Executive summaryAre survivors of sexual human trafficking adequately protected in Spain as to be motivated to take the risks linked to escaping from traffickers and thereafter pressing charges and/or acting as witnesses against them?. This study will try to answer to this and other questions and will do so by undertaking a critical and in-depth analysis of the compliance by the Spanish norms and implementing measures with the international due diligence standard. For this purpose, a focus on the protection and promotion of victim’s rights under a human rights and gender-based approach to international law will be followed – by willing to challenge the typical crime and immigration-control model undertaken by Spain and other European countries in this respect.
Specifically, this study will analyse how the Spanish authorities did deal with Gladys John, an alleged – and actual – victim of human trafficking that was not identified as such and that was refouled to Nigeria in 2011 when she was pregnant. This case raises fundamental questions in terms of G.J.’s protection, the prohibition to refoulement to a risky country and access to justice and to procedural guarantees – such as the right to appeal and to a legal representation – that are essential to provide these victims with basic protection from arbitrary deportations. Particularly, G.J.
was deprived from her right to file an asylum claim as she was expeditiously deported in the previous day that the Spanish authorities notified her the decision regarding the rejection of the recovery and reflection period – despite UNHCR views that there were grounds to suspect her trafficking victim status – and without informing her legal representatives about her return back to Nigeria. In this regard, there is indicia showing that she was re-trafficked in Nigeria. In part one, this study examines to which extent Spanish policy, law and implementing measures complied with the international due diligence standard when dealing with G.J., as far as the key aspects of human trafficking are concerned –identification, protection, assistance and access to effective remedies. We anticipate that the response of the Spanish Authorities was far from the required under international law. But, why? In part two, the study aims to respond to this question by analysing the extent to which the required human rights and gender-based approach has effectively been incorporated into the law and practise in Spain as far as human trafficking is concerned.
Gender stereotyping and the crime and immigration-control model are presented as obstacles for the identification and protection of trafficking victims. The author emphasizes the need to grant with residence and work permits to victims of human trafficking in order to empower these persons and to protect them, at the same time that criminal networks will be discouraged to commit these crimes taken into account that victims will not fully depend on them. In this respect, the author suggests the enacting of a holistic law utilizing the due diligence principle to outline the specific State obligations to identify, protect and grant survivors access to effective and adequate remedies. Additionally, some suggestions will be made to enhance the international protection system by taking into account Nigerian survivors’ specificities. This study concludes, that the mentioned approach significantly broadens the scope of Spain’s obligations when dealing with survivors of sexual human trafficking in terms both of substantive human rights standards and requirements with regard to the processes. The study demonstrates that Spain inadequately provides an effective protection to victims from a human rights and gendered-based approach. Indeed, the study shows that the protection of Gladys John was not guaranteed.
In essence, this approach introduces a new paradigm for addressing human trafficking which promotes greater coherence and is more effective than the criminal approach in the Spanish response to this phenomenon.Introduction:Recognized as the third largest criminal industry in the world human trafficking is the second most profitable illegal businesses worldwide – behind drug trafficking – and it generates around EUR 31,700 million euros per year. Specifically, it consists of three essential elements that are defined under Article 3 (a) of the Trafficking Protocol -which represents a current international consensus on the meaning of trafficking. First, i) the act: which comprises the recruitment, transportation, transfer, harbouring or receipt of persons; ii) second the means: which can be threat or use of force or other forms of coercion, abduction, fraud, deception, abuse of power, abuse of a position of vulnerability, or of giving or receiving of payments or benefits to achieve the consent of a person having control over the victim; and finally, iii) the purpose: that could be linked to exploitation of the victim, including, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs.
It shall also be noted that Article 3 (b) foresees that ‘the consent of a victim of trafficking…shall be irrelevant where any of the means set forth in subparagraph (a) have been used’. Human trafficking with a view of sexual exploitation (hereinafter, SHT) has a huge impact on communities and survivors, specifically in terms of intersectional discrimination (e.g. on grounds on gender, racial, ethnic, political and sexual orientation discriminations) and human rights violations. Among those ones, the right to freedom of movement, to liberty, to health and specifically the right to reproductive health, to family life, to live free of violence, to physical integrity, the right to be free from slavery, servitude, forced labour, or bonded labour the right to non refoulement and to seek asylum, to effective remedies, the right to be free from ill-treatment and torture, as well as sometimes, the right to life. Victims of human trafficking (hereinafter, HTV) suffer from these violations in their country of origin, in transit countries to Europe, and within the European countries once they arrive. Moreover, victims’ families often suffer violence and threats from the criminal networks to exercise pressure on their daughters in order that the HTV comply with the criminal organisations’ instructions.
Additionally, these survivors face risks if they return home, which are especially serious if they have not paid the debt that they owe to the criminal network that exploits them. There is also a risk of re-trafficking in the country of origin and they usually face exclusion, discrimination and ostracism from their communities and families – given that there is a common assumption that if a woman has travelled to Europe she is/used to be a prostitute. Sometimes, they cannot even move to live in other areas of the country –different to the ones in which they used to live previous to the trafficking situation – given that the language and cultural differences in the different regions precludes the integration in the new communities (e.g it particularly occurs in Nigeria).
