A (Non) Paradigmatic Case of Slavery

Judgement no. 17095 of the Italian Court of Cassation, in the light of the teachings of the ECHR

One of the mistakes a jurist must not commit is to reason only by paradigmatic cases. The extreme example is certainly useful: it allows to understand, with more immediacy, concepts that would otherwise be too hostile. It also makes it easier to perceive, through our common sense, the value or disvalue of a legal idea. However, we must not underestimate the complexity with which abstract legal concepts become concrete. Thus, ultimate aim of the article is to show how remaining anchored to paradigmatic cases risks denying full protection even of fundamental rights.

The following paragraphs will try to give an account of a case that occurred only a few years ago in Italy and ended with a decision of the Court of Cassation in 2022, judgement no. 17095 of 2022.[1] The Supreme Court, overturning the previous decision of the Court of Appeal, held that the crime of slavery provided for in Art. 600 of the Italian Criminal Code subsisted in the case at hand, on the basis of an evolutionary evolution of its assumptions, also in light of the teachings of the European Court of Human Rights.

Reading the heading of Art. 600, “reduction or maintenance in slavery”, one might immediately think of serfdom or colonial slavery, legacies of distant times or at most - we might say - of distant geographic contexts. And indeed, one is inclined to assume that today this article is mostly a symbolic norm and that a civilized country like Italy is no longer affected by such a deplorable phenomenon. However, unfortunately, the truth is more daunting. Consider, as a symptom of this, the Trafficking in Persons Report of 2023,[2] drafted by the US Department of State, which ranks countries according to their degree of compliance with minimum anti-trafficking standards. Italy still ranks in Tier 2 out of 3, not having fully integrated the minimum requirements, unlike all countries with which it would make sense to compare.[3]

The facts behind the decision at issue took place a few years ago in south-eastern Italy, where the criminal phenomenon of exploitation in agricultural activities is still an unresolved issue. A criminal organisation recruited non-EU citizens, mostly Tunisians, Ghanaians, and Sudaneses, who were smuggled into Italy and who often did not have a residence permit, and then exploited them in summer harvesting in the fields. More precisely, workers were divided into groups under the command of a corporal and assigned to work at several local companies. The shifts were exhausting, sometimes up to 16 hours a day under the sun, with no weekly rest, a non-regular contract and ridiculous wages. The (excessive) cost of food, water and transportation to the fields was deducted from their pay. A number of cases of dehydration have been reported, with victims even being charged for the cost of transport to the hospital. Recruiters often withheld the victims’ documents, and no voice of dissent was tolerated.

If working conditions were degrading, living conditions were “objectively subhuman, if not inhuman”.[4] Workers were housed in abandoned, overpopulated country houses, sometimes even without toilets or running water.

Despite this factual framework, the Court of Appeals in April 2019, reversing the first instance judgment, acquitted the recruiters of the crime of reduction to slavery. The arguments supporting the decision will later be described by the Supreme Court as an example of “judicial myopia”. It was argued that the workers arrived in Italy spontaneously, often aware of the treatment they would receive. Moreover, they were free to quit their “jobs” and move away from where they lived, since there was no physical impediment to do so. On the one hand, therefore, the decision is based on a restrictive interpretation of the requirement of “continuous subjection”, required by Art. 600[5], mistaking it for the idea of physical constraint. On the other hand, the judges held that the victims’ behaviour could be understood as a display of their consent to be subjected to such working and living conditions.

The ruling of the Court of Appeals was later overturned by the Court of Cassation, asserting the applicability to the case at hand of the crime of slavery under Article 600 of the Italian Criminal Code.[6] And significantly, in reconstructing the objective scope of the rule, the court also relied on international sources and the case law of the European Court of Human Rights.

The conceptual category of slavery as a property right over a person is – almost everywhere – a legacy of the past; in this regard, the heading of Article 600 “reduction or maintenance in slavery” is likely to be misleading. Nevertheless, there are other forms of slavery that are realised on a contractual basis. It is indeed possible for a worker, who is socially and economically vulnerable, to voluntarily subject himself to the power of another person. The European Convention on Human Rights, in Article 4, prohibits slavery and forced labour, but without providing a proper definition. The Strasbourg Court has therefore often derived it from the European Union law or other international Conventions. This, far from being a weakness, has ensured an evolutionary interpretation of the provision, making it easier to give protection to victims of the various and new forms of labour exploitation, and especially to victims of human trafficking. The ECtHR, in the well-known case Rantsev v. Cyprus and Russia[7] of 2010, stated that the ECHR is a “living instrument”, to be interpreted in the light of historical and social changes. In that case, the judges in Strasbourg considered Art. 4 applicable precisely to a case of human trafficking for the purpose of sexual exploitation, even though the same provision does not expressly state so. It should come as no wonder that the protection of fundamental freedoms and rights in civilised societies imposes progressively higher and stricter standards. In Rantsev, however, the Court went a step further, emphasising the necessity of positive obligations on States, in terms of prevention, prosecution of the perpetrators and protection of victims.

