CONCURRING OPINION OF JUDGE SERGHIDES

1 The applicant is a woman, young and unemployed at the material time, who allegedly was physically and psychologically forced into prostitution by a certain T.M., a former policeman. Her complaint before the Court was that the domestic authorities had failed effectively to apply the relevant criminal-law mechanism concerning those allegations.

2. The Court, being the master of the characterisation to be given in law to the facts of a case, rightly decided in its judgment (see paragraph 243 of the judgment) to examine the present case under Article 4 § 2 of the Convention, which prohibits forced labour.

3. I agree with the conclusion of the judgment that there has been a violation of Article 4 of the Convention in its procedural limb (see paragraph 347 of the judgment), but I arrive at that conclusion by using a simpler and direct methodological approach which I will explain below. I will then provide a more detailed explanation of my concern as to the effect the judgment may potentially have on the scope of Article 4 § 2 of the Convention, by outlining the relationship between the two dimensions of logic ( intension and extension ) in the term “forced and compulsory labour” under the said provision. This will provide a further insight into my preference for the direct methodological approach, which I believe to be more compatible with the principle of effectiveness [10] .

4. The judgment undertakes at length the difficult task of providing definitions of “human trafficking” and “exploitation of prostitution”, a task which it sees as essential in order to determine whether the treatment complained of by the applicant falls within the scope of Article 4 § 2 of the Convention. With due respect, I consider such an undertaking unnecessary. These concepts, which in any event are not specifically mentioned in Article 4 § 2, are only instances or sub-categories of “forced or compulsory labour” and they do not cover the full breadth of the latter. As it appears from the case-law of the Court (see paragraphs 281-85 of the judgement), “forced or compulsory labour”, in general, means any work or service which is extracted from a person without his or her will by way of force (that is, using a physical or mental constraint or both) or compulsion (that is, using a menace of any penalty or a serious threat, or both).

5. I consider the approach taken in the judgment problematic for two key reasons: firstly, it disproportionately devotes the major part of its legal analysis to determining whether the treatment complained of falls within the definition of “human trafficking” and/or “exploitation of prostitution”, thus distracting from the more general issue of “forced or compulsory labour” which is at the heart of the case; and, secondly, such examination has the effect of unduly narrowing the scope of Article 4 § 2. I will briefly explain this in more detail, in order to clarify why I favour the direct methodological approach.

6. Firstly, as already mentioned, the major proportion of the legal analysis of the judgment is devoted to providing a definition of “human trafficking” and “exploitation of prostitution”. This may be relevant in determining whether the treatment complained of falls within the scope of Article 4 § 2, yet this should be undertaken by considering the full breadth of the concept of “forced or compulsory labour”, rather than limiting the scope of this provision to only these two sub-categories of forced or compulsory labour. The excessive focus on defining “human trafficking” and “exploitation of prostitution” diverts attention from the central and more general issue, as explained above.

7. Secondly, the approach taken in the judgment has the effect of limiting the scope of Article 4 § 2 by equating “forced or compulsory labour” with “human trafficking” and “exploitation of prostitution”. The methodology adopted in the judgment could lead to a situation where an authorisation, a kind of “visa”, has to be requested bearing the words “human trafficking” and/or “exploitation of prostitution” in order for a complaint to be allowed to fall within Article 4 § 2.

8. Consequently, such methodology is: (a) erroneous, as the scope of “forced or compulsory labour” is wider and is not confined to these two sub-categories, something which the judgment seem to overlook; (b) highly restrictive; and (c) contrary to the object and purpose of Article 4 § 2, namely the practical and effective protection of the right not to be subjected to “forced or compulsory labour”, and thus in contravention of the principle of effectiveness. Again, the approach taken in the judgment is unnecessary and not in the spirit of Article 4 § 2.

