Spain has been ordered by the European Court of Human Rights to pay a Nigerian woman €15,000 in damages as compensation for failures relating to the investigation of allegations that she was trafficked to Spain for forced prostitution. The case is T.V. v. Spain (application no. 22512/21) and although the UK was not on the receiving end of the decision, there are elements that are of relevance here too.

Intervening in the case were the Council of Europe’s Group of Experts on Action against Trafficking in Human Beings (GRETA) and the AIRE Centre (Advice on Individual Rights in Europe). Although a case against Spain, TV was represented by UK based lawyers Duncan Lewis (see also the press release from One Pump Court).

Background

The applicant is a Nigerian national who was trafficked to Spain for the purposes of sexual exploitation in 2003 when she was 14 years old. The trafficker’s parents in Nigeria performed a “voodoo” (or “juju”) ritual on her such that she believed that if she reported the trafficker to the police then the voodoo would kill her.

In 2007 the applicant escaped her trafficker (“C”), although she continued to contact the applicant regarding the “debt” owed to C for being brought to Spain, until the applicant lost her phone in 2010. Since her escape, the trafficker’s family “had destroyed her father’s business in Nigeria and assaulted him in an attempt to make the applicant pay the debt”.

On 9 June 2011 the applicant went to the police and made a complaint that she had been a victim of human trafficking and sexual exploitation from 2003 to 2007. She explained that she had not reported this earlier because of the voodoo ritual, however had been able to overcome her fear of this when provided with social and medical support.

On 24 June 2011 an investigating court opened a preliminary investigation but then immediately discontinued it for lack of territorial jurisdiction. A month later the case was referred to the investigating court that did have jurisdiction and a preliminary investigation was opened in November 2011. The local law enforcement agency was instructed to locate the traffickers and to take evidence from the applicant.

As is the case in the UK, an ongoing criminal investigation into a person’s traffickers can be relevant to their ability to obtain a form of immigration status. In 2012 an NGO that was supporting the applicant made a complaint about the lack of progress on her case as that was negatively impacting her immigration status.

In January 2013 the investigating court reiterated the request made to the local law enforcement agency, as well as issuing summonses for the alleged traffickers to be questioned as suspects. In February 2013 the law enforcement agency advised that they had been unable to locate the traffickers C and her husband U but had identified two people who had run the “hostess club” the applicant had been exploited in. The court issued a summons for those people to be questioned on suspicion of trafficking in human beings.

In March 2013 the applicant gave evidence about what had happened to her, that she was receiving psychological treatment because of the events complained of, and that her family in Nigeria had had to move because of fear of further threats and attacks.

On 26 April 2013 the investigating court dismissed the case against all four people suspected of trafficking the applicant, on the basis that it had not been “sufficiently established” that the offence had been committed. A public prosecutor appealed the decision in May 2013 and the investigating court allowed this on 21 April 2014, ordering that C and U were located and questioned and that the date the applicant entered Spain be identified.

U was located and interviewed in May 2014 and in August 2014 C was located and interviewed. Both C and U denied the allegations. U’s defence asked for a forensic age assessment of the applicant, arguing that it was essential to determine her age so that the allegations could be properly legally classified (i.e. because there was a difference if she was a minor at the time).

On 8 June 2015 the investigating court issued an indictment against C and U. A forensic expert carried out an age assessment of the applicant and determined that she was over 18. In March 2016 the court ordered a supplementary report to determine an age range rather than just saying that the applicant was over 18. The expert determined that the condition of her molars was “statistically consistent with an age interval of 22.4 years, with a margin of +/- 1.9 years”.

The case was then dismissed as a result of the age assessment. The applicant appealed on the basis that age assessments are ineffective and unreliable and that the authorities had failed to take into account the entirety of her evidence which had been detailed and consistent. The decision to dismiss the case was upheld, the court saying that it was not possible for her to have entered Spain on an adult passport when she was six years old (seemingly in reliance on the first forensic report which said she was over 18).

Unsurprisingly, the applicant appealed again, stating that the court’s assessment of the age assessment report was “manifestly erroneous and lacked logical reasoning”. It was again pointed out that age assessments are not reliable. Other grounds were also raised, but the appeal was dismissed on the grounds of “non-existence of a violation of a fundamental right”.

The European Court of Human Rights

The applicant then proceeded to the European Court of Human Rights, making a complaint under article 4 of the European Convention on Human Rights that there had been a failure to “investigate, prosecute and punish those who had subjected her to human trafficking”. The applicant complained of the delay in the investigation and the collection of evidence.

