CASE OF J. AND OTHERS v. AUSTRIA
Remainder inadmissible;No violation of Article 4 - Prohibition of slavery and forced labour (Article 4 - Positive obligations;Article 4-1 - Trafficking in human beings);No violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect)
András Sajó;Krzysztof Wojtyczek;Marko Bošnjak;Nona Tsotsoria;Paulo Pinto De Albuquerque;Vincent A. De Gaetano;Gabriele Kucsko-Stadlmayer
5. The first and second applicants were born in 1984 and 1982 respectively and live in Vienna. The third applicant was born in 1972 and lives in Switzerland. 6. The following summary of the background of the case and the events in Austria is based on the submissions by the applicants. The account of the investigation in Austria is based on the submissions by both parties. 7. The applicants are all nationals of the Philippines. The first and third applicants were recruited in 2006 and 2009 respectively by an employment agency in Manila to work as maids or au pairs in Dubai (United Arab Emirates). The second applicant travelled to Dubai in December 2008 for the same purpose, at the suggestion of the first applicant, not via an agency. All of the applicants had their passports taken away by their employers. During the course of their work in Dubai, they allege that they were subjected to ill-treatment and exploitation by their employers, who also failed to pay them their agreed wages and forced them to work extremely long hours, under the threat of further ill-treatment. 8. In late 2006 the first applicant contacted an agency in Manila in order to find a job abroad. She is a single mother with one daughter who was eight months old at the time. She signed a contract in which she agreed to work for a family in Dubai for two years, from December 2006 until December 2008. The contract also stipulated that she would be paid 700 United Arab Emirates dirhams (AED – approximately 150 euros (EUR) at that time) per month to work for eight hours each working day. Upon her arrival in Dubai the first applicant was taken to her employers, who were two sisters or sisters-in-law sharing one large residence with their families. One of them took possession of her passport. 9. For most of the initial two-year contract the first applicant was not subjected to physical abuse or direct threats of harm by her employers, and she was paid regularly. However, she had to work from 5 a.m. to midnight throughout the initial two-year period. Her duties included looking after her employers’ children, preparing meals, cleaning the house, doing the laundry and numerous other jobs around the house and garden. During the first nine months she was required to perform this work seven days per week without a single day off, and was not allowed to leave the house unsupervised. She was not allowed to have her own telephone and was only allowed to call her family in the Philippines once a month, the costs of these calls being deducted from her wages. Further, the first applicant was forbidden from speaking to any of the other workers from the Philippines in their native language. She was constantly hungry, as she was generally only given the family’s leftover food. Only when she accompanied the family to the supermarket approximately once a month was she allowed to buy some basic food for herself. 10. After approximately nine months, the first applicant faced the first punishments by her employers. She was forced to sleep on the floor when they found out that she had been talking to another employee from the Philippines in their native language. When she became ill after sleeping on the cold floor, her employers prevented her from buying medicine or contacting a doctor; instead, she had to continue working the same hours. 11. Towards the end of her two-year contract, the first applicant’s employers informed her that they wished her to stay, and offered her better pay, more days off and a telephone of her own, as well as permission to visit her family, provided that she recruited someone to take over her job while she was away. The first applicant finally agreed to extend her contract and returned to the Philippines for three months. Owing to the incentives and the prospect of improved working conditions, she asked the second applicant to take over her role in Dubai during the time she was away. 12. While the first applicant was in the Philippines, she received threats from her employers that if she did not return to Dubai to work, she would be banned from ever going back there, and the second applicant would be subjected to ill-treatment. The first applicant therefore returned to Dubai in April 2009. 13. After she returned to Dubai, she was taught how to drive. After she failed her first driving test, she was forced to pay for further lessons and tests out of her own salary, with four further driving tests costing AED 700 each, a month’s salary. While she was driving, one of her employers hit her on the shoulder on a number of occasions to force her to speed up. The employer also started to slap or hit her regularly for no or little reason. She also repeatedly threatened to let her husband hit the first applicant if she did not follow her orders or made any mistakes. 14. The first applicant accompanied her employers on trips to Europe, Australia, Singapore and Oman, where she spent significant amounts of time locked up in hotel rooms or under the close supervision of her employers. She only had to visit one embassy in person to obtain entry documents, and that was in relation to a trip to London, at which time she was ordered by her employers to lie about her work conditions. When they arrived in London, the first applicant was not allowed at any time to leave the apartment in which they were staying. 15. The second applicant was married with three young children in the Philippines. Her husband had no regular work. Because she expected better pay in Dubai, she agreed to work for the same employers as the first applicant. The employers in Dubai arranged a visiting visa for her, under false pretences. As a result of this arrangement, the second applicant did not approach the employment agency in the Philippines and did not have a written contract with her employers. Her understanding was that she would get AED 700 per month, which would be paid directly to her family in the Philippines. 