Decision on merits; Subjects: WOMEN'S RIGHTS, DISCRIMINATION, WOMEN'S HEALTH, SPAIN; [CEDAW: Frauenrechtskonvention, Übereinkommen zur Beseitigung jeder Form von Diskriminierung der Frau; Convention sur l'élimination de la discrimination à l'égard des femmes]
Volltext (verifizierbarer Originaltext)
United Nations
CEDAW/C/78/D/120/2017
Convention on the Elimination
of All Forms of Discrimination
against Women
Distr.: General
12 March 2021
English
Original: Spanish
21-04764 (E) 220421 040521
*2104764*
Committee on the Elimination of Discrimination
against Women
Views adopted by the Committee under article 7 (3)
of the Optional Protocol, concerning communication
No. 120/2017*,**
Communication submitted by:
A.R.B.M. (represented by Women’s Link)
Alleged victim:
The author
State party:
Spain
Date of communication:
27 September 2017 (initial submission)
References:
Transmitted to the State party on
13 November 2017 (not issued in document form)
Date of adoption of decision:
18 February 2021
Background
1.
The author of the communication is A.R.B.M., a Uruguayan national born in
1969. She claims that the State party has violated her rights under articles 2, 5 and 6
of the Convention. The Convention and the Optional Protocol thereto entered into
force in the State party on 4 February 1984 and 6 October 2001, respectively. The
author is represented by counsel, Gema Fernández Rodríguez de Liévana, from the
non-governmental organization Women’s Link.
Facts as submitted by the author
2.1
In 2005, the author was living in Montevideo and found herself in a desperate
economic situation. Her daughter’s mother-in-law asked whether she would like to go
to work in Italy in the cleaning service of a hotel run by a friend of the family. She
explained that they would make the travel arrangements for her and cover her
expenses in advance, and the author would then repay the money from her earnings.
The author thus incurred an initial debt of $3,000.
* Adopted by the Committee at its seventy-eighth session (15–26 February 2021).
** The following members of the Committee participated in the examination of the present
communication: Gladys Acosta Vargas, Hiroko Akizuki, Tamader Al-Rammah, Nicole Ameline,
Marion Bethel, Leticia Bonifaz Alfonzo, Louiza Chalal, Corinne Dettmeijer-Vermeulen, Naéla
Gabr, Hilary Gbedemah, Nahla Haidar, Dalia Leinarte, Rosario G. Manalo, Lia Nadaraia, Aruna
Devi Narain, Bandana Rana, Rhoda Reddock, Elgun Safarov, Natasha Stott Despoja, Genoveva
Tisheva, Franceline Toé-Bouda and Jie Xia. In accordance with rule 60 (1) (c) of the Committee’s
rules of procedure, Ana Peláez Narváez did not participate in the examination of the
communication.
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2.2
On 15 April 2005, the author travelled to Italy. At the airport, she was met by
her daughter’s father-in-law and two other men. They told her that she did not need
to sign a contract as her stay would be short, and took her passport, telling her that it
was not safe to carry it around with her. The next day, her daughter’s father-in-law
informed her that she would not be working in a cleaning service but would be
sexually exploited. When the author refused, he threatened to harm her mother and
daughter in Uruguay.
2.3
While the author was in Milan, Italy, under the control of the trafficking
network, she was constantly monitored and forced to pay €40 a day for the room
where she slept, in an apartment she shared with other women who were being
exploited. She had to use almost all her “income” to repay the debt.
2.4
In August 2005, the author escaped from the trafficking network with the help
of the taxi driver who usually drove her to the place of exploitation. She travelled
across Europe to Vigo, Spain, where her sister lived. During the journey, she received
several telephone calls from members of the trafficking network requesting the
payment of €5,000 and threatening to kill her when she returned to Uruguay. When
the author called her daughter, her daughter told her that she had been attacked and
threatened by her in-laws after the author’s escape. The author did not tell anyone
about the crimes of which she had been a victim for fear of retaliation by her
exploiters. From then on, she lived in her sister’s house and worked as a cleaner, but
never had a contract as she did not have a work permit.
2.5
On 21 August 2009, the police identified the author as a foreign national
without a residence permit and opened a removal file, following which the Pontevedra
government sub-office issued a removal decision. Despite this, the author remained
in Spain.
2.6
On 27 August 2011, the author was assaulted by two men while visiting Gijón,
Spain. She filed a complaint with the police who, on discovering that a removal order
had been issued against her, detained her and requested that she be placed in the
detention centre for migrants in Aluche, Madrid. On 29 August, Investigating Court
No. 3 of Gijón authorized her placement, which occurred two days later.
2.7
On 5 September 2011, the police took the author from the detention centre for
migrants to the airport for removal to Uruguay. She refused to get on the aeroplane,
convinced that, if she returned to Uruguay, her traffickers would carry out their death
threats. Following a struggle, the police took her back to the detention centre. The
author was now aware of the real and imminent threat of removal to her country and
decided to write a letter to the director of the detention centre explaining the situation
and requesting protection.