9. For the reasons stated above, I favour the direct methodological approach which avoids the above-mentioned problems. To my mind, the question to be asked is whether the applicant’s complaint (that is, her factual allegations) can be considered to amount to “forced or compulsory labour” within the meaning of Article 4 § 2 of the Convention. This concept is a generic and autonomous one, susceptible to evolutive interpretation, allowing the living instrument to be developed. The generic nature of the concept is reinforced by the provisions of the next paragraph of the Article, namely paragraph 3 (a)-(d), which expressly excludes from the concept of “forced or compulsory labour” four categories or kinds of work or service.

10. “Human trafficking” and “exploitation of prostitution” by their very nature fall within the concept of “forced or compulsory labour”, as such behaviour is a very serious means of coercing an individual to perform labour against his or her will. “Forced or compulsory labour” may occur in many different contexts and is not limited to “human trafficking” and/or “exploitation of prostitution. The very nature of the appalling exploitation of human beings involved in “human trafficking” and/or “exploitation of prostitution” is such that it must automatically fall within the scope of Article 4 § 2.

11. In view of the above, the direct methodological approach obviates the need to attempt, as the judgment does, to define the concepts of “human trafficking” and/or “exploitation of prostitution”, which are very difficult concepts to define, and instead shifts the focus back to the actual and more general issue which the Court has to decide, as stated above.

12. To further explain the scope of Article 4 § 2 of the Convention, I will consider the meaning of “forced or compulsory labour” in the light of its twofold dimension in logic. This will illuminate how the direct methodological approach I favour is more compatible with the intension and extension of the term, and how the approach taken in the judgment would have the effect of unduly narrowing its scope.

13. As stated above, in my humble opinion the lengthy examination of whether the applicant’s complaint (that is, her factual allegations) can be considered as “human trafficking” and/or “exploitation of prostitution” within the meaning of Article 4 § 2 of the Convention was, with due respect, unnecessary. In my view, like any other Convention term or concept, the scope of “forced or compulsory labour” in Article 4 § 2 of the Convention can be better understood if it is examined in the context of its twofold dimension in logic, thus in its intension and extension [11] , as well as in the light of the relationship between these dimensions [12] .

14. In logic, the intension (otherwise: connotation, comprehension, definition or depth), consists of the essential qualities, properties or characteristics of a term, and extension (otherwise: denotation, classification or breadth) consists of the matters or instances to which the term refers. An easy distinction between the two can be illustrated through the example of the term “ship”. The intension of this term would be a “vehicle for conveyance on water”, whereas its extension would embrace cargo ships, passenger ships, battleships, and sailing ships [13] .

15. These two dimensions are important in interpreting a term in the Convention because they assist in offering a holistic idea of its meaning: in depth and in breadth. A deeper understanding of Convention terms is required for effective protection of human rights. This holistic approach to interpreting a Convention provision is an aspect or property of the principle of effectiveness as a norm of international law and a method of interpretation. H.E. Cunningham aptly observes that “[e]xtension and intension as applied to terms may, in a sense, apply to relations” [14] . Hence, in my view, the same applies to human rights, which are based on and concern human relations in society. Although the intension of a term is also described as a definition of the term, it should be pointed out that the concepts of relations and human rights may be very difficult to define or may sometimes even be undefinable [15] .

16. Having said that, it can easily be explained why the Court prefers not to define rights, or terms concerning Convention rights. Unless it is very general, any definition of the rights would leave no room for the Convention to be developed as a living instrument, a doctrine followed by the Court. Yet, closer enquiry into the two dimensions may assist in this evolution in order to appropriately establish the meaning of the right in relation to a specific set of circumstances, while ensuring conformity with the underlying protection the Article seeks to guarantee.

17. I submit that the determination of the right not to be subjected to “forced or compulsory labour” must follow this twofold meaning which the term has in logic. The intension of the term “forced or compulsory labour” is any labour which can be characterised as forced or compulsory and therefore taking place against the will of the individual. “Human trafficking” and “exploitation of prostitution” undoubtedly fall within the extension of the term, but its extension is not limited to just these two examples. These are only some instances falling within the extension or breadth of the term “forced or compulsory labour” and, as stated above, they do not cover the full breadth of the latter.