16. In December 2008 the second applicant started to work in Dubai. After the first applicant returned to the Philippines for three months in January 2009 (see paragraph 11 above), the employers significantly changed their conduct towards the second applicant. They threatened not to pay her family if she made any mistakes. They refused to let her leave Dubai, including by refusing to return her passport and ordering her to repay them her travel costs and related expenses. They also told her that she would be put in prison if she ran away or went to the authorities in Dubai for help. They physically and emotionally abused her, and there was one incident when one of her employers struck her across the shoulder using significant force. She was also forced to work from around 5 or 6 a.m. until midnight or 1 a.m. the following day. 17. Between April 2009 and June 2010 the violent and threatening behaviour of the employers increased. The second applicant was punched by one of her employers on one occasion, and in another incident the employer aimed a hard slap at her face, but instead struck her across the shoulder. 18. The third applicant’s family were desperate for money to pay for crucial medical treatment for her brother. Therefore, in 2009 she contacted an employment agency in the Philippines and was offered work as a maid in Dubai. She was informed that she would be earning between AED 800 and 1,000 (approximately EUR 160 to 200 at that time) per month, roughly twice her salary in the Philippines. Upon her arrival in Dubai in 2009 she had to hand over her passport and mobile phone to someone supposedly working for the employment agency. She was told that these items would be returned to her when she finished her work in Dubai. 19. The third applicant was working for a family member of the first and second applicants’ employers. The applicants got to know each other, as the two families met every Friday. They secretly shared their experiences on these occasions. 20. The third applicant was also bound by working hours going from 6 a.m. to midnight. Her employer forced her to clean her car in the sun and in unbearable heat, and she was prohibited from going to the toilet without letting her employer know. She was only allowed to call her family in the Philippines once a month, and only in the presence of her employer. She did not receive any remuneration at all for the first three months of her employment. Afterwards, she only received approximately AED 750 per month, less than what had been agreed. On one occasion she was slapped by her employer, and on a different occasion she witnessed another employee being hit over the head. 21. When the third applicant told her employer that she wished to return to the Philippines, she was told that she would have to pay the cost of the flight and the agency fees, which her employer knew she could not afford at that point. Her employer also made it clear that, in any event, her passport would not be returned to her until she had completed at least nine months of work in Dubai. Subsequently, the third applicant was too scared to ask to leave Dubai again, owing to her fear that her employer would take her earnings from her or refuse to return her passport for an even longer period. 22. On 2 July 2010 the applicants’ employers took them along on a short holiday trip to Austria. The applicants all stayed at the same hotel in the city centre of Vienna. The applicants slept in their own, separate apartment together with the female children. The male children slept in the same apartment as their parents. As in Dubai, the applicants had to take care of all of the employers’ children and perform numerous other domestic duties. They were still required to work from approximately 5 or 6 a.m. until midnight or even later. The third applicant was regularly shouted at by her employer, for example if she failed to get all the children ready early every morning. In addition, their employers woke the first applicant up at around 2 a.m. and forced her to cook food for them. Furthermore, the first applicant was forced to carry the employers’ twenty suitcases into the hotel by herself. While the applicants were in Austria, their passports remained with their employers. In the hotel in Vienna in which the applicants were staying, they became acquainted with N., an employee at the hotel who could speak Tagalog, the first applicant’s mother tongue. 23. When the applicants accompanied their employers to a zoo one or two days after their arrival in Austria, one of the children went missing for some time. One of the employers started screaming at the first and third applicants in a manner which the applicants had not experienced before. The first applicant found the level of verbal abuse extreme, and this was a particularly distressing and humiliating experience for her. The employer threatened to beat the third applicant, and said that “something bad” would happen to her if the child was not found safe and well. By this stage, the third applicant had formed the impression that this employer, of whom she lived in a constant state of fear, was a dangerous person who might try to hurt her very badly. She had the feeling that the violence towards her was likely to escalate at any time. Therefore, she believed that something bad was going to happen to her if she remained with the family. Similarly, the first applicant believed that they could not live with their conditions of work any longer, and did not want to risk waiting to see what happened if they travelled with their employers from Vienna to London, as they were scheduled to do. The applicants therefore decided to speak to N., the Tagalog-speaking employee at the hotel, to see whether she could help them. 24. The night following the incident – that is, two or three days after their arrival in Austria – the applicants left the hotel with the help of N., who had organised a car to pick them up in a side street near the hotel and take them to a “safe place”. The applicants subsequently found support within the local Filipino community in Vienna. 25. In April or May 2011, approximately nine months after they had left their employers, the applicants contacted a local NGO called “LEFÖ” for assistance in reporting their ill-treatment, abuse and exploitation to the police. LEFÖ is actively involved in the fight against trafficking in human beings in Austria. It is financed though government funds, in particular for the provision of assistance to victims of trafficking. In July 2011 the applicants decided to turn to the Austrian police and filed a criminal complaint (Strafanzeige) against their employers. They explained that they had been the victims of human trafficking. On 11 and 21 July and 17 August 2011, accompanied by representatives of LEFÖ, they were interviewed at length by officers from the Office to Combat Human Trafficking (Büro für Bekämpfung des Menschenhandels) at the Federal Office of Criminal Investigations (Bundeskriminalamt). In their report, the officers concluded that the offences had been committed abroad. 