It is a phenomenon raising concern within the International Community – as reflected in the intergovernmental negotiations for the Global Compact for Safe, Regular and Orderly Migration already. For decades the efforts, particularly in Europe, to stop this form of slavery have been concentrated on apprehending perpetrators and criminalising irregular trafficked women and girls rather than preventing these crimes and violations of human rights and repairing the social, economic and psychological needs of survivors. But this criminal and immigration-control focus has proved to be ineffective as this form of slavery remains and even increases.
As a response to it, part of the international community has in the last few years started to change the approach towards a human rights one that first and foremost, considers this problem as a serious human rights violation and that focuses on the identification and protection of victims as the first priority. At this moment, Spain continues to be primarily a country of destination for SHT, and to some extent a country of transit to other destinations in Europe and also a country of origin. The trafficking is exercised in men, women and children who are subject to forced labour and sexual trafficking. According to the U.S. State Department’s Trafficking in Persons Report from 2015, women and girls coming from Nigeria – and other countries – are subjected to sexual trafficking in Spain. Nigerian trafficked persons arriving to Spain during 2013-2016 were the second top nationality of arrivals to the country – just after Romania – and followed by China. Particularly, the Spanish authorities announced that there were 104 Nigerian victims during this period of time.
However, this figure does not seem to be accurate as the GRETA’s second evaluation round in Spain reveals. Indeed, only in 2014 between 40,000 and 50,000 women were sexually exploited in Spain according to some NGOs. The available data also reveals that the vast majority of the identified victims of trafficking in Spain (84%) are of female gender and that they were trafficked with a view of sexual exploitation. These women and girls are forced into prostitution under the control of Nigerian, Romanian, and Spanish criminal networks and victims are increasingly being subjected to trafficking by smaller groups of traffickers and individuals – as happened to Gladys John. Additionally, it is important to remind that unaccompanied and separate children on the move are especially vulnerable to these practises in Spain. In this regard, one may wonder whether is Spain actually complying with its international obligations in terms of protection and promotion of human rights of the victims trafficked in/from Spain and thus, within its national jurisdiction.
Spain has ratified the majority of international human right treaties related to human trafficking that specifically foresee obligations to protect HTV by States. And these international conventions, together with the resolutions from human rights UN Committees are mandatory for Spain, especially after the Spanish Supreme Court specifically stating this on July, 17 2018. Additionally, this country is bound by regional instruments on SHT that create further obligations to Spain. Factual background This work will use the story and case of Gladys John – a survivor of human trafficking – as an illustrative case study.
The factual background is based first and foremost on the facts stated in the ECtHR’s Judgement of G.J vs Spain, the G.J. case summary published by the NGO Women’s Link Worldwide (hereinafter, WLW) as well as the facts described by G.J.
‘s lawyers in the Trafficking in Human Beings from a Gender Perspective Directive 2011/36/EU assessment. The study will be focused on the case of Gladys John (hereinafter G.J), a Nigerian woman who was 22 years old when she arrived in Spain in 2006. G.J. and seek international protection (hereinafter, ‘asylum’) firstly alleging that she was a Catholic that had fled Sudan after her father’s assassination by a radical Muslim group. In July 2007 the Spanish authorities issued an expulsion order and the applicant did not appeal this resolution.
On July 2009 her asylum request was dismissed by the Spanish authorities arguing inconsistencies in her allegations of persecution and Sudanese nationality. In any case, the dismissal decision was appealed; but the Audiencia Nacional dismissed it in October 2010 ruling that the applicant had not provided any documents proving her identity, nationality and allegations. Nevertheless, the NGO Womens Link World Wide (hereinafter, WLW) assures that the appeal was dismissed despite the existing evidence at that time that there was a pattern of behaviour by which traffickers instructed HTV to make false claims based on religious persecution (also confirmed by UN Refugee Agency (hereinafter UNHCR)). In February 2010, G.J. was ‘detained’ in an aliens’ detention centre (‘CIE’) when she was pregnant and with an objective to enforce the expulsion order issued in 2007. While detained she filed a second asylum request (hereinafter, ‘second asylum request’) by claiming that she was Nigerian and had she fled Nigeria after her parents were assassinated, with the help of a man called V that was forcing her into prostitution in order to pay a debt imposed by him and amounting to EUR 20,000. She also alleged that she had become pregnant during the sexual abuses and that V.
suggested her to abort. She added that she wanted to have the baby but that she was afraid to go back to Nigeria since she would be killed given that she had not paid the debt yet. In this regard, she got the support of the UNHCR that reported that G.J. had been – and might still be – A HTV. Nevertheless, in February 2010 this second asylum request was declared inadmissible by the Spanish Authorities that found that the description of facts by the applicant regarding the alleged persecution was not coherent and neither consistent. It was also stablished that G.J.
had presented similar allegations than those raised in her first asylum request. In March 2010 G.J. applied for a re-examination of the second asylum request that was dismissed despite the submission made by the NGO Proyecto Esperanza of a report supporting the applicant’s allegations to. The applicant appealed the dismissal before the administrative courts and also requested a suspension of the expulsion order arguing that she should not be expelled until the identification process as a HTV was finished.
However, the request to have her expulsion suspended was also dismissed arguing that G.J. had failed to demonstrate the existence of a risk to her life or physical integrity if returned to Nigeria; and also by stating that she had applied for refugee status only after being detained in the CIE.