The issue of the role of consent in labour exploitation has been subject of further elaboration. The starting point is the definition of forced or compulsory labour, given by the International Labour Organisation (ILO) as “all work or service which is exacted from any person under the threat of a penalty and for which the person has not offered himself or herself voluntarily.”[8] Over time, however, several rulings have extended the scope of the definition so as to include all the phenomena in the broad spectrum of labour exploitation, of which forced labour is only the most extreme manifestation. Chowdury v. Greece[9] concerned a case of labour exploitation of immigrants without residence permits in which the European Court of Human Rights found a violation of Art. 4 ECHR. On that occasion, it was held that the requirement of voluntariness of the performance should be considered irrelevant whenever the employer abuses his power and gains profits from a vulnerable condition of the workers, regardless of an initial consent of the victim. Furthermore, the Court stated that the irregular situation of the workers exposed them to the risk of being arrested and repatriated, thus representing a sufficient cause for vulnerability.

Coming back, therefore, to the Italian case, the Court of Cassation, in the light of all the elaboration mentioned above, has clarified that the state of “continuous subjection”, envisaged by Art. 600, does not occur only through total deprivation of personal liberty, but can - and must - also be read as taking advantage of a situation of vulnerability,[10] such as to compromise (without necessarily nullifying) the person’s capacity for self-determination.

For these reasons, the ruling of the Court of Appeals was naïve, to say the least. It is in fact true that the workers had arrived spontaneously in those territories, partially aware of their destiny, and it is also true that there was no physical barrier preventing them from escaping; however, the recruiters certainly took advantage of a situation of extreme vulnerability of the workers, which was due, among other causes, to the workers’ situation of absolute destitution, as well as to the position of irregularity in which they were on Italian territory, sufficient to significantly compromise their self-determination.

In conclusion, the Court went in search of the fundamental legal interest protected by Art. 600. This may seem a merely intellectual, and even almost ideological, operation; the point is that this is a paradigmatic example of how, instead, this search represents the basis and boundary of the interpreter’s activity. The constitutional interest protected by Art. 600 is not solely and not primarily personal liberty. If this were the case, a space would be left, albeit minimal, in which the Court of Appeals’ interpretation would be founded. Instead, what the provision protects is precisely human dignity, a principle that is transversal to the entire text of the Constitution and which is made explicit, with reference to the subject matter of labour, in Article 36 of the Italian Constitution.[11] Human dignity, in fact, does not coincide with single rights, but is the precondition for the recognition of every right and freedoms. Trying to define human dignity is definitely too much of a complex operation; however, one of its declinations is certainly the inviolable right to be free from any form of subjugation and not to become a means or an instrument for the achievement of others’ individual interests. A right inviolable by anyone, even by oneself.

By: Stefano Guido

[1] Cassazione Penale, Sez. V, 2 may 2022, no. 17095 [2] United States Department of State, Trafficking in Persons Report of 2023, available at: <https://www.state.gov/reports/2023-trafficking-in-persons-report/> [3] By way of example: France, Germany, the United Kingdom, Belgium, the Netherlands, Austria, the United States or Canada are in Tier 1, meaning that they are countries whose governments fully meet the minimum standards for the elimination of trafficking. [4] As defined by the judgment of first instance. [5] Article 600 of the Italian Criminal Code states: “1. Any person who exercises over a person powers corresponding to those of the right of property, or any person who reduces or maintains a person in a state of continuous subjection, forcing that person to perform labour or sexual services or begging or in any case to engage in unlawful activities involving the exploitation of such person or to submit to the removal of organs, shall be punished by imprisonment of from eight to twenty years. 2. Reducing or keeping in a state of subjection occurs when the conduct is carried out by means of violence, threat, deception, abuse of authority or taking advantage of a situation of vulnerability, physical or mental inferiority or a situation of need, or by promising or giving sums of money or other advantages to those in authority over the person”; (unofficial translation). [6] It should be noted that Article 603 bis, entitled “Illegal intermediation and exploitation of labour”, is not applicable to the present case as it came into force after the reported facts. [7] Rantsev v. Cyprus and Russia, Application no. 25965/04, Council of Europe: European Court of Human Rights, 7 January 2010 [8] International Labour Organisation, Forced Labour Convention, 1930 (No. 29) [9] Chowdury and Others v. Greece, Application No. 21884/15, Council of Europe: European Court of Human Rights, 30 March 2017 [10] For the sake of completeness, it must be clarified that the condition of the “situation of vulnerability” was already recognised in the rule of Article 600 following the revision of the provision by Law No. 228 of 11 August 2003 which was in implementation of the European Union Framework Decision of 19 July 2002 (2002/629/GAI) and subsequently by Legislative Decree No. 24 of 4 March 2014 which was in implementation of Directive 2011/36/EU (which had in the meantime replaced the Framework Decision). [11] Art. 36 of the Italian Constitution states that: “1. Workers have the right to a remuneration commensurate to the quantity and quality of their work and in any case such as to ensure them and their families a free and dignified existence. 2. Maximum daily working hours are established by law. 3. Workers have the right to a weekly rest day and paid annual holidays. They cannot waive this right.

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