DISSENTING OPINION OF JUDGE KOSKELO

1. I regret to have found myself unable to agree with the majority in the present case regarding both the admissibility and the merits.

A. Admissibility

2. I have voted against declaring the application admissible. The opposite conclusion adopted by the majority is, in my opinion, wrong in the light of the complaint as submitted to the Court. I consider that the majority have examined the case on the basis of facts which the applicant has neither raised nor relied on in her complaint before the Court. In so doing, the majority have gone beyond the scope of the case referred to the Court and exceeded the limits of its jurisdiction.

3. I would recall at the outset that, as the Court’s Grand Chamber has recently underlined, a complaint is characterised, and limited, by the facts alleged in it. The Convention does not permit the Court to seize on facts that have not been adduced by the applicant and to examine such facts for compatibility with the Convention. That the scope of a case before the Court remains circumscribed by the facts as presented by the applicant is of fundamental importance, because if the Court were to base its decision on facts not covered by the complaint, it would rule beyond the scope of the case and exceed its jurisdiction by deciding matters which were not “referred to” it, within the meaning of Article 32 of the Convention (see Radomilja and Others v. Croatia [GC], no. 37685/10, §§ 108, 113, 121, 123 and 126, 20 March 2018).

4. In the present case, the applicant’s complaint (of which, exceptionally, a translation has been made available) was brought under Articles 3, 6 and 8 (but not Article 4). Its factual basis is that T.M., against whom the applicant had raised an allegation of having forced her into prostitution, was not convicted before the domestic courts, although the latter had established that the constituent elements of a lesser form of the alleged criminal offence, namely pandering (which involves no use of force) had been proven. According to settled case-law, the Convention guarantees no right to obtain the criminal conviction of any particular person (see Javor and Others v. Hungary (dec.), no. 11440/02, 25 August 2005). This position is pertinent to the applicant’s grievances under Articles 3 and 6, as well as to her complaint that the acquittal of T.M. had entailed a violation of her private life in terms of her physical integrity.

5. Apart from the above specific grievances, the applicant has only introduced her complaints by stating that:

“the State must undertake adequate actions in order to punish those who act in an unlawful way. Thus, when an individual lodges a criminal complaint, the State has a ‘procedural’ obligation to investigate the case, after investigation to prosecute the perpetrators and, in the event of finding them guilty, to punish them in accordance with the law”.

Such statements are nothing more than abstract references to the States’ legal obligations under the procedural limb of Article 3.

6. As the Court has held, it is not sufficient for an applicant to invoke Convention law in the abstract. A complaint consists of two elements: factual allegations and legal arguments. The applicant is required not only to invoke a legal norm but also to indicate the factual basis of the complaint and the nature of the alleged violation (see Allan v. the United Kingdom (dec.), no. 48539/99, 28 August 2001).

7. Thus, the complaint submitted by the applicant must contain the factual parameters necessary for the Court to define the issue which it is requested to examine. This is of fundamental importance, as the role of the Court cannot be to act of its own motion, and also because it is necessary to ensure the adversarial nature of the proceedings before the Court. The latter is required by Article 38 of the Convention, pursuant to which the Court must examine the case “together with” the representatives of the parties, and by the Rules of Court (see Rule 54 § 2 (b) in particular). The respondent Government must be in a position to know, on the basis of the complaint submitted by the applicant, what are the issues that may come to be examined by the Court.

8. In the present case, the majority have proceeded to examine and adjudicate on issues to which the applicant made no reference whatsoever in her application, or even in her subsequent observations to the Court. In particular, the applicant did not raise any complaints regarding failures in the investigation, or indicate any deficiencies in the collection of evidence by the domestic authorities, nor has she pointed out any omissions in respect of possible additional witnesses. Consequently, the respondent Government have not been afforded any opportunity to comment on the elements which the majority have relied on as the basis for concluding that there has been a violation in respect of the procedural obligations arising under Article 4.

9. While I do acknowledge that the applicant is in a vulnerable position, she has been assisted by a professional lawyer throughout the domestic proceedings as well as before this Court. I can see no justification for the Court to set aside basic principles of procedure. In my opinion, the Court has no jurisdiction to examine issues not complained of by the applicant, and there is no reason why the present case should permit an exception from such a fundamental norm.