She did not appeal against this decision and having been her international protection request relinquished to the Audiencia Nacional in April 2010 apparently neither the applicant nor the administrative courts have taken any further steps in pursuance of these proceedings. In March 2010, the applicant signed a written authorization to act (hereinafter, ‘the authorization’) to WLW and specifically, instructed a lawyer working for WLW to apply for her granting of a “recovery and reflection period” under section 59 bis of the Aliens Law. The lawyer argued that Article 57.6 of that law required a medical examination to be performed in order to determine whether her deportation posed a risk in her pregnancy or health.
Moreover, the lawyer informed G.J.’s previous lawyer that WLW would be representing G.J. from that moment onwards. Nonetheless, no power of attorney was signed by the applicant to formalise these requests.
Additionally, WLW applied to the Government Delegation in the region of Madrid to revoke the applicant’s expulsion order by claiming that the applicant must be granted with a residence permit given that she complied with the legal requirements for that. However, on 17 March 2010 the applicant was deported to Nigeria without prior notice to her lawyer. Therefore, G.J. had no opportunity to appeal the decisions or obtain recognition as a trafficking victim. Moreover, there is not available information on whether the required assessment of risks to her health and pregnancy if deported was performed.
The following day to the one of the deportation, the Government Delegation notified WLW that the request for a reflection period had been denied. Hence, WLW commenced legal actions before Spanish Courts, arguing that Gladys should be found in Nigeria and offered the chance to return to Spain given that her fundamental rights had been violated. However, the courts refused to recognize WLW as Gladys’s legal representatives and thus, refused to hear the case and/or investigate the alleged violations of rights – by arguing that G.
J. had to file a notarized representation agreement. But as WLW assures public notaries were not allowed in the CIE at the time that G.J.
was detained. The Spanish Courts held that G.J. had to go to a Spanish Consulate in Nigeria in order to submit the agreement. WLW states that this is impossible in in that country. Having exhausted domestic remedies, WLW brought the case before the European Court of Human Rights (hereinafter, ECtHR) in September 2012 by arguing that Spain had violated G.
J.’s rights as a trafficking victim. In June 2016 the Court refused also to hear the petition without deciding on the merits and arguing the lack of a notarized representation agreement.In February 2013 an external expert working for the Spanish Ombudsperson travelled to Nigeria and confirmed that spoke by phone with G.J.
According to the expert, the criminal network was exercising a strong hold over G.J. as a consequence of her having disclosed her situation to the Spanish authorities.
G.J. was informed that her case may be brought before international courts and she agreed on that. In May 2017, WLW brought the case to the United Nations Committee against Torture (hereinafter, CAT) and the resolution of this institution is still pending. Objectives and methodologyThis Master Thesis emerged from the need to generate scientific research in SHT in an area not many times explored: the compliance with the international due diligence standard by the Spanish norms and implementing measures under a human rights and gender-based approach to international and European law.
These items – with a focus in Spain – have been partially studied by Ms. Waisman and WLW in a very accurate, inspiring and interesting way. Hence, references to these articles will be made throughout the thesis. Besides it, it is worth noting that only a 14% of the qualitative studies performed in the field of human trafficking have been carried out following a juridical or criminal justice perspective. The specific objective of this study is to show that the lack of a comprehensive legal framework in Spain, which is based on the due diligence standard – and that obligates the State to meet its international obligations in terms of protection and remedies to victims- is leaving these women and girls vulnerable to further violations. This work will be carried out through the interpretation of international and European norms, as well as international bodies’ recommendations and regional Case-law that will facilitate the interpretation of the due diligence standard’s content with regard to SHT. It shall be mentioned that only the content, and not formal aspects of the case will be analysed and thus, the conformity with the law of the non-notarized representation agreement – already explained – will not be analysed, contrary to what the ECtHR did. In this regard, an analysis on the merits of the case and a call for the CAT to do the same will be made.
The problematic of this thesis, expressed in an interrogative way, is the following: “To which extent did Spanish policies, law and implementing measures followed the due diligence international standard when dealing with Gladys John, a victim of sexual human trafficking?”. Some precisions are needed in this respect. The election of a specific case to analyse, as it has been imposed for practical and methodological reasons, may constitute one of the main limitation of this research. Gladys John’s story is not an isolated case as the Spanish Government normally argues. Several reports from the Spanish Ombudsperson,, studies from recognised NGOs and press releases show numerous examples of sexually trafficked women and girls over and under eighteen years of age, who have been returned to their country of origin without having been identified as HTV in Spain and, sometimes, without access to legal remedies. Also, in the majority of the cases where they had the chance to appeal decisions on expulsion or international protection denials, the Courts have usually decided with regard to formal aspects of the appeals – instead of on the merits of the case. A second limitation to take into consideration is related to the representativeness of participants. The information that may be reported in the study does not represent the entire Spanish community of professionals working and dealing with HTV.