26. The applicants were informed that their employers had also made allegations about their conduct, alleging, inter alia, that they had stolen money and a mobile phone from them when they had fled the hotel. Those allegations were subsequently formally recognised by the Austrian authorities as false. The applicants all expressed their willingness to actively cooperate with the authorities and to engage in criminal proceedings against their employers. 27. On 4 November 2011 the Vienna public prosecutor’s office (Staatsanwaltschaft Wien) discontinued the proceedings under Article 104a of the Criminal Code (Strafgesetzbuch – hereinafter “the CC”) relating to human trafficking (see paragraph 35 below), pursuant to Article 190 § 1 of the Code of Criminal Procedure (Strafprozessordnung – hereinafter “the CCP” – see paragraph 36 below). On 14 November 2011 the public prosecutor gave a short written decision with reasons for the discontinuation of the proceedings. In the public prosecutor’s view, the offence had been committed abroad by non-nationals, and did not engage Austrian interests within the meaning of Article 64 § 1 (4) of the CC. 28. On 30 November 2011 the applicants lodged an application to continue the investigation (Fortsetzungsantrag) with the Vienna Regional Criminal Court (Straflandesgericht Wien). They submitted that Austrian interests had indeed been engaged, and that their employers had continued to exploit and abuse them in Austria. In their view, the elements of the crime punishable under Article 104a § 1 (2) of the CC had been present. 29. The Vienna public prosecutor’s office then submitted a statement to the Vienna Regional Criminal Court, specifying its reasons for discontinuing the investigation. There had been no indication in the case file that any of the criminal actions exhaustively listed in Article 104a of the CC had occurred in Austria, particularly since the offence had already been completed in Dubai (zumal das Delikt bereits in Dubai vollendet wurde), and the accused were not Austrian citizens. Furthermore, from the applicants’ statements (looking after children, washing laundry, cooking food), it did not appear that they had been exploited in Austria, especially since they had managed to leave their employers only two to three days after their arrival in Vienna. 30. On 16 March 2012 the Vienna Regional Criminal Court dismissed the applicants’ application. The relevant parts of the decision read (translation from German): “The decision to discontinue [criminal proceedings] requires – by implication – that the facts of a case are sufficiently clear, or a lack of indication that investigations would be promising. There is no reason for further prosecution if, on the basis of the ... results of the investigation, a conviction is no more likely than an acquittal ... According to Article 64 § 1 (4) of the CC, if Austrian interests have been harmed by the offence or the perpetrator cannot be extradited, Austrian criminal laws apply independently of the criminal laws of the place where the crime was committed, for example in relation to the offence of kidnapping for ransom under Article 104a of the CC. Owing to the fact that the applicants spent approximately three days in Vienna, the conditions regarding the fulfilment of the elements of the crime under Article 104a § 1 (2) of the CC have not been met, since the relevant acts relating to the exploitation of labour must be committed over a longer period of time; therefore, the commission of the offence in Austria is ruled out. The jurisdiction of the Austrian criminal-law enforcement authorities cannot be deduced from Article 64 § 1 (4) of the CC either. Austrian interests are engaged if either the victim or the perpetrator is an Austrian citizen, or if the criminal acts have a concrete connection to Austria, or if an obligation arises under international law in relation to the prosecution of certain offences. Austrian interests are, in any event, engaged if a criminal offence under Articles 102, 103, 104 or 217 of the CC is committed against an Austrian citizen, or if Austrian funds or Austrian securities (Wertpapiere) are the subject of offences under Article 232, or Article 237 in conjunction with Article 232, of the CC. The applicants’ argument that the elements of the crime under Article 104a of the CC had also been fulfilled in Austria therefore fails, and the plea that the alleged criminal actions against them by their employers in Dubai ... would lead to an obligation on the part of Austria under international law is likewise not convincing. In relation to the present case, [this latter argument] also cannot be inferred from the quoted [Supreme Court] judgment no. 11 Os 161/81, which affirmed that Austrian interests had been damaged as a result of the import into Austria of a large amount of narcotics for transport...” This decision was served on the applicants’ counsel on 23 March 2012. 31. In January 2013 two of the three applicants lodged a civil claim against their employers with the Vienna Labour and Social Court (Arbeitsund Sozialgericht) in order to claim their wages. However, they alleged that because of the high risk of having to pay the costs of the proceedings because the employers did not reside in Austria, they withdrew the action. 32. The NGO LEFÖ not only assisted the applicants in filing a criminal complaint against their employers, but also supported them in applying for a special residence permit in Austria for victims of human trafficking, under the former section 69a of the Residence Act (Niederlassungs- und Aufenthaltsgesetz – see paragraph 46 below). 33. All three applicants were granted a residence permit for special protection purposes in January 2012, valid for one year initially. Subsequently, because of their progressing integration, they were granted other types of residence permits with longer periods of validity. 34. The applicants were officially registered in the Central Register (Melderegister) from the point when LEFÖ started supporting them. A personal data disclosure ban was enacted on the Central Register for their protection, so that their whereabouts would not be traceable by the general public.