European Court of Human Rights (ECHR): Chamber composed of Yonko Grozev, President, Tim Eicke, Faris Vehabović, Iulia Antoanella Motoc, Armen Harutyunyan, Pere Pastor Vilanova, Jolien Schukking, judges, and Andrea Tamietti, Section Registrar, first time had the occasion to address a case concerning the prosecution of a victim, or potential victim of trafficking.
Crux of the application was that the said applications concerned the prosecution of the (then) minor applicants who were recognised as trafficking victims for criminal offences connected to their work as gardeners in cannabis factories were
Applicant’s principal complaint is that by prosecuting them for criminal offences connected to their work in the cannabis factories the State failed in its duty to protect them as victims of trafficking.
Applicants relied upon Article 26 of the Anti-Trafficking Convention which required the Contracting States to provide for the possibility of not imposing penalties on victims of trafficking for their involvement in unlawful activities to the extent that they have been compelled to act as they did
Questions to be considered by the Court:
- Whether, on the facts of the cases at hand, the respondent State complied with its positive obligations under Article 4 of the Convention?
Clear evidence appeared to indicate that the cultivation of cannabis plants was an activity commonly carried out by child trafficking victims. Court stated that the police and subsequently the CPS should have been aware of the existence of circumstances giving rise to a credible suspicion that the minors were trafficked.
Hence, a positive obligation to take operational measures to protect the applicants as potential victims of trafficking arose after the minors were discovered.
- Whether State fulfilled its duty under Article 4 of the Convention to take operational measures to protect minors?
Bench stated that it is well-established that both national and transnational trafficking in human beings, irrespective of whether it is connected with organized crime, falls within the scope of Article 4 of the Convention.
Court made it clear that where an employer abuses his power or takes advantage of the vulnerability of his workers in order to exploit them, they do not offer themselves work voluntarily.
“…prior consent of the victim is not sufficient to exclude the characterisation of work as forced labour.” [Chowdhury v. Greece, No. 21884/15, § 96, 30 March 2017]
Obligation as per Article 4
Article 4 entails a specific positive obligation on the Member States to penalise and prosecute effectively any act aimed at maintaining a person in a situation of slavery, servitude or forced or compulsory labour (Siliadin v. France, no. 73316/01, §§ 89 and 112, ECHR 2005-VII). In order to comply with this obligation, Member States are required to put in place a legislative and administrative framework to prevent and punish trafficking and to protect victims (see Rantsev, cited above, § 285).
Article 4 may, in certain circumstances, require a State to take operational measures to protect victims, or potential victims, of trafficking.
Court has considered it relevant that the Anti-Trafficking Convention calls on the Member States to adopt a range of measures to prevent trafficking and to protect the rights of victims. The preventive measures include measures to strengthen coordination at the national level between the various anti-trafficking bodies and to discourage the demand for all forms of exploitation of persons. Protection measures include facilitating the identification of victims by qualified persons and assisting victims in their physical, psychological and social recovery.
Summary of positive obligations under Article 4
(1) the duty to put in place a legislative and administrative framework to prohibit and punish trafficking;
(2) the duty, in certain circumstances, to take operational measures to protect victims, or potential victims, of trafficking; and
(3) a procedural obligation to investigate situations of potential trafficking.
“…prosecution of victims, or potential victims, of trafficking may, in certain circumstances, be at odds with the State’s duty to take operational measures to protect them where they are aware, or ought to be aware, of circumstances giving rise to a credible suspicion that an individual has been trafficked.”
In Court’s opinion, the duty to take operational measures under Article 4 of the Convention has two principal aims:
- to protect the victim of trafficking from further harm; and
- to facilitate his or her recovery.
In order for the prosecution of a victim or potential victim of trafficking to demonstrate respect for the freedoms guaranteed by Article 4, his or her early identification is of paramount importance.
Court acknowledged the fact that as children are particularly vulnerable, the measures applied by the State to protect them against acts of violence falling within the scope of Articles 3 and 8 should be effective and include both reasonable steps to prevent ill-treatment of which the authorities had, or ought to have had, knowledge, and effective deterrence against such serious breaches of personal integrity.
