By John Trajer, PhD Researcher in Law at the European University Institute
In V.C.L. and A.N. v. the United Kingdom, delivered on 16 February 2021, the European Court of Human Rights (‘the Court’ or ‘the ECtHR’) was called upon to consider whether the prosecution of potential victims of trafficking could engage state responsibility under the European Convention on Human Rights (ECHR). While it has been recognised that victims should not be held liable for unlawful acts committed as a direct consequence of their trafficking (see the paper on ‘non-punishment’ by the former UN Special Rapporteur on trafficking in persons), this was the first time that an international court had pronounced on this issue.
The result is a judgment which contributes in a significant way to the Court’s existing jurisprudence on positive obligations under Article 4 ECHR (prohibition of slavery and forced labour). Paying attention to the special situation of minors throughout, the judgment introduces important safeguards to ensure that victims of trafficking suspected of committing criminal offences are not unduly deprived of the right to be identified and protected. The ruling also recognises for the first time that a failure to adequately investigate the status of possible victims of trafficking can undermine the right to a fair trial under Article 6(1) ECHR.
Following a summary of the background facts, this post describes the key points addressed in the Court’s assessment. It concludes with a reflection on the judgment’s contribution to the Court’s growing jurisprudence on human trafficking.
The applicants in the joined cases were two Vietnamese nationals who had entered the UK as minors and who were discovered separately by the police on or near the premises of cannabis factories in 2009. At the time, V.C.L. was fifteen years old, while A.N. – who initially identified himself as an adult – was shortly after accepted to be seventeen years old in a magistrates’ court. Both were arrested and charged with drug-related offences. Having been advised by their respective legal counsel to submit guilty pleas at trial, they were subsequently detained in youth offenders’ institutions.
In V.C.L.’s case, it had come to light before his sentencing hearing that he might be able to apply for leave to vacate his guilty plea on the ground that he had been trafficked, a finding supported by the authority tasked with the formal identification of victims (UK Border Agency – UKBA or ‘competent authority’). The Crown Prosecution Service (CPS), however, refused to discontinue the prosecution, and V.C.L. was advised by his defence counsel to maintain his guilty plea. For A.N., it was only upon later obtaining new legal representation that his case was referred – first to social workers specialised in child trafficking, and subsequently to the competent authority. While both concluded that A.N. had most likely been trafficked, upon review the CPS maintained that he was not a victim of trafficking and that his prosecution was in the public interest.
Both applicants sought to appeal their convictions. They argued that, as formally recognised victims of trafficking who had been recruited as minors to commit criminal acts, they were entitled to protection from prosecution under Article 26 of the Council of Europe Convention on Action against Trafficking in Human Beings (Anti-Trafficking Convention). In a judgment handed down in 2012, the Court of Appeal refused to quash the criminal convictions, finding that the decision to prosecute did not amount to an abuse of process as the CPS was: (i) not bound by the determination of the UKBA, and (ii) had been justified in concluding that the facts (as initially presented by the applicants) did not satisfy the trafficking definition. Leave to appeal this ruling before the UK Supreme Court was rejected. The cases were subsequently lodged in Strasbourg, where proceedings were stayed for several years to allow an additional (and ultimately unsuccessful) domestic appeal to be exhausted in V.C.L.’s case.
This was a highly anticipated ruling, with third-party interventions submitted by the Council of Europe’s Group of Experts on Action against Trafficking in Human Beings (GRETA), as well as leading NGOs (Anti-Slavery International and Liberty). The judgment, it is argued here, should be celebrated for developing the Court’s Article 4 jurisprudence in a rights-protective manner, as well as for recognising a causal link between the failure to identify victims and their ability to enjoy fair trial rights under Article 6(1) of the Convention.
On the merits of the case, the Court’s assessment focused on three principal issues: (i) the scope of positive obligations under Article 4; (ii) necessary safeguards for the identification of victims; and (iii) the link between identification and fair trial guarantees.
- Scope of positive obligations under Article 4 ECHR
The first significant issue that the Court had to address was the relationship between the prosecution of victims of trafficking and states’ positive obligations under Article 4 ECHR. The Court began by reiterating that conduct amounting to human trafficking under the Palermo Protocol and Anti-Trafficking Convention definition falls within the scope of treatment prohibited by Article 4 ECHR, a position which was recently confirmed by the Grand Chamber in S.M. v. Croatia. This provision gives rise to three principal categories of positive obligations: (i) the duty to put in place a legislative and administrative framework to prohibit and punish trafficking; (ii) the duty, in certain circumstances, to take operational measures to protect victims, or potential victims, of trafficking; and (iii) a procedural obligation to investigate situations of potential trafficking. In determining the scope of these obligations, the Court restated that it is guided by the Anti-Trafficking Convention and its interpretation by GRETA (§150; Chowdury and Others v. Greece, §104).
