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.

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

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.

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