The G.J. v. Spain Decision (App.n.59172/12) shows many of the problems victims of human trafficking encounter to access justice. It is, sadly, one of those cases where formalities swallow justice, since the outcome could have been totally different had the Court considered that the circumstances of the case required examination, in spite of, or precisely because of the failure to comply with the “written authority” requirement of submission (Rule 36.1 and 47(5)(1)(c) of the Rules of Court).
The challenges posed to the Court were interesting from the perspective of analysing the gender aspects of human trafficking and specially for determining whether the procedures for the identification of victims of trafficking that subordinate their protection to cooperation in criminal procedures against traffickers are compatible with the positive obligations arising from article 4 ECHR. The inadmissibility of the application leaves these questions unanswered. My comments will briefly engage with two sets of issues, the missed opportunity with regards to trafficking, and its connection to the substantive inadmissibility decision of the Court.
The circumstances of the case
The procedural history in this case, as with many trafficking cases is complex. Below is a summary of the domestic proceedings leading up to the case filed before the ECHR.
G.J. is a Nigerian woman who arrived in Spain in 2006 and requested asylum for religious persecution (first asylum proceedings). While that decision was pending, a deportation order was issued in 2007. In 2009, her claim for asylum was refused and in 2010 she was put in a Detention Centre for migrants (CIE) for lack of documentation. Whilst in the Centre she filed a second asylum request as victim of trafficking. Although the UNHCR supported the claim and considered G.J. to be a potential victim of human trafficking, the competent administrative body declared the claim inadmissible. An NGO specialized in trafficking also supported her claim, which was rejected once again. Following these rejections, GJ appealed the refusal to grant her asylum and also challenged the deportation order.
At the same time, the applicant requested the assistance of an NGO, Women´s Link Worldwide (WLW) and instructed them to apply for a grant of a period of reflection as a victim of trafficking, signing on March 11th 2010 a written authority to act. On March 17th, 2010 G.J. is deported. From that moment on, the legal battle has focused on whether G.J. had given powers to WLW to act on her behalf in any legal proceeding or just for the application of the reflection period, as the national courts hold.
The Court was asked to consider whether the inexistence of effective remedy within the Spanish legal system in respect with the identification of victims of traffic was a breach of Spain’s positive obligations under article 4, alone and in relation with articles 3 and 13. The Spanish authorities did not evaluate the risks G.J. faced if deported to Nigeria, as a pregnant woman victim of trafficking. Since trafficking for sexual exploitation disproportionately affects women, failures in the identification process specially impact their access to protection and remedies. Thus, the Court was asked to determine if the focus Spanish authorities have on border control and criminal proceedings, rather than on victim’s rights was a violation of article 4 and of the prohibition of discrimination.
Regarding the insufficiency of the written authority, WLW claimed that its inability to supply it was a direct consequence of the State’s action in expelling the applicant without any prior notice to that effect. The organisation suggested that its locus standi to act on behalf of G.J. should be accepted in view of the Court’s principle of flexible interpretation of its admissibility criteria; due to the exceptional circumstances of the case, to the fact that it had been impossible for G.J. to have access to justice, either directly or through a representative, and to the special vulnerability of women who are victims of trafficking in human beings.
The procedure for the identification of victims
In Rantsev v. Cyprus and Russia (2010) the Court stated that trafficking in human beings was incompatible with the Convention and fell within the scope of article 4 irrespective of whether victims had been forced to work, enslaved or put in servitude. The Court also determined that the positive obligations for states deriving from article 4 are (1) to develop an appropriate legislative and administrative framework to fight trafficking (2) to take protective measures for victims or potential victims and (3) a procedural obligation to investigate trafficking. This framework has been used in the following cases relating to trafficking, although the Court’s approach to the first obligation is very shallow (V. Stoyanova, Strasbourg Observers, February 2016).
