Case of European Court of Human Rights, January 17, 2017 (case J. AND OTHERS v. AUSTRIA)

Defense:AUSTRIA
Resolution Date:January 17, 2017
SUMMARY

Remainder inadmissible;No violation of Article 4 - Prohibition of slavery and forced labour (Article 4 - Positive obligations);No violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation)

 
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FOURTH SECTION

CASE OF J. AND OTHERS v. AUSTRIA

(Application no. 58216/12)

JUDGMENT

STRASBOURG

17 January 2017

This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of J. and Others v. Austria,

The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:

András Sajó, President,Vincent A. De Gaetano,Nona Tsotsoria,Paulo Pinto de Albuquerque,Krzysztof Wojtyczek,Gabriele Kucsko-Stadlmayer,Marko Bošnjak, judges,and Marialena Tsirli, Section Registrar,

Having deliberated in private on 6 December 2016,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

  1. The case originated in an application (no. 58216/12) against the Republic of Austria lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by three Filipino nationals (“the applicants”), Mrs J. (“the first applicant”), Mrs G. (“the second applicant”) and Mrs C. (“the third applicant”), on 4 September 2012. The President of the Section acceded to the applicants’ request not to have their names disclosed (Rule 47 § 4 of the Rules of Court).

  2. The applicants were represented by Mr Adam Weiss, Legal Director of the AIRE Centre, a non-governmental organisation (NGO) with its registered office in London. The Austrian Government (“the Government”) were represented by their Agent, Mr H. Tichy, Head of the International Law Department at the Federal Ministry for Europe, Integration and Foreign Affairs.

  3. The applicants complained that the Austrian authorities had failed to undertake effective and exhaustive investigations into their allegations that they had been the victims of human trafficking.

  4. On 10 June 2014 the complaints under Articles 3, 4 and 8 of the Convention were communicated to the Government, and the remainder of the application was declared inadmissible, in accordance with Article 54 § 3 of the Rules of Court.

    THE FACTS

    1. THE CIRCUMSTANCES OF THE CASE

  5. The first and the second applicant were born in 1984 and 1982 respectively and live in Vienna. The third applicant was born in 1972 and lives in Switzerland.

  6. The following summary of the background of the case and the events in Austria is based on the submissions by the applicants. The account of the investigation in Austria is based on the submissions by both sides.

    1. Background of the case

  7. The applicants are all nationals of the Philippines. The first and the third applicant were recruited in 2006 and 2009 respectively by an employment agency in Manila to work as maids or au pairs in Dubai, the United Arab Emirates. The second applicant travelled to Dubai in December 2008 for the same purpose, at the suggestion of the first applicant, not via an agency. All of the applicants had their passports taken away by their employers. During the course of their work in Dubai, they allege having been subject to ill-treatment and exploitation by their employers, who also failed to pay them their agreed wages and forced them to work extremely long hours, under the threat of further ill-treatment.

  8. The first applicant

  9. In late 2006 the first applicant contacted an agency in Manila in order to find a job abroad. She is a single mother with one daughter who was eight months old at the time. She signed a contract in which she agreed to work for a family in Dubai for two years, from December 2006 until December 2008. The contract also stipulated that the she would be paid 700 United Arab Emirates dirhams (AED – approximately 150 euros (EUR) at that time) per month to work for eight hours each working day. Upon her arrival in Dubai the first applicant was taken to her employers, who were two sisters or sisters-in-law sharing one large residence with their families. One of them took possession of her passport.

  10. For most of the initial two-year contract the first applicant was not subjected to physical abuse or direct threats of harm by her employers, and she was paid regularly. However, she had to work from 5.00 a.m. to midnight throughout the initial two-year period. Her duties included looking after her employers’ children, preparing meals, cleaning the house, doing the laundry and numerous other jobs around the house and garden. During the first nine months she was required to perform this work seven days per week without a single day off, and was not allowed to leave the house unsupervised. She was not allowed to have her own telephone and was only allowed to call her family in the Philippines once a month, the costs of these calls being deducted from her wages. Further, the first applicant was forbidden from speaking to any of the other workers from the Philippines in their native language. She was constantly hungry, as she was generally only given the family’s leftover food. Only when she accompanied the family to the supermarket approximately once a month was she allowed to buy some basic food for herself.

