Prohibition of Slavery and Forced Labour in the Light of ECHR and the Case Law

AİHS ve İçtihat Işığında Kölelik ve Zorla Çalıştırma Yasağı

Selen UNCULAR

The right to work freely is a human right which must be protected and enforced in the most efficient and progressive manner for achieving social justice. Within this context, there are several international instruments and organizations which aim to prohibit forced labour and slavery. One of these instruments is European Convention on Human Rights which includes prohibition of slavery and forced labour under Article 4. Pursuant to this article; slavery including human trafficking, servitude and forced or compulsory labour are prohibited whereas some activities are delimited from the scope of forced or compulsory labour, namely work during detention or conditional release, military service or substitute civilian service, service required during an emergency or calamity and normal civic obligations. Article 4 also requires High Contracting States to fulfil positive obligations such as having appropriate legislative and administrative framework, protective measures and providing an effective, independent and prompt investigation besides negative obligation not to cause any violations. In this study, Article 4 of ECHR will be examined in detail with dramatic cases brought before the European Court of Human Rights which must play a significant role in guiding to fairer and freer working conditions together with international organizations like International Labour Organization, United Nations and Council of Europe as well as European Committee of Social Rights and European Court of Justice.

Prohibition of Forced Labour, Slavery, Human Trafficking, Compulsory Labour, European Convention on Human Rights.

Özgürce çalışma hakkı, sosyal adaletin sağlanması adına en etkili ve ilerici şekilde korunması ve uygulanması zorunlu bir insan hakkıdır. Bu bağlamda, zorla çalıştırmayı ve köleliği yasaklamayı amaçlayan çeşitli uluslararası belgeler ve kuruluşlar söz konusudur. Bahsi geçen belgelerden biri olan Avrupa İnsan Hakları Sözleşmesi’nin 4. maddesinde kölelik ve zorla çalıştırma yasağı düzenlenmiştir. İşbu madde gereğince; insan ticaretini de içeren kölelik, kulluk ve zorla çalıştırma veya zorunlu çalışma yasaklanırken, tutukluluk sırasında veya şartlı tahliye boyunca yapılan iş, askeri hizmet veya ikame başkaca bir hizmet, toplumun hayat veya refahını tehdit eden kriz veya afet hallerinde gerekli görülen her hizmet ve olağan yurttaşlık yükümlülükleri kapsamına giren her türlü çalışma veya hizmet, 4. madde anlamında zorla çalıştırma veya zorunlu çalışma kapsamının dışında tutulmuştur. Anılan madde ayrıca Yüksek Sözleşmeci Tarafların uygun yasal ve idari bir sistem ile koruyucu tedbirlere sahip olma, etkili, bağımsız ve hızlı tahkikat sağlama ve hiçbir ihlale sebebiyet vermeme yükümlülüklerini yerine getirmelerini gerektirmektedir. Bu çalışmada AİHS m.4, daha adil ve özgür çalışma koşullarının oluşmasında rehberlik için Uluslararası Çalışma Örgütü, Birleşmiş Milletler ve Avrupa Konseyi gibi uluslararası kuruluşlar ve Avrupa Sosyal Haklar Komitesi ve Avrupa Adalet Divanı ile birlikte önemli bir rol üstlenmesi gereken Avrupa İnsan Hakları Mahkemesi tarafından karara bağlanan çarpıcı davalar eşliğinde detaylıca incelenecektir.

Zorla Çalıştırma Yasağı, Kölelik, İnsan Ticareti, Zorunlu Çalışma, Avrupa İnsan Hakları Sözleşmesi.

I. INTRODUCTION

According to the facts and figures¹ of International Labour Organization; almost 21 million people are victims of forced labour in the world as 11.4 million of them are women and girls, 9.5 million of them are men and boys. Considering the regional distribution, the Asia- Pacific region includes the largest number of forced labourers with 11.7 million (56%) whereas the second highest number is found in Africa with 3.7 million (18%), followed by Latin America and the Caribbean with 1.8 million (9%). The Developed Economies and European Union account for 1.5 million (7%) forced labourers, whilst countries of Central, Southeast and Eastern Europe (non-EU) and the Commonwealth of Independent States have 1.6 million (7%)². Lastly, 600,000 (3%) victims are found in the Middle East.

As another horrific fact, forced labour in private economy generates US$ 150.2 billion in illegal profits per year throughout the world. The profits are highest in Asia (US$ 51.8 billion) and Developed Economies (US$ 46.9 billion), mainly for two reasons: the high number of victims in Asia and the high profit per victim in Developed Economies³. Whereas domestic work, agriculture, construction, manufacturing and entertainment are among the sectors most concerned, indigenous people and migrant workers are particularly vulnerable to forced labour. As the most common element of modern slavery, forced labour is highly related (without being limited) to debt bondage, exploitation of labour, child labour in slavery or slavery-like conditions, sexual slavery, domestic servitude, servile forms of marriage and human trafficking. Within this scope, annual profits per victim were calculated as the highest (US$ 21,800) in forced sexual exploitation whilst US$ 4,800 in construction, manufacturing, mining and utilities, US$ 2,500 in agriculture and US$ 2,300 in domestic work as of 2014⁴. Also human traffickers target the most vulnerable individuals, primarily women and children, but also men, for profit. Thus, unfortunately trade in people constitutes a significant criminal industry. According to ILO, approximately 2.4 million men, women and children have been trafficked worldwide, 270,000 of these are in industrialized countries.

Under these intolerable circumstances, several international instruments were signed and entered into force besides the reports, decisions, recommendations and judgments of international supervisory bodies such as ILO and international courts such as European Court of Human Rights in order to fight against and (at least) minimize slavery, servitude, forced or compulsory labour and human trafficking. Apart from the European Convention on Human Rights, whose Article 4 will be analysed and evaluated in detail with case law in this study, Slavery Convention⁵, Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery⁶, International Covenant on Civil and Political Rights⁷, Forced Labour Convention No.29⁸, Protocol of 2014 to the Forced Labour Convention⁹, Abolision of Forced Labour Convention No.105¹⁰, Worst Forms of Child Labour Convention No.182¹¹ as well as Council of Europe Convention on Action against Trafficking in Human Beings No.197¹² and Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children supplementing the United Nations Convention against Transnational Organised Crime¹³ can be regarded as important steps for a more efficient international recognition. However, enforcement of the law in this area is extremely difficult because victims of serious labour or sexual exploitation are very often hidden (domestic workers in private household that cannot be accessed by labour inspectors)¹⁴. Since the majority of those who suffer are the poorest, most vulnerable and marginalised social groups in society, fear, ignorance of one’s rights and the need to survive do not encourage them to speak out¹⁵. On the other hand, slavery, servitude, forced or compulsory labour and human trafficking are being maintained as an international organized crime industry with high amounts of profits within globalized illegal economy due to neoliberal policies supported by many countries, governments and multinational enterprises. Therefore, the struggle for legal abolition is a necessary but insufficient measure for eradication¹⁶. As such, international organizations like ILO¹⁷, United Nations and Council of Europe, international courts such as European Court of Human Rights and European Court of Justice besides European Committee of Social Rights, European Economic and Social Committee, European Trade Union Confederation and other trade unions along with NGOs must play a significant and progressive role in struggling for fairer and freer working conditions around the world.