Vladislava Stoyanova
D. ISSUES OF INTERPRETATION 1. The identification procedure
(a) ‘competent authorities’
As the Convention’s Explanatory Report clarifies: ‘competent authorities’ means ‘public authorities which may have contact with trafficking victims, such as the police, the labour inspectorate, customs, the immigration authorities and embassies or consulates’. Since all of these authorities might encounter victims, there needs to be a proper coordination among them, which is also demanded by Article 10(1) of the Convention. Successful identification might also require that national authorities take a proactive approach, conduct outreach work to identify victims and co-operate with NGOs that might detect victims.49 However, the determination as to which national authority is to be specifically designated to identify individuals as presumed victims and as victims so that they can benefit from non-removal and other assistance measures, falls within the discretion of the State Parties.
Different approaches can be observed by different State Parties. For example, in some countries, it is the prosecutor that is authorised to grant the status.50This is not necessarily in violation of the Convention; however, it might lead to problematic outcomes as was made evident in L.E. v. Greece,51 a judgment delivered by the ECtHR. The applicant, a Nigerian woman forced into prostitution in Greece, argued inter alia that the rejection by the prosecutor of her complaint that she was a victim had serious consequence since she was not formally recognised as a victim and was accordingly not granted a special residence permit in Greece that could have prevented her removal.
The case reveals that in light of the fact that it was the prosecutor who was mandated to formally identify, identification was conducted exclusively in relation to the criminal pro-ceedings against the alleged perpetrators. It occurred on the same day that the prosecutor at the Athens Criminal Court instituted criminal proceedings against the alleged offenders for the crime of human trafficking and that the applicant was eventually formally recognised as a victim of human trafficking and her deportation was suspended. Greece was found in violation of its positive obligations under Article 4 of the European Convention on Human Rights (ECHR), since there was a nine-month lapse between the point in time when the applicant filed a criminal complaint against the alleged traffickers and her formal recognition as a victim of human trafficking by the prosecutor.52
(b) ‘so that victims can be identified in a procedure’
As noted in the drafting history, the specific organisation of the procedure and the incorpor-ation of procedural guarantees (if any) is left to the discretion of the State Parties. As a
49 GRETA, Report on Germany, I GRETA(2015)10, para 137; GRETA, Report on Denmark, I GRETA(2011)21, para 130.
50 See GRETA,Report on BelgiumI GRETA(2013)14, 35; GRETA,Report on Bulgaria, I GRETA(2011)19, 35.
51 L.E. v. GreeceApp no 71545/12 (ECtHR, 21 January 2016).
52 Ibid., paras 77–78. For a detailed analysis see Vladislava Stoyanova, ‘L.E. v Greece: Human Trafficking and the Scope of States’ Positive Obligations under the ECHR’ (2016) 3European Human Rights Law Review290.
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consequence, different approaches can be observed at national level in terms of how the procedure is triggered. For instance, whether the procedure is regulated by a specific national legislation, the timeframe within which a conclusive determination is made, the applicable standard of proof,53 the distribution of the burden of proof, possibilities for appealing a negative decision and the body mandated to identify.
In light of the case law of the ECtHR under Article 4 ECHR,54a powerful argument could be developed that the victim identification procedure needs to incorporate certain procedural safeguards.55The starting point for this argument isRantsev v. Cyprus and Russia,56where the ECtHR held that:
In assessing whether there has been a violation of Article 4, the relevant legal and regulatory framework in place must be taken into account [references omitted]. The Court considers that the spectrum of safeguards set out in national legislation must be adequate to ensure the practical and effective protection of the rights of victims or potential victims of trafficking.57
The victim identification procedure is certainly part of the ‘regulatory framework’ and if it fails to ensure ‘practical and effective protection’, including because of its close intertwinement with the exigencies of any criminal proceedings, it might fail to meet the standards of states’ positive obligations under Article 4 ECHR.
