ECHR on Bulgarian case: Trafficking victim has right to seek compensation from trafficker

Ruling in a case in which the applicant was a Bulgarian whose trafficker had taken away her earnings, the European Court of Human Rights (ECHR) said on November 28 that states had an obligation to enable victims of trafficking to claim compensation for lost earnings from traffickers.

The Bulgarian courts in which the woman had applied for compensation had rejected her application, saying she had been engaged in prostitution and returning the earnings from that would be contrary to “good morals”.

The ECHR found that that the Bulgarian authorities had failed to balance the woman’s right under Article 4 (prohibition of slavery and forced labour) of the European Convention on Human Rights to make such a claim with the interests of the community, who were unlikely to find the payment of compensation in such a situation immoral.

This was the first time that the European Court had found that a trafficking victim had a right to seek compensation in respect of pecuniary damage from her trafficker under Article 4.

In its conclusions, the ECHR referred to various international treaties, and also said that there was moreover, a trend – most prominently in the United States of America and Canada, but also in some European States – Austria, Belgium, Denmark, France, Germany, the Netherlands, Norway and the United Kingdom – towards enabling trafficking victims to recover from their traffickers the gains that the latter have realised by exploiting them, while arguably only one Contracting State apart from Bulgaria specifically barred such claims.

The Bulgarian courts had referred to the criminalisation of income derived from prostitution in Bulgarian law and to “good morals” in dismissing the applicant’s claim for compensation from her trafficker, identified as X in the ECHR statement.

In this regard, the Court noted that the offence, set out in Article 329 § 1 of the Bulgarian Criminal Code, of earning income in a prohibited or immoral way, reflected outdated social attitudes left over from the totalitarian communist regime.

Indeed, the Article had been declared unconstitutional by the Bulgarian Constitutional Court in September 2022. The alleged illegality of the applicant’s earnings had therefore not been an adequate ground to dismiss her claim, the ECHR said.

Concerning the question of “good morals”, the Court stated that human rights should be the main criterion in designing and implementing policies on prostitution and trafficking.

It was hard to imagine in this case that ordering X to return the money taken from the applicant to her would have offended public morals, the ECHR said.

Even if there existed sound public-policy reasons to dismiss a claim relating to earnings obtained through prostitution (for instance, it could be argued that upholding such a claim might be seen as condoning prostitution or encourage some people to engage in it), in this case such reasons came up against the countervailing and undoubtedly compelling public policy against trafficking and in favour of protecting its victims, to which not only the ECHR but also the Bulgarian authorities themselves attached considerable significance.

The ECHR therefore concluded that the Bulgarian courts had failed to adequately balance the applicant’s rights under Article 4 against the interests of the community. There had thus been a violation of that Article.

The Court held that Bulgaria was to pay the applicant 6000 euro in respect of non-pecuniary damage, and 3100 euro in respect of costs and expenses.

The ECHR judgment in full may be found at this link.

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