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Kevin LaBarge
International Human Rights Law
Dr. Smyth
11/4/2014

Article 4 of the European Convention on Human Rights

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After seeing the crimes against humanity committed during World War II the
international community devoted itself to making sure that atrocities like that could never
happen again. Months after the war ended, the UN Charter was signed and was soon
thereafter ratified. The creation of the United Nations showed a change in the way that the
international community values the human person, and nothing signifies this change more
than the Universal Declaration of Human Rights which founded international human rights
law. Then, following suite, the Council of Europe created the European Convention in
Human Rights (ECHR) a few years later in the early 1950s. The ECHR was created to
protect the fundamental human rights of those in Europe by setting forth basic human rights
and the obligations of governments to protect and uphold those rights. Article 4 of the ECHR
is one of thirteen substantive rights (Articles 2-14), and it prohibits slavery, servitude, and
forced or compulsory labour. Although theoretically Article 4 is supposed to protect the
rights of individuals from being enslaved, trafficked, and forced into servitude and labour, it
does not do a sufficient job. In particular it does not do enough to combat human trafficking,
and in certain circumstances its derogations are too restrictive.
Article 4 of the ECHR is the Prohibition of slavery and forced labour. It consists of
three paragraphs. Paragraph one holds that No one shall be held in slavery or servitude.
Paragraph two holds that No one shall be forced to perform forced or compulsory labour.
The third paragraph of Article 4 derogates from paragraph two. It holds that For the purpose
of this Article the term forced or compulsory labour shall not include: (a) any work
required to be done in the ordinary course of detention imposed according to the provisions
of Article 5 of this Convention or during conditional release from such detention; (b) any
service of military character, or in case of contentious objectors in countries where they are
recognized, service exacted instead of compulsory military service; (c) any service exacted in

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case of emergency or calamity threatening the life or well being of the community; (d) any
work or service which forms part of normal civic obligations.1
According to Article 15 of the ECHR Derogation in the time of emergency paragraph one
of Article 4 cannot be derogated from at all. It states in Article 15(2), No derogation from
Article 2, except in respect of deaths resulting from lawful acts of war, or from Articles 3, 4
(paragraph 1) and 7 shall be made under this provision.2 Article 4(2) as previously stated is
already derogated from in the four subparagraphs of Article 4(3), and although Article 15(2)
does not allow Article 4(1) to be derogated from Article 15(1) allows Article 4(2) to be
derogated from even further. Article 15(1) allows member states during time of war or other
public emergency threatening the life of the nation to derogate from the substantive articles
as long as it does interfere with other international law.3 In regard to Article 4 this means that
individuals can be forced into compulsory labour if there is a threat to their nation.
Although Article 4 is very specific about the rights that it protects and has very little room for
derogation other than what is specified in Article 4(3), the Council of Europe and European
Court of Human rights see Article 4 and the entire ECHR as flexible. When deliberating on
cases that involve Article 4 specifically, the Court does not only consider what is said in that
Article but the entire ECHR as a whole. It does this so that its ruling does not conflict with
any other articles of the convention. It takes into consideration the time period in which the
ruling is being made and other international treaties that my influence how the Article is
interpreted.4

1 "European Court of Human Rights." European Court of Human Rights.

http://www.echr.coe.int/Documents/Guide_Art_4_ENG.pdf (accessed April 9, 2014). p. 7
2 Ibidem p. 13
3 Ibidem
4 Ibidem p. 4-5

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As Article 4 does not define the terms slavery, servitude, or forced or compulsory
labour in its rulings, it has relied on the definitions proposed by other international treaties.
Those treaties include, but are not limited to, the 1926 Slavery Convention, Supplementary
convention on the Abolition of Slavery, The Slave Trade and Institutions and Practices
Similar to Slavery, International Labour Organization (ILO) Convention on Forced Labour,
and the Council of Europe Convention on Action against Trafficking in Human Beings.5
When making a judgement on whether an alleged violation of Article 4 is considered slavery,
the Court uses the definition of slavery from the 1926 Slavery Convention. It is defined as
the status or condition of a person over whom any or all of the powers attaching to the right
of ownership are exercised.6 Two recent cases before the Court, Siliadin v. France and M.
and Others v. Bulgaria and Italy, involved claims of slavery. In both cases, however, the
Court could not find solid evidence of ownership and therefore ruled that the applicants
were held in servitude rather than slavery.7
When interpreting what the word servitude means under Article 4 the Court defines it as one
who is forced to work against their will, has restricted freedom, and no chance to change to
change the situation that they are in.8 C.N. and V. v. France is a case in which the applicants
made a claim that they were being held in servitude. The Court ruled that C.N. was held in
servitude because she was forced into labour involuntarily and was not compensated for it.
5 Ibidem p. 5
6 Ibidem p. 6
7"Case of Siliadin v. France." HUDOC.
http://hudoc.echr.coe.int/sites/eng/Pages/search.aspx#{"fulltext":["siliadin"],"documentcollectionid2":
["GRANDCHAMBER","CHAMBER"],"itemid":["001-69891"]} (accessed April 9, 2014). and "Case
of M. and Others v. Bulgaria and Italy." HUDOC.
http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-112576#{"itemid":["001-112576"]}
(accessed April 9, 2014).
8 "European Court of Human Rights." European Court of Human Rights.
http://www.echr.coe.int/Documents/Guide_Art_4_ENG.pdf (accessed April 9, 2014). p. 6

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Also if she was not forced to work the family would have been forced to pay a professional to
perform the same work. It was also determined that C.N. was kept in a state of servitude
because she had no freedom, knew that she was illegal and had no way to change that, knew
she had no vocational training and could not find a job elsewhere, and was told that
constantly told that if she did not comply, she could be sent back to Africa which to her
equated to death for her and her sister.9
The convention also does not specify the meaning of forced or compulsory labour,
but it uses the precedent set forth by the ILO Convention on Forced Labour for interpretation.
The definition used by the ILO Convention on Forced Labour is all work or service which is
exacted from any person under the menace of any penalty and for which the said person has
not offered himself voluntarily.10 Although the Court accepts this as its definition for forced
or compulsory labour, its interpretation of Article 4(2) does not stop there. The Court also
recognizes that for the purposes of Article 4(2) the term labour is not limited to mean manual
labour but includes all work or service as defined in the ILO Convention on Forced Labour.
Furthermore the Court interprets the terms forced and compulsory as exacted under any
penalty, physical or mental and done unwillingly.11 Although Article 4(2) protects the right to
freedom from forced or compulsory labour Article 4(3) derogates from that right and puts
restrictions on that right. Article 4(3)a restricts the rights of detainees who have been detained
under lawful circumstances under Article 4(2). They do not have freedom from forced or
compulsory labour if the work is enforced by the state and is part of a program to reintegrate
the detainee into society (Van Droogenbrueck v. Belgium). Article 4(3)b allows for forced or
9"Case of C.N. and V. v. France." HUDOC.
http://hudoc.echr.coe.int/sites/eng/Pages/search.aspx#{"fulltext":["C.N."],"documentcollectionid2":
["GRANDCHAMBER","CHAMBER"],"itemid":["001-113407"]} (accessed April 9, 2014).
10 "European Court of Human Rights." European Court of Human Rights.
http://www.echr.coe.int/Documents/Guide_Art_4_ENG.pdf (accessed April 9, 2014). p. 7
11 Ibidem

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compulsory military service to fall outside the scope of Article 4, the exception being
conscientious objectors. Mandatory service, drafts, and military contracts that force
individuals to serve are not violations of Article 4 (W., X., Y., and Z. v. the United Kingdom).
Article 4(3)c allows forced or compulsory service during the time of a crisis threatening the
life of the community to fall outside the scope of Article 4 (S. v. the Federal Republic of
Germany). Article 4(3)d allows forced or compulsory service that falls under normal civic
obligation to fall outside of the scope of Article 4 (Karlheinz Schmidt v. Germany).12
The biggest theme that has come out of the case law from Article 4 an its derogations in
Article 4(3) and its four subparagraphs is that consent, once given, deprives the work or
service of its compulsory character13 In Van der Mussele v. Belgium the applicant, a
lawyer, was forced to work without compensation because in Belgium it is seen as normal for
lawyers to occasionally defend people in court who cannot afford it. He claimed a violation
of Article 4, but because he had consented to being a lawyer, his claim was found
inadmissible by the court.14 The same was true for the case Iversen v. Norway case. In this
instance a Norwegian dentist was forced to work for free in Northern Norway. He too
claimed a violation of his rights under Article 4 of the convention, but because it was seen as
part of his job, the Court ruled that he was not free from the compulsory service.15 The
problem that the court faces in continuing to set that precedent is that circumstances may
change in such a way or the objections to work in question, especially in engagements of long
12 Ibidem 9-11
13 Van Dijk, Pieter, Godefridus JH Hoof, and Godefridus JH Van Hoof. Theory and practice of the
European Convention on Human Rights. Martinus Nijhoff Publishers, 1998.p. 336
14 "Case of Van der Mussele v. Belgium." HUDOC.
http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-57591#{"itemid":["001-57591"]}
(accessed April 9, 2014).
15 "Case of Iversen v. Norway." HUDOC.
http://hudoc.echr.coe.int/sites/eng/Pages/search.aspx#{"fulltext":["iversen"],"itemid":["001-2956"]}
(accessed April 9, 2014).

