Vladislava Stoyanova

Dancing on the Borders of Article 4: Human Trafficking and the European Court of Human Rights in the Rantsev Case

This article points to four worrisome aspects of the Courts reasoning in Rantsev v. Cyprus and Russia. First, the Court takes on board the concept of human trafficking without offering any meaningful legal analysis as to the elements of the human trafficking definition. Second, the adoption of the human trafficking framework implicates the ECtHR in anti-immigration and anti-prostitution agenda. The heart of this article is the argument that the human trafficking framework should be discarded and the Court should focus and develop the prohibitions on slavery, servitude and forced labour. To advance this argument, the relation between, on the one hand, human trafficking and, on the other hand, slavery, servitude and forced labour is explained. The article suggests hints as to how the Court could have engaged and worked with the definition of slavery which requires exercise of ‘powers attaching to the right of ownership’, in relation to the particular facts in Rantsev v. Cyprus and Russia. Lastly, it is submitted that the legal analysis as to the state positive obligation to take protective operation measures is far from persuasive.

Human Trafficking and Slavery Reconsidered. Conceptual Limits and States' Positive Obligations.

The support for the fight against ‘human trafficking’ has evolved rapidly and comprehensively. There has been, however, no overarching critical evaluation of the efforts to make ‘human trafficking’ a focus of international law. The study addresses this gap and questions the usefulness of the international law definition of human trafficking and the legal framework built around this definition. It shows how by moving to the concept of human trafficking, the international community side-lined the older and more established human rights law concepts of slavery, servitude and forced labour, a development urgently requiring rectification. I propose two steps to reverse these negative developments. The first is to address the terminological confusion and the definitional indeterminacy that surround the concepts of human trafficking, slavery, servitude and forced labour in international law. In relation to this, the study shows that the concept of human trafficking is ineffective. Thus the study seeks to place renewed emphasis on the human rights law concepts of slavery, servitude or forced labour and to determine their definitional scopes. The second step implies clearer understanding of states’ positive human rights obligations flowing from the human trafficking and the human rights legal frameworks. In this regard, the study demonstrates the values and the limitations of both frameworks, while at the same time maintaining that the way forward is to work within the human rights system. These objectives are addressed from the perspective of European law with focus on the Council of Europe Convention on Action against Human Trafficking and Article 4 of the European Convention on Human Rights. The relevant EU law is also considered. (Less)

Seeking Asylum in the European Union

Seeking Asylum in the European Union provides critical analyses of selected problems that scholars and policy-makers will have to address in the ‘second phase’ of the Common European Asylum System: the comprehensive recast of European asylum legislation completed in 2013. With a foreword by Professor Helene Lambert.

The Disjunctive Structure of Positive Rights Under the European Convention on Human Rights

The European Court of Human Rights ( EC t HR ) has reiterated that states have discretion regarding what means to use to fulfil their positive obligations under the European Convention on Human Rights ( ECHR ). Given the “wide range of possible measures” that could be taken to ensure compliance with positive rights, these rights have a disjunctive structure since an omission has no definitive counterpart. This article examines how the EC t HR deals with the disjunctive structure of positive rights and how it addresses alternative protective measures that could have been extended. In order to identify the main points of contention, I first draw on legal-theoretical literature that has grappled with the structure of positive rights. I then examine what the Court actually does when it adjudicates positive obligation cases under qualified and unqualified rights. I analyse how and why the review endorsed in the EC t HR ’s judgments diverges from or converges with the theoretical model.

A stark choice : Domestic violence or deportation? The immigration status of victims of domestic violence under the istanbul convention

The Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence (the Istanbul Convention) is a relatively recent treaty that has the objective to protect women against all forms of violence and to design a comprehensive framework of measures for achieving this aim. Migrant women are of special concern given the awareness that when their migration status is dependent on that of their sponsoring spouse, they might be faced with a stark choice between staying in an abusive relationship or risking being deported. Article 59 (residence status) of the Convention is intended to respond to this problem by providing an immigration relief to migrant women victims of violence by carving out exceptions in the immigration control prerogatives of host states. Article 59 raises two interrelated questions: under what conditions are these exceptions triggered and what is their transformative potential in the light of the immigration rights that Article 59 extends to migrant women. This article argues that while the Istanbul Convention will generate some positive changes, the overall advancement triggered by the treaty in the area of protection of migrant women suffers from significant limitations.

Introducing the Second Phase of the Common European Asylum System

If the roads to reach the European Union (EU) are often dangerous for asylum-seekers, they only constitute preliminary steps on the tortuous journey of seeking protection within the Union. Being granted asylum in EU Member States is indeed a sinuous process, reflecting the complexity of the communitarian protection regime established at the EU level, the so-called ‘Common European Asylum System’ (CEAS). The complexity surrounding the CEAS is in turn inherent to its very rationale, scope and evolution.

The crisis of a legal framework: Protection of victims of human trafficking in the Bulgarian legislation

The Council of Europe Group of Experts on Action against Trafficking in Human Beings reported that in Bulgaria no adult victim of human trafficking received any assistance and that no adult victim was granted a reflection period. A close examination of the Bulgarian legislative framework could explain this unpromising picture. In this article I develop three arguments in relation to the Bulgarian legislation on protection of trafficked persons. First, in some respects, Bulgaria has failed to fulfil its international obligations. Second, the national legal framework regulating the conditions under which trafficked person are assisted and protected is surrounded by legal uncertainty prone to arbitrariness. Third, the national legislation has been drafted from the perspective that Bulgaria is only a country of origin, which has created major gaps concerning protection of non-EU nationals who could be victims of human trafficking in Bulgaria. Despite its engagement with a single country, this article has wider relevance. It points out that some of the problems at national level originate from weaknesses within the Council of Europe Convention. It exposes the disconnect between, on the one hand, the interpretation of the trafficking definition for the purposes of criminal prosecution and, on the other hand, its interpretation for the purposes of determining the scope of individuals eligible for assistance and protection. It reveals the added value of the EU Trafficking Directive and the EU Residence Permit Directive.

Smuggling of Asylum Seekers and Criminal Justice

The objective of this paper is to demonstrate the legal implications for asylum-seekers flowing from their resort to falsified documents as a method of gaining access to the territory of asylum countries. Article 31(1) of the Refugee Convention is supposed to act as a shield against punishment for illegal entry. However, the paper identifies four issues relating to the application of Article 31 which make the functioning of the shield difficult. The first issue relates to the procedure of applying Article 31 and in particular the interrelationship between the refugee status determination procedure and the criminal procedure initiated as a result of usage of false document. The second issue is how immigration control rationale permeates the criminal procedure and results in reversal of the burden to the detriment of the defendant/asylum-seeker. The third issue relates to the unavailability of proper legal advice and the ensuing repercussions for applying Article 31’s shield. And lastly, the application of the shield could be so belated that by the time when Article 31(1) is under consideration by appropriate judicial authority, asylum-seekers might not only have been recognized as refugees, but they have already been convicted and served the sentence. Thus, the system is designed in such a manner that immigration control prevails and indeed breaches are sanctioned.