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Parosha Chandran of One Pump Court Chambers wins landmark judgment on human trafficking and the non-punishment principle before the European Court of Human Rights.
17 Feb 2021
17.02.21 Yesterday the European Court of Human Rights (Fourth Section) delivered its long-awaited judgment in the case of V.C.L. and A.N. v. the United Kingdom (App nos. 77587/12 and 74603/12.) One Pump Court’s Parosha Chandran was Counsel for A.N., instructed by the AIRE Centre. This was a ten-year long wait for victory for her and her client, having represented A.N. with Peter Carter QC in the Court of Appeal in 2011, when A.N. lost his appeal against his conviction, leading to his case being lodged before the Strasbourg Court in 2012.
A.N. and V.C.L., the applicants, were two Vietnamese nationals who had been discovered as minors by police in cannabis factories in the UK, after which they pleaded guilty to charges of producing controlled drugs on their lawyers’ advice and were sentenced to detention in youth offenders’ institutions. Upon A.N. obtaining new representation the applicants subsequently sought to appeal their convictions, arguing that their involvement in criminal activities was a direct result of being trafficked and that their cases fell within the protective ambit of the non-punishment provision contained within Article 26 of the Council of Europe Convention on Action against Trafficking in Human Beings (“ECAT”). The Court of Appeal refused to quash the criminal convictions, even though by that point both individuals had been conclusively and formally identified as victims of trafficking by the Competent Authority (UK Border Agency, “UKBA”). The Court of Appeal held that the Crown Prosecution Service (“CPS”) was not bound by the determination of the Competent Authority, and that the decision to prosecute on the basis that the applicants were not victims of trafficking did not amount to an abuse of process. Leave to appeal each case to the Supreme Court was refused, at which point the cases were lodged in Strasbourg.
These events form the background of the ruling of the European Court of Human Rights today, which for the first time was called upon to consider whether the decision to prosecute (potential) victims of trafficking could raise issues under the ECHR.
State’s Duties under Article 4 ECHR
In an expansion of its previous jurisprudence on positive obligations towards trafficked persons under Article 4 ECHR (prohibition of slavery and forced labour), the Court held that the decision to prosecute (potential) victims of trafficking – while not prohibited in itself under the ECAT or other international legal instruments – can nonetheless undermine States’ duties to adopt protective operational measures where they are aware, or ought to be aware, of circumstances giving rise to a credible suspicion that an individual has been trafficked [158-159]. For the decision to prosecute (potential) victims of trafficking to be complaint with Article 4 of the ECHR, the individual suspected of committing a criminal offence must be referred to authorities trained to identify victims of trafficking as soon as this threshold is met, and a decision on prosecution should not be made until the process of identification is complete (which the Court stressed is particularly important cases involving suspected child victims) [160-161]. While prosecutors will not be bound by the determination of the qualified authority, they will need to present clear reasoning in line with the international legal definition of trafficking to reject it . When new or expert evidence comes to light that a person may have been trafficked that too must be taken into account and cannot be dismissed, even if a trafficked person has pleaded guilty to the offence: victims of trafficking cannot be expected to identify themselves.
This process was not followed by the UK authorities in either of the cases presented before the Court. In the case of the second applicant (A.N.), the Court held that, in light of widespread reporting on the trafficking of Vietnamese boys for the purposes of exploitation in cannabis factories, the CPS should have been aware of the existence of circumstances giving rise to a credible suspicion that he had been trafficked at the latest from the point at which he was recognised by the Magistrates’ Court as a minor [175-176]. While the duty to take operational measures arose already at this stage, criminal proceedings were allowed to proceed. A.N. was referred a year later to the NSPCC Advice and Information Line, and a further six months passed before he was assessed by the Competent Authority. Even after the UKBA accepted, on the balance of probabilities, that A.N. was a victim of trafficking, the CPS refused to accept this, but did not provide clear reasons for its position. Due to an initial failure to refer A.N., and a subsequent failure by the authorities to justify rejection of the decision of the Competent Authority on A.N.’s trafficking status, the Strasbourg Court unanimously held that the State failed at both stages to discharge its duty under Article 4 ECHR to take protective operational measures [181-182]. A similar finding of violation was made in the case of V.C.L.
Fair Trial guarantees
The failure of the authorities to act in line with their positive obligations under Article 4 ECHR was also held to have an important bearing on the applicants’ ability to exercise their right to a fair trial under Article 6(1) ECHR. It was reiterated by the Court that there was sufficient evidence to conclude that the authorities had been under a positive obligation to discharge duties of protection and investigation, and that their failure to do so in a timely manner had ultimately prejudiced the applicants’ defence by preventing them from securing evidence which may have constituted a fundamental aspect of it . More generally, the failure of the CPS to adequately justify a rejection of the Competent Authority’s finding on trafficking and the Court of Appeal’s endorsement of this approach was held by the Court to amount to penalisation of victims of trafficking for failing to self-identify [207-208]. Accordingly, the proceedings could not be deemed fair, and there was a unanimous finding of a violation of Article 6(1) of the Convention.
Throughout, the Court held that strict protective duties are owed by States towards suspected victims of trafficking, especially focussing on child victims.
