The European Court of Human Rights (ECHR) deliver long awaited decision which highlights serious gaps in the protection of victims of trafficking.
On 16 February 2021, the European Court of Human Rights (Fourth Section) brought forward the judgement in the case of V.C.L. and A.N. v. the United Kingdom (Apps nos. 77587/12 and 74603/12) in which they found the United Kingdom to have violated Article 4 ECHR and Article 6(1) ECHR.
In this case, both V.C.L. and A.N. were two Vietnamese nationals who had been arrested as minors following a police raid in cannabis factories in the UK. Both applicants pled guilty to charges of producing controlled drugs following the advice of their lawyers’. They were both sentenced to detention and placed in youth offenders’ institutions. A.N. acquired new representatives and both applicants appealed their convictions. Their argument was that their involvement in criminal activities was a direct result of being trafficked and should fall under Article 26 of the Council of Europe Convention on Action against Trafficking in Human Beings (ECAT). Both applicants’ appeals were unsuccessful in front of the Court of Appeal, which held that there had been no abuse of the process by the Crown Prosecution Service as it was not bound by the findings of the Single Competent Authority (SCA), regardless that both applicants had been conclusively identified as victims of trafficking by the SCA. Permission was sought to appeal to the Supreme Court but this was refused for each case. The cases were then lodged in the European Court of Human Rights.
The effect of this decision is that as soon as there is reason to believe an individual suspected of committing a criminal offence is a victim of trafficking, they must now be referred to the SCA to complete their investigation and conclude whether the individual is indeed a victim of trafficking before a decision on prosecution is made. The ECHR has emphasized that this needs to be strict in cases involving suspected victims who are children. The CPS will still not be bound by the findings of the SCA but must provide clear reasoning in with the international legal definition of trafficking to reject it.
In the event that the above is not followed, the decision of the CPS would not be compliant with Article 4 ECHR. This would then have a knock-on effect and mean the decision is also not compliant with Article 6(1) ECHR – the right to a fair trial.
It is hoped that this judgement is implemented by States as soon as practicable and that this judgement means that the serious gaps in the protection of victims of trafficking will be reduced.
At Elaahi & Co Solicitors, we specialise in understanding complex legal rules and providing you with clear, straightforward advice on how they apply to your case. If you need advice on how the new decision of the European Court of Human Rights may affect you, contact our expert team of immigration lawyers a call on 020 3930 3831. We are here to help you.