10. A failure to respect the limits to the Court’s jurisdiction set by the content of the complaint is serious because it distorts the Court’s role and undermines the adversarial nature of the proceedings that is essential for the authority and legitimacy of an organ empowered to issue binding judgments. An equal treatment of applicants addressing the Court is also neglected if the Court does not act consistently in this regard. Applicants are required to accept that the Court will not go beyond an examination of the complaint they actually submitted, and this should apply to them all.

B. Merits

11. As regards the merits of the case, I have two distinct grounds for my dissent. Firstly, I object to the manner in which the majority use the present case as an occasion to expand the scope of application of Article 4. Secondly, I object to the manner in which the majority, of their own motion, take on the role of a first-hand, or “first instance”, examiner of the quality of the conduct of the domestic criminal proceedings.

12. I note at the outset that, at the domestic level, the applicant lodged a criminal complaint alleging that she had been forced into prostitution. The final domestic decisions established, however, that the element of coercion was not proven. In her application, the applicant referred to Article 3.

13. I would therefore recall that the Court has held that prostitution is incompatible with Article 3 of the Convention when it is coerced (see V.T. v. France , no. 37194/02, § 25, 11 September 2007). At the same time, the Court has acknowledged that there is no consensus among the member States of the Council of Europe regarding other forms of prostitution and has therefore not taken any position as to whether prostitution as such is incompatible with Article 3 (ibid., § 24).

14. In the present case, the majority have chosen to consider the case under Article 4 of the Convention. The reason for this is neither obvious nor explained, but it may be linked with the fact that in a final domestic judgment no coercion was established, together with an ambition to achieve a change in the case-law through a novel interpretation of the latter provision.

(i) The scope of Article 4

15. In Rantsev v. Cyprus and Russia (cited in paragraph 51 of the present judgment), the Court held that human trafficking, within the meaning of Article 3(a) of the Palermo Protocol and Article 4(a) of the Anti-Trafficking Convention , fell within the scope of Article 4 of the Convention (see Rantsev , § 282). The words cited in italics are significant, because they link the scope of Article 4 with the definition of human trafficking as set out in the provisions referred to (cited in paragraphs 31 and 33 of the present judgment) and limit that scope accordingly.

16. What is important to note is that the definition of human trafficking in the above instruments consists of three cumulative elements, all of which must be present, namely the “action”, the “means” and the “purpose” [1] . The “action” comprises “recruitment, transportation, transfer, harbouring or receipt of persons”. The “means” comprise “the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability of or the giving or receiving of payments of benefits to achieve the consent of a person having control over another person”. Finally, the purpose consists of “exploitation”. The latter is not defined but “shall include, as a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal or organs”.

17. Three points are particularly essential. Firstly, in the above instruments relied on in Rantsev , the notions of “exploitation of the prostitution of others” and “other forms of sexual exploitation” are relevant only as parts of the “purpose” element of the definition of trafficking. Secondly, the terms “exploitation of the prostitution of others” and “other forms of sexual exploitation” are not defined in those instruments. This is a deliberate choice in order for these instruments to remain without prejudice to how States Parties deal with prostitution in their domestic law [2] . Thirdly, while it is correct that according to Article 4(b) of the Anti-Trafficking Convention, the consent of the victim is irrelevant, this does not have the effect of diluting the “means” elements in the definition of trafficking. On the contrary, the provision states that “the consent of the victim of ‘trafficking in human beings’ to the intended exploitation of the prostitution of others or other forms of exploitation ... shall be irrelevant where any of the means set forth ... have been used”. In other words, the victim’s consent is no valid defence, and cannot have the effect of exonerating the perpetrator, where it is established that the “means” element is present (cf. paragraph 79 of the present judgment, where the majority appear to confuse the issues; in the present case the domestic courts did not find that there was sufficient evidence to establish that the applicant had been forced into prostitution, such that the issue of consent – in terms of consent not being capable of constituting a valid defence – could not even arise).

18. Whereas in Rantsev the Court was careful to link its interpretation of the scope of Article 4 expressly and exclusively to the notion of human trafficking as defined in the Palermo Protocol and the Anti-Trafficking Convention, the majority in the present case go far beyond that position by holding that both trafficking and the exploitation of prostitution fall within the scope of Article 4 (see paragraph 54 of the present judgment). Notably, as explained above, neither the Palermo Protocol nor the Anti-Trafficking Convention purport to ban the “exploitation of prostitution” as a phenomenon distinct from its place as an element of the “purpose” component of human trafficking, nor is it defined in those instruments. By considering now that the “exploitation of prostitution” – whatever is meant by it – falls within the prohibition enshrined in Article 4, the majority introduce an enlargement of the scope of that Article that is both significant and obscure. The latter aspect is particularly problematic in the light of the requirement that such exploitation be qualified as a criminal offence (see paragraph 63 of the present judgment) which, in the absence of any further definition, cannot but raise concerns under Article 7 of the Convention.

19. It is well known that there is no uniform understanding of what should qualify as “exploitation of prostitution” or “sexual exploitation”. While some would consider that prostitution always involves exploitation, such a view is not shared by others, nor do differences of opinion necessarily follow gender lines. Likewise, the policy approaches adopted in the member States of the Council of Europe vary, as has been recognised in the Anti-Trafficking Convention mentioned above and also in the Court’s case-law (see V.T. v. France , cited above, § 24).

20. Interestingly, the majority refer to Article 1 of the older, 1951 UN Convention for the Suppression of Traffic in Persons and the Exploitation of the Prostitution of Others, which indeed lays down a more generally formulated obligation to “punish any person who, to gratify the passions of another... exploits the prostitution of another person” (see paragraphs 27 and 54 of the present judgment). It is, however, important to note that quite a large number of member States of the Council of Europe have not ratified this particular Convention (unless I am mistaken, 26 of the 47 member States are parties to it), whereas all of them have ratified the more recent and less comprehensively formulated Anti-Trafficking Convention (to which reference was made in Rantsev ).

21. What is also striking is that the new, significant development in the scope of Article 4 is introduced without any real analysis, without proper discussion or explanation, and without clarity or openness. On the contrary, the subsequent presentation of general principles blurs the issue by citations of case-law which refer to trafficking (see paragraphs 58 and 60). It would also be problematic to suggest that the initial recognition of a person as a victim of trafficking, for the purpose of qualifying for various measures of support, was in itself sufficient to engage the application of Article 4 regardless of any further developments in the course of the case (see paragraph 52 of the present judgment).

22. Furthermore, in the questions on which the Court invited the parties to submit observations, reference in respect of issues under Article 4 was only made to Rantsev (§§ 283-89). Nothing suggested to the parties that they should address a possible further extension of the scope of that Article. There has thus been no reason for the parties, or any other interested circles, to anticipate that the scope of Article 4 would now be detached from the criteria that define human trafficking (on which there is consensus among the member States) and extended to cover situations without the elements of coercion, deception or abuse that are required in the context of human trafficking. Notably, the Contracting States most concerned by the issue, namely those where the current legislative policy for the regulation of prostitution is different from that of the respondent State (the latter entailing that prostitution and the purchase of sexual services are illegal, see paragraph 65 of the present judgment), will be taken by complete surprise, and will not even have any possibility of requesting a referral of the case to the consideration of the Court’s Grand Chamber, this right being reserved to the parties to the case. Transparency and legal certainty do not appear to have much bearing on the approach taken.

23. I would like to underline that the above criticism is not linked with the specific subject matter of the case or any personal views in that regard. Rather, these are more general concerns about such a manner of judicial activity, which I find highly problematic.

(ii) The issue of compliance with procedural obligations

24. It is well established that States have a positive obligation inherent in both Articles 3 and 4 of the Convention to enact criminal ‑ law provisions effectively punishing serious acts prohibited under those provisions, even where they are not committed by State agents but by private individuals, and to apply them in practice through effective investigation and prosecution (see M.C. v. Bulgaria , no. 39272/98, § 153, ECHR 2003 ‑ XII, and L.E. v. Greece , no. 71545/12, §§ 65 and 68, 21 January 2016). Concerning such serious acts, the State’s positive obligation to safeguard the individual’s physical integrity may also extend to questions relating to the effectiveness of the criminal investigation (see, for instance, Y. v. Slovenia, no. 41107/10, 28 May 2015 ) and to the possibility of obtaining reparation and redress (see C.A.S. and C.S. v. Romania , no. 26692/05, 20 March 2012).

25. As regards the Convention requirements relating to the effectiveness of an investigation, the Court has held that it should in principle be capable of leading to the establishment of the facts of the case and to the identification and punishment of those responsible. This is not an obligation of result, but one of means. The authorities must have taken the reasonable steps available to them to secure the evidence concerning the incident, such as witness testimony and forensic evidence, and a requirement of promptness and reasonable expedition is implicit in this context (see, for instance, Y. v. Slovenia, cited above, § 96, with further references). The promptness of the authorities’ reaction to the complaints is an important factor (see Labita v. Italy [GC], no. 26772/95, §§ 133 et seq., ECHR 2000 ‑ IV). Consideration has been given in the Court’s judgments to matters such as the opening of investigations, delays in identifying witnesses or taking statements (see Mătăsaru and SaviÅ£chi v. Moldova , no. 38281/08, §§ 88 and 93, 2 November 2010), the length of time taken for the initial investigation (see Indelicato v. Italy , no. 31143/96, § 37, 18 October 2001), and unjustified protraction of the criminal proceedings resulting in the expiry of the statute of limitations (see Angelova and Iliev v. Bulgaria , no. 55523/00, §§ 101-03, 26 July 2007). Moreover, notwithstanding its subsidiary role in assessing evidence, the Court has held that where allegations are made under Article 3 of the Convention the Court must apply a particularly thorough scrutiny, even if certain domestic proceedings and investigations have already taken place (see Cobzaru v. Romania , no. 48254/99, § 65, 26 July 2007).

26. In the present case, the applicant brought a criminal complaint against T.M. alleging that the latter had forced her into prostitution. An investigation was conducted and led to charges being brought against T.M. for having forced another person into prostitution. The applicant chose not to participate in the proceedings as the injured party and did not exercise the requisite procedural rights, although she did appear as a witness. The trial court acquitted T.M. on the grounds of insufficiency of evidence. The prosecution lodged an appeal, but the acquittal was upheld by the Court of Appeal.

27. Under such circumstances, the Court would need a solid basis for the conclusion that the respondent State has failed in its duties of investigation and in the enforcement of the relevant criminal law provisions. In the present case, I consider that for several reasons, the Court does not have a sufficient basis for such a finding.

28. Firstly, the applicant has not raised any specific complaints regarding the investigation. At the domestic level the applicant, who was provided with free legal assistance (see paragraph 72 of the present judgment), refrained from engaging in the criminal proceedings as the injured party, which would have included the right for her to point out facts and present evidence (see paragraph 26 of the present judgment). It does not appear that the applicant or her legal representative raised any concerns, or attempted to address, any shortcomings in the identification of possible witnesses.

29. Secondly, and more fundamentally, neither the applicant’s complaint nor her observations before this Court contain any allegations regarding a failure to identify or obtain evidence from witnesses other than those actually heard in the domestic proceedings. (As discussed above, this aspect of the case should therefore not have been admissible for examination by the Court in the first place.) Consequently, the Court has not received any party’s submissions that could provide a basis for its consideration of the question whether or not there were any unjustified omissions in the investigation or in the taking of evidence from possible witnesses.

30. Thirdly, as a result of the above, the Court in the present case has delved into the case file, of its own motion and without input from the parties, in order to identify persons who might have been, or ought to have been, involved as witnesses in the domestic investigation. As no shortcomings in this regard have been alleged or specified at the domestic level or before this Court, or otherwise addressed at either level, the majority are here taking on the role of a first-hand examiner and first-instance arbiter of the quality of the domestic criminal investigation.

31. Yet the Court has no direct, or under the circumstances even indirect, information about the reasons which may lie behind, or explain, the steps that were taken, or not taken, or not pursued, in the course of a given investigation. Among other things, a possible explanation may lie in the fact that the applicant did not lodge her criminal complaint until a year after the events complained of, and the fact that both the identification of, and the receipt of testimony from, the applicant’s clients would presumably have encountered difficulties, as the purchase of sexual services in itself is criminalised under the domestic law. The Court is, inevitably, on a very fragile and treacherous ground if it ventures into the kind of exercise that the majority have undertaken in the present case – totally on its own, with no input even from the parties. Normally, the Court should be conducting a review of how the issues referred to it in a complaint have been dealt with, assessed and addressed at the domestic level, and it should be doing so on the basis of the specific allegations raised and the submissions made by the parties before it. In the present case, the majority are operating outside such a normal scenario and without the requisite adversarial basis.

