Trafficking of Human Beings at the ECtHR: The Importance of Using Article 14 to Broaden the Protection of Women and Girls (Part II)

[Editor’s note: This is Part II of a two-part post. See Part I here.]

In the first case, Hope, a young Nigerian woman, was accused by the Spanish authorities of committing a crime because she was trafficked into Spain accompanied by a child who was not her biological son, despite the fact that the authorities knew, or should have known, that this is a common transportation strategy employed by traffickers. Hope, a strong and independent woman, did not fit in the stereotype of a “victim.” However, the abuses Hope suffered perfectly encapsulate the definition of trafficking found in the Protocol to Prevent, Suppress and Punish Trafficking in Persons (known as the Palermo Protocol). She was born in Sub-Saharan Africa into a family with few economic resources, only having the opportunity to attend school for a few years before having to drop out to work with her mother selling vegetables. The state of poverty she saw her family in convinced her to trust a man who promised her a job in Europe. Although the journey started well, as they it continued the man and his travel companions changed, and Hope became the target of insults, assaults, poor treatment, harassment and sexual abuse.

These men forced her to enter Spain through the maritime route in a small “patera” boat and forced her to care for a child, who was actually the son of another of the women who travelled with her on the same vessel, as we mentioned above.

A short time later she was arrested and put into preventive custody. Police identified the other woman, the mother of the children, as a victim of trafficking and granted her protection (known as the reflection period). She told the police that her other biological son was with another woman. Without considering that Hope might also be a victim of trafficking, they filed criminal proceedings against Hope.

She underwent nearly a year of preventive detention and was finally convicted of threats and coercion, in violation of the principle of non-punishment. Due only to the pressure of different civil organizations, and while at the foreign detention centre, awaiting deportation, Hope was eventually identified as a victim of sex trafficking by the police, a status that entitled her to legal protections including of a recovery and reflection period. Since she did not have enough information that would help the police prosecute her traffickers, however, they did not renew the reflection period after two months. In addition, the judicial authorities did not acknowledge identification or overturn her condemnation. She remains in Spain with a criminal record, unable to move forward with her life.

In the other case, police detained Beauty, also from Nigeria, after four years of sexual exploitation in Spain. She was stopped near an immigration office where she had gone to apply for a residency permit on the basis of the time she has been leaving in Spain. Instead, she was taken to the Foreign Detention Centre, where she was identified by several specialized organizations, including the UNHCR and Women´s Link Worldwide, as a victim of sex trafficking. She denounced the situation of sexual exploitation and gave the police the name of the traffickers. She was afraid because she was three months pregnant and her traffickers wanted to force her to get an abortion.

Beauty’s account of events also fit within the definition of trafficking under the Palermo Protocol. From the moment she arrived on Spanish territory, Beauty began to receive calls from her trafficker at least three times a week, reminding her that she had a debt with him and threatening to kill her if she did not pay. From her arrival until her detention, Beauty worked to pay back her debt through prostitution, working in warehouses in a neighbourhood in the south of Madrid, and sent the money to him through internet shops.

The police nevertheless did not believe her allegations and in breach of the principle of non-refoulement, deported her without guarantees and without analysing any risks associated with returning to Nigeria. Her deportation order was carried out before her trafficking case had even been decided and without notifying her legal representation, Women´s Link Worldwide. She was re-trafficked as soon as she arrived in Nigeria and severely punished for having denounced her situation to the Spanish authorities.

Both cases show that, in Spain, trafficked women – and, specifically, those of sub-Saharan origin – suffer intersectional discrimination, because of gender, race and socioeconomic status, among other reasons, perpetuated by the authorities, who thereby deprive them of their rights as victims of sexual trafficking. Hope and Beauty were not identified as trafficked women and, thus, they did not receive the protections their situations demanded. The lack of identification and the response of the authorities were influenced by their own conceptions about what a trafficking victim looks like, and because of biases against black African poor women and girls that arrive to Spain (e.g. she is not a victim, she committed a crime; she doesn’t’ behave like a real victim; she is lying in order to stay in Spain; she is lying because she is a prostitute). These two women (and the too many others in similar situations) are part of an extremely vulnerable group who are doubly harmed by the discriminatory treatment of State agents, who clearly violate the principles of equality and non-discrimination.


It is clear that State institutions must work to free themselves from the reliance on stereotypes, and that they must treat victims with the human dignity already denied to them, and fairly dispense justice. But to achieve this goal, the ECtHR needs to have a strong and clear response condemning these acts as violations of the principle of non-discrimination. Broader jurisprudence is needed that clearly affirms that human trafficking for sexual exploitation constitutes gender violence and in turn a form of discrimination; that victims are a vulnerable, systematically excluded group that requires special protection from the State, and that this protection is, currently, being withheld on the grounds of race, gender, and socioeconomic status. These two cases offer the ECtHR the opportunity to do so.

*Maria Lacayo coauthors this article. She is an alumna of Princeton University and the University of Oxford, and she is currently pursuing her Juris Doctorate at Harvard Law School, where she also serves as an editor for the Harvard Law Review.

3 thoughts on “Trafficking of Human Beings at the ECtHR: The Importance of Using Article 14 to Broaden the Protection of Women and Girls (Part II)

  1. Thanks for both interesting posts . Yet, it seems that the posts present issue of: lack of corrective or positive discrimination, over discrimination per se.

    Dealing with trafficking ,both man and woman are getting equal treatment as suspects it seems , yet :

    What is needed , is woman , to be treated with corrective discrimination ( or positive one ) since ,they are : prostitutes , since they are prostitutes , and African , then :

    Highly likely, they are victims of abuse and coercion ,all , unlike man typically ! So, the failure, doesn’t consist of discrimination (since man and woman are equally treated as potential traffickers) but consist of:

    Failure to recognize an individual as victim ( or rather characteristic one ) .

    Although we don’t deal with the same jurisdiction or applicable law of course, you may find great interest in: ” Istanbul protocol ” setting guidelines, of how to investigate, victims of torture and cruel treatment .

    “Istanbul Protocol , Manual on the Effective Investigation and Documentation of Torture and Other Cruel,Inhuman or Degrading Treatment or Punishment ”
    here :

    Click to access training8Rev1en.pdf


  2. I agree with the above comment that it is difficult to frame the issue as one of discrimination. I doubt it whether the ECtHR will go this way. The issue is rather one of failure to identify victims as victims which could be in breach of states’ positive obligations under the CoE Trafficking Convention and under Article 4 of the ECHR. See my article on the latest ECtHR judgment in this respect V Stoyanova “L.E. v. Greece: Human Trafficking and the Scope of States Positive Obligations” 3 European Human Rights Law Review 2016.

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