European Court of Human Rights - V.C.L. and A.N. v. The United Kingdom - Application no. 77587/12 and 74603/12

giurisprudenza e prassi internazionale - international case-law and practice

Data – Date :

05/07/2021

Note – Notes:

Ruling:

The court:
Holds, unanimously, that there has been a violation of Article 4 of the Convention;
Holds, unanimously, that there has been a violation of Article 6 § 1 of the Convention;

Reference to obligations of criminalization:

Article 2 (EU Directive 2011/36) – Offences concerning trafficking in human beings
“1. Member States shall take the necessary measures to ensure that the following intentional acts are punishable: The recruitment, transportation, transfer, harbouring or reception of persons, including the exchange or transfer of control over those persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation […]”

Article 18 (Anti-Trafficking Convention) – Criminalisation of trafficking in human beings
Each Party shall adopt such legislative and other measures as may be necessary to establish as criminal offences the conduct contained in article 4 of this Convention, when committed intentionally.

Reference to human dignity:

(Paragraph 202) trafficking threatens the human dignity and fundamental freedoms of its victims and is not compatible with a democratic society and the values expounded in the Convention (see Rantsev, cited above, § 282), in the absence of any such assessment any waiver of rights by the applicants would have run counter to the important public interest in combating trafficking and protecting its victims.
(Paragraphs 157-161) The “non-punishment” provisions in Article 26 of the Anti-Trafficking Convention, Article 8 of the Anti- Trafficking Directive and Article 4 § 2 of the 2014 Protocol to the ILO Forced Labour Convention (see, respectively, paragraphs 103, 106 and 98 above) all contain two important qualifications: the victim of trafficking must have been compelled to commit the criminal activity; and, where that is the case, the national authorities should be entitled, but are not obliged, to decide not to prosecute. The ECtHR considers that the criminal prosecution of victims (or potential victims) of trafficking may breach the State’s obligation under Article 4 of the Convention to protect them and support their recovery. The Court reiterates that, in cases involving potential victims of trafficking—especially children—their heightened vulnerability and the State’s duty to safeguard their best interests require that any decision to pursue criminal proceedings be preceded by a proper trafficking assessment conducted by a qualified professional. Their status significantly affects both the availability of evidence and the public interest in prosecution, making criminalization even less justifiable. Such prosecution risks seriously undermining their human dignity, which the State is obliged to protect under Article 4 of the Convention.

Norme penali italiane rilevanti – Relevant italian rules:

Article 2 (EU Directive 2011/36) – Offences concerning trafficking in human beings

Parole chiave – Keywords:

Corte Europea dei Diritti Umani - European Court Of Human Rights, Criteri di Imputazione (Incluso Concorso) - Criteria Of Attribution Of Responsibility (Including Complicity), Minori - Children, Obbligo di Incriminazione Esplicito - Explicit Criminalization Obligation, Prescrizione - Statute Of Limitation To Prosecution, Tratta Degli Esseri Umani - Human Trafficking, Trattato - Treaty