The ECHR Ruling of February 16, 2021 in the case "V.C.L. and A.N. v. United Kingdom (V.C.L. and A.N. v. United Kingdom)" (aplications N 77587/12 and 74603/12).
In 2012, the applicants were assisted in the preparation of aplications. Subsequently, the aplications were consolidated and communicated to the United Kingdom.
Aplications about the lack of an effective investigation into human trafficking were successfully considered in the case. The case involved a violation of the requirement of paragraph 1 of article 4 of the Convention for the Protection of Human Rights and Fundamental Freedoms.
CIRCUMSTANCES OF THE CASE
The applicants, Vietnamese citizens and minors at the time of the events in question, were discovered by United Kingdom police officers working at a marijuana factory, and they were charged with participating in the production of a controlled drug. At that time, a number of reports by international organizations found that Vietnamese children were in a particularly vulnerable situation because they were illegally imported into the territory of the United Kingdom and their labor was exploited in such factories. The applicants were not immediately considered as victims of human trafficking, but later the competent State authority decided that both applicants had been brought into the country as a result of human trafficking. The Crown Prosecution Service (CPS) disagreed with this assessment and continued the criminal proceedings. Both applicants admitted their guilt and were convicted. They subsequently unsuccessfully appealed the verdict.
LEGAL ISSUES
Regarding compliance with article 4, paragraph 1, of the Convention
(a) General principles for charging (potential) victims of human trafficking. The present case was the first time when the European Court was called upon to consider if and how a case concerning the indictment of (potential) victims of trafficking in persons could raise issues under article 4 of the Convention. International standards on combating human trafficking do not imply a general prohibition on bringing charges against victims of human trafficking, and minor victims of human trafficking cannot be released from responsibility under any circumstances. Nevertheless, the indictment of (potential) victims of trafficking in persons may, under certain conditions, conflict with the duty of public authorities to take prompt measures to protect these victims if the authorities knew or should have known about the circumstances that could serve as a basis for a reasonable suspicion that the person concerned was a victim of trafficking in persons.
In order to demonstrate respect for the freedoms guaranteed by article 4 of the Convention when accusing a (potential) victim of human trafficking, timely identification of such people is of fundamental importance. As soon as the authorities become aware or should be aware of the circumstances that give rise to a reasonable suspicion that a person suspected of committing a criminal offense could be a victim of human trafficking and exploitation, such circumstances should be immediately assessed by persons with special education and qualified persons, based on criteria developed in international standards, paying special attention to the fact that the fact that there was a threat of violence and/or coercion did not matter if it was a minor.
Moreover, since the status of a person as a victim of trafficking in human beings may affect the question of whether there was sufficient evidence to bring charges and whether the charge was brought in the public interest, any decision on whether or not to charge a potential victim of trafficking in human beings should, as far as possible, be taken only after the issue of the status of the victim has been resolved by a competent person. This is especially important if we are talking about children. The European Court turned to its case-law on violations of Articles 3 and 8 of the Convention in relation to acts of violence in order to establish that, since children are in a particularly vulnerable situation, the measures taken by the State authorities to protect children from actions falling within the scope of Article 4 of the Convention must be effective and include reasonable actions to prevent actions that the authorities knew or should have known, as well as effective abstinence from any actions. As soon as a qualified professional assesses the issue of human trafficking, any subsequent indictment should take this assessment into account. Although the prosecutor may not be bound by these conclusions, he will need clear grounds consistent with the definition of human trafficking from international standards in order to disagree with the opinion of a specialist.
(b) The application of these principles to the present case. The Crown Prosecution Service (CPS) had the opportunity, on the basis of clear reasons consistent with the definition of human trafficking in the light of international standards, to disagree with the conclusion of the competent public authority that both applicants were victims of child trafficking. If the Crown Prosecution Service had agreed with the opinion of the competent authority, it could also have charged the applicants if it believed that there was no causal link between the crime and the fact of human trafficking. However, none of these variants of events took place.
The first applicant was found in circumstances that in themselves constituted a reasonable suspicion that the applicant was a victim of human trafficking. Although the second applicant was considered an adult when he was discovered by police officers, reasonable suspicion existed, at the latest, 90 days later, when the authorities of the United Kingdom recognized that the second applicant was a minor. Nevertheless, the applicants were not sent to the competent State authority to assess the issue of their status as victims of human trafficking, but instead they were charged with criminal charges, during the consideration of which the applicants pleaded guilty.
