The European Court of Human Rights (ECtHR) has declared inadmissible the application of an NGO on behalf of an asylum seeker who was deported prior to identification as a victim of human trafficking.
G.J first applied for asylum in Spain in 2006 on the grounds of religious persecution, which was denied. In 2010, she applied again on the basis that she fled Nigeria following the assassination of her parents. The young woman, however, claimed that she paid a trafficker in coming to Spain and upon arrival was forced into prostitution. The UNHCR supported the young woman’s claim for asylum, believing her to be a potential victim of human trafficking. She was also supported by Proyecto Esperanza, an NGO specialising in the investigation of trafficking.
In March 2010, the Spanish authorities denied G.J.’s second request for asylum. She began separate proceedings for the suspension of her expulsion order until such time as her identification as a victim of human trafficking was complete. On 11 March 2010, G.J. also signed a written authority allowing NGO, Women’s Links Worldwide (WLW), to apply on her behalf for a “recovery and reflection period” under section 59 of Organic Law 4/2000. The suspension request was not granted and on 17 March 2010, G.J. was expelled from Spain.
Later that month, WLW initiated administrative judicial proceedings claiming that the young woman had been deported before Spanish authorities had properly considered her request. However, the judge ruled that WLW only had the woman’s authorisation to apply for the reflection period, and lacked the legal standing to act for G.J. in other judicial matters. Thus, the Spanish court ruled the application of WLW inadmissible.
The ECtHR was asked to consider whether the lack of effective remedy within the Spanish legal system in identification of victims of trafficking was a breach of Spain’s positive obligations under Article 4 of the European Charter on Human Rights (ECHR), alone and in relation with Articles 3 and 13. The Spanish authorities did not assess the risks G.J. faced if deported to Nigeria, as a pregnant woman victim of trafficking. Since trafficking for sexual exploitation disproportionately affects women, failures in the identification process specially impact their access to protection and remedies. Thus, the Court was asked to determine if the focus Spanish authorities have on border control and criminal proceedings, rather than on victim’s rights was a violation of Article 4 and of the prohibition of discrimination.
The case, however, rested on WLW’s standing. WLW claimed that its inability to supply a written authority to take the case was a direct consequence of the State’s action in expelling the applicant without any prior notice to that effect. WLW further claimed that it had re‑established contact with the applicant after her expulsion and had found that she had been recaptured by her traffickers. WLE referenced a telephone conversation in which the applicant had confirmed that she wished WLW to bring her case before the international courts.
Contrary to this view, the ECtHR held a strict approach as per the decision in Campeanu, but considered that G.J was not in a situation of sufficient vulnerability to rival that of Campeanu. The Court considered G.J to not be of an ‘extreme vulnerability’, raising a question over what circumstances must a victim of trafficking be in order to qualify under this test. The Court held that while WLW did have the applicant’s authorisation to apply on her behalf during the period of reflection, that it did not have standing or authority to act on her behalf in any setting or judicial matter and explicitly that WLW did not have standing to represent G.J in this case.
The case of G.J. v. Spain reveals some of the problems that victims of human trafficking face in their pursuit of justice, equally raising concerns of systemic failure in identification of victims of trafficking.
Click here for the full judgement in G.J. v Spain.