  11. After approximately nine months, the first applicant faced the first punishments by her employers. She was forced to sleep on the floor when they found out that she had been talking to another employee from the Philippines in their native language. When she became ill after sleeping on the cold floor, her employers prevented her from buying medicine or contacting a doctor, instead she had to continue working the same hours.

  12. Towards the end of her two-year contract, the first applicant’s employers informed her that they wished her to stay, and offered her better pay, more days off and a telephone of her own, as well as permission to visit her family, if she recruited someone to take over her job while she was away. The first applicant finally agreed to extend her contract and returned to the Philippines for three months. Owing to the incentives and the prospect of improved working conditions, she asked the second applicant to take over her role in Dubai during the time she was away.

  13. While the first applicant was in the Philippines, she received threats from her employers that if she did not return to Dubai to work, she would be banned from ever going back there, and the second applicant would be subjected to ill-treatment. The first applicant therefore returned to Dubai in April 2009.

  14. After she returned to Dubai, she was taught how to drive. After she failed her first driving test, she was forced to pay for further lessons and tests out of her own salary, with four further driving tests costing AED 700 each, a month’s salary. While she was driving, her employer hit her on the shoulder on a number of occasions to force her to speed up. One of her employers also started to slap or hit her regularly for no or little reason. She also repeatedly threatened to let her husband hit the first applicant if she did not follow her orders or made any mistakes.

  15. The first applicant accompanied her employers on trips to Europe, Australia, Singapore and Oman, where she spent significant amounts of time locked up in hotel rooms or under the close supervision of her employers. She only had to visit one embassy in person to obtain entry documents, and that was in relation to a trip to London, at which time she was ordered by her employers to lie about her work conditions. When they arrived in London, the first applicant was not allowed to leave the apartment in which they were staying at all.

  16. The second applicant

  17. The second applicant was married with three young children in the Philippines. Her husband had no regular work. Because she expected better pay in Dubai, she agreed to work for the same employers as the first applicant. The employers in Dubai arranged a visiting visa for her, under false pretences. As a result of this arrangement, the second applicant did not approach the employment agency in the Philippines and did not have a written contract with her employers. Her understanding was that she would get AED 700 per month, which would be paid directly to her family in the Philippines.

  18. In December 2008 the second applicant started to work in Dubai. After the first applicant returned to the Philippines for three months in January 2009 (see paragraph 11 above), the employers significantly changed their conduct towards the second applicant. They threatened not to pay her family if she made any mistakes. They refused to let her leave Dubai, including by refusing to return her passport and ordering her to repay them her travel costs and related expenses. They further told her that she would be put in prison if she ran away or went to the authorities in Dubai for help. They physically and emotionally abused her, and there was one incident when one of her employers struck her across the shoulder using significant force. She was also forced to work from around 5.00 a.m. or 6.00 a.m. until midnight or 1.00 a.m. the following day.

  19. Between April 2009 and June 2010 the violent and threatening behaviour of the employers increased. The second applicant was punched by her employer on one occasion, and in another incident her employer aimed a hard slap at her face, but instead struck her across the shoulder.

  20. The third applicant

  21. The third applicant’s family was desperate for money to pay for crucial medical treatment for her brother. Therefore, in 2009 she contacted an employment agency in the Philippines and was offered work as a maid in Dubai. She was informed that she would be earning between AED 800 and 1,000 (approximately EUR 160 to 200 at that time) per month, roughly twice her salary in the Philippines. Upon her arrival in Dubai in 2009 she had to hand over her passport and mobile phone to someone supposedly working for the employment agency. She was told that these items would be returned to her when she finished her work in Dubai.

  22. The third applicant was working for a family member of the first and second applicants’ employers. The applicants got to know each...

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