2.8
On 14 September 2011, the author had an interview for the identification of
victims of trafficking at the detention centre for migrants with three national police
officers who were members of the VII Immigration Task Force of the Provincial
Immigration and Border Unit. According to the author, identification as a victim of
trafficking is a prerequisite for a person who has been trafficked to have access to the
recognized victim protection system and the rights arising from it. In Spain, such
interviews are conducted by the police and regulated by the Framework Protocol for
the Protection of Victims of Trafficking in Persons, which has been adopted by the
Ministries of Justice, the Interior, Employment and Social Security, and Health, Social
Services and Equality, as well as by the Office of the Attorney General and the
Council of the Judiciary. If it is considered that there are reasonable grounds to believe
that persons in an irregular administrative situation have been victims of trafficking
and they are not clear about their willingness to cooperate with the authorities in the
prosecution of the crime, they have the right to request a recovery and reflection
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period regulated by the Aliens Act.1 If the reflection period is granted, the victim will
not be removed for the duration of the reflection period. If it is denied, the person in
question will not be considered a victim of trafficking by the authorities and will be,
or may be, removed.
2.9
During the interview, the author stated that she was a victim of trafficking in
persons and was willing to cooperate with the police in an investigation. After the
interview, she called her daughter, who told her that she had heard through her in-laws
that the author was going to be removed and that they were waiting for her. The author
was very alarmed to hear this, as she interpreted it as a sign of the trafficking
network’s power and contacts.
2.10
On 16 September 2011, the government office in Madrid issued a decision in
which it stated that, “following a review of the material in the case file, there are
deemed to be no reasonable indications that the person in question is a victim of
trafficking in persons”.
2.11
On 6 October 2011, the police again attempted to remove the author. The
author decided to make several cuts on her left forearm in an attempt to prevent her
removal. When the police officers found her with wounds on her arms, they became
very angry, and grabbed her arms forcefully to move her. According to the author, one
of the police officers directed sexist and racist slurs at her, calling her a “fucking
sudaca2 bitch” and telling her to go back to her “fucking country”. In response to her
shouts and resistance, the agents used force and, in order to defend herself, the author
scratched the arm of one of the police officers. The author was not removed and
received medical assistance that night.
2.12
The police officer who had been scratched filed a complaint against the author.
In a judgment of 9 December 2014, Madrid Criminal Court No. 20 sentenced the
author to six months’ imprisonment for resisting authority and a penalty of one
month’s imprisonment for the misdemeanour of assault. The author filed an appeal
against this decision with the Madrid Provincial Court, which dismissed it on
24 March 2015, and subsequently submitted an application for amparo to the
Constitutional Court; that application was declared inadmissible on 21 October 2015.
2.13
The author filed a complaint against the police officers who had treated her
violently and insulted her using racist and sexist slurs. On 18 May 2012, Investigating
Court No. 35 of Madrid provisionally closed the investigation, considering there to
be insufficient grounds for anyone to be charged with the offences. Although the
author provided additional information on the identity of the officers, the author
claims that the investigation was not pursued. Investigating Court No. 11 of Madrid
also conducted parallel investigations in relation to the same complaint. On 12 August
2013, Court No. 11 of Madrid issued a temporary stay of proceedings and, on
28 October 2014, Court No. 35 of Madrid decreed the proceedings closed following
the principle that no one should be tried twice for the same offence. The author filed
an appeal against the temporary stay of the proceedings. On 15 April 2015, the Madrid
Provincial Court dismissed the appeal, noting that the author had refused to appear
for examination by the forensic doctor, that there were no eyewitnesses to the events
and that the only medical report in the file merely reported the author’s self-harm.
The author again requested for proceedings to be reopened, and her request was
denied again by order of 26 February 2016.
2.14
On 11 October 2011, in Administrative Court No. 12 of Madrid, the author
appealed against the decision of the government office in Madrid of 15 September
__________________
1 See Organic Act 4/2000 of 11 January (2000) on the rights and freedoms of foreign nationals in
Spain and their social integration, art. 59 bis (3).
2 Sudaca is a derogatory term used in Spain to refer to migrants from South America.
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2011 to deny a reflection period. The author alleged that the police and administrative
authorities had carried out the identification process without safeguards, failing in
their obligation to conduct an effective investigation into her evidence. In her appeal
the author also provided further details about the crimes against her and about her
perpetrators, such as the fact that she had learned that her daughter’s father-in-law
had been operating from Uruguay lately and was unable to travel to Italy because of
a conviction in that country for trafficking in persons for purposes of sexual
exploitation. The author requested precautionary measures on two occasions, at first
for the provisional granting of a recovery and reflection period, and later to revoke
the removal order against her. Her requests were denied on 11 and 21 October 2011,
respectively. On 14 February 2012, Court No. 12 rejected the author’s appeal, finding
that “there could be no inference, let alone presumption, that she had been a victim
of trafficking, as she claimed but which had in no way been established”. The Court
noted that the author’s statement contained numerous inaccuracies and vague
references. The author appealed against this decision, but her appeal was rejected by
the High Court of Madrid on 15 July 2013. The High Court also highlighted the
vagueness of the author’s statement, which provided no details about her traffickers,
and noted that six years had elapsed since the events with no new developments
regarding the alleged trafficking. The author then filed an application for amparo,
claiming that her rights to equality, non-discrimination, well-being and effective
judicial protection had been violated. The application for amparo was dismissed by
the Constitutional Court on 21 October 2015 on the basis that no fundamental rights
had been violated.
2.15
The author filed a complaint with the European Court of Human Rights
containing allegations similar to those submitted to the Committee. It was declared
inadmissible on 29 September 2016 by the Court sitting in single-judge formation for
failure to meet the admissibility criteria set forth in articles 34 and 35 of the
Convention for the Protection of Human Rights and Fundamental Freedoms.
