CEDH · CASELAW;CLIN;ENG — 10 octobre 2024

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Spain - 22512/21 Judgment 10.10.2024 [Section V] Article 4 Positive obligations Effective investigation Article 4-1 Trafficking in human beings Significant shortcomings in domestic procedural response to an arguable criminal complaint of human trafficking and forced prostitution, supported by prima facie evidence: violation Facts – In 2011, the applicant, a Nigerian national, lodged a criminal complaint with the Spanish authorities that, between 2003 and 2007, she had been a victim of human trafficking from Nigeria to Spain and forced into prostitution by C. She alleged that when she had been trafficked, she had been fourteen years old and had remained under C.’s control until 2007, when she managed to escape and then continued to work as a prostitute in various regions of Spain. Upon her complaint, a criminal investigation was immediately opened but in 2013 was provisionally dismissed for lack of evidence. About a year later the investigating court allowed the prosecutor’s appeal and ordered further investigative steps to be taken. In 2016 the investigation was terminated, and the case was referred to the Seville Audiencia Provincial which provisionally dismissed the case. It upheld its decision on appeal. In 2020 the applicant’s amparo appeal was declared inadmissible by the Constitutional Court. Law – Article   4: (1) Whether the circumstances of the present case raise an issue under Article 4 of the Convention – At the outset the Court noted that the domestic authorities had consistently considered the applicant to be a victim of human trafficking. In any case, all three elements of the international definition of trafficking in human beings set out in Articles   3 (a) of the   Palermo Protocol   and 4 (a) of the   Council of Europe Anti-Trafficking Convention   – “action”, “means” and “purpose” – in respect of the applicant had been present. In particular, despite some divergent elements, the applicant’s allegations of human trafficking and forced prostitution had remained consistent throughout the domestic proceedings and had been coherent with her accounts given to the NGOs assisting her. Her account of the means used to allegedly recruit her – contact via a relative, the alleged use of a “voodoo” ritual to guarantee payment of the debt and non-exposure of the alleged traffickers to the Spanish police, as otherwise “voodoo would kill her” – corresponded to one of the means often used by traffickers to recruit their victims in Nigeria, particularly in Benin City where she claimed she had lived at the time. The applicant had clearly and consistently referred to the use of coercion and threats against her and her family in Nigeria if she disobeyed as well as to the constant monitoring of her actions and the taking of her earnings. According to the applicant, C. and her partner had made the necessary arrangements for the applicant to provide sexual services by securing accommodation, transportation and other facilities. Lastly, there had been no doubt that she had been in a position of extreme vulnerability between 2003 and 2011. The fact that she might have, at least initially, consented to engage in sex work for C.’s benefit was not decisive. In any event, under the definitions of the Anti-Trafficking Convention , such consent was irrelevant if any of the “means” of trafficking had been used. Accordingly, the Court was satisfied that the applicant had made an arguable claim, supported by prima facie evidence, that she had been subjected to human trafficking and forced prostitution. (2) Compliance with the procedural obligation under Article   4 of the Convention – The Court examined the applicant’s complaints in the light of the applicable principles, as summarised in S.M. v.   Croatia [GC]. It first noted that when the authorities had become aware of the existence of circumstances giving rise to a credible suspicion that the applicant had been a victim of human trafficking and forced prostitution, they had opened a formal inquiry immediately, promptly granted her protected witness status and issued her with a residence permit based on her cooperation with the authorities. Notwithstanding, the Court found that the investigation had been tainted by the following unexplained defects. (i) Failure to act with the requisite diligence at the initial stage of the investigation – The authorities had not acted with the requisite diligence at the initial stage of the investigation. More specifically, they had remained completely passive and had not taken any effective investigative steps, including very basic ones, for almost one and a half years from the date of the applicant’s complaint. Furthermore, it appeared that the first meaningful steps to identify the alleged perpetrators had not been taken until almost three years after the complaint had been lodged. (ii) Failure to pursue obvious lines of inquiry – The authorities had failed to take several obvious steps to investigate all the relevant aspects of the applicant’s criminal complaint and all the relevant circumstances of the case. In particular, they had not followed obvious lines of inquiry to gather the available evidence, in accordance with their procedural obligation under Article   4. In particular: – There was no indication that they had investigated her consistent allegations concerning