18. Thus, in my humble view, if the applicant’s complaint had to be classified as “human trafficking” or “exploitation of prostitution”, in order for it to be considered “forced or compulsory labour” under Article 4 § 2, as is done by the judgment, this would unduly narrow the application of that provision. Not seeing the whole extension of “forced or compulsory labour”, by fixating on two of its sub-categories, can be likened to not seeing the wood for the trees.

19. Furthermore, this or any similar attempt to delimit the extension of “forced or compulsory labour” will not only erroneously result in the extension being stagnant and diminished, but will also increase the intension of the term “forced or compulsory labour” to such a degree as to equate it to these two instances of extension. This will have the end result of removing the distinction between intension and extension since both will be identified with “human trafficking” and “forced prostitution”. As will be explained below, such a result runs counter to the relationship required by logic between the extension and intension of a term as well as to the principle of effectiveness which supports this relationship for the benefit of the effective protection of a right.

20. In logic, there is an inverse relationship between extension and intension ; as the intension diminishes, the extension increases, and, conversely, as the extension diminishes, the intension increases [16] . In brief, to use the words of Horace William Brindley Joseph, “the extension and intension of words vary inversely” [17] . The less specific the definition, the more instances and objects are likely to fit within the scope of that definition. A good example given by A. Wolf [18] of the inverse relationship between intension and extension is the following. If we qualify the intension of the word “triangle” by adding the adjective “equilateral”, the intension of “triangle” increases and its extension decreases. Conversely, if we omit from the term “equilateral triangle” the adjective “equilateral”, the intension of the term decreases and its extension increases.

21. In the present case, the meaning of “forced or compulsory labour” allows a broad array of situations and contexts to be classified as such; this requires a broad extension and a narrow intension . However, if instead one were to identify “forced or compulsory labour” as “human trafficking” and “exploitation of prostitution”, then this would severely restrict the extension, and consequently the term would not cover other instances of “forced or compulsory labour”. Such an interpretation would be a contra legem since the generic term contained in Article 4 § 2 would be unjustifiably qualified. Instead, the direct methodological approach outlined above allows Article 4 § 2 to protect individuals from exploitation of labour occurring against their will.

22. In my view, the consideration of these two dimensions of “forced or compulsory labour” is apt to illustrate that the direct methodological approach which I discussed above is preferable, maintaining a narrow intension and thus not erroneously limiting the extension of the complaints that can be brought forward under Article 4 § 2. Unlike the approach taken in the judgment, the proposed direct methodological approach is compatible with the principle of effectiveness, which after all is based upon logic and fairness. This principle, both in its capacity as a norm of international law and as a method of interpretation, serves to make a term in the Convention wider, within, of course, the limits of the text and the object of the relevant Convention provision. This can be achieved either by decreasing its intension or increasing its extension . By doing either, the result will be the same, namely the widening of the overall meaning of the term.

23. In the light of the above considerations, I decided to follow the direct methodological approach to dealing with the applicant’s complaint under Article 4 § 2 of the Convention. I did this in combination with the approach I borrowed from the science of logic, consisting in determining “forced or compulsory labour” in the light of its intension and extension and maintaining the requisite inverse relationship between these dimensions, in accordance with the principle of effectiveness.

24. By way of conclusion, apart from the different methodological approach which I have followed, I am in agreement with the judgment that the respondent State was in breach of its procedural obligation under Article 4 of the Convention, and for that reason I voted in favour of all five of the operative provisions. To my mind, however, this breach was the result of failure to apply the criminal-law mechanism allowing for the investigation, prohibition and punishment of “forced or compulsory labour” in such a way as to facilitate protection using the entire breadth of this term, instead of limiting protection to the framework of “human trafficking” or “forced prostitution” as the judgment did.

1. See Kurt v Turkey, 25 May 1998, § 124, Reports of Judgments and Decisions 1998 ‑ III; Orhan v Turkey , no 25656/94, § 369, 18 June 2002; Varnava and Others v Turkey [GC], nos 16064/90 and 8 others, § 208, ECHR 2009; and Al Nashiri v Poland , no 28761/11, § 529, 24 July 2014.