Complaint
3.1
The author claims that the State party violated articles 2, 5 and 6 of the
Convention through its action and inaction in relation to her trafficking allegations
and its attempts to remove her.
3.2
The author considers that the State party has failed to comply with its
obligations under article 2 of the Convention in two ways. First, for failing in its
obligation to investigate her allegations of sexual exploitation and for failing to
protect her from the threat that removal would pose to her own life and that of her
relatives. Second, for attempting to remove her from the country on two occasions,
during which she was subjected to violence with a discriminatory component, which
has not been investigated. The author considers that States parties have an obligation
to take a non-discriminatory and gender-sensitive approach in their anti-trafficking
action and that this obligation arises from article 2 of the Convention, as well as from
the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially
Women and Children and the Council of Europe Convention on Action against
Trafficking in Human Beings.
3.3
The author notes that the Committee has expressed interest in States: (a) taking
preventive and investigative measures that address the causes of trafficking; 3
(b) providing rehabilitation and social integration through assistance (including
medical and psychological care), protection and temporary shelters for women in need
of international protection, especially for victims of trafficking who do not wish to
__________________
3 See CEDAW/C/MKD/CO/4-5, para. 26; CEDAW/C/CHL/CO/5-6, para. 25;
CEDAW/C/BLR/CO/7, paras. 21 and 22; and CEDAW/C/ECU/CO/7, para. 22.
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cooperate with the authorities;4 (c) increasing international, regional and bilateral
cooperation with countries of origin, transit and destination to address trafficking; 5
(d) providing training on anti-trafficking legislation to authorities involved in
assisting victims of trafficking (police officers, judges, border officials and social
workers);6 (e) increasing the number of traffickers prosecuted and punished; 7
(f) producing reliable statistics and data disaggregated by sex, age and nationality on
the number of women and girls who are trafficked in order to combat the
phenomenon;8 (g) adopting specific laws on trafficking in persons;9 and
(h) establishing victim identification mechanisms and offering victims temporary
residence permits.10 General recommendation No. 32 (2014) on the gender-related
dimensions of refugee status, asylum, nationality and statelessness of women
establishes that States parties should adopt and implement a gender-sensitive
approach of a proper identification system for women asylum seekers and refugees
that is not based on prejudices and stereotyped notions of women, including for
victims of trafficking and/or sexual exploitation. 11
3.4
The author claims that she was not recognized as a victim of trafficking
because of the shortcomings of the victim identification process followed pursuant to
the Aliens Act, which failed to protect her properly, in violation of the State party’s
due diligence obligation under article 2 of the Convention. The author considers that
inclusion of that identification and granting of a recovery and reflection period
mechanism in the Aliens Act, and not in another law, in itself highlights the fact that
the State has chosen to prioritize immigration control over prosecution of the crime.
In addition, the Framework Protocol for the Protection of Victims of Trafficking in
Persons, which regulates the mechanism, provides that the police force responsible
for controlling irregular immigration and investigating trafficking offences is also the
only one with the legal capacity and competence to identify victims. This highlights
a lack of gender perspective and leads to failures in the prosecution of trafficking
networks. The author further notes that the Protocol grants the police and
administrative authorities very broad discretion in determining whether an individual
is a victim or alleged victim of trafficking. In addition, the author states that the
identification interview took place at the detention centre for migrants, without legal
or specialized assistance, and culminated in an unfounded and unreasoned negative
administrative decision, in violation of the Aliens Act. 12 The author stresses the total
absence from the file of any proceeding to investigate or verify the information she
provided. There is also no record in the file that existing police mechanisms for
coordinating with Italy were activated on the basis of the information she provided.
3.5
The author also claims that article 5 of the Convention was violated when State
agents adopted a stereotyped view of her in two instances. Firstly, the author considers
that the reason the national police concluded that there was no evidence a crime had
been committed was because of a stereotype that migrant women are liars, willing to
__________________
4 See CEDAW/C/BEL/CO/7, paras. 24 and 25; CEDAW/C/GRC/CO/7, para. 23;
CEDAW/C/BLR/CO/7, paras. 21 and 22; CEDAW/C/ISR/CO/5, paras. 30 and 31; and
CEDAW/C/PRT/CO/7, para. 34.
5 See CEDAW/C/BEL/CO/7, paras. 24 and 25; and CEDAW/C/ISR/CO/5, paras. 30 and 31.
6 See CEDAW/C/SLV/CO/7, paras. 25 and 26.
7 See CEDAW/C/LKA/CO/7, paras. 26 and 27; and CEDAW/C/NZL/CO/7, para. 27.
8 See CEDAW/C/HRV/CO/4-5, para. 21; CEDAW/C/CPV/CO/7-8, para. 20; and
CEDAW/C/CRI/CO/5-6, paras. 22 and 23.
9 See CEDAW/C/CPV/CO/7-8, para. 20; and CEDAW/C/BRA/CO/7, paras. 21 and 22.
10 See CEDAW/C/NLD/CO/5, para. 29.
11 See general recommendation No. 32 (2014) on the gender-related dimensions of refugee status,
asylum, nationality and statelessness of women, para. 44.
12 See Organic Act No. 4/2000 of 11 January 2000 on the rights and freedoms of foreign nationals
in Spain and their social integration, art. 59 bis (3).
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do anything to stay in Spain, and voluntarily engaging in prostitution. As a result of
the application of these stereotypical notions to the author, the alleged crimes were
not investigated, and the author was treated as an irregular migrant and was at risk of
expulsion. Secondly, the insults and attacks to which she was subjected during the
second attempt to remove her had a clear racist and sexist component.