In the present case, the Court addressed the issue of prosecution through the prism of the duty to take operational measures to protect trafficked persons. It had already been established that the duty to protect under Article 4 ECHR is triggered when state authorities are aware, or ought to be aware, of circumstances giving rise to a credible suspicion that an individual has been (or is at a real and immediate risk of being) trafficked, at which point the authorities must take appropriate measures within the scope of their powers to remove the individual from that situation (Rantsev v. Cyprus and Russia, §286). Recent judgments have clarified the types of measures that might be required to discharge this duty, with the Court drawing on the Anti-Trafficking Convention to recognise obligations to facilitate the identification of victims by qualified persons and to support their recovery (Chowdury and Others v. Greece, §110; J. and Others v. Austria, §§110-111, 115). In V.C.L. and A.N., this line of reasoning was taken one step further. Here, the Court introduced a purposive reading of the duty to take operational measures to protect, explaining that it serves ‘two principal aims’: (i) protecting victims of trafficking from further harm, and (ii) facilitating their recovery. According to the Court, the prosecution of victims interferes with the duty to protect as it inherently endangers the fulfilment of these aims – not only will victims be subjected to the ‘ordeal of a criminal prosecution’, but the legacy of a criminal conviction will likely hinder their subsequent social integration, while incarceration may well constitute a practical impediment to accessing appropriate support services. It is therefore ‘axiomatic that the prosecution of victims of trafficking would be injurious to their physical, psychological and social recovery and could potentially leave them vulnerable to being re-trafficked in the future’ (§159).
None of this is to say that Article 4 ECHR categorically prohibits the prosecution of victims of trafficking. The Court acknowledged in its assessment that the drafters of binding international instruments (including the Anti-Trafficking Convention) have carefully guarded against the possibility of victims benefitting from some form of blanket immunity for crimes committed in connection with their trafficking – requiring, among other things, satisfaction of an additional test of compulsion (§158). The Court refrained from commenting directly on the compatibility of these qualifications with the ECHR. However, given the severely detrimental effects of prosecution on the right to receive protection, it recognised that the prompt and accurate assessment of victims’ status is ‘of paramount importance’ in ensuring that the operational duty to protect has been discharged (§160).
2. Safeguards related to the identification of victims
As such, to guarantee that the prosecution of potential victims will be Article 4 compliant, a series of procedural steps must be followed. First, as soon as the standard of proof is met for triggering the duty to protect, potential victims suspected of having committed a criminal offence ‘should be assessed promptly by individuals trainedand qualified to deal with victims of trafficking’ (§160). A credible suspicion of past trafficking alone (in the absence of a real and immediate risk) is sufficient to trigger this duty. To ensure that prosecutors can consider all the relevant evidence and make an informed decision on whether it would be in the public interest to proceed, any decision to prosecute should be deferred (‘insofar as possible’) until the formal identification procedure has been completed. This is especially important when the potential victim is a minor (§161). The subsequent prosecutorial decision must take the trafficking assessment into account, and while prosecutors will not be bound by the determination of the qualified person, any departures from their conclusion will need to be supported by ‘clear reasons which are consistent with the definition of trafficking contained in the Palermo Protocol and the Anti-Trafficking Convention’ (§162).
None of these steps were followed by the UK authorities in the present cases. Drawing on a wealth of official CPS and police guidance and reports of government agencies, the Court highlighted the fact that the trafficking of Vietnamese boys into and within the UK for the purpose of cannabis cultivation was widely documented at the time, and that the arguments relied on to contest the applicants’ victim status were inadequate in light of the information available (§171). With regard to V.C.L., upon first contact with the police, there were therefore already sufficient indicators to warrant referral to the competent authority for identification (§163). While A.N. initially presented himself to the police as an adult, the Court considered that, at the latest from the point that it was accepted that he was a minor, the CPS should have become aware of the existence of circumstances giving rise to a credible suspicion that he had been trafficked and referred him for formal assessment (§§175-176). Instead, the applicants were charged with criminal offences, and in both cases the CPS later rejected the findings of the UKBA without providing clear reasons for doing so (§§170, 178). The Court of Appeal, limiting itself to the question of whether the decision to prosecute amounted to an abuse of process, endorsed the findings of the CPS without ever engaging in a meaningful way with the international legal definition of trafficking and its application to the situation of minors (§§172, 181). The ECtHR thus unanimously found a violation of Article 4 on the basis that the state authorities had failed to discharge their duty to take operational measures to protect the applicants at two separate stages: initially as potential victims, and subsequently as victims recognised through the formal identification procedure (§182).