J. and Others v. Austria further supports this stance since the ECtHR, in very strong terms, observed that Article 4 of the ECHR generates a positive obligation upon states to identify and support (potential) victims of trafficking and for this purpose, states have to build a legal and administrative framework.58The Court made it clear that the identification and the assistance of victims is independent from any criminal proceedings. While the latter are intended to identify and potentially prosecute alleged traffickers, the former have a very different purpose (i.e., identification and assistance of victims). More specifically the Court stated the following:
The applicants argued that the Austrian authorities had accepted that they were victims of the crime of human trafficking by treating them as such (see paras 88–91 above). However, the Court does not consider that the elements of the offence of human trafficking had been fulfilled merely because the Austrian authorities treated the applicants as (potential) victims of human trafficking (see paras 110–111 above). Such special treatment did not presuppose official confirmation that the offence had been established, and was independent of the authorities’ duty to investigate.Indeed,(potential) victims need support even before the offence of human trafficking is formally established, otherwise this would run counter to the whole purpose of victim protection in trafficking cases.The question of whether the elements
53 No standard for the conclusive determination is indicated in the text of the Convention.
54 Inspiration can also be drawn from procedural standards and guaranteed developed by the ECtHR under other provisions of the ECHR. See Eva Brems, ‘Procedural Protection: an Examination of Procedural Safeguards Read into Substantive Convention Rights’ in Eva Brems and Janneke Gerards (eds),Shaping Rights in the ECHR(Cambridge University Press 2013) 137.
55 Stoyanova,Human Trafficking and Slavery Reconsidered. Conceptual Limits and States Positive Obligations in European Law, 56 For a detailed analysis of the case see Vladislava Stoyanova, ‘Dancing on the Borders of Article 4: Human Trafficking and394.
the European Court of Human Rights in the Rantsev Case’ (2012) 30Netherlands Quarterly of Human Rights163.
57 Rantsev v. Cyprus and RussiaApp no 25965/04 (ECtHR, 7 January 2010), para 284.
58 J. and Others v. AustriaApp no 58216/12 (ECtHR, 17 January 2017), paras 109–111.
D. ISSUES OF INTERPRETATION
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of the crime had been fulfilled would have to have been answered in subsequent criminal proceedings [emphasis added].59
An important issue that needs to be highlighted concerns the coordination between the procedure for identifying victims and the procedure for determining any international protec-tion needs such as refugee status or forms of subsidiary protecprotec-tion. Victims might be detected in the context of the latter procedure, which implies that there needs to be mechanisms for their referral to the victims of trafficking identification procedure.60 Circumstances where applicants for international protection are denied access to or cannot benefit from the aid provided in the context of trafficking identification procedure, need to be avoided.61
2. The preliminary stage of the victim identification procedure
(a) ‘reasonable grounds to believe’
Article 10(2) of the Convention refers to ‘reasonable grounds to believe’ as the standard of proof for the preliminary stage of the victim identification procedure. No standard for the conclusive determination is indicated in the text of the Convention.62The clarifications offered by the Explanatory Report are confusing and not helpful: ‘[t]he Convention does not require absolute certainty – by definition impossible before the identification process has been completed – for not removing the person concerned from the Party’s territory’.63 Notably,
‘absolute certainty’ is impossible even after the completion of the identification process.
Neither is it possible in the context of criminal proceedings against alleged criminals, where the required standard of proof is beyond a reasonable doubt.
(b) ‘shall not be removed from its territory’
Article 10(2) requires that at the moment when the competent authorities have ‘reasonable grounds to believe’ that a person is a victim, removal proceedings need to be suspended. The Explanatory Report clarifies that the objective of Article 10(2) is to ‘avoid the immediate removal from the country’.64Since the application of Article 13 of the Convention is triggered at the same time (i.e., ‘upon reasonable grounds to believe that the person concerned is a victim’), the non-removal has to be accompanied with the granting of recovery and reflection period and authorisation of the person to stay on the state territory.