3.6
Lastly, the author considers that the State authorities were obliged, under
article 6 of the Convention, to investigate her allegations ex officio, because she
should not have been made to bear the burden of proof. She notes that the Committee
has encouraged States parties to ratify international, regional and institutional
instruments to combat trafficking in persons and that article 6 should therefore be
read in the light of the relevant international instruments applicable to Spain: the
Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women
and Children; the Council of Europe Convention on Action against Trafficking in
Human Beings; Directive 2011/36/EU of the European Parliament and of the Council
of the European Union of 5 April 2011 on preventing and combating trafficking in
human beings and protecting its victims; and the Recommended Principles and
Guidelines on Human Rights and Human Trafficking. The author emphasizes that the
Special Rapporteur on violence against women, its causes and consequences has held
that “due diligence generally, and specifically as far as violence against women is
concerned, occurs when State authorities or others acting in an official capacity or
under colour of law, know or have reasonable ground to believe that acts of torture or
ill-treatment are being committed by non-State officials or private actors and they fail
to exercise due diligence to prevent, investigate, prosecute and punish such non-State
officials or private actors consistently with the Convention”.13 The obligations under
article 6 include the obligation to identify victims of trafficking. 14 The duty to identify
victims is also enshrined in the Council of Europe Convention on Action against
Trafficking in Human Beings,15 Directive 2011/36/EU of the European Parliament
and of the Council of 5 April 2011 on preventing and combating trafficking in human
beings and protecting its victims,16 and the Recommended Principles and Guidelines
on Human Rights and Human Trafficking. In addition, the European Court of Human
Rights has held that States must take the necessary measures to protect victims or
potential victims of trafficking. Thus, risk assessments must be carried out on a case-
by-case basis and the authorities have a duty to take action when they are “aware, or
ought to have been aware, of circumstances giving rise to a credible suspicion that an
identified individual had been, or was at real and immediate risk of being, trafficked
or exploited”.17 In this regard, the author notes that, as there was insufficient evidence
to consider the author a victim, the burden of proof was placed on her. In fact, the
authorities had an obligation to identify her as a victim of trafficking, using
information from specialized organizations in the field and conducting an
investigation. The author points out that both Spain and Italy are part of the Schengen
area and victims of trafficking are therefore transported from one State to another
with relative ease. Even though the trafficking took place in Italy, the Spanish
authorities should have taken all necessary steps to coordinate with their Italian
counterparts and facilitate an investigation. Furthermore, the State party has failed to
respect the principle of non-refoulement in the case of the author, which is one of its
obligations under article 6 of the Convention and general recommendation No. 32,
since there were two attempts to remove her.
__________________
13 See A/HRC/23/49, para. 27.
14 See CEDAW/C/NLD/CO/5, para. 29. and CEDAW/C/BEL/CO/7, paras. 24 and 25.
15 See Council of Europe Convention on Action against Trafficking in Human Beings, art. 10.2.
16 See Directive 2011/36/EU of the European Parliament and of the Council, art. 18.3.
17 See European Court of Human Rights, Rantsev v. Cyprus and Russia (application No. 25965/04),
judgment of 7 January 2010, para. 286.
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State party’s observations on the admissibility and merits of
the communication
4.1
In a written communication dated 8 June 2018, the State party contested the
admissibility of the communication and the assertion that it revealed a violation of
the Convention.
4.2
The State party recalls that the author filed a complaint with the European
Court of Human Rights, which was declared inadmissible on 29 September 2016. The
State party notes that this decision, while brief, refers to the requirements contained
in articles 34 and 35 of the European Convention on Human Rights. Since the
complaint clearly meets all the other requirements set forth in those articles, the State
party concludes that the ground for its inadmissibility can only have been that it was
ill-founded or had already been duly considered by a national court, pursuant to
article 35, paragraph 3 (a) and (b). Accordingly, an a priori analysis of the merits of
the communication must have been carried out.
4.3
The State party notes that the author’s request for a precautionary measure
consisting of a stay of the decision of the government office in Madrid of
15 September 2011, which considered that there was no prima facie evidence of the
author being a victim of trafficking, was denied by Administrative Court No. 12 of
Madrid with reasoning and on the basis of legal doctrine, since negative
administrative acts such as the decision in question cannot be stayed.18 A
precautionary measure is also inapplicable when the act in question does not impede
the exercise of a freedom or impose an obligation but rather does not recognize rights
that are being sought from the public authority concerned.19 The decision was
therefore legally founded and the right to effective judicial protection has not been
violated.
4.4
In relation to the judicial decisions rendered on the merits of the author’s
complaint, both Administrative Court No. 12 of Madrid in its judgment of 14 February
2012 and the High Court of Madrid in its judgment of 15 July 2013 considered that,
owing to the inaccuracies and vagueness of the author’s statement, there could be no
inference or presumption that she had been a victim of trafficking. In particular, the
second court notes the time that has elapsed between the author allegedly fleeing
Milan and making her statement, and points out that the author has been unable to
provide the full names of the individuals who were holding her captive. The
competent courts therefore found that the evidentiary standard of proof required by a
court of law had not been met.