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duration, may become so far reaching that holding the person unqualifiedly to his consent16
could become a concern. What this means is that when an individual chooses a profession,
the normal requirements of that profession may change especially after a long period of time.
In that situation it is unfair to hold someone to new standards who may not have chosen that
profession if they were originally in place. The Court should allow for circumstances like
this by making it possible for objectors to participate in different work if the objections are
directed against the nature of work, or termination of the contract coupled with the obligation
to pay a reasonable compensation.17
Recently one of the biggest themes in general to come out of Article 4 of the ECHR is
human trafficking. Although human trafficking is never mentioned in the ECHR, as it is
defined by the UN Trafficking Protocol, it falls under the scope of Article 4.18 The only case
in which the Court has ruled that violations committed against Article 4 were considered
human trafficking was the recent Rantsev v. Cyprus and Russia case in M. and Others v
Bulgaria and Italy the complaints under Article 4 or human trafficking were considered
inadmissible. Ms. Rantseva, a Russian national, was working as a cabaret artiste and may
have been subject to sexual exploitation.19 Following her death under dubious
circumstances her father filed a claim with the Court. The Court ruled that human trafficking
implicitly implies the ownership of another human being with the expressed purpose of

16 Van Dijk, Pieter, Godefridus JH Hoof, and Godefridus JH Van Hoof. Theory and practice of the
European Convention on Human Rights. Martinus Nijhoff Publishers, 1998.p. 336
17 Ibidem
18 "European Court of Human Rights." European Court of Human Rights.
http://www.echr.coe.int/Documents/Guide_Art_4_ENG.pdf (accessed April 9, 2014). p. 5
19 "Human Rights in Ireland." Human Rights in Ireland. http://humanrights.ie/internationallawinternational-human-rights/trafficking-as-an-echr-violation-a-crucial-european-human-rights-lawdevelopment/ (accessed April 10, 2014).

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exploitation and that Ms. Rantsevas right to be free from human trafficking was violated
under this definition.20
The Ratsev v. Cyprus and Russia decision was a landmark one but unfortunately it is not
enough. Human trafficking is a very serious issue, Although its [human trafficking] causes
may be social and economic, the solutions to it lie in the adaptation and enforcement of
laws21. The problem is that the ECHR, which has the power to enforce laws, is not doing
enough to protect individuals freedom from being trafficked. According to estimates created
by the United States Government the number of people trafficked in 2004 was around six
hundred-thousand to eight hundred-thousand people.22 In order to combat trafficking many
countries have made immigration and border control top priorities making it difficult for
immigrants to enter their country. This plan however has had the opposite effect. It has
forced would be immigrants to smuggle themselves exposing them to trafficking threats.23
With so few avenues available to battle human trafficking it would make sense for the Court
to be less restrictive when interpreting alleged violations of human trafficking. Now, an
applicant must prove before the court that that the violation of Article 4 against them
constitutes ownership, exploitation, limited freedom, and violence in order for it to be
considered human trafficking.24 However, because there is no precedent and the UN
Trafficking Protocol only claims control not ownership as being necessary for human

20 http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-96549#{"itemid":["001-96549"]}
21 Shelley, Louise. "Human trafficking as a form of transnational crime." Human Trafficking (2007):
116-137. p. 117-118
22 Ibidem p. 118
23Feingold, David A.. "Human Trafficking." Foreign Policy, Sep. - Oct. 2005.
http://www.jstor.org/stable/30048506 (accessed April 9, 2014). p. 27
24 "Case of Rantsev v. Cyprus and Russia." HUDOC.
http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-96549#{"itemid":["001-96549"]}
(accessed April 9, 2014). paragraph 281

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trafficking25 the Court could take a less staunch stance on the matter. If it did not interpret
ownership as a necessary part of human trafficking, then more cases that come before it
(Siliadin v. France, C.N. and V. v. France, and C.N. v. the United Kingdom) could be
considered in violation of Article 4 thus making the consequences of human trafficking more
real.
When the European Convention on Human Rights was created it was one of the first of its
kind. It was one of the original treaties that protected international human rights. Today
however the convention and the Court are not doing that legacy justice because of their
unsatisfactory job of interpreting certain aspects of Article 4. The convention should be more
democratic in its rulings on Article 4(2) involving the derogations in Article 4(3), and with so
few opportunities to punish human trafficking violators it should be more open to with how it
defines human trafficking.

Bibliography
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["C.N."],"documentcollectionid2":["GRANDCHAMBER","CHAMBER"],"itemid":
["001-113407"]} (accessed April 9, 2014).
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["001-2956"]} (accessed April 9, 2014).

25 "PROTOCOL TO PREVENT, SUPPRESS AND PUNISH TRAFFICKING IN PERSONS,

ESPECIALLY WOMEN AND CHILDREN, SUPPLEMENTING THE UNITED NATIONS
CONVENTION AGAINST TRANSNATIONAL ORGANIZED CRIME ." United Nations Crime and
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Feingold, David A.. "Human Trafficking." Foreign Policy, Sep. - Oct. 2005.
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"European Court of Human Rights." European Court of Human Rights.
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"PROTOCOL TO PREVENT, SUPPRESS AND PUNISH TRAFFICKING IN PERSONS,
ESPECIALLY WOMEN AND CHILDREN, SUPPLEMENTING THE UNITED
NATIONS CONVENTION AGAINST TRANSNATIONAL ORGANIZED CRIME ."
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(2007): 116-137.

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Van Dijk, Pieter, Godefridus JH Hoof, and Godefridus JH Van Hoof. Theory and practice of
the European Convention on Human Rights. Martinus Nijhoff Publishers, 1998.