Moreover, it shall be taken into consideration that trafficking in human beings has a clandestine nature and thus, there is not adequate and complete information regarding the criminal networks’ modus operandi and the vulnerability and experiences of victims which make it difficult to properly study the theme. Also, despite the fact that this study is focused on Spain, some legal and practise deficiencies existing in the identification, protection and remedies for HTV are also present in other European MSs and in other regions of the world. Indeed, by ensuring an effective application of the due diligence standard in Spain a decrease in the number of victims is expected, not only in Spain, but also in other European Member States (hereinafter, MSs) (i.e. due to the fact that Spain is an important entry point of HTV to Europe). Finally, some limitations may arise with regards to objectivity taking into account that the author has an educational and working background in Western countries and institutions. It may thus pose some difficulties to understand Gladys John and other survivors’ needs as well as to be able to interpret international law from a human rights and feminist approach.
In any case, the author has undertaken some studies in gender and feminisms as well as third-world approaches to international law. This, together with a huge motivation to challenge the western and patriarchal approaches to law may lead to more objectiveness in her analysis. For this purpose, she will use sources from different institutions and regions in order to arrive to holistic conclusions and proposals. The hypothesis of work is that Spain did not follow the international due diligence standard when dealing with Gladys John. The best accomplishment that this study can achieve is to being able to contribute to an open debate on the subject. Also, it aims to offer a pragmatic guidance and/or inspiration for the Spanish policy makers and authorities dealing with HTV to better protect these women and girls. The Master thesis will be divided in two main parts.
In the first one, the author will show that Spain failed to exercise due diligence when dealing with G.J. The elements that will be used as a framework to analyse the application of the international due diligence standard are some of the operationalizing core elements announced by Maria Grazia, UN former Special Rapporteur, together with a gender-based and a human rights approach to the issue. Taking into account that the immigration-control and criminal approach to SHT already focuses very much on prevention and persecution issues, they are not addressed in the study unless they relate to the protection of survivors in Spain.
Neither the due diligence standard with regard to the inter-State cooperation and institutions will be analysed. The reason behind is that due to the already great extension of the theme that will be analysed, it is required to focus only on some of the elements of due diligence. For the same reasons, nor the due diligence standard related to non-State actors, will be addressed. Therefore, in this first part we first analyse the compliance of Spain with the mentioned standard and specifically, with regard to the identification, assistance and support to G.J.. Questions such as credibility in the victims will be raised.
As a consequence of not identification of HTV, other violations of international law by Spain emerge (e.g. limitations to the right to freedom of movement). It is also analysed whether Spain violated the prohibition of non refoulement when deporting her to Nigeria and/or should have granted her a refugee status.
Also, concerns regarding her access to justice will be raised given the fact that as a consequence of being deported she could not have the access to effective remedies in Spain and neither before regional Courts. As a second part of this study, an explanation to the lack of due diligence exercised by the Spanish authorities will be presented, which is linked to the lack of human rights and gender-based approach to the issue – by the stereotyping of victims during the identification process and the access to international protection together with a crime and immigration-control model that also undermine these processes . Finally, some proposals are made with a main objective to providing legal residency and work permit to G.J. and to (alleged) HTV. The predominant methodological approach that will be followed in the first part of the dissertation work will be the classical legal technique, from a voluntarist point of view. Primary, conventional and jurisprudential sources -in which the due diligence principle has expressly or implicitly been invoked- will be applied.
And, public international and European law will be a tool for analysing Spanish practise and norms in the case at hand. The interpretation of conventional norms will follow the methodology of interpretation provided under articles 31 to 33 of the Vienna Convention on The Law of the Treaties. Throughout the study a feminist approach to international public law will also be followed that will enable to better understand the vulnerabilities and needs of women and girls from third world countries that are trafficked and sexually exploited in Europe.
Spain responsible for failing to exercise due diligence when dealing with G.J.: The due diligence standard with regard to human trafficking:States have a responsibility under international law to act with due diligence to prevent trafficking, to investigate and prosecute traffickers and to assist and protect trafficked persons.
It was a challenge for the author to find a legal framework that guarantees the protection of HTV at the same time that States are held accountable for a breach of international law that they commit in this regard. Due diligence appears to be an interesting legal basis due to the fact that it entails an obligation of conduct into States to endeavour to reach the result set out in an obligation and otherwise, its responsibility may be engaged. In order to analyse whether a subject complied with this standard, the ‘responsible citizen’ or ‘responsible Government’ criteria is utilised. In this regard, it is not necessary to directly attribute to the State the act of violence. Indeed, a State cannot be held directly responsible for the violation of a law by a private entity.
Instead, the human rights violations lays in the failure of the State to take the necessary measures (with regard to prevention, identification, protection of the victim etc.) regarding such violence committed by a non-state actor. Hence, the State would be responsible for that perpetration of an internationally wrongful act which is attributable to it through the conduct of its agents such as the police, immigration and border officials or other public officials. This logic is also applied in the human rights field requiring States to take measures to ensure that private actors do not undermine human rights guarantees; and specifically, it applies in gender-based violations. In this sense, it is important to note that some international instruments stablish that domestic violence and other forms of violence against women are not only a private matter, but may also entail a responsibility for States under international law. Hence, the due diligence standard is often used to determine the positive actions that a State shall undertake in order to address gender-based violence.