4.5
Concerning the criminal proceedings relating to this communication, the
author’s claims were rejected owing to a lack of evidence and therefore cannot be
substantiated. In its conviction of 9 December 2014, Criminal Court No. 20 of Madrid
considered that valid, sufficient and objectively evaluated evidence had been
produced, with all the procedural safeguards, and that it was evident from the
established facts that the accused had resisted her removal by insulting the agents and
kicking one of them in the ribs on his left side and making several scratches on his
left forearm. Consequently, there is no question of a violation of articles 2 and 5 of
the Convention since it has been established that there is no evidence to support the
author’s statements and the judicial investigation by the two courts (criminal and
administrative) revealed no violation of article 6 of the Convention.
4.6
The State party notes that the Constitutional Court declared inadmissible in
limine the author’s application for amparo on the ground that no fundamental rights
__________________
18 See Supreme Court decisions of 20 February and 1 October 1990, 22 March, 16 July and 17 and
25 September 1991 and 3 September 1992.
19 See Constitutional Court decision of 29 March 1990.
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covered by that remedy had been violated. The author alleged in the Constitutional
Court that her rights to effective judicial protection and to physical and mental well-
being had been violated. However, her allegation that the safeguards were not
respected relates to the very same judicial process in which there was judged to be
insufficient evidence of an attack on her physical and mental well-being. In that
regard, the doctrine of the Constitutional Court maintains that the right to effective
judicial protection does not amount to a right to the consideration of claims on the
merits. Rather, it indicates that matters will be examined by an independent court of
law with all safeguards, without losing the right of the defence in the process, which
has clearly been upheld in the present case.
4.7
The State party contends that an international body cannot change the facts
established in the case files submitted if those facts have been determined in
proceedings in which all safeguards were respected. The complaint submitted to the
Committee cannot therefore involve a subsequent judicial instance, especially in the
case of a State governed by the rule of law such as Spain, whose Constitution
establishes that laws must be interpreted in accordance with the human rights treaties
to which it is a party.
4.8
In the view of the State party, the author, on the pretext that her case has been
decided on the basis of prejudices and stereotypes, which she fails to prove or
establish in any way, claims that the Spanish State has violated her rights, even
though, as has already been noted, the European Court of Human Rights has held that
the State has not committed this alleged violation. The author has not met the need to
provide real evidence beyond mere conjecture and interpretation regarding what may
have happened. It follows from the decision of the European Court of Human Rights
that, as asserted by the domestic courts, there is insufficient evidence to substantiate
the author’s complaint. The State party therefore requests the Committee, for reasons
of legal certainty, to accept the decisions made by the courts, which were adopted
after serious investigation and analysis.
Author’s comments on the State party’s observations on admissibility and
the merits
5.1
In a written communication of 14 December 2018, the author submitted her
comments on the observations of the State party. The author contends that the State
party misinterprets the decision of inadmissibility of the European Court of Human
Rights. She argues that, contrary to the State party’s assertion, the fact that a matter
has been duly considered by a national court is not grounds for inadmissibility, but
rather is an essential component of the requirement of exhaustion of domestic
remedies. She notes that, in the case T.N. v. Denmark,20 the author had received a
decision of inadmissibility identical to her own, and that that had led the Committee
to indicate that, in its decision, the European Court had not provided sufficient
reasoning or elements of information to allow the Committee to consider that the
Court had examined the case in the sense of article 4, paragraph 2 (a), of the Optional
Protocol. Therefore, from reviewing the case law, the author concludes that her case
is not inadmissible because the merits of her complaint have not been considered by
another international mechanism or procedure.
5.2
The author argues that the identification of victims of trafficking must be
carried out by States parties on the grounds of evidence, not certainty, and that, on the
basis of such evidence, States must offer protection. In accordance with the State
party’s case law,21 the difficulty that women often have in proving their status as
__________________
20 See T.N. v. Denmark (CEDAW/C/59/D/37/2012), paras. 8.4 and 12.4.
21 See High Court of Aragon, Administrative Chamber, First Section, judgment No. 82/2015 of
16 February 2015, first legal ground.
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victims or their accusations against traffickers stems from the very nature of the
crime, as well as the context and circumstances surrounding it. When the State party
asserts that the author did not provide sufficient evidence to support her allegations,
it is confusing two different standards of evidence, namely, that applicable in a court
of law and that applicable in the administrative process of identifying victims of
trafficking, applying a significantly higher standard than would be appropriate to a
victim of trafficking for the granting of a period of reflection. The recurrent references
to the non-evidentiary nature of the author’s statements demonstrate that the approach
taken by the competent authorities in identifying victims of trafficking breaches
obligations of due diligence in the protection of human rights. In its last two reports,
the Group of Experts on Action against Trafficking in Human Beings for the
implementation of the Council of Europe Convention on Action against Trafficking
in Human Beings noted the confusion on the part of the authorities of the State party
between “reasonable grounds” and “objective evidence”, recognizing that it is
unlawful to require proof in order to consider a person as a victim of trafficking and
offer him or her assistance and protection measures. 22
5.3
In the author’s view, the obligation to investigate her allegations rested with
the police officers who received her statement. There is not in the administrative case
file, nor does the State party now provide in its observations, any document proving
that any investigative activity was initiated. The author maintains that States have an
obligation of due diligence, which includes adopting and implementing diverse
measures to tackle gender-based violence against women, including trafficking by
non-State actors.23 In that regard, the Special Rapporteur on trafficking in persons,
especially women and children, has indicated that States have a due diligence
obligation to identify victims of trafficking,24 which is foundational for ensuring the
fulfilment of many other aspects of due diligence, such as investigation and
prosecution of traffickers, and the comprehensive protection of victims. 25 By arguing
that the victim did not provide sufficient evidence, the State party is shifting the
burden of proof back to the alleged victim, placing on the author the responsibility
for proving the violence, when it is the State that is required to investigate the
allegations. Indeed, because of the evidentiary difficulties presented by victims of
gender-based violence, national and international courts have ruled that the burden of
proof should be reversed.26 In V.K. v. Bulgaria, the Committee considered the
evidentiary standard applied by national courts in determining the need for protection
measures, concluding that they applied a very high standard of proof “by requiring
that the act of domestic violence must be proved beyond reasonable doubt, thereby
placing the burden of proof entirely on the author, and concluded that no specific act
of domestic violence had been made out on the basis of the collected evidence”.27
Furthermore, the State party took no action to coordinate its efforts with the Italian
authorities, even though both countries are parties to the Protocol to Prevent, Suppress
and Punish Trafficking in Persons, Especially Women and Children, supplementing
the United Nations Convention against Transnational Organized Crime, and the
Council of Europe Convention on Action against Trafficking in Human Beings, and
__________________
22 See Group of Experts on Action against Trafficking in Human Beings, “Report concerning the
implementation of the Council of Europe Convention on Action against Trafficking in Human
Beings by Spain” (2018), paras. 139 and 151 (available in English and French).
