CASE OF S.M. v. CROATIA
Violation of Article 4 - Prohibition of slavery and forced labour (Article 4-1 - Trafficking in human beings);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
Armen Harutyunyan;Kristina Pardalos;Krzysztof Wojtyczek;Linos-Alexandre Sicilianos;Pauliine Koskelo;Ksenija Turković
5. The applicant was born in 1990 and lives in Z. Owing to problems in her family, between 2000 and 2004 she lived with a foster family. Then she moved to a public home for children and young persons, where she stayed until she completed her professional training as a waiter. 6. On 27 September 2012 the applicant lodged a criminal complaint with the Z. police against a certain T.M., a former policeman, alleging that in the period between the summer of 2011 and September of the same year he had physically and psychologically forced her into prostitution. He had given her a mobile telephone so that clients could contact her and had driven her to meet clients in various places. He had also forced her to give sexual services in the flat where they had lived together. During that whole period she had been under the control of T.M. When she had refused to give sexual services to other men, he had physically punished her. After she had left him, he had threatened her and her family and had attempted to contact her through a social-networking website. 7. The criminal record of T.M. showed that in 2005 he had been convicted of the criminal offences of pandering and rape and sentenced to six years’ and six months’ imprisonment. He was released from prison on a conditional leave in May 2009 and the conditional leave expired in June 2010. 8. The Z. County State Attorney’s Office opened an investigation in respect of T.M. On 10 October 2012, following an order by the Z. County Court, the police conducted a search and seizure of T.M.’s premises, where they found, inter alia, several pieces of automatic rifles, a number of mobile phones and condoms. 9. On 16 October 2012 the applicant gave her evidence to the prosecuting authorities. She said that T.M. had first contacted her at the beginning of 2011 through a social-networking website and that he had already known her mother and introduced himself as a friend of her parents. She had met T.M. on various occasions in cafés and she had asked him to help her in finding a job. T.M. had told her that he could find a job for her as a waitress or a shop assistant. One day at the beginning of July 2011 he had told her that he would take her to one of his friends who could help her in finding a job. When they had arrived at the house of that man T.M. had told the applicant to go to a room with him. The man had then told the applicant that he had expected sexual services from her. The applicant had said that she had not wanted to do it. That man had also told her that he had answered an advertisement on the Internet under the name Smokvica (“little fig”) and that T.M. had told him that T.M. and the applicant had been a husband and wife who “[had done] such things together”. T.M., who had been eavesdropping outside the room, had stormed into the room and started to shout at her and slap her and had then told her that she had been there with a purpose, that she should not have behaved like that. The man had secretly given her 400 Croatian kunas (HRK); when she had told T.M. about that, he had then taken that money from her. At that time she had still lived with her friend K.Č. who had no knowledge of the events at issue. T.M. had again contacted her and told her that they had needed to talk about what had happened. She had agreed to meet him but they had not discussed what had happened. A few days later T.M. had given her a mobile telephone so that clients seeking sexual services could contact her. T.M. had also told the applicant that she had had to give her physical description to men who would contact her and charge HRK 400 for half an hour of sexual services or HRK 600 for an hour, and that she had had to give half of that money to T.M. The applicant also said that she had acquiesced to all that because she had been scared of T.M. and that he had threatened to tell all to her parents. Some ten days after that T.M. had rented a flat, where the applicant and T.M. had then lived together. She had provided sexual services in that flat and on five to six occasions T.M. had driven her to clients. During the period in question she had had about thirty clients. Since T.M. had lived in the same flat with her, he had controlled everything she had been doing. When she had refused to have sexual intercourse with him or when he had been dissatisfied with the manner in which she had given sexual services to clients, T.M. had beaten her. He had beaten her every couple of days. Questioned as to why she had not contacted the police earlier, the applicant answered that she had been afraid of T.M. Once, when he had been out of the flat and had left the key, the applicant had called her friend M.I., who had known that the applicant had been giving sexual services to men for money. The applicant had asked M.I. to help her escape. After that M.I.’s boyfriend, T., had arrived by taxi, helped the applicant to collect her things and taken her to M.I.’s home. She had stayed with M.I. for about ten days. The applicant also said that T.M. had told her that he had previously had a girlfriend, A., whom he had “treated in the same way” and later on he had told her that after her, the applicant, he had had another girlfriend whom he had “helped in it”. T.M. had told the applicant that he had filmed those girlfriends and punished them when they had been “insolent”. 