Since, first applicant was discovered by police at a cannabis factory during the execution of a drug warrant, the authorities should have been alert to the possibility that he – and any other young persons discovered there – could be a victim of trafficking. Nevertheless, despite there not being any apparent doubt that he was a minor, neither the police nor the CPS referred him to one of the United Kingdom’s Competent Authorities for an assessment. Instead, he was charged with being concerned in the production of a controlled drug.
Second applicant claimed that the door was locked from the outside and he believed the factory was guarded; that he was not paid for his work; and that he might be killed if he stopped working.
In Court’s view the State did not fulfil its duty under Article 4 of the Convention to take operational measures to protect the first and second applicant either initially, as a potential victim of trafficking and subsequently, as a person recognised by the Competent Authority to be the victim of trafficking.
Applicant’s also complained that they were denied a fair trial within the meaning of Article 6 of the Convention.
To assess Whether there has been a violation of Article 6 § 1 of the Convention, the Court must answer the following questions:
first of all, did the failure to assess whether the applicants were the victims of trafficking before they were charged and convicted of drugs-related offences raise any issue under Article 6 § 1 of the Convention;
secondly, did the applicants waive their rights under that Article by pleading guilty; and finally, were the proceedings as a whole fair?
Court expressed that although victims of trafficking are not immune from prosecution, an individual’s status as a victim of trafficking may affect whether there is sufficient evidence to prosecute and whether it is in the public interest to do so.
State cannot, therefore, rely on any failings by a legal representative or indeed by the failure of a defendant – especially a minor defendant – to tell the police or his legal representative that he was a victim of trafficking.
CPS 2009 guidance itself states, child victims of trafficking are a particularly vulnerable group who may not be aware that they have been trafficked, or who may be too afraid to disclose this information to the authorities Consequently, they cannot be required to self-identify or be penalised for failing to do so.
Did the applicants waive their rights under Article 6 of the Convention?
The applicants’ guilty pleas were undoubtedly “unequivocal” and as they were legally represented they were almost certainly made aware that there would be no examination of the merits of their cases if they pleaded guilty. However, in the absence of any assessment of whether they were trafficked and, if so, whether that fact could have any impact on their criminal liability, those pleas were not made “in full awareness of the facts”.
Court did not consider that the applicants waived their rights under Article 6 § 1 of the Convention.
Whether the fairness of the proceedings as a whole was prejudiced?
In respect of both applicants, the reasons given by the CPS for disagreeing with the Competent Authority were wholly inadequate. Insofar as any reasons were given, they were not consistent with the definition of trafficking contained in the Palermo Protocol and the Anti-Trafficking Convention.
Court did not consider that the appeal proceedings cured the defects in the proceedings which led to the applicant’s charging and eventual conviction.
Hence it was concluded that the proceedings as a whole could not be considered “fair”.
Court referred to its finding that there has been a violation of Articles 4 and 6 of the Convention on account of the failure of the respondent State to fulfil its positive obligations under Article 4 to take operational measures to protect the victims of trafficking.
The Court had no doubt that the applicants suffered distress on account of the criminal proceedings and faced certain obstacles on account of their criminal records. However, it must also bear in mind that the aforementioned violations were essentially procedural in nature and as such the Court has not had to consider the merits of the decisions to prosecute the applicants.
Therefore each of the applicants was granted a sum of EUR 25,000 in respect of non-pecuniary damage, plus any tax that may be chargeable.[V.C.L & A.N. v. The United Kingdom, Applications Nos. 77587 of 12 and 74603 of 12, decided on 5-07-2021]
The first applicant, who had been granted legal aid, was represented by Ms Philippa Southwell of Birds Solicitors, a law firm based in London.
The second applicant was represented by the AIRE Centre, a legal charity based in London, and by Professor P. Chandran, a Barrister based in London at 1 Pump Court Chambers.
The Government were represented by their Agent, Mr J. Gaughan of the Foreign and Commonwealth Office.