Positive or due diligence obligations were first identified by the ECtHR in some cases dealing with the right to a family and private life. In these cases, the Court ruled that States have a duty to grant pragmatic and effective protection to individuals – even within the private sphere of the individuals’ relations. Following this understanding, the Inter American Court of Human Rights (IACtHR) did establish the contemporary application of the standard under international human rights law in the case Velásquez-Rodriguez v. Honduras in 1989. In this case, a student (Velásquez) was violently detained by members of the National Office of Investigations – without a warrant – and accused of political crimes and subject to harsh interrogations and cruel treatment (para 72 of the Judgment). The Court ruled that the state’s failure to prevent Velasquez’s disappearance and to punish the perpetrators was a failure of the State to ensure that all individuals enjoy the full exercise of rights and freedoms under the Article 1 of the American Convention on Human Rights. It also established the duty to ‘organise the governmental apparatus and, in general, all the structures through which public power is exercised so that they are able to ensuring the free and fully enjoyment of human rights’ (para 176) as well as ‘the duty to..
.ensure the victim adequate compensation’ (para 174). Hence, the IACHR identified the due diligence obligations for States to prevent, investigate and punish the human rights violations committed by private individuals at the same time that victims are repaired and restored the undermined rights.The standard is revealed from a number of international human rights instruments which are directly binding to Spain.
In this regard, the the United Nations Trafficking Protocol obligates States to undertake to prevent trafficking, protect victims, and prosecute trafficking in persons by private individuals, including by providing the possibility for victims to access to compensation. However, the recommended Principles and Guidelines on Human Rights and Human Trafficking are the only legal instrument that specifically foresee the applicability of the due diligence standard with regard to prevention, prosecution and protection of HTV. The human rights bodies from the United Nations have also contributed to drawing the concept of due diligence standard.
They have widely referred to this obligation of conduct in both, works specifically dealing with the diligence due in human trafficking as well as when dealing with other aspects closely related to human trafficking (e.g. gender-based violence and discrimination, torture etc.). In this regard, the UN Committee in charge of monitoring the implementation of the CEDAW was pioneering in its time. Specifically, in 1992 it asserted that “…
States may also be responsible for private acts if they fail to act with due diligence to prevent violations of rights or to investigate and punish acts of violence, and for providing compensation”. The CEDAW has confirmed the need that States follow a due diligence standard when private actors violate human rights from women and girls in a relatively recent general recommendation. The Committee did also apply this logic in one of its first decisions under the Optional protocol: the A.T.
v. Hungary case (2005) where examined whether the State had failed to effectively protect a woman from her former husband because of serious risks to her physical integrity, mental health and life. The UNHCR established that the due diligence standard ‘clearly informed the way in which the Committee determined that the State had failed to fulfil the obligations specified in the CEDAW to prevent the violence against A.T. and to protect her against its consequences’. Moreover, the CEDAW has acknowledged this approach within other individual complaints proceduresand in some periodical country reviews that it performs and that will be further developed. Furthermore, the first UN Special Rapporteur on violence against women analysed the application of the due diligence standard to situations of domestic violence in her 1996 report by developing on the positive role of States in preventing abuses perpetrated by private actors.
Moreover, the UN Economic and Social Council’s (ECOSOC) states that ‘States have a responsibility under international law to act with due diligence to prevent trafficking, to investigate and prosecute traffickers and to assist and protect trafficked persons”. In this regard, it is worth recalling the mandatory character of some of these instruments for Spain, especially after the last judgement of the Spanish Supreme Court on July 2018. At an European level, the Istanbul Convention provides that “Parties shall refrain from engaging in any act of violence against women and ensure State authorities, officials, agents, institutions and other actors acting on behalf of the State act in conformity with this obligation”, and that “Parties shall take the necessary legislative and other measures to exercise due diligence to prevent, investigate, punish and provide reparation for acts of violence covered by the scope of this Convention that are perpetrated by non-State actors”. Additionally, the due diligence standard is present in the Recommendation by the Council of Europe’s Committee of Ministers on the protection of women against violence adopted in 2002. In spite of the fact that there is not an agreed definition of the due diligence standard, scholars and courts have also contributed to defining the concept of due diligence. At this stage the four categories of action appearing from the aforementioned instruments are prevention, investigation, punishment and provision of compensation to victims. The Beiging Platform for Action (Paras 124-130) and the Article 4 of the General Assembly resolution 48/104 (1993) on Elimination of Violence against Women have also provided with a list of specific legislative, administrative and judicial steps that States must undertake to avoid violence against women.
In this respect, a comprehensive assistance with preventive policies, legal measures and a national machinery are needed. Last but not least, it is important to note that the facts of the case and the context in which it takes place are essential in order to be able to establish what specific diligence is due. The ECtHR has also drawn the concept through its 2010 Judgment Rantsev v. Cyprus and Russia which is the first SHT Judgment from a human rights international court. It sets a wide definition of trafficking and the associated State’s obligations. Specifically, the court ruled for the first time that trafficking in human beings falls under the prohibition of Art. 4 of the ECHR.
The Court condemned Cyprus to compensate the family of a HTV for not having an appropriate legal and administrative framework to combat trafficking in the country. Also, condemned Russia for not had adequately investigated the HTV’s recruitment. To this respect, the Court found that the criminal-control model as a response to human trafficking is not enough. In light of the human rights international instruments, the Court made a call for States to respond to this phenomena throw a wider approach that includes prevention and protection measures. Therefore, with this Judgment the ECtHR changed the focus on the criminal-control approach to SHT that it followed in its previous judgment Siliadin v. France.