The Court awarded compensation to A.N. of Euros 25,000 and legal costs of Euros 20,000. Similar awards were made in V.C.L.
A.N., speaking today to his immigration solicitor at Duncan Lewis Solicitors said:
“ ‘I am very grateful to my barrister, Parosha Chandran, for having fought this case for me for so long. I was a child when I came to the UK and it was very difficult to explain to anyone what had happened to me. Instead I was sent to prison. Even though the Home Office accepted I was a victim of trafficking and my sentence was reduced to four months in 2012, they still pursued deportation proceedings against me three times. I did not receive a decision on my asylum claim until 2020 when my claim was refused. Even though I now have limited leave to remain, the Home Office still refuses to accept I am a victim of trafficking. This judgment from the European Court will make a huge difference to my life.’
Parosha Chandran, barrister and Professor of Modern Slavery law at King’s College London said of the ruling: “This landmark judgment is a game changer not only for A.N. and V.C.L and other victims of trafficking who commit unlawful acts as a direct consequence of their trafficking but for all victims of trafficking as the Court has further clarified the highly protective ambit of Article 4 ECHR in trafficking cases. Where a Prosecutor wrongly prosecutes, the Strasbourg Court has held that the protective duty under Article 4 ECHR will fall on the domestic courts to protect victims from a wrongful prosecution and that formal identification decisions of national referral mechanisms have a critical role to play in securing justice for trafficking victims.” She added, “It was humbling to see that painstaking research work I did in AN’s Court of Appeal pleadings back in 2011, to carefully highlight what the UK authorities already knew about the criminalisation of trafficked Vietnamese children in cannabis cultivation and my submissions on the international legal landscape that ought to have protected them, were fully adopted by the Strasbourg Court in its ruling, ten years after the Court of Appeal had dismissed it.”
This is also the first time that a victim of trafficking who was wrongly convicted has been awarded compensation by the European Court of Human Rights. “It is crucial that all those who represent victims of trafficking and modern slavery in their Court proceedings seek compensation whenever harm has been done and quantify this. In this case we submitted careful pleadings and the Court awarded the highest damages ever given in a trafficking case under Articles 4 and 6 ECHR. Whilst it was less than we had hoped for, again an important precedent has been set.”
“I wish to thank everyone who has been involved in this case and all the third party interveners including GRETA, which is the formal monitoring body of the Council of Europe’s Trafficking Convention and the NGOs Anti-Slavery International and Liberty” Professor Chandran concluded.
Matthew Evans, Director of the AIRE Centre, said:
“We are delighted for our mutual client AN, who has shown huge strength and perseverance in taking this case. We welcome the fact that criminal Prosecutors will now need to take into account trafficking decisions and show clear reasons if they disagree with those decisions, or why the crime is unconnected to the exploitation of the trafficked person”
Immigration, Civil Liberties and Human Rights Director, Zofia Duszynska, who has been representing A.N. in his immigration matters, said;
“I am delighted by this outcome. I have been acting for AN in his immigration case for 10 years now and it has been a long journey to reach this point.”
International Responses to the Judgment:
Professor Siobhan Mullaly, UN Special Rapporteur on Trafficking in Persons, said:
“This is a hugely significant judgment, highlighting serious gaps in the protection of child victims. The courage of the applicants is remarkable, given the trauma that they have endured. It is critical now that this judgment is effectively and urgently implemented, and that the State takes seriously its positive obligations to protect all child victims of trafficking, without discrimination. Children who are victims of trafficking must be protected, not punished.“
Corinne Dettmeijer-Vermeulen, Former Dutch National Rapporteur on Human Trafficking and Sexual Violence against Children, current member of the UN CEDAW committee, said:
“Today the European Court of Human Rights has ruled unanimously on the issue of non-prosecution and non-punishment of victims of trafficking confirming the violation on Articles 4 and 6 of the Convention. This represents a gigantic step forward in protecting victims of trafficking and will prove to be a landmark decision in the fight against trafficking in human beings.”
Maria Grazia Giammarinaro, Judge and former UN Special Rapporteur on Trafficking in Persons, said:
“This judgement is an important step forward toward the recognition of people involved in illegal activities against their will as victims, and not as criminals.”
La Strada International, the international network of NGOs working with trafficked persons, said:
“Today’s ECtHR judgment is very important for trafficked persons and for organisations working with them and for them in terms of advancing their rights. Despite international and European legally binding standards on non-punishment, trafficked persons in Europe are often still wrongly detained, prosecuted and punished for offences, they have been compelled to commit in the course, or as a result, of having been trafficked. This is a serious human rights violation and a denial of justice and reinforces distrust towards the criminal justice system by victims and others.”
U.S. Ambassador (ret.) Luis C.deBaca, who coordinated global anti-slavery efforts for President Barack Obama, said:
“Parosha Chandran’s innovative and relentless human rights lawyering has resulted today in a major global advance in the law — Article 4’s guarantee of freedom is now clearly not simply a prohibition of slavery, but creates affirmative duties for States to confront and remediate slavery, including for victims who commit offences as a direct consequence of their trafficking.”
ECtHR Legal Summary
ECtHR Press release
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