V.C.L and A.N v United Kingdom: ECtHR finds the criminal prosecution of victims of trafficking did not comply with positive obligations under Article 4 ECHR and violated Article 6

Friday, February 19, 2021

On 16 February 2021, the European Court of Human Rights ruled in the case of V.C.L. and A.N. v. The United Kingdom (applications nos. 77587/12 and 74603/12).
The case concerns the arrest of two Vietnamese nationals charged and convicted with drug production; they were later confirmed to be minors. Despite concerns raised by social services and assessments made by the competent authorities regarding their potential status as victims of trafficking they were prosecuted and convicted for the offences. Further appeals were also dismissed on the basis of prosecutorial discretion with the Court of Appeal finding that the Crown Prosecution Service (CPS) was not bound by the findings of anti-trafficking authorities.
The European Court of Human Rights reiterated the procedural guarantees under Article 4, clarifying that the positive obligations of victim protection and investigation do not depend on a motion filed by a victim. Such obligations are triggered as soon as there are reasonable grounds to believe that there is credible suspicion of trafficking. Consequently, although prosecution of victims of trafficking is not prohibited per se, a decision on whether to prosecute should only be taken following an assessment made by qualified personnel; even more so in cases concerning children. Any prosecutorial decision will then have to take account this assessment and, although not bound by it, a prosecutor would have to clearly state any reasons to continue with the prosecution. In the present case, the CPS failed to consider available information around the subtle and particular psychological aspects of a trafficked child’s experience despite existing guidance and domestic jurisprudence.
The Court further examined the Article 6 aspects of the case and found that the lack of proper investigation and assessment of the potential situation of trafficking deprived the applicants of important information regarding their status that could affect their prosecution, a deprivation that directly affected their right to defence.
Lastly, it was noted that during their appeals, the subsequent findings that they had been trafficked were also disregarded by the authorities; such a narrow approach in accepting subsequent arguments in the context of judicial review punishes victims of trafficking for not identifying and presenting themselves as such from the beginning. The Court found a violation of Article 4 and Article 6 (1).

With thanks to Stavros Papageorgopoulos, Legal Officer at ECRE, for drafting this summary. An extended EDAL summary can be found here.

Photo: Latvian Foreign Ministry, October 2014, Flickr (CC)

This item was reproduced with the permission of ECRE from the ELENA Weekly Legal Update. The purpose of these updates is to inform asylum lawyers and legal organizations supporting asylum seekers and refugees of recent developments in the field of asylum law. Please note that the information provided is taken from publicly available information on the internet. Every reasonable effort is made to make the content accurate and up to date at the time each item is published but no responsibility for its accuracy and correctness, or for any consequences of relying on it, is assumed by ECRE.                               

Effective access to procedures
Obligation to give reasons
Trafficking in human beings