3. Identification of victims and fair trial guarantees
With regard to the Article 6(1) complaint, the Court held that the failure to assess whether the applicants were victims of trafficking before they were charged and convicted deprived them of a ‘fundamental aspect’ of their legal defence (§§196, 200). In opposition to the argument that neither the applicants’ representatives, nor the applicants themselves, had raised the trafficking issue, the Court highlighted that the duty to protect can be triggered in the absence of a complaint made by or on behalf of the victim, and that ‘[t]he 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’ (§199). The fact that the applicants had submitted guilty pleas in the absence of a trafficking assessment or in ignorance of the implications of this assessment for their criminal liability was held to mean that they had not waived their right to a fair trial (§202).
Determinative in the unanimous finding of an Article 6(1) violation was the failure of the Court of Appeal to remedy the disadvantage resulting from the non-recognition of the applicants as victims of trafficking. The Court of Appeal dismissed the arguments made under Article 4 ECHR and was reluctant to consider fresh instructions about the facts that departed from the applicants’ initial accounts. This was held by the ECtHR to endorse an approach that ‘would in effect penalise victims of trafficking for not initially identifying themselves as such and allow the authorities to rely on their own failure to fulfil their duty under Article 4 of the Convention to take operational measures to protect them’ (§208).
In V.C.L. and A.N., the Court provided its clearest statement to date on the fact that, in the absence of timely and accurate identification, victims of trafficking will automatically be deprived of the ability to benefit from measures designed for their protection – a point made forcefully in GRETA’s third-party intervention (§142). In the criminal context, safeguards are therefore required to ensure that: (i) identification procedures are not prejudicial towards individuals trafficked for the purpose of criminal exploitation (regardless of the severity of their offences); and (ii) any decision to prosecute, as an inherent interference with the right to receive protection and support, is informed by a complete and accurate assessment of victim status. Furthermore, in the Court’s examination of the Article 6(1) complaint, the recognition that victims of trafficking cannot be required to identify themselves is significant, and consistent with the earlier finding in Rantsev v. Cyprus and Russia (§296). However, since that ruling, the Court has been criticised for a reluctance to recognise that a duty to protect had arisen in the absence of express self-identification by victims (see this article by Valentina Milano, pp. 716-721). A reminder that the state is responsible for proactively identifying victims when sufficient indicators are present is therefore another welcome feature of the judgment.
Arguably the most wide-reaching contribution of the ruling is the finding that the prompt referral of potential victims to a qualified authority for identification is an intrinsic element of the operational duty to protect, and is by extension inherently linked with the aims of preventing further harm and facilitating recovery. While introduced specifically in relation to potential victims ‘suspected of having committed a criminal offence’ (§160), it would be difficult to sustain the argument that the operational duty of identification applies exclusively to this narrow category of individuals, and not to potential victims generally. The more expansive interpretation is also consistent with recent trends in the Court’s jurisprudence on duties to identify trafficked persons (for an analysis of the case law on this issue up to the present judgment, see the chapter by Vladislava Stoyanova in this volume). Additionally, in underlining the need for trafficking assessments made by qualified persons to be given due consideration by prosecutors, the judgment could influence coordination between state bodies beyond the criminal context. For instance, asylum authorities might be considered under a similar duty to give appropriate weight to formal appraisals of victim status made by a qualified authority.
Finally, it is also important to acknowledge what this judgment does not say, and why it is not a panacea when it comes to the non-prosecution of trafficked persons. From the outset, the Court was cautious in restricting its analysis to the state authorities’ unwillingness to accept the applicants as victims of trafficking (§113). It thereby refused to engage directly in an assessment of what might be demanded in terms of an appropriate legislative and administrative framework for incorporating the Anti-Trafficking Convention’s non-punishment provision, as well as what kind of ‘nexus’ between the trafficking and the offence can be required for recognised victims to benefit from this principle (for an earlier analysis of these issues under the ECHR, see this article by Marija Jovanovic, pp. 55-58). Another important question that remains unanswered is whether the general principles expounded in V.C.L. and A.N. would be relevant in the context of sanctions imposed for non-criminal offences, given that the non-punishment provision under the Anti-Trafficking Convention refers broadly to ‘unlawful activities’.
Nonetheless, V.C.L. and A.N. will go down as a landmark case – not only for its commentary on the criminalisation of potential trafficking victims, but also for taking significant strides forward in clarifying the scope of the duty to take operational measures to protect trafficked persons in the criminal context and beyond.
Note: The author is grateful to Parosha Chandran (counsel for A.N.) and participants in the seminar on ‘The Law and Practice of Modern Slavery’ at King’s College London for illuminating discussions on this judgment. He would also like to extend his gratitude to Gillian Kane (Queen’s University Belfast) and Sylvie Armstrong (European University Institute) for their insightful feedback on an earlier draft of this post. All remaining errors are the author’s own.