10. On 6 November 2012 M.I. gave her evidence to the prosecuting authorities. She said that she had never met T.M. but that the applicant was her friend and she had known her for some two years. M.I.’s last contact with the applicant, before the applicant had come to her flat, had been some eight or nine months previously. M.I. had known already at the end of 2010, beginning of 2011 that the applicant had been giving sexual services for money because the applicant had told her so. At the end of summer 2011 the applicant had suddenly come to her home with a bag containing her things. M.I. had then learned that the applicant had agreed with M.I.’s mother to come to stay with them, but did not know any details since she (M.I.) was not in very good relations with her mother. The applicant had told her about T.M., from whom she had escaped because she had no longer wished to be involved in prostitution “for him”. Before the applicant had come to her flat M.I. had not known where or for whom the applicant “did that”. Only then had M.I. learned that the applicant “had being doing it for T.M.”. The applicant had been very distressed and scared. She had told M.I. that T.M. had repeatedly beaten her; watched her through a key lock when she had been giving sexual services to clients and afterwards also beaten her for “not being in a position he had approved of”. M.I. also said that in her understanding the applicant had voluntarily given sexual services because she had needed money. The applicant had told her that she had had an agreement with T.M. to work for him and to share the money, that she had had a mobile telephone for clients to call her and that there had been a small ad through which she had been contacted for appointments by clients. The applicant had said that T.M. had given her that mobile telephone and placed the advertisement. M.I. also said that she could not remember if the applicant had told her that she had opposed T.M. It was true that the applicant had said that she had not wished to “do it” but in M.I.’s understanding that had rather meant that the applicant had been “doing it” because she had had no other means to earn money. The applicant had also told her that T.M. had slapped her for very minor reasons which she (the applicant) had not expected. When she had refused sexual relations with him T.M. would beat her and the applicant had not known what would make him “explode again”. T.M. had also told the applicant that he had had another girlfriend who had worked for him and whom he had also beaten. The applicant told M.I. that she had used the opportunity to run away from T.M. when he had been out of the flat where they had lived. M.I.’s boyfriend, T.R., had told her that he had spoken with the applicant but he had not given any details. M.I. had broken up with him a week after that but still had his address. M.I. also said that the applicant had stayed with her and her mother for several months and that T.M. had continued to contact the applicant through a social-networking website and had threatened her as well as her mother. He had also sent messages, saying that he had loved her and asking her to come back to him. 11. On 6 November 2012 the Z. County State Attorney’s Office indicted T.M. in the Z. Criminal Court on charges of forcing another to prostitution, as an aggravated offence of organising prostitution under Article 195 of the Criminal Code. 12. On 21 December 2012 the applicant was officially given the status of victim of human trafficking by the Office for Human and Minority Rights of the Government of Croatia (Vlada Republike Hrvatske, Ured za ljudska prava i prava nacionalnih manjina). On the same day the police contacted the Croatian Red Cross and its employees informed the applicant of her rights (accommodation, medical check-ups, psycho-social support, legal aid and material support). The applicant told them that she was not interested in the right to safe accommodation since she lived with her mother and sister. According to the Government the applicant contacted the Croatian Red Cross on twelve occasions between 17 January 2013 and 24 April 2015. She received psycho-social support through individual counselling and material support. The Croatian Red Cross also organised individual counselling for the applicant with a psychologist in the Centre for Cognitive-Behavioural Therapy. Further to this the applicant was provided legal aid by a non-governmental organisation, the R. Centre, within the legal-aid scheme supported by the State. 