Irish Centre for Human Rights Blog

Gema Fernández is a Managing Attorney at Women’s Link Worldwide. She engages in litigation before national and regional courts (ECtHR, Inter-American system) and UN Treaty Bodies in cases concerning gender-based violence against women, discrimination, human trafficking or sexual and reproductive rights.

Estefanny Molina is a Senior Attorney at Women’s Link Worldwide. She specializes in gender and human rights. She is currently pursuing her PhD on the protection of victims of trafficking for sexual exploitation from a gender perspective.

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On late March 2021 the CEDAW Committee issued its views on an individual communication filed by a trafficking survivor with the support of Women’s Link Worldwide. This is the first trafficking case that the Committee decides on the merits, as all previous trafficking cases filed with the Committee were found inadmissible. In the aftermath of the adoption of its General Recommendation 38 on trafficking in women and girls in the context of global migration, its first decision on a trafficking case was much awaited. This post explains the facts of the communication and provides an analysis of the decision focusing on the Committee’s failure to address the authorities’ lack of investigation of the trafficking allegations; its lack of engagement with the role that gender and racial stereotyping played in the author not being identified (i.e. believed) as a trafficking victim; and the way the Committee places the burden of proof on the victim and expects her to provide documents that prove the existence of stereotypes in her case, departing from its own previous standards.

Facts of the Communication

The author, ABM, had been recruited in her home country, Uruguay, and trafficked to Milan (Italy) where she was sexually exploited. After some months she managed to escape and travelled to Spain. After living in Spain for some time, the police identified her as being undocumented and she was detained in an immigration detention centre in Madrid. She resisted a first attempt at deportation, refusing to board the plane. She feared going back to her country, where her traffickers could easily find her and harm her. She explained to the authorities that she had been a victim of trafficking and asked for protection. She also offered to collaborate with the police to assist in an investigation of the traffickers. She was denied victim status and no investigation was initiated. After some days, she was subjected to a second deportation attempt. No risk assessment had been carried out to comply with the principle of non-refoulement. When the police tried to transfer her to the airport, ABM self-injured to stop her deportation. She struggled with a police officer and finally managed to avoid being taken to the airport. She was kept at the detention centre for some more weeks and got finally released after having spent 58 days in detention. Months later, she was sentenced to 6 months in prison for resisting a police officer. Because she now had a criminal record, she became ineligible for a residence permit, thereby heightening her vulnerability.

ABM then decided to take legal action to challenge the authorities’ failure to identify her as a trafficking victim and to investigate her allegations of trafficking. None of her efforts were successful. She then filed an individual communication with the CEDAW Committee arguing that Spain had violated her rights protected by the Convention on the basis that the authorities did not take appropriate measures to avoid and investigate instances of sex discrimination against her (article 2), gender stereotyping (article 5) and sex trafficking (article 6).

Analysis

In finding no violations of the Convention, the Committee shows a lack of understanding of at least three important issues that were present in ABM’s case. First, the intersecting dynamics between undocumented trafficking victims and State authorities which often lead to victims being disbelieved, not identified as victims, and treated as undocumented migrants. Second, how lack of identification prevents victims from accessing justice and protection. And third, that the violence of trafficking networks is compounded by violations of rights by states when they fail to identify victims, to offer them protection or access to asylum procedures, or to provide them with information about their rights.

1. Undocumented trafficking victims, crime prosecution and gender stereotypes

Spain has been widely criticized for having addressed its response to trafficking in persons mainly from a crime prosecution and a migration control perspective. The Group of Experts on Action against Trafficking in Human Beings (GRETA), responsible for monitoring the implementation of the Council of Europe Convention on Action against Trafficking in Human Beings (the Warsaw Convention) by the Parties has repeatedly urged the authorities to review the victim identification procedure with a view to ensuring that possible victims are treated as people who have been exposed to human rights violations rather than as a source of evidence for criminal investigations, and has recommended the State to strengthen multi-agency involvement in the decision-making process leading to the identification of victims of trafficking. To date, formal identification remains exclusively within the remit of law enforcement agencies and a connection continues to be made between the identification of victims and the criminal investigation. In practice, identification as a victim and assistance continue to be made conditional on the cooperation of the victim with the police inquiry.

When victims are undocumented, the threshold of proof required by the police to consider them as trafficking victims is even higher due to the intervention of harmful gender and racial stereotypes about migrants being system abusers, women being liars and preconceived notions of how women who are victims should behave. The CEDAW Committee has analysed the many obstacles that women face in accessing justice, including the role of stereotyping and gender bias in the justice systems in its General Recommendation 33 on Women’s Access to Justice.

Startlingly, in ABM the Committee seems to suggest that the burden of proof when it comes to stereotyping lies with the author of the complaint when it affirms that ‘While the author claims that those judgments are based on gender stereotypes, she cannot point to any specific aspects of those judgments that might indicate the use of such stereotypes’ (§11.7). ABM argued in her communication to CEDAW that the police officers who interviewed her at the detention centre simply did not believe that she was a trafficking victim because she was an undocumented migrant and because she had never reported having been trafficked in the years before. Because they didn’t believe her, and despite having offered her collaboration and provided them with the names of the traffickers and some other details, no investigation was ever opened. The judicial proceedings that followed, which the Committee relies on to affirm that the State fulfilled its obligation to investigate her trafficking allegations (§11.7) were administrative proceedings initiated by ABM challenging the police decision not to consider her a potential trafficking victim. No criminal investigation was ever started.