59 J. and Others v. Austria, para 115. See also Vladislava Stoyanova,J. and Others v. Austria and the Strengthening of States’
Obligation to Identify Victims of Human Trafficking(Strasbourg Observers Blog 2017).
60 There has been a divergent state practice as to how these referrals happen. See European Migration Network (EMN),Synthesis Report – Identification of Victims of Trafficking in Human Beings in International Protection and Forced Return Procedures, March 2014; GRETA has also drawn attention to the need of coordinating the two procedures. See GRETA,Report on Italy under Rule 7 of the Rules of Procedure, GRETA(2016)29, paras 24–46.
61 Vladislava Stoyanova, ‘Victims of Human Trafficking in the Asylum Procedure. A Legal Analysis of the Guarantees for
“Vulnerable Persons” under the Second Generation of EU Asylum’, 58.
62 For an argument that the standard should be the same even at the conclusive stage, see Stoyanova,Human Trafficking and Slavery Reconsidered. Conceptual Limits and States’ Positive Obligations in European Law, 99.
63 Council of Europe,Explanatory Report – CoE Convention against Trafficking, CETS No. 197, para 132.
64 Ibid., para 131.
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3. Presumption of being a child
Article 10(3) requires that if ‘there are reasonable grounds to believe’ the victim is a child, the victim must then be presumed to be a child. This presumption shall operate while the age of the person is being verified.65During this time period, when the age of the child is uncertain, but the person is presumed to be a child, he or she ‘shall be accorded special protection measures’. The text of Article 10(3) does not give a clue as to the nature of these measures; the Explanatory Report refers to the United Nations Convention on the Rights of the Child. The nature of these measures will also depend on national legislation and standards.
The personal scope of Article 10(3) is limited to victims and does not extend to individuals who might be children, but who are not conclusively identified to be victims of human trafficking. This leads to an unfortunate absence of harmony between Article 10(3) and the preceding paragraphs of Article 10. Perhaps, any negative consequences are mitigated by the modified definition of a child victim of human trafficking.66 According to this definition, the ‘means’ element of the definition are excluded and trafficking of children is constituted when a child is recruited, transported, transferred, harboured or receipt for the purpose of exploitation. This exclusion makes the determination that human trafficking has been constituted easier.
4. Unaccompanied children
Article 10(4) of the Convention provides for measures of particular significance for unaccom-panied minors (representation, establishment of identify and location of the family). Similar to Article 10(3), the personal scope of Article 10(4) is limited to children who are identified as victims, which excludes children who might still be in a procedure for being identified before a conclusive decision as to their status as victims is taken.
E. CONCLUSION
Despite the above-mentioned weakness of Article 10 of the Convention, this provision is of major importance since it demands the incorporation of a specific identification procedure for victims of human trafficking at national level that incorporates two stages (a preliminary state where there are ‘reasonable grounds to believe that a person has been victim of trafficking in human beings’ and a conclusive stage). Equally importantly, it also requires a presumption that a victim is a child and thus eligible for specific protection measures even prior to a conclusive age assessment. Unaccompanied minors are also ensured specific protection and assistance measures.
65 For the difficulties related to age assessment, see Gregor Noll, ‘Junk Science? Four Arguments against Radiological Age Assessment of Unaccompanied Minors Seeking Asylum’ (2016) 28 (2)International Journal of Refugee Law234. GRETA has also made recommendations as to the age assessment procedure conducted at the national level. See GRETA,Report on Spain, II, GRETA(2018)7, para 186.
66 See CoE Convention against Trafficking, Art 4(c).
E. CONCLUSION
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Once the State Parties build victim identification procedures at national level, these can come under scrutiny in light of the ECHR standards as developed by the ECtHR. Accordingly, there is a potential for future progressive developments for clarifying and raising the victim identification and assistance standards through the fruitful interaction between the CoE Trafficking Convention and the ECHR.
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