32. Fourthly, the domestic case file is available only in the national language. In a case such as the present, most of the judges composing the Chamber are not, for linguistic reasons, in a position to examine the case file on their own, or to form any independent opinion of the elements in it. In the present kind of situation, where the Court is not operating in a normal scenario, as referred to above, but has entered of its own motion, without the benefit of either prior domestic assessments or party input, into a first-hand scrutiny of a domestic criminal investigation, the lack of independent access to the elements that are being examined is quite problematic from the point of view of the requirements inherent in the judicial role. All I can know about the domestic case file is what is included in the judgment. To determine on that basis whether a failure to engage certain persons as witnesses represents non-compliance with the State’s procedural obligations, or that there was “no serious attempt to investigate in depth all relevant circumstances and to gather all available evidence” (see paragraphs 78 and 79) is too flimsy, at least by my standards. If there was no serious attempt to investigate the case and if relevant witnesses were not heard, one must wonder why the applicant, through her legal representative, did not raise any complaint based on such factual allegations either domestically or before this Court.

33. Turning now to the assessment of the evidence before the domestic courts, in this respect I consider that the majority enter into a very problematic fourth-instance mode. It is asserted that the applicant’s testimony was “dismissed” as unreliable without “any assessment of the possible impact of psychological trauma on her ability to consistently and clearly relate the circumstances of her exploitation” (see paragraph 80 of the present judgment). Such a statement implies that the majority perceive “her exploitation” as a fact, whereas the purpose of the trial was to establish whether, as charged, T.M. had indeed forced the applicant into prostitution, and the conclusion reached by the domestic courts on the evidence was that this had not been the case.

34. The majority further suggest that when assessing the evidence before them, the domestic courts failed to take into account the applicant’s situation and its possible impact on her demeanour when giving testimony. I have no idea how, and on what basis, the majority are able to make an assessment to conclude that the domestic court made no assessment of those aspects of the applicant’s testimony. Domestic criminal courts are frequently called upon to take and assess evidence given by persons who are vulnerable and in distress. This Court has not heard any of the domestic evidence, nor does it have any access to records of testimonies as given at the domestic trial, nor can it be privy to the deliberations where an assessment of evidence has been conducted. Yet the majority consider that they are in a position to determine that the domestic courts failed to take into account “the possible impact of psychological trauma on her ability to consistently and clearly relate” the events. I have not seen any tenable basis for such a finding.

35. Finally, the majority “accept” that the initial presence of T.M. in the courtroom could have had an adverse effect on the applicant although he was not there when the applicant gave her evidence. Yet a defendant normally has a right to be present at his own trial, and the domestic courts can hardly be criticised, without more, for this having been permitted at the outset. The record shows that T.M. had been removed from the courtroom “immediately upon the applicant’s request” (see paragraph 72 of the present judgment). It is also established that prior to the trial, the applicant had been officially given the status of victim of (alleged) human trafficking, and had received both psycho-social support, counselling and free legal aid (see paragraph 12 of the present judgment).

36. I would also note that while the majority cite extensively from the pre-trial statements (see paragraphs 9-10 of the present judgment), the domestic courts (in line with Convention requirements) were called upon to adjudicate the case on the evidence presented at the trial and not on the records from pre-trial interviews.

37. My conclusion, in the light of the above, is that I do not see a sufficiently solid basis for the Court to make the kind of findings in which the majority consider that there has been a failure by the respondent State’s authorities to comply with the procedural obligations incumbent on them.

38. Lastly, on a point of law, I would reiterate that in my view, the statement made by the majority at the end of paragraph 79 of the present judgment is based on a misconception of the norm according to which the victim’s consent is irrelevant. As mentioned in paragraph 17 above, that norm entails that where coercion or another form of the “means” element of trafficking has been established, the victim’s consent is incapable of operating as a valid defence to the effect of exonerating the perpetrator. Where no coercion has been established, this issue does not arise. Thus, in the context of the present case, the statement at the end of paragraph 79 is beside the point.

C. Concluding remark

39. I have set out the reasons for my dissent as regards the majority’s approach to both the admissibility and the merits of the present case. To sum up, in my opinion this is not how the Court is meant to operate, nor is it an appropriate way for it to operate.

[1] . See the Explanatory Report to the Council of Europe Convention on Action against Trafficking in Human Beings, §§ 74-76.

[2] . See paragraph 88 of the Explanatory Report referred to above.