State’s positive obligations under Article 4 ECHR
The Court held that the decision to prosecute (potential) victims of trafficking, while not necessarily in breach Article 4 ECHR, may be at odds with States’ duty to take operational measures to protect victims of trafficking when there is a credible suspicion that an individual has been trafficked.
Early identification is therefore of paramount importance. As soon as the threshold of credible suspicion of trafficking background is met, an assessment must be promptly carried out by qualified authorities to determine if the individual has been trafficked, based on the criteria identified in international standards, among whom certainly the UN Trafficking in Persons Protocol.
Moreover, as an individual’s status as a victim of trafficking might affect whether there is sufficient evidence to prosecute and whether it is in the public interest to do so, a decision on prosecution should not be made until the process of identification is complete, which the Court stressed is particularly important in cases involving suspected child victims.
Once a trafficking assessment has been made, any subsequent prosecutorial decision has to take that assessment into account. Prosecutors, while not bound by the determination of the qualified authority, will need to have clear reasons for disagreeing with it, e.g. by clearly demonstrating that there was no nexus between the offence and the trafficking.
In the case at stake the Court found that the fact that the applicants had been discovered on cannabis farms while still minors should by itself have given rise to a credible suspicion that they had been victims of trafficking. Nonetheless, neither the police nor the prosecution service had referred them to a competent authority for assessment. Even when the applicants have been recognised by the Competent Authority as victims of trafficking, the CPS disagreed with the conclusion of the competent authority without providing adequate reasons for its decisions. On appeal level, the Court of Appeal relied on the same inadequate grounds to find that the decisions to prosecute them had been justified.
The Court unanimously found that the State had not fulfilled its duty under Article 4 ECHR to take operational measures to protect the applicants, either initially, as potential victims of trafficking, or subsequently, as persons recognised by the Competent Authority to be victims of trafficking.
Fairness of the proceeding under Article 6 ECHR
The Court noticed that while both applicants’ representatives had dismissed out of hand the possibility that they had been victims of trafficking and had failed to act accordingly, the State cannot hide behind the shortcomings of legal aid counsel where those shortcomings amount to a manifest failure to provide effective representation.
The State’s positive obligation to protect victims of trafficking was triggered by the existence of a credible suspicion that an individual had been trafficked, not by a complaint made by or on behalf of the potential victim. A defendant, especially a minor, could not be required to self-identify as a victim of trafficking or be penalised for failing to do so. Accordingly, the lack of a timely assessment of whether the applicants had in fact been trafficked had prevented them from securing evidence which might have constituted a fundamental aspect of their defence.
Moreover, the Court found that by pleading guilty the applicants had not waived their rights under Article 6 since those pleas had not been made “in full awareness of the facts”.
At the same time, the Court did not consider that the “unfairness” of the proceeding had been cured on appeal since the Court of Appeal’s review had been limited to a consideration of whether the prosecution had been an abuse of process, and it had relied on factors which did not appear to go to the core of the internationally accepted definition of trafficking.
As such the proceedings had not been fair, leading to a violation of Article 6(1).
Article 4 ECHR
Here is a link to the relevant legislation online:
https://www.echr.coe.int/Documents/Convention_ENG.pdf
Here is the text of the relevant legislative provision(s):
1. No one shall be held in slavery or servitude.
2. No one shall be required to perform forced or compulsory labour.
3. For the purpose of this Article the term “forced or compulsory labour” shall not include:
(a) any work required to be done in the ordinary course of detention imposed according to the provisions of Article5 of this Convention or during conditional release from such detention;
(b) any service of a military character or, in case of conscientious objectors in countries where they are recognised, service exacted instead of compulsory military service;
(c) any service exacted in case of an emergency or calamity threatening the life or well-being of the community;
(d) any work or service which forms part of normal civic obligations.
Violation of the prohibition of slavery and forced labour
The applicants claimed that by prosecuting them for criminal offenses connected to their work in the cannabis factories, the State failed in its duty to protect them as victims of trafficking.
Article 6 (1) ECHR
Here is a link to the relevant legislation online:
https://www.echr.coe.int/Documents/Convention_ENG.pdf
Here is the text of the relevant legislative provision(s):
1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.
Violation of the right to a fair trial – to a fair hearing in particular
The applicants claimed that as a result of the State’s failure to promptly identify them as victims of trafficking, they were denied a fair trial.
Article 14 in conjunction with Article 6 ECHR
Here is a link to the relevant legislation online:
https://www.echr.coe.int/Documents/Convention_ENG.pdf
Here is the text of the relevant legislative provision(s):
The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.
Violation of the prohibition of discrimination
The second applicant contended that as a victim of trafficking exploited for the purposes of producing illegal drugs he was treated differently from victims of trafficking exploited for other criminal purposes.
European Court of Human Rights (Fourth Section)
Judicial decision:
https://hudoc.echr.coe.int/eng#{%22itemid%22:[%22001-207927%22]}
Information Note on the Court’s case-law:
https://hudoc.echr.coe.int/eng#{%22itemid%22:[%22002-13143%22]}
Press release:
https://hudoc.echr.coe.int/eng#{%22itemid%22:[%22003-6940249-9330764%22]}