Also, the Court has acknowledged this new approach in further case-law. Among these cases, the only case in which a State has been condemned under Article 4 ECHR is in 2016 with the L.E.
v. Greece case. The ECtHR declared inadmissible the other cited cases. It is also worth noting the following case-law: In Z.
and others v. United Kingdom the Court decided that Article 1 of the ECHR ‘taken in conjunction with Article 3, requires States to take measures designed to ensure that individuals within their jurisdiction are not subjected to torture or inhuman or degrading treatment, including such ill-treatment administered by private individuals.’ (para 73). In the same line, the Court decided in the E. and Others v.
United Kingdom case, regarding Article ECHR 3 but it was also ruled that ‘these measures should provide effective protection, in particular, of children and other vulnerable persons, and include reasonable steps to prevent ill-treatment of which authorities had or ought to have had knowledge’ (para 88). Besides that, despite the fact that the Court did not use the term ‘due diligence’ in Osman v. United Kingdom it actually applied it. It is a case in which the police did not take any measure with regard to an individual that was receiving threats – despite the fact that it was actually warned accordingly. Hence, the Court argued that the State is responsible if (i) the authorities knew or ought to have known the imminent risk that those threats were on the life of an individual and; (ii) if the authorities failed to take measures within the scope of their powers that would have been expected to avoid the risk (paras 115-117). More recently, in the Opuz v. Turkey case the ECtHR analysed ‘whether the local authorities displayed due diligence to prevent violence against the applicant and her mother, in particular by pursuing criminal or other preventive measures’.
In this respect, the Court found that Turkey had violated the prohibition related to gender discrimination, torture and the right to life and thus, the authorities had not adequately responded to these violations perpetrated by a private person -the applicant’s former husband. It should be reminded that when it comes to the protection of survivors the due diligence standard intersects with other arms of Spain’s obligations under International Law such as non-discrimination, labour, migration, and education measures that calls for less compartmentalization and a more human rights-based approach to ensuring the realization of human rights by HTV. Otherwise, the conditions enabling trafficking by third parties will be more easily created. Additionally, it is important to make clear that in no case could Spain delegate its due diligence obligations in spite of the fact that civil society promotes survivors’ human rights in practise. It shall also be highlighted that the lack of resources would not be a valid excuse for a State not to be diligent under international law and specifically for failing to address violence against women and girls, such as trafficking. Under a criminal-control model States’ obligations within SHT are specifically limited to prosecution of criminal networks – and a partial prevention of the crimes. States usually rejects any responsibility in this regard alleging that the harm and violations of human rights are a direct consequence of non-state actors’ criminal activity– and not by the State’s activity itself.
However, the human rights-based approach helps to develop a wider range of obligations and State responsibility linked to non-state actors’ activity. This perspective specifically obliges States to protect and repair victims and also to prevent the human rights violations linked to the crime, apart from prosecution of the criminal activity. At this stage, it is clear that States are bound to take the necessary legislative and implementing measures to exercise due diligence to protect and repair HTV from violations of human rights perpetrated by non-state actors. It has been stablished that Spain has a duty to act with due diligence to promote and protect human rights in general – and the rights of HTV in particular – under international law. However, the CEDAW concluded in 2015 that Spain was not following a due diligence standard in some aspects related to gender–based violence in the country.
, It considered that (i) Spain was not taking steps to ensure that the legal framework is effectively applied so that public authorities exercise their work with the diligence due; and also stablished (iii) the need to provide with trainings to administrative staff and judges with regard to the legal framework on gender-based violence. This chapter examines Spain’s responsibility to identify and to provide (international) protection and remedies to G.J. for human rights violations committed by a non-state actor. Spain did not comply with the due diligence obligation to identify, assist and support G.J. denying her access to some fundamental rights.En relación con la segunda P relativa a la protección58, este enfoque requiere que la protección y el apoyo a las personas que han sido víctimas de trata ocupen un lugar central e irrenunciable en las estrategias de intervención, haciendo especial hincapié en las obligaciones de los Estados de abstenerse de prácticas que vulneren los derechos de las víctimas y las vuelvan a victimizar59 (por ejemplo, arresto, detención, trato denigrante o discriminatorio), de establecer mecanismos adecuados y efectivos para identificar a las víctimas y proporcionarles protección y asistencia60 y de garantizar un retorno seguro y preferentemente voluntario61.
En relación con cada uno de estos aspectos, ha de otorgarse siempre un trato especial a las víctimas menores de edad62. Sin duda, destaca en este respecto la estipulación de obligaciones especialmente extensas y detalladas en el Convenio de Varsovia, que dedica diez artículos a la protección de las víctimas63: que las disposiciones sobre protección de las víctimas, de carácter vinculante, tengan una extensión equivalente a la parte relativa a medidas de persecución es digno de mención, al ser algo totalmente inédito en un convenio sobre trata. La Directiva, aunque se quede lejos de alcanzar el mismo nivel de exhaustividad, destaca por establecer la obligatoriedad de proporcionar la mencionada protección y por su regulación particularmente detallada del trato a otorgar a los menores y, especialmente, a los menores no acompañados64. A crime and immigration-control model and its consequences. The tension between the status of ‘victim’ and the condition of undocumented person linked to the conditionality of protection. El otro gran reto al que tenemos que enfrentarnos está relacionado con la asunción de este abordaje en el ámbito interno. A pesar de que el Plan de lucha contra la trata de mujeres y niñas con fines de explotación sexual adoptado en 2015 reivindique reiteradamente su apego a los derechos humanos, lo expuesto en este estudio nos indica que España no ha superado todavía la estrechez del enfoque de Derecho penal en beneficio de un enfoque integral de lucha contra la trata basado en los derechos humanos.