the alleged events in her complaint, including the circumstances of her arrival in Spain, her work as a prostitute under C.’s control in several specific clubs during the material time, her stays in various regions of Spain and her arrest on two occasions for breaches of immigration law. – The authorities had failed to take all reasonable steps to elucidate the circumstances of the applicant’s alleged work for several months in a club, R. The applicant had provided a detailed description in that respect. The investigators’ actions had been limited to identifying and questioning the club’s two managers at the time of the alleged events and no steps had been taken to resolve significant discrepancies in their key statements. Further, there was nothing to suggest that the investigators had ever inquired as to the availability of any police records relating to age checks on women who could have worked in the club during the relevant period or any other evidence pertaining to the club’s status at the relevant time. – For unexplained reasons it appeared that the persons heard by the investigating court as suspects or witnesses had never been asked certain key questions. – There was nothing to suggest that the police records of the applicant’s two arrests, had been admitted to the investigation file or that they had been checked against her own submissions or that the investigative authorities had otherwise attempted to address the circumstances of her alleged travels to and from the Canary Islands in any detail. – Lastly, although the police had reported that there had been no record of the applicant’s entry into Spain, as she must have crossed the border in France where border checks were carried out, at no point had the authorities taken any steps to obtain the relevant information from their French counterparts, nor had they referred to any circumstance which would have prevented them from making the relevant requests. (iii) Failure to give relevant and sufficient reasons for the decision to provisionally discontinue the proceedings – The Court found that the Audiencia Provincial ’s decisions to provisionally dismiss the case – each limited to strikingly brief, one paragraph conclusions – had not been based on a thorough and objective analysis of all relevant elements, but rather on unexplained assumptions, and had not been sufficiently reasoned. Two age assessment reports had been drawn up in 2015 and early 2016 (a supplementary report) which concluded that the applicant had been at least eighteen years old at the time of the forensic examinations, thus making it clear that they had determined her minimum age and not her exact age. In its decisions the Audiencia Provincial had based its findings on the first report without mentioning the second one and, in any event, had concluded that the applicant had been six years old in 2003 without giving reasons for interpreting the expert’s conclusions as referring to the applicant’s exact age. Nor had the Audiencia Provincial dealt with the applicant’s argument to that effect. Furthermore, the assessment of her age had never been checked against other evidence in the case file, clearly suggesting that the applicant had been perceived as an adult by various authorities and other people in Spain long before the age assessment had taken place. Moreover, it was striking that the Audiencia Provincial had limited the scope of analysis of the case, which had involved serious and detailed allegations of human trafficking, to assessing the contradictions between the applicant’s account of events – more precisely, a fraction of it concerning her alleged age in 2003 – and the domestic court’s own unexplained interpretation of the age assessment report. Overall, the Audiencia Provincial’ s findings had not been accompanied by any analysis of other evidence than the forensic report, let alone of relevance and sufficiency of that evidence. Consequently, the manner in which the criminal-law mechanisms had been implemented in the instant case had been defective to the point of constituting a violation of the respondent State’s procedural obligation under Article   4. Through these shortcomings the domestic authorities had displayed blatant disregard for the obligation to investigate serious allegations of human trafficking, an offence with devastating consequences for its victims. The fact that the case had been discontinued provisionally, and not by a final dismissal order, did not affect the Court’s conclusion. Conclusion : violation (procedural aspect) (unanimously). Article   41: EUR 15,000 in respect of non-pecuniary damage. (See also L.E. v.   Greece , 71545/12, 21   January 2016, Legal Summary ; T.I. and Others v.   Greece , 40311/10, 18   July 2019, Legal Summary ; S.M. v.   Croatia [GC], 60561/14, 25   June 2020, Legal Summary ; V.C.L. and A.N. v.   the United Kingdom , 77587/12 and 74603/12, 16   February 2021, Legal Summary ; Zoletic and Others v.   Azerbaijan , 20116/12, 7   October 2021, Legal Summary ; Krachunova v.   Bulgaria , 18269/18, 28   November 2023, Legal Summary ; Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children (Palermo Protocol); Council of Europe Convention on Action against Trafficking in Human Beings )   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. To access legal summaries in English or French click here . For non-official translations into other languages click here .