It was also argued that her:

case had been dismissed predominantly on the basis of such a narrow and arbitrary interpretation of the age assessment expert report, while the authorities had manifestly failed to take reasonable steps to collect evidence and elucidate the circumstances of the case, including by pursuing obvious lines of inquiry, despite the fact that she had drawn their attention to such obvious shortcomings in the domestic proceedings.

The government said that the length of the investigation was reasonable given the events complained of had happened years earlier and they only had “scarce and fragmentary information”. It was also submitted that the decision to dismiss the case had not been based solely on the x-ray exam but on the forensic expert’s report and the lack of minimum evidence to corroborate the applicant’s allegations. The government’s position was that the last point was enough by itself to justify dismissal of the case, criticising inconsistencies in the applicant’s evidence, including around her age.

Both the applicant and the AIRE Centre referred to various decisions relating to Spain made by the Committee under the Optional Protocol to the Convention on the Rights of the Child where the inaccuracy of x-ray age assessments and other defects in the age assessment process had been highlighted.

GRETA had also raised concerns about Spain’s use of age assessment procedures in reports in 2018 and 2023 and had recommended a review of the process. GRETA also said that “Owing to the physical and psychological trauma suffered, victims of trafficking could change their statements over time. The age assessment procedure was not to be used to cast doubt on a person’s claim that he or she was a victim of human trafficking.”

The court said that the applicant’s allegations “despite some divergent elements, remained consistent throughout the domestic proceedings” and that the alleged use of “voodoo” corresponds to a known method of trafficking people from Nigeria. The court was satisfied that “the applicant has made an arguable claim, supported by prima facie evidence, that she was subjected to human trafficking and forced prostitution”. The court then went on to consider the investigation in light of the principles in S.M. v. Croatia [GC], no. 60561/14 setting out the states’ procedural obligations in cases concerning human trafficking and forced prostitution (from para 308).

The court accepted that the formal inquiry was opened immediately and the applicant issued with a residence permit based on her cooperation with the authorities as there were reasonable grounds to believe that she was a victim of trafficking and sexual exploitation. However the court was critical of the five month delay in referring the case to the correct territorial jurisdiction and concluded that between November 2011 and January 2013 “the authorities remained completely passive and took no effective investigative steps”.

That delay had a negative effect on the applicant’s immigration status, leaving her without status from October 2011 until the police filed a new request for her regularisation in summer 2012. The court also criticised the 11 month period between May 2013 and the investigating court’s decision of April 2014 to order further basic investigative steps. The court held that “it clearly cannot be said that the authorities acted with the requisite diligence at the initial stage of the investigation”.

The court also held that the Spanish authorities had “failed to follow obvious lines of inquiry in order to gather the available evidence, in accordance with their procedural obligation under Article 4”.

On the age assessment point, the court pointed out that “both reports contained the same conclusion namely that the applicant was at least 18 years old at the time of the relevant forensic examinations … thus making it clear that they determined solely the applicant’s minimum age and not her exact age”. No reasons were provided in either of the courts’ decisions as to how they had then concluded that this meant she was exactly 18 at the date of the age assessment.

Further, the courts had other evidence making it clear that she was engaging with various authorities and organisations as an adult for years before the age assessment took place, for example she had been arrested for immigration offences in 2005 and 2009. The court concluded that the Spanish courts’ decisions to dismiss the case “were not based on thorough and objective analysis of all relevant elements, but rather on unexplained assumptions, and were not sufficiently reasoned”.

A violation of article 4 was found and the applicant was awarded €15,000 in damages and €12,000 for her legal costs. The applicant had also sought compensation for a deprivation of her right to claim damages following on from the dismissal of the criminal case, however this was deemed to be unsubstantiated and was rejected on the grounds of being manifestly ill-founded.

Conclusion

Even though this was a case against Spain, there are a couple of useful points for us here in the UK. Although the court in this case declined to address the general concerns raised about the use of “scientific” age assessments, it is worth remembering that the UK also passed laws earlier this year permitting the use of these. The report published yesterday by Refugee Council made several recommendations relating to age assessments, including “abandoning the implementation of the provisions that pave the way for the use of unreliable scientific (biological) methods to determine age”.

It is important to remember the duties owed by the authorities to those who have survived trafficking, including in relation to the need for a proper investigation. The Nationality and Borders Act 2022 severely restricted the circumstances in which survivors can be granted leave and cooperating with a police investigation is one of the remaining reasons a person can be granted leave. If the police are reluctant or slow to do this, this case should act as a reminder that it may be possible to challenge that, which may then assist someone in obtaining a grant of leave.

It is also important to be aware of the compensation scheme available to survivors from the “Criminal Injuries Compensation Authority” (more details from After Exploitation here).