En este contexto, no deja de llamar la atención el hecho de que, en España, el apego a los derechos humanos en materia de trata se plasme reiteradamente en planes y protocolos, pero nunca en disposiciones legislativas. No obstante las claras obligaciones internacionales en este sentido, tanto la legislación como la práctica en España evidencian fallos que se traducen en situaciones de grave victimización secundaria de las mujeres tratadas que, inevitablemente, imposibilitan su protección según lo que requieren los estándares internacionales vigentes. En un reciente estudio que compara los regímenes de protección de las víctimas de violencia de género y de las víctimas de trata en el Derecho español de extranjería, se llega a la conclusión de que el legislador solo trata a las primeras como auténticas víctimas, protegiéndolas como tales, mientras la protección de las segundas gira en torno a un claro objetivo: conseguir su colaboración con las autoridades en la persecución del delito244. En este sentido, reiteramos la necesidad de desvincular por completo la protección de la víctima de trata de su colaboración con las autoridades encargadas de la investigación penal.Proposals for a holistic national anti-trafficking and protection-victim approach by providing legal residency and work permit to G.J. and to (alleged) victims of human trafficking:In its periodical review to Spain, the CEDAW has concluded that the State does not understand and neither follows due diligence standard in some aspects related to gender–based violence such as: (i) Spain has not ensured that the legal framework is actually applied so that public authorities exercise their work with the diligence due; (iii) the need that Spain provides trainings on the legal framework with regard to gender-based violence to administrative staff and judges. The conclusions in this report help to deepen Spain’s obligations under the due diligence standard with regard to prevention, prosecution and compensations to women and girls victims of SHT, in particular, and human rights violations related to gender-based violence in general.
Specifically, it referred to the recommendations made by the Committee to Spain in the Communication nº 47/2012, González Carreño v. Spain that was the first condemn to Spain from the UN on grounds of gender-based violence. Among others, the has CEDAW recommended Spain to: (i) protect and adequately repair the applicant; (ii) ensure that the legal framework is actually applied so that the public authorities exercise their work with the diligence due; (iii) and provide trainings on the legal framework with regard to gender-based violence to administrative staff and judges. Enacting a holistic law utilising the due diligence principle to outline the specific State obligations with regard to trafficking survivors’ protection. The lack of coherence in the Spanish human trafficking legal framework is evident.
As it has been developed before, there are a wide range of different kind of instruments – with/without legal force and binding/not binding – regulating this issue. In this regard, the Aliens law and the criminal law were amended relatively late, in 2009 and 2010 respectively- including the recovery and reflection period in the former one and – for the first time in Spain – considering trafficking of human beings as a crime in the latter one. Additionally, there are laws that apply to different aspects of human trafficking as well as several Action Plans and Protocols on trafficking for the purposes of sexual exploitation that have been approved even though they are no legally binding (all of them are considered within the bibliography bullet point).
Many NGOs have called for this holistic law that may also address other types of human trafficking different to the sexual one. El enfoque de derechos humanos ideal para esta ley: cogermas del phdAs described by the Special Rapporteur on trafficking, “by requiring a human rights-based approach, due diligence enables States to apply all their international obligations in ways that encourage less compartmentalization and more holistic approaches”9. In terms of coherence of the overall international law system, the advantage is that it establishes bridges between differentbranches of law and finds a common language and strategy to address problems that tend to have ramifications in several of these fields.Una respuesta de estas características solo podrá hacerse realidad en España a través de la adopción de una ley integral contra la trata de seres humanos -no solo con fines de explotación sexual sino también laboral y de otros tipos-que otorgue, como lo hizo la ley integral sobre violencia de género, una considerable visibilidad y prioridad a esta cuestión, cambiando radicalmente la perspectiva desde la que la sociedad y los poderes públicos miran al fenómeno de la trata y que permita a España adoptar un abanico completo de medidas en materia de prevención, protección, recuperación, reintegración, persecución penal, reparación e indemnización, conforme al derecho internacional vigente. La ley integral sobre violencia de género de 2004 es considerada por Naciones Unidas como una de las leyes más avanzadas en la materia: ya es hora para España de demostrar la misma ambición con la trata de seres humanos.PAG 419 viviana habla dellegal framework utilizing the dd standardPAG 424 ETC VIVIANA HABLA DEL RESIDENCE PERMITEn buena medida se explica la escasa aplicación de la Protección Internacional a lasvíctimas de trata sexual por la extrema dispersión normativa en la materia. Una leyintegral sería un instrumento idóneo para conseguir tales objetivos y un paso muyimportante para la prevención y protección de las víctimas de la trata.