23 See general recommendation No. 35 (2017) on gender-based violence against women, para. 24.
24 See A/HRC/38/45, para. 73 (a) and (f).
25 See A/70/260, para. 24.
26 See Directive 97/80/EC of the Council of the European Union of 15 December 1997 on the
burden of proof in cases of discrimination based on sex, pp. 6–8; European Court of Human
Rights, Nachova and others v. Bulgaria (application Nos. 43577/98 and 43579/98), judgment of
6 July 2005; and Inter-American Commission on Human Rights, Simone André Diniz v. Brazil
(case 12.001), merit report No. 66/06 of 21 October 2006.
27 See V.K. v. Bulgaria (CEDAW/C/49/D/20/2008), para. 9.9.
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are bound by Directive 2011/36/EU of the European Parliament and of the Council of
the European Union of 5 April 2011 on preventing and combating trafficking in
human beings and protecting its victims. All three instruments provide for cooperation
and collaboration among States in combating trafficking and protecting its victims.
5.4
With regard to the alleged role of gender and racial stereotypes in the
identification process, the author reiterates that the State party systematically denies
the veracity of her testimony without indicating the reasons why it considers that there
was no evidence of trafficking, which demonstrates that the identification process and
the related investigation of the facts were flawed and based on gender and racial
stereotypes, as well as the preconceived idea that she was lying to prevent her
removal. She indicates that the State party does not mention which mechanisms it has
established to ensure that the authorities take their decisions on the basis of objective
reasons and not prejudices or stereotypes regarding the origin of persons who claim
to be victims of trafficking, usually foreign women in irregular situations who are the
object of a series of preconceived ideas that may lead to discrimination. With regard
to the alleged police attack to which she was subjected, the judicial authorities did not
investigate the facts or question the officer involved in that regard, in breach of their
duty to investigate claims of discriminatory motivations in the actions of State agents.
5.5
The author concludes that the communication is admissible and reveals a
violation of articles 2, 5 and 6 of the Convention, as the State party still fails to explain
which investigative measures it carried out in response to her allegations and did not
assess the risk that her return posed to her life. Furthermore, the trafficking-victim
identification process did not have sufficient safeguards to avoid the application of
gender and racial stereotypes in relation to the credibility of her testimony and
required her to meet a disproportionate standard of evidence.
Third-party submissions
6.1
On 3 October and 5 November 2019, the Committee, through its Working
Group on Communications under the Optional Protocol, authorized the submissions
of Alda Facio and Frances Raday28 and of the Follow-up Mechanism to the Belém do
Pará Convention.
6.2
Alba Facio and Frances Raday consider that States parties have a due diligence
obligation to prevent, investigate, prosecute and punish violence against women,
including trafficking, as has been reiterated by many international bodies; 29 in the
case of trafficking, the due diligence obligation begins as soon as the authorities
“know or ought to know” of acts related to trafficking in their territory or jurisdiction,
including extraterritorial jurisdiction.30 They also claim that, when police forces are
the sole authorities in charge of identifying victims, there can be major weaknesses
in the fitness and preparedness of those forces, which are simultaneously tasked with
combating irregular immigration and investigating other crimes.
__________________
28 Alda Facio and Frances Raday are experts in international law in the areas of human rights and
women’s human rights. Frances Raday is a former member of the Committee and the Working
Group on the issue of discrimination against women and girls. Alda Facio is a member of the
Working Group on the issue of discrimination against women and girls.
29 See, for example, Belém do Pará Convention, art. 7; General Assembly resolution 48/104, art. 4 (c);
European Court of Human Rights, Opuz v. Turkey (application No. 33401/02), judgment of
9 June 2009; Inter-American Court of Human Rights, González et al. (“Cotton Field”) v. Mexico,
judgment of 16 November 2009; and African Committee of Experts on the Rights and Welfare of
the Child, Michelo Hansungule and others (on behalf of children in northern Uganda) v.
Uganda, communication No. 1/2005, decision of 19 April 2013.
30 See general recommendation No. 30 (2013) on women in conflict prevention, conflict and
post-conflict situations, para. 8.