Further, even though the competent public authority subsequently recognized the applicants as victims of human trafficking, the Crown Prosecution Service, without providing proper explanations, did not agree with this decision, and the Court of Appeal of England and Wales, also citing the same improper reasons, found that the decision to charge the applicants was justified. The authorities of the United Kingdom of two levels of jurisdiction referred to factors that did not reflect the essence of the internationally recognized definition of human trafficking.
In the light of the above, the United Kingdom authorities failed to comply with their obligation under article 4 of the Convention to take prompt measures to protect the applicants, either initially as potential victims of trafficking in persons, or subsequently as persons recognized by the competent public authority as victims of trafficking in persons.
RESOLUTION
In the case, the requirements of paragraph 1 of Article 4 of the Convention were violated (adopted unanimously).
Regarding compliance with paragraph 1 of Article 6 of the Convention.
(a) Whether the fact that the applicants' status as victims of trafficking in persons was not verified before the applicants were charged and found guilty raises issues under article 6 of the Convention. From the very beginning, the applicants' interests were represented in accordance with the procedure established by law, which is usually considered an important guarantee against the unfairness of the proceedings. However, the applicants' representatives did not take into account the possibility that the applicants could be considered victims of human trafficking and did not act in this direction. Nevertheless, although criminal lawyers should undoubtedly pay attention to the signs of human trafficking in the case, their failure to do this work by itself cannot release the State and its representatives from the corresponding responsibility. In the context of article 4 of the Convention, the authorities of the Council of Europe had a positive duty both to protect victims of human trafficking and to investigate cases of such trafficking. This obligation arose due to the existence of circumstances that gave rise to a reasonable suspicion that a person was a victim of human trafficking, and not as a result of a complaint from a potential victim of trafficking or his/her representative. The defendant in the case, especially a minor, could not be required to self-identify as a victim of human trafficking, nor could he be punished for not having determined his status. Consequently, the lack of a timely assessment of whether the applicants were indeed victims of human trafficking prevented the provision of evidence that could be fundamental points of the applicants' defense in court.
(b) Whether the applicants have waived their rights under article 6 of the Convention. The applicants "unequivocally" admitted their guilt, and since their interests were represented by lawyers, they almost certainly realized the consequences of such a decision. However, in the absence of a decision on whether the applicants were victims of human trafficking, and, if so, whether this circumstance influenced the criminal liability of the applicants, these confessions were not made "with full awareness of the facts". In addition, any denial of rights would be contrary to an important public interest in the form of combating human trafficking and protecting victims of such trafficking. Indeed, the first applicant did not take advantage of the opportunity provided by the judge to withdraw his confession on the advice of a lawyer. Nevertheless, as a minor who was detained and prosecuted under a foreign legal system for him, who had already admitted his guilt in committing a crime in circumstances that did not constitute a waiver of the rights granted to him by article 6 of the Convention, the first applicant could not be considered to have subsequently waived the rights in question, since he decided not to file complaints contrary to the persistent advice of his lawyer.
(c) Whether the fairness of the proceedings in the case as a whole has been violated. Although the applicants admitted their guilt, the Crown Prosecution Service reconsidered its decision to bring the applicants to criminal responsibility after the competent public authority recognized the applicants as victims of human trafficking. In addition, both applicants were allowed to file complaints after the established procedural time limits for appeal, and the case of the first applicant was returned to the Court of Appeal for further consideration of the complaint.
However, the reasons given by the Crown Prosecution Service for disagreeing with the conclusion of the competent public authority were absolutely inappropriate and did not correspond to the definition of human trafficking in international law. Moreover, rejecting the complaints in both cases, the Court of Appeal referred to the same arguments given by the Crown Prosecution Service. Although the applicants invoked article 4 of the Convention, the Court of Appeal did not examine their case through the prism of the positive obligations of the United Kingdom under that article. On the contrary, the Court of Appeal limited itself to a relatively narrow approach, according to which victims of human trafficking were responsible for not having indicated their status from the very beginning, and which would allow the UK authorities to invoke their own mistake when failing to comply with the obligations provided for in article 4 of the Convention to take prompt measures to protect applicants. Consequently, the appeal proceedings did not correct the shortcomings of the proceedings in the case, which led to the indictment of the applicants and to their finding guilty.
RESOLUTION
The requirements of paragraph 1 of article 6 of the Convention were violated in the case (adopted unanimously).
COMPENSATION
By way of application of Article 41 of the Convention, the European Court awarded each of the applicants 25,000 euros in compensation for non-pecuniary damage.