La formaciónespecializada es imprescindibles en la lucha por la erradicación de estas formas decriminalidad58. Hasta que se haga realidad una futura ley integral, se pueden adoptarmedidas en orden a mejorar la aplicación de la protección de estas víctimas. Una deellas es la reforma de la Ley 12/2009, para la inclusión expresa de la trata de mujeresy niñas con fines de explotación sexual como violencia de género y como forma depersecución que da lugar a la obtención del estatuto de refugiada.
Otra medida es laequiparación de estas mujeres a las víctimas de violencia de género a todos losefectos de protección social previstos por la Ley Orgánica de Medidas de ProtecciónIntegral contra la Violencia de Género 1/2004 y Ley 35/1995, de 11 de diciembre deayudas y asistencia a las víctimas de delitos violentos y contra la libertad sexual59.Nos enfrentamos ante un problema estructural y poliédrico necesitado de unanormativa que lo aborde desde sus diversas vertientes jurídicas, de manera coherente,sin contradicciones y que favorezca la visibilización, prevención y sanción.58Concluding remarksAs it has been established above, under a criminal-control model States’ obligations within SHT are specifically limited to prosecution of criminal networks – and a partial prevention of the crimes. States usually rejects any responsibility in this regard alleging that the harm and violations of human rights are a direct consequence of non-state actors’ criminal activity– and not by the State itself. However, the human rights-based approach helps to develop a wider range of obligations and State responsibility linked to non-state actors’ activity. This perspective specifically obliges States to protect and repair victims and also to prevent the human rights violations linked to the crime, apart from prosecution of the criminal activity.Bajo un enfoque de corte estrictamente penal, las obligaciones se limitan a la persecución de los tratantes y su procesamiento: desde esta perspectiva, el Estado rechaza típicamente cualquier otra obligación relacionada con conductas llevadas a cabo por los tratantes, alegando que el daño ha sido infligido no por el Estado sino por actores no-estatales. Por lo contrario, el enfoque de derechos humanos desarrolla un concepto más amplio de obligaciones y de correlativa responsabilidad estatal en relación con conductas de actores no-estatales que atentan contra los derechos humanos, aproporcionan valiosos ejemplos de un elevado grado de integración y convergencia, en un mismo texto de carácter obligatorio, entre disposiciones de Derecho internacional de los derechos humanos y de Derecho penal internacional.
Dado que esta exitosa integración no se ha logrado ni en otros ámbitos regionales ni en el plano universal, es allí donde reside sin duda el primer reto al que la comunidad internacional tiene que enfrentarse. Tratándose de una problemática de notable trascendencia internacional -sin querer quitar importancia al fenómeno de la trata interna en el ámbito de un país o de una región como puede ser la UE -de poco servirá que el continente europeo se dote de instrumentos avanzados en materia de trata si el resto de los países no da pasos decididos hacia la asunción de un enfoque holístico basado en los derechos humanos. El otro gran reto al que tenemos que enfrentarnos está relacionado con la asunción de este abordaje en el ámbito interno. A pesar de que el Plan de lucha contra la trata de mujeres y niñas con fines de explotación sexual adoptado en 2015 reivindique reiteradamente su apego a los derechos humanos, lo expuesto en este estudio nos indica que España no ha superado todavía la estrechez del enfoque de Derecho penal en beneficio de un enfoque integral de lucha contra la trata basado en los derechos humanos. En este contexto, no deja de llamar la atención el hecho de que, en España, el apego a los derechos humanos en materia de trata se plasme reiteradamente en planes y protocolos, pero nunca en disposiciones legislativas. No obstante las claras obligaciones internacionales en este sentido, tanto la legislación como la práctica en España evidencian fallos que se traducen en situaciones de grave victimización secundaria de las mujeres tratadas que, inevitablemente, imposibilitan su protección según lo que requieren los estándares internacionales vigentes. En un reciente estudio que compara los regímenes de protección de las víctimas de violencia de género y de las víctimas de trata en el Derecho español de extranjería, se llega a la conclusión de que el legislador solo trata a las primeras como auténticas víctimas, protegiéndolas como tales, mientras la protección de las segundas gira en torno a un claro objetivo: conseguir su colaboración con las autoridades en la persecución del delito244. En este sentido, reiteramos la necesidad de desvincular por completo la protección de la víctima de trata de su colaboración con las autoridades encargadas de la investigación penal.
Si no garantizamos una respuesta eficaz, jurídicamente adecuada y al mismo tiempo empática y humana respecto a la grave situación de vulneración de los derechos humanos que viven las mujeres tratadas con fines de explotación sexual, nuestra sociedad se hará cómplice de su victimización, como pasaba con la violencia de género cuando, mirando para otro lado, la sociedad española no lo consideraba un problema social grave y sistemático. Lo que se requiere es un verdadero compromiso social y político con la problemática de la trata, una toma de conciencia de su gravedad y de la necesidad de afrontarla desde otra perspectiva, desvinculándola de una visión fundamentalmente criminal o migratoria para abordarla como lo que es, una forma contemporánea de comercialización y, a menudo, de esclavización del ser humano, que explota prevalentemente a las mujeres y a las niñas más vulnerables y que requiere una respuesta integral y contundente centrada en la protección de sus víctimas.