ILO Convention¹

Forced labour/ Child labour/ Domestic Work/ Use of international law as a guide for interpreting European human rights law

The applicant, a Togolese national who had arrived in France in 1994 at the age of 15, was made to work as a domestic worker in Paris by Mrs B., who had obtained her parents’ agreement through false promises. Ms. Siliadin then had to work for another family where her passport was confiscated, and she worked without remuneration, 15 hours a day, seven days a week, for several years. Relying on Article 4 of the European Convention on Human Rights (ECHR) on the prohibition of slavery and forced labour, the applicant alleged that the criminal law provisions applicable in France did not afford her sufficient and effective protection against the “servitude” in which she had been held, or at the very least against the “forced or compulsory” labour she had been required to perform.

In interpreting Art. 4 of the ECHR as to the definition of what constitutes forced labour, the Court relied on ILO Convention No. 29 and analysed the elements that constitute a forced labour situation under Art. 2 of this Convention. The Court concluded that Siliadin had been subjected to forced labour within the meaning of Article 4 of the ECHR. Although the applicant was not threatened with a “penalty”, she was in an equivalent position in terms of the perceived seriousness of the threat. This conclusion was reached considering that “[s]he was an adolescent girl in a foreign land, unlawfully present on French territory and in fear of arrest by the police”, and the defendants “nurtured that fear and led her to believe that her status would be regularized”.² 

As to whether the applicant was held in servitude or slavery, since the perpetrators had not exercised “a genuine right of legal ownership” over the victim, the Court found the definition of slavery inapplicable. However, the Court identified the existence of the essential factors which constitute a situation of servitude, namely “in addition to the obligation to perform certain services for others … the obligation for the ‘serf’ to live on another person’s property, and the impossibility of altering his condition”.³ 

In considering France’s obligations under Article 4 of ECHR, the Court referred to (i) ILO Convention No. 29, whose Article 4 states that “the competent authority shall not impose or permit the imposition of forced or compulsory labour for the benefit of individuals, companies or associations”; (ii) the obligation on a State, laid down by the UN Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery, to abolish any institution or practice whereby a child under 18 years, is delivered by his parents or guardians with a view to exploitation of his or her labour; and (iii) Articles 19, 32 and 36(1) of the Convention on the Rights of the Child, obliging Members to take all appropriate measures to protect children from exploitation including while in the care of their parents or guardians. 

In particular, the Court held that: 

“[L]imiting compliance with Article 4 of the ECHR only to direct action by the State authorities would be inconsistent with the international instruments specifically concerned with this issue and would amount to rendering it ineffective. Accordingly, it necessarily follows from this provision that States have positive obligations … to adopt criminal-law provisions which penalise the practices referred to in Article 4 and to apply them in practice”.⁴

In conclusion, by relying on the aforementioned international instruments, in particular ILO Convention No. 29, to interpret Art. 4 of the ECHR, the Court held that the applicant was subjected to forced labour and servitude and that France failed to fulfil its positive obligations since the French Criminal Code did not afford the applicant practical and effective protection.