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6.3
For its part, the Committee of Experts of the Follow-up Mechanism of the
Belém do Pará Convention reports that, in accordance with the standards of the
inter-American system, a State’s duty of prevention arises when, being aware of a
situation of real and immediate risk, the State does not take reasonable action to
prevent it.31 In cases of violence against women, the duty of prevention is reinforced
by the duty of due diligence, which extends to a situation of risk occurring in a context
or pattern that enables the establishment of reasonable evidence that a woman is in
danger. States therefore have an obligation to identify potential victims of trafficking
according to the Follow-up Mechanism.32 In addition, the Inter-American Court of
Human Rights found that States must act with the strictest due diligence to protect
and ensure the exercise and enjoyment of rights when faced with the fact or mere
possibility of their violation by acts involving gender-based violence.33 Hence, States
have an obligation to investigate any possible situation of trafficking of which they
are aware in order to prevent impunity and revictimization. 34 The burden of proof
must also be reversed in trafficking investigation processes, as the authorities cannot
claim that the victim did not sufficiently prove his or her status as such; rather, the
State must act with due diligence to identify the nature of the violence and the woman
as a victim.35
Additional information from the author
7.1
On 11 October 2019, the author clarified that the removal order against her
had never been executed, owing to her resistance and the fact that, after the maximum
period of stay in the detention centre for migrants had passed, she had been released
and had remained in an irregular administrative situation. Approximately one year
later, the author had been a victim of gender-based violence and as such had availed
herself of the possibility of applying for a period of residence, owing to exceptional
circumstances, for foreign women in an irregular administrative situation who are
victims of gender-based violence.36 The duration of that permit had been five years,
expiring on 10 June 2018. The author had not been able to renew the permit because
she had not been in stable employment and had since found herself once again in an
irregular situation.
State party’s observations on the additional information from the author
8.1
At the request of the Committee, acting through its Working Group on
Communications, on 2 June 2020 the State party provided observations on the
additional information from the author.
8.2
The State party asserts that the additional information from the author does
not undermine or add any element of sufficient substance to alter the situation already
__________________
31 See Inter-American Court of Human Rights, Luna López v. Honduras, judgment of 10 October
2013, para. 120; González et al. (“Cotton Field”) v. Mexico, judgment of 16 November 2009,
para. 280; and case Pueblo Bello Massacre v. Colombia, judgment of 31 January 2006.
32 See Follow-up Mechanism to the Belém do Pará Convention, Third Hemispheric Report on the
Implementation of the Belém do Pará Convention: Prevention of Violence against Women in The
Americas – Paths to Follow, para. 87.
33 See Inter-American Court of Human Rights, case Velásquez Paiz et al. v. Guatemala, judgment
of 19 November 2015, para. 145.
34 See Inter-American Court of Human Rights, case Women Victims of Sexual Torture in Atenco v.
Mexico, judgment of 28 November 2018, paras. 270–272.
35 See Inter-American Court of Human Rights, case Fernández Ortega v. Mexico, judgment of
30 August 2010, para. 181; and Inter-American Commission on Human Rights, Ana, Beatriz and
Celia Gómez Pérez v. Mexico, report No. 53/01 of 4 April 2001.
36 The author clarifies that this permit differs from the permit for victims of trafficking and is
governed by article 31 bis of Organic Act No. 4/2000, of 11 January 2000, on the rights and
freedoms of foreign nationals in Spain and their social integration, also known as the Aliens Act.
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analysed, nor does it affect the decisions in domestic judgments. The State party
reiterates that there is no appearance whatsoever of arbitrariness in the actions of the
judicial authorities, to whom the author was able to submit all her allegations, which
have been duly examined.
8.3
The State party also asserts that the intervention of third parties from the
Committee of Experts of the Follow-up Mechanism of the Convention of Belém do
Pará merely contributes a theoretical doctrinal study for the design or defence of what
should be awareness-raising efforts to reduce discrimination, without helping to
resolve the specific case.
Author’s comments on the additional observations of the State party
9.1
At the request of the Committee, acting through its Working Group on
Communications, on 6 July 2020 the author provided additional information on her
residence. The author reports that she continues to reside in Spain in an irregular
situation and maintains that she was not able to renew her residence permit for two
main reasons: not having an employment contract and having a criminal record. The
author claims that this precariousness in her residence status stems from the negative
impact of her not having been identified and adequately protected as a victim of
trafficking, because her criminal record stems precisely from the resistance she was
obliged to put up when attempts were made to remove her. This, for the author, is one
example of how victims of trafficking are socially excluded, because the authorities
offer protection only to victims of trafficking whose cases can easily be prosecuted
or lead to arrests of traffickers or trafficking networks, leaving those victims whose
cases have no chance of success unprotected. This phenomenon is exacerbated by the
fact that the police is responsible for investigating and prosecuting traffickers while
identifying the victims of trafficking.
9.2
The author reiterates in her allegations that, in particular, she considers that
the State party is confusing the right to effective judicial protection with the obligation
to investigate acts of violence against women (para. 5.2). The author also reaffirms
that she does not come before the Committee as a fourth instance, but to request the
Committee to examine compliance with the Convention, including whether the
response of the judicial authorities was adequate and complied with the procedural
and material obligations contained in the Convention. The author considers that the
judicial authorities, by imposing the burden of proof on her, ignored the obligation of
the police authorities to investigate ex officio the facts related to trafficking in women
and did not act with the due diligence that obliges States to prevent and respond to
human rights violations.