2. See B.V and Others v Croatia (dec.), no 38435/13, § 154, 15 December 2015.

3. See R.B v Hungary , no 64602/12, § 80, 12 April 2016.

4. See Bagiyeva v Ukraine , no 41085/05, §§ 47 and 64, 28 April 2016.

5. See Members of the Gldani Congregation of Jehovah’s Witnesses and Others v Georgia , no 71156/01, § 114, 3 May 2007, and Karaahmed v Bulgaria , no 30587/13, § 110, 24 February 2015.

6. See Ozgur Gundem v Turkey , no 23144/93, § 45, ECHR 2000 ‑ III.

7. See Promo Lex and Others v the Republic of Moldova , no 42757/09, § 23, 24 February 2015.

8. See Nachova and Others v Bulgaria GC, nos 43577/98 and 43579/98, § 161, ECHR 2005 ‑ VII.

9. See Blumberga v Latvia, no 70930/01, § 67, 14 October 2008

1. On this principle, see, inter alia, Case “relating to certain aspects of the laws on the use of languages in education in Belgium” (merits), 23 July 1968, pp. 24, 26, Series A no. 6; Mamatkulov and Askarov v. Turkey [GC], nos. 46827/99 and 46951/99, § 123, ECHR 2005-I; Rietiker, Daniel, “The principle of ‘effectiveness’ in the recent jurisprudence of the European Court of Human Rights: its different dimensions and its consistency with public international law – no need for the concept of treaty sui generis”, Nordic Journal of International Law, 79 (2010), pp. 245 et seq; Georgios A. Serghides, “The Principle of Effectiveness in the European Convention on Human Rights, in Particular its Relationship to the Other Convention Principles”, in (2017), 30, Hague Yearbook of International Law, 1 et seq.; Georgios A. Serghides, “The Principle of Effectiveness as Used in Interpreting, Applying and Implementing the European Convention on Human Rights (its Nature, Mechanism and Significance), in Iulia Motoc, Paulo Pinto de Albuquerque and Krzysztof Wojtyczek, New Developments in Constitutional Law – Essays in Honour of András Sajó, The Hague, 2018, pp. 389 et seq. See also a pertinent and recent collection of relevant works prepared by Daniel Rietiker, “Effectiveness and Evolution in Treaty Interpretation”, Oxford Bibliographies (last modified 25 September 2019): https://www.oxfordbibliographies.com/view/document/obo-9780199796953/obo-9780199796953-0188.xml

2. See, on the meaning of extension and intension in logic: H.E. Cunningham, Textbook of Logic , New York, 1924, at pp. 26-27; A. Wolf, Textbook of Logic, London, 1938, 1st Indian edition, reprinted 1976, at p. 323; Horace William Brindley Joseph, An Introduction to Logic , 2nd edition (revised), Oxford, 1916, at pp. 136, 142-43, 155; W. Stanley Jevons, The Principles of Science: A Treatise on Logic and Scientific Method , 2nd edition, New York, 1887, at pp. 25-26; Evangelos P. Papanoutsos, Logic (in Greek), 2nd edition, Athens, 1974, at pp. 52-53.

3. I also employed these two dimensions of logic in § 46 of my concurring opinion joined by Judge Dedov in Obote v. Russia (no. 58954/09, 19 November 2019).

4. Adam Augustyn (ed.), Encyclopaedia Britannica , online under “Intension and extension” (March 2020) < https://www.britannica.com/topic/intension >

5. See Cunningham, op. cit., at p. 37.

6. As said by Cunningham on this: “Extension leads to a type of definition which is called concrete, i.e. definition by example. The intension or connotation of a relation is more difficult to state. Relations do not yield readily to abstract definition, and by many are treated as indefinables” (ibid., at p. 37).

7. See A. Wolf, op. cit., at p. 324; Evangelos P. Papanoutsos, op. cit . , at pp. 52-53.

8. See H.W.B. Joseph, op. cit., at p. 137. At p. 146 (ibid.) Joseph also argues that “… you cannot widen or narrow the extension of a term without restricting or enlarging its intension, and vice versa”.

9. A. Wolf, op. cit ., at p. 324.