13. The summons served on the applicant contained detailed information on her rights as a victim, such as psychological and practical support and of the possibility to contact the Department for Organising and Providing Support for Witnesses and Victims within the Z. Municipal Criminal Court. Contact details of that Department were also provided. 14. At hearings held on 13 January and 15 February 2013 T.M. gave his evidence. He denied that he had forced the applicant into prostitution. He confirmed that he had contacted the applicant through a social-networking website because he had recognised her surname since he had known her parents. He had also known that the applicant’s mother had been a prostitute. T.M. and the applicant had started to see each other and the applicant had told him that she had had no money and needed a job and that she had some debts. The applicant had also told him that previously she had given sexual services for money and had kept telephone numbers of her clients and asked him whether he could take her sometimes to those clients, which he had done. He confirmed that he had been in a relationship with the applicant during that time. However, he had not lived with her in the flat she had rented but only sometimes spent a night there. He had had the keys of that flat and the applicant had had them as well and she had been free to come and go as she liked. He had also been in the flat on some of the occasions when the applicant had given sexual services there. He had known that the applicant had charged HRK 400 for half an hour and HRK 600 for a full hour but these prices had been set by her and not him. Initially he had lent her some money and from that sum she had bought a mobile telephone on which clients could contact her. Later on she had returned the money she had borrowed from him. She had also given him some money even though he had been reluctant to take it but she had insisted telling him that it had been for petrol. However, it had mostly been he who had given money to the applicant because she had constantly complained that she had had no money. He admitted that he had slapped the applicant once when they quarrelled about her refusal to work in a bakery. He also said that he had found her a job in a restaurant but that after he had told her about it she had disappeared. 15. Both the applicant and M.I. gave their evidence at a hearing held on 29 January 2013. A lawyer was provided to the applicant by the R. Centre. Before giving her evidence the applicant told the trial court that she feared the accused. The accused was then removed from the courtroom and the applicant gave evidence in his absence. 16. The minutes of that hearing indicate that the applicant repeated her statement given on 16 October 2012 (see paragraph 9 above) and also said that T.M. had told her that he had been a former policeman and together with her father in the war. Her father had confirmed that and had said that T.M. was “an okay person”. Her mother on the other had told her that he was not a reliable person. After the first time T.M. had driven her to give sexual services to another man, she had sat in the backseat of his car. T.M. had been very angry and had been nagging her and at one moment he had stopped the car and slapped her. She had exited the car, attempting to run away but he had caught up with her and taken her back to the car. She had agreed to meet him the next day because he had told her that they would discuss what had happened but they had not. She had been afraid of him and for that reason had agreed to give sexual services to other men and also because he had threatened her that he would “tell all” to her parents and that he would “cram her mother into prison”. T.M. had found the flat to rent, but the applicant had signed the contract and paid the rent for the flat. She had not had the keys to that flat. Even though on three to four occasions he had allowed her to leave the flat alone to go to a nearby shop, she had not dared to flee because T.M. had followed where she had been going from the balcony and she had been scared of him. He had set some rules for her: she had been forbidden to talk with the clients; the clients had not been able to touch her; and she had been allowed to give sexual services only in the manner ordered by T.M. When she had refused to have sexual intercourse with him or when he had been dissatisfied with the manner in which she had given sexual services to clients, T.M. had beaten her. Questioned again as to why she had not contacted the police earlier, the applicant said that T.M. had told her that he had “connection” at the police and that he would very soon learn if she reported “anything”. Questioned as to why she had not attempted to run away when T.M. had driven her to the clients the applicant said that she had been sure that T.M. would have found her and that she had been allowed to stay with the clients for exactly twenty-nine minutes. When the applicant had called her