given is genuine. Secondly, the list of States’ positive obligations under Article 4 should be expanded by the introduction of preventive measures such as identifying and supporting persons in a precarious or vulnerable situation (the vast majority of them women) who are in danger of falling into the trap of forced prostitution, and affording assistance and protection to those who wish to escape the spiral of prostitution.

12. In his 1862 work Les Misérables, Victor Hugo observed as follows: “We say that slavery has vanished from European civilisation, but it is not true. Slavery still exists, but now it applies only to women and its name is prostitution”. The Convention is a living instrument. It is up to the Court to show the way.