principle of non-refoulement. It has to be shown that there
is a real risk of being exposed to retaliation and that the
State is not able or not willing to offer adequate protection. 138
It is argued that the protection of non-refoulement of Art. 3
ECHR is also applicable when the country of origin of the
trafficked person is not able to supply adequate social and/
or medical assistance. The lack of social and/or medical assistance may lead to suffering reaching the minimum level
of severity required by Art. 3 ECHR.139
Art. 3 ECHR can serve as a ground to claim residency for
trafficked persons in a country of destination. In the case of
a trafficked person who has been unsuccessful in acquiring
asylum status under a country’s national law or any other
form of residence, Art. 3 ECHR may form an additional
layer of protection.140
To conclude, firstly, in order to be able to use the protection
of non-refoulement, it has to be shown that trafficking in human beings and harms connected to it such as re-trafficking
or retaliation can amount to torture or – under the ECHR
–to other forms of ill-treatment. Secondly, the obligation
of States not to expel a person to a country in which the
person might be tortured leads to the obligation that States
have to conduct a risk assessment prior to the return of a
trafficked person. The risk assessment has to encompass an
assessment of the general situation in the State as well as the
specific circumstances of the person.
4.1.6 Recognition of Cases of Trafficking in Human Beings
as Cases of Torture or other Forms of Ill-treatment
In the case Rantsev v Cyprus and Russia, the ECtHR held
that there was no need to deal in particular with the applicant’s complaint concerning Art. 3 ECHR. It was argued
that Ms. Rantseva was subject to ill-treatment prior to her
death. The ECtHR held that the ill-treatment was “inherently linked to the alleged trafficking and exploitation”. Consequently, the ECtHR assessed it as not necessary to consider
a violation of Art. 3 ECHR separately.141
tary protection, the non-refoulement principle would offer
victims of trafficking further possibilities of residence. The
complementary protection of trafficked persons would also
allow residence even if the trafficked person is unable or unwilling to co-operate with the authorities in the country of
destination. It is important to recognize that certain threats
upon return can bar refoulement for trafficked persons.142
In cases of trafficking in human beings, the consequences of
the return on the trafficked person must be taken into consideration. If the situation in the country of origin amounts
to torture – or other forms of ill-treatment within the States
of the Council of Europe – then States parties are obliged to
adhere to the principle of non-refoulement and not to return
the trafficked person.
In cases of trafficking in human beings, it may be challenging to show that the threats of return may amount to
torture or other forms of ill-treatment if the act of trafficking in human beings itself is not recognized as torture or
other forms of ill-treatment. Experience in the European
context shows that cases of trafficking in human beings are
rather handled under Art. 4 ECHR (Prohibition of slavery
and forced labour) than under Art. 3 ECHR (Prohibition of
torture).143 For example, Spanish civil society showed during an ODIHR expert meeting on human rights in the return of trafficked persons that NGOs include Art. 3 ECHR
and non-refoulement reasons in their cases for legal protection of trafficked persons, but these grounds were not
taken into account by judges.144 A reason for this might be
uncertainty about the link between trafficking in human
beings and torture or other forms of ill-treatment and the
absence of interpretative guidelines on this issue.145
Case Study 8
Mostly, cases of trafficking in human beings are not officially recognized by courts or authorities as cases of torture
or CIDT. Having analysed the possibilities of complemen-
Gender and Torture – Conference
Report
143
144
Report, Second Expert Meeting on Human Rights
Protection in the return of trafficked persons to countries of origin
, Columbia Journal of Transnational Law
141
and Russia
32
International Journal of
Case of Rantsev v. Cyprus
Refugee Law,
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