Quite shockingly, the Committee seems to side with the government’s argument that her allegations of having been trafficked and exploited were unsubstantiated because her statement ‘contained numerous inaccuracies and vague references’ and that ‘six years had elapsed since the alleged events with no new developments regarding the alleged trafficking’ (§11.7). This affirmation falls short of the standard set out in General Recommendation 38 and fails to apply it to the experience of ABM. In this General Recommendation, the Committee affirms that International human rights law imposes positive obligations on States to identify victims of trafficking, a duty placed firmly on States, irrespective of the lack of self-identification by a victim (§38). The Committee’s reliance on the time that has elapsed since the commission of the acts to support the determination by the State authorities that her allegations were unsubstantiated is also at odds with the European Court of Human Rights’ jurisprudence in Rantsev v Cyprus and Russia, one of the key decisions on human trafficking in the region. In its ruling, the Court affirmed (at §286) that ‘in order for a positive obligation to take operational measures to arise in the circumstances of a particular case, it must be demonstrated that the State authorities were aware, or ought to have been aware, of circumstances giving rise to a credible suspicion that an identified individual had been, or was at real and immediate risk of being, trafficked or exploited’, suggesting that the temporal aspect noted by the Committee should not be relevant.

The question remains as to what the authorities did to fulfil their positive obligations to identify ABM and to investigate her trafficking allegations. For future similar cases, the Committee would benefit from strengthening their understanding of the ways that undocumented migrant women are in a vulnerable position vis-à-vis the immigration authorities when they claim that they are trafficking victims.

2. Identification as the gate to access protection and justice

Lack of identification of trafficking victims is at the core of subsequent rights violations and prevents them from accessing justice and protection. The authorities could and should have offered the author a recovery and reflection period. The Warsaw Convention, the EU Trafficking Directive, and the national legislation establish that such period should be offered when there are reasonable grounds to believe that the person concerned is a victim. It is not required that the person provides any sort of proof at this stage. Both the State authorities and the Committee misunderstood the provision and failed to appreciate that the author telling the police about her having been a trafficking victim triggered the obligation to investigate those allegations.

General Recommendation 38 very rightly provides that identification, access to assistance and referral is to be performed by multidisciplinary teams including professionals from all relevant fields, the composition of which can be adapted to the circumstances of the case and should not be exclusively led by law enforcement or immigration authorities or being linked to the initiation or outcomes of criminal proceedings but based on the personal and social vulnerabilities of victims and potential victims (§78).  None of this happened in the author’s case. She was interviewed by a group of three police officers who, after listening to her in the detention centre, decided that she had taken too long to talk about her exploitation and that the information she was providing was too vague.  Again, there seems to be a disconnect between General Recommendation 38 and the Committee’s assessment of ABM’s case.

3. The obligation to investigate trafficking

General Recommendation 35 on gender-based violence against women establishes the obligation for States to investigate instances of violence against women committed both by State and by non-State actors (§23 and §24.2.b). Trafficking in women is a gendered phenomenon and is a form of violence against women. The Committee’s statement in its decision that ‘because of the gaps and contradictions in the author’s account, she has not been able to present sufficient arguments, either to the courts of the State party or to the Committee, to reverse the burden of proof and place it on the State party’ (§11.8 of the decision) is highly concerning and seems entirely contradictive to the obligations established in previous General Recommendations.

Not only does the Committee depart from its own standards, but its decision also conflicts with standards enumerated in Rantsev v Cyprus and Russia, where it established that ‘Article 4 also entails a procedural obligation to investigate situations of potential trafficking. The requirement to investigate does not depend on a complaint from the victim or next-of-kin: once the matter has come to the attention of the authorities they must act of their own motion’ (§288).  The Court has further emphasized this standard in V.C.L. and A.N. v The UK.

4. The non-punishment principle in connection with migration status overlooked

Another consequence of ABM’s lack of identification as a trafficking victim is that the non-punishment clause did not display any effects. This principle enshrines a special protection for trafficking victims against arrest, charge, detention, prosecution, penalty or any form of punishment for their involvement in unlawful activities that are connected to their situation as victims of trafficking. It is contained in the Warsaw Convention, in the EU Trafficking Directive, and in the OCHCR Recommended Principles and Guidelines on Human Rights and Human Trafficking (Principle 7) and is mentioned in General Recommendation 38 (§98). It has been extensively covered by the current and the previous UN Special Rapporteur on Trafficking mandate holders.

For the non-punishment principle to be an effective protection measure for trafficking victims, it should apply to both criminal offences that victims might commit in connection with their situation and to administrative or civil offences as is the case with immigration law violations in many countries (including Spain).