friend M.I., who had known that the applicant had been giving sexual services to men for money, the applicant had asked M.I. to help her escape. She had also spoken with M.I.’s mother. T.M. had continued to contact her through a social-networking website, at first sending her love messages and then threatening to tell all to her parents. Then T.M. had sent a letter to the authorities, accusing the applicant’s mother of neglecting the applicant’s younger sister. Her mother had been asked to come to a police station on that account. The applicant had then decided to contact the police. The applicant also explained that she had been very much scared of T.M., that she had feared for her life because he had threatened to “beat her to death”. T.M. had also threatened her with publishing naked photographs of her. She had agreed to being photographed because she had been scared of him. T.M. had also told her that as a former policeman he had known a lot of policemen and if she had reported him he would have fabricated stories about her. Later on she had learned from her mother that T.M. and her mother had lived together for a while and that a former girlfriend of T.M. had reported him to the police for forcing her to give sexual services to other men. 17. M.I. repeated her statement given before the prosecuting authorities (see paragraph 10 above). 18. On 15 February 2013 the Z. Criminal Court acquitted T.M. on the grounds that although it had been established that he had organised a prostitution ring in which he had recruited the applicant, it had not been established that he had forced her into prostitution. However, he had only been indicted for the aggravated form of the offence at issue and thus he could not be convicted for the basic form of organising prostitution. In finding this, the trial court in particular noted that it could not give sufficient weight to the applicant’s testimony because her statement had been incoherent, she had been unsure and that she had paused and hesitated when speaking. At the same time, given that there was no other conclusive evidence, it applied the in dubio pro reo principle and acquitted T.M. The relevant part of the first-instance judgment reads: “On the basis of the evidence given by the accused and the victim in these criminal proceedings the following facts have been established: that the accused and the victim met through the social network Facebook when the accused contacted the victim; ... that the accused gave a mobile telephone to the victim so that she could be contacted by the clients with whom she discussed providing sexual services; that the victim indeed did provide sexual services in the flat where she lived with the accused; that on five or six occasions the accused drove the victim to the addresses of clients where she provided sexual services; that the victim charged for providing sexual services the sum of HRK 400 for half an hour and the sum of HRK 600 for an hour ...” 19. The State Attorney’s Office appealed against this decision, arguing that the first-instance court had erred in its factual findings concerning the charges against T.M. when it did not accept the applicant’s testimony. 20. On 21 January 2014 the Z. County Court dismissed the appeal of the State Attorney’s Office and upheld the first-instance judgment, endorsing its reasoning as well as the facts as established by the trial court. That decision was served on the applicant on 28 February 2014. 21. On 31 March 2014 the applicant lodged a constitutional complaint with the Constitutional Court (Ustavni sud Republike Hrvatske), complaining about the manner in which the criminal-law mechanisms had been applied in her case. She relied on Articles 14, 23, 29 and 35 of the Constitution (see below paragraph 23) and Articles 3, 6, 8 and 14 of the Convention. In particular, she alleged that the national authorities had not properly investigated and addressed the element of force. Also, owing to the failure of the authorities to reclassify the offence, T.M. had not been convicted of any offence, to the applicant’s detriment. She further stressed that she had not been provided with any psychological help or assistance during the court hearing to help cope with the fear and pressure she had felt from T.M. while testifying, which all resulted in her testimony being regarded as incoherent by the trial court. The applicant also alleged a failure of the authorities to secure effective respect for her private life in particular through the domestic court’s inadequate assessment of all the relevant circumstances in which she had been recruited to T.M.’s prostitution ring. 22. On 10 June 2014 the Constitutional Court declared the applicant’s constitutional complaint inadmissible on the grounds that the applicant had not had the right to bring a constitutional complaint concerning the criminal proceedings against T.M. since these proceedings had concerned a criminal charge against him. The decision of the Constitutional Court was served on the applicant’s representative on 1 July 2014.