In L.E. v. Greece (2016) the Court concluded that Greece had developed such an appropriate framework, despite the difficulties encountered by the applicant and the 9- month delay of the victim’s identification procedure, which seemed to be a particular problem faced by her in an overall effective system. As Stoyanova points out, the legislative framework is ineffective in the identification procedure for victims because it’s meant to help in criminal procedures against traffickers. In the decision of inadmissibility of V.F. v. France (App. no. 7196/10), the Court analysed certain aspects of the application, affirming its awareness of the difficulties victims face in getting protection. However, the Court affirms that, although it is clear that V.F. had been trafficked, French authorities were not obliged to adopt protective measures because they did not know due to the fact that she did not mention it in her asylum claim. The fact or the possibility of the victims not telling the authorities because of fear of traffickers, which stems from the error of connecting protection to cooperation in criminal proceedings, went unnoticed by the Court.
There’s more of that in G.J. v. Spain. Spain also subordinates the granting of the recovering period as victim of trafficking to cooperation with police. Only the National Police, which is also entrusted with the task of combating irregular migration and investigating criminal offences, has the legal authority to identify and certify that a person is a victim of trafficking. However, police officers focus on those aspects of irregular migration that overlap with trafficking: the irregular crossing of a border, the irregular stay of people in the country, the irregularity of their economic activity… Thus, police officers systematically produce deportation orders to irregular migrants before even considering the possibility of them being victims of trafficking. This has been strongly criticised by the Spanish Ombudsman (2012) and The Group of Experts on Action on Human Trafficking- GRETA (2013), which strongly recommends the Spanish authorities to strengthen their efforts to detect cases of human trafficking when tackling irregular migration, and to address the reasons why so few victims of trafficking apply for and are granted a recovery and reflection period.
Therefore, what the Court treated as a particular problem of a claimant in Greece and France, and could have evaluate in G.J. v. Spain, seems to be a general problem in countries that have adopted a legislation to fight trafficking that is ineffective in the identification of victims and their protection. Either because it focuses on fighting against irregular migration and border control, or because it subordinates the recovery period to collaboration with criminal procedures, the legislation seems to address poorly the violation of human rights involved in human trafficking, let alone the gender dimensions of it.
I agree with Stoyanova (cit.) that it would be better, when assessing whether a state has fulfilled its obligations under article 4, if the Court included the effectiveness of the identification procedure for victims in the assessment of the appropriateness of the legislation, rather than considering it part of the obligation to adopt protective measures. Also, the Court could assess the gender dimensions of human trafficking and decide whether the failure of states to protect the victims is a form of gender discrimination in line with Opuz v. Turkey (2009).
The Court mainly discussed whether WLW had standing to lodge the application, leaving aside the connections between the lack of written authorization and the failures in the victim identification procedure. Departing from the Case of the CLR on behalf of V. Câmpeanu v. Romania (2014), WLW pointed out that the Court has adapted its rules for victims who found it excessively difficult to comply with certain admissibility criteria, owing to factors outside their control but linked to the violations complained of, as in the present case. On the other hand, applications lodged on behalf of the victim(s) with no valid form of authority have been declared admissible, when the victims were particularly vulnerable on account of their age, sex or disability.
WLW argued that the Spanish legislation regarding the identification of victims of trafficking not only had put G.J. in a similar position of extreme vulnerability, but was also the reason for the lack of written powers. Contrary to that view, the Court held a strict approach to the already strict criteria adopted in Câmpeanu and considered that G.J. was not in a comparable situation to Mr Câmpeanu’s. Although obviously the circumstances of the two persons and cases differ greatly, it would have been interesting to know what circumstances the Court would consider to be of “extreme vulnerability” for victims of trafficking that slip through the system.
G.J. thus leaves a bitter taste. The Court could have said, as in Câmpeanu (para 112), that considering the serious nature of the allegations (and the scarce case-law regarding article 4), not recognising locus standi to WLW “would amount to preventing their being examined at an international level, which would not be consistent with the spirit of the Convention, nor with the obligation under Article 34 not to hinder in any way the effective exercise of the right to bring an application before the Court”.
Ruth M. Mestre i Mestre
Human Rights Institute, University of Valencia.
GRETA –Spain report:
Spanish Ombudsman report: