Two Spanish cases currently pending before the European Court of Human Rights illustrate gaping lacunae in the protections extended to victims of trafficking on the continent.  They also, however, offer a unique opportunity to broaden this protection by recognizing, for the first time, that the trafficking of human beings is a form of slavery and violence that constitutes discrimination against women and girls. By linking trafficking and discrimination (in the same way that it linked domestic violence with gender discrimination in cases like Opuz vs. Turkey), and thereby requiring that States appropriately protect victims of trafficking and refrain from further discriminatory treatment against them, the Court would provide much more robust safeguards for some of the most vulnerable women in Europe.

The insufficient protection to trafficked women under the European Convention of Human Rights

The Convention guarantees basic rights and freedoms and recognizes “the inherent dignity of all human beings.” The enjoyment of those rights “shall be secured without discrimination on any ground.” Trafficking, for its part, has been recognized as a humanitarian crisis. Trafficking is the only organized crime expressly prohibited in the EU Charter of Fundamental Rights. The Council of the European Union agreed on a Framework Decision on combating trafficking in 2002, adopting an action plan on best practices, standards, and procedures for tackling the phenomenon in 2005. Further plans have been adopted by the Committee of Ministers of the Council of Europe and the Parliamentary Assembly of the Council of Europe. Statistics bear out the fact that trafficking is widespread and well entrenched on European soil. European Commission statistics from 2014 indicate that 30,146 victims were found across the 28 Member States. 80 percent of registered victims are female, and approximately 35 percent arrived from outside the EU. More than 1,000 child victims were trafficked for sexual exploitation. Yet the Court has only heard twelve cases involving allegations of trafficking since 2005, eight of which were ruled inadmissible. The result is a legal regime that could do more to protect the high numbers of trafficked persons arriving in Europe. With regards to its trafficking jurisprudence, the Court has explicitly recognized three main positive obligations on States, all derived from Article 4.

The first is an obligation to put into place an appropriate legislative and administrative framework. It requires that States “penalize and prosecute effectively any act aimed at maintaining a person in a situation of slavery, servitude or forced or compulsory labour,” with additional requirements for effectively preventing trafficking and protecting victims. In Rantsev v. Cyprus and Russia, the Court elaborated on Article 4’s requirements, holding that member States must “put in place adequate measures regulating businesses often used as a cover for human trafficking,” and that immigration rules must “address relevant concerns relating to encouragement, facilitation, or tolerance of trafficking.”

The second requirement involves the positive obligation to take operational measures to protect victims and potential victims of trafficking. The obligation only arises, however, if State authorities were aware, or should have been aware, of “circumstances giving rise to a credible suspicion that an identified individual had been, or was at real and immediate risk of being, trafficked or exploited…”. The obligation is tempered, so that the Court will not impose an “impossible or disproportionate burden on the authorities.”

Thirdly, and lastly, the Court has held that Article 4 involves a procedural obligation to investigate where there is a credible suspicion that an individual’s rights . . . have been violated.” Any investigation must be effective, meaning that it must be independent from those implicated in events, and must be capable of leading to the identification and punishment of those responsible. The investigation must also be prompt and reasonably expeditious, with urgency attached where the possibility of removing the individual from the harmful situation is available.

The obligations recognized by the Court are a start, but ultimately merely buttress an impoverished system of protection for trafficking victims, who are too often left vulnerable and defenseless in practice.  The implementation of legal safeguards is undermined by the prevalence of stereotypes on gender, race, socioeconomic status, and other suspect categories. Trafficked women continue to be treated as complicit criminals rather than as victims, as migrants in an irregular situation, or as migrants in irregular situations, and often see their victim status tied to preconceived notions of victimhood associated with conventional femininity, passivity, and motherhood.

This is where the notion of discrimination comes into play. Discrimination has been interpreted consistently by the ECHR in its case law concerning Article 14 of the Convention (and, to a lesser extent, in Article 1 of Protocol 12 to the Convention) but never in conjunction with Article 4 to address the phenomenon of trafficking for sexual exploitation. To borrow from Professor Roberto Saba, the avoidance of unequal treatment includes the notion of a freedom from subjugation or exclusion. The principle of non-discrimination should thus apply to the dismantlement of structural differential treatment and to the protection of systematically excluded and vulnerable groups. The principle of non-discrimination would require that the State not treat groups arbitrarily, and that the State take urgent steps to correct instances where vulnerable groups are being excluded or subjugated, as is the case with victims of sex trafficking in Spain, as well as in other European Union countries.

Women’s Link’s cases before the European Court of Human Rights

Two cases Women’s Link Worldwide has brought to the ECtHR illustrate how stereotypes and prejudices lead to the infringement of fundamental rights of victims of sex trafficking. The failure to accurately identify victims, based on these prejudices, is a particularly acute problem. (To be continued in Part II.)