9.3
The author believes that the application of stereotypes in gender-based
violence investigations and its impact on the credibility of her statements is well
documented.37
Issues and proceedings before the Committee
Consideration of admissibility
10.1
In accordance with rule 64 of its rules of procedure, the Committee must
decide whether the communication is admissible under the Optional Protocol.
10.2
The Committee recalls that, under article 4, paragraph 2 (a), of the Optional
Protocol, it is precluded from declaring a communication admissible when the same
matter has been or is being examined under another procedure of international
investigation or settlement. The Committee notes that the author filed a complaint
__________________
37 See general recommendation No. 33 (2015) on women’s access to justice, para. 26.
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with the European Court of Human Rights which was declared inadmissible on
29 September 2016 for failure to meet the admissibility criteria set forth in articles 34
and 35 of the European Convention on Human Rights. The Committee also notes that,
according to the State party, it can be inferred from the decision of inadmissibility
that the Court had conducted an examination of the merits of the communication,
while the author maintains that there has been no such examination. The Committee
has considered the Court’s decision and notes that the decision contains only a single
generic reference to articles 34 and 35 of the European Convention on Human Rights,
which regulate a multiplicity of admissibility criteria, including purely formal
criteria, without identifying the specific grounds for inadmissibility. Therefore, the
Committee is of the view that the decision did not provide sufficient arguments or
information to consider that the European Court has examined the case as provided
for in article 4 (2) (a) of the Optional Protocol. 38 The Committee concludes that there
is no impediment under the above-mentioned article with respect to the admissibility
of the communication.
10.3
The Committee notes that the State party indicates that an international body
cannot challenge facts accredited by domestic judicial authorities if those facts have
been determined in proceedings in which all safeguards were respected. However, the
Committee considers that the author is not merely questioning the manner in which
the national authorities assessed the facts of her case, but is submitting to the
Committee questions concerning the extent of the State party’s obligations under the
Convention and the impact of the decisions of the national judicial authorities on her
rights under the Convention. The Committee is of the view that the communication is
sufficiently substantiated for purposes of admissibility and falls within its
competence.
10.4
The Committee, therefore, declares the communication admissible insofar as
it raises questions under articles 2, 5 and 6 of the Convention, and proceeds to its
consideration on the merits.
Consideration of the merits
11.1
The Committee has considered the present communication in the light of all
the information made available to it by the author and by the State party, in accordance
with article 7, paragraph 1, of the Optional Protocol.
11.2
The Committee recalls that, in accordance with article 6 of the Convention,
States parties shall take all appropriate measures, including legislation, to suppress
all forms of traffic in women and exploitation of prostitution of women. In addition,
in accordance with paragraph 38 of general recommendation No. 38 (2020) on
trafficking in women and girls in the context of global migration:
International human rights law imposes positive obligations on States to
identify victims of trafficking, a duty placed firmly on States, irrespective of
the lack of self-identification by a victim. … Survivors are often reluctant to
self-identify or to disclose who has trafficked them for fear of retaliation,
owing to lack of information on the crime and where to report it and to fear of
engaging with authorities, including fear of being detained, prosecuted,
punished and deported.
11.3
In that regard, the Committee stresses that stereotyping affects the right of
women to be protected against gender-based violence and, in the present case,
trafficking, and that the authorities responsible for preventing and combating
trafficking must take care not to create inflexible standards of what women and girls
__________________
38 See T.N. v. Denmark (CEDAW/C/59/D/37/2012), para. 12.4.
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should be or what they should have done when confronted with a situation of
trafficking, standards based merely on preconceived notions, rooted in a male-centred
perspective of what defines a victim of trafficking. In combating trafficking in
women, in accordance with paragraph 97 of general recommendation 38 (2020),
States must:
Counter stereotypical attitudes and discrimination towards women and girls
who are victims of trafficking and sexual exploitation, in particular migrants,
by providing trauma-informed, gender-sensitivity and child-sensitivity training
for individuals tasked with providing assistance and protection services,
including to relevant authorities at the local and State levels, … police officers,
border officers, immigration personnel ….
11.4
Victims of trafficking have a special status and a right to special assistance
and protection measures provided by the State. Long-term, needs-based,
comprehensive, victim-centred assistance and protection measures are often lacking
in anti-trafficking response measures due to poor victim identification and an
insufficient definition of trafficking in national law and implementation thereof.39 The
Committee also considers that, on human rights and humanitarian grounds, States
must provide access to free legal aid, grant, where possible, a reflection and recovery
period and a residence permit pending formal identification to enable trafficked
women and their dependants to take part in recovery and reintegration measures,
which must be inclusive and accessible, not made conditional on their participation
in the criminal justice process or the obtaining of a conviction against traffickers,
including appropriate individualized, gender-sensitive, child-sensitive and trauma-
informed emergency and longer-term access to accommodations, welfare benefits,
educational and employment opportunities, high-quality medical care, including
sexual and reproductive health services and counselling, the issuance of official
identification documents free of charge, family reunification measures and asylum
procedures, where relevant.40
11.5
The author claims that she is the victim of trafficking and considers that the
refusal to investigate her claims, and the attempts to remove her, constituted a
violation by the State party of its obligation to protect her and to prevent trafficking
by investigating the crime, in violation of articles 2 and 6 of the Convention, and that
that refusal was mainly attributable to the use of stereotyped prejudices, in violation
of article 5 (a). She also claims to have been the victim of an attack involving
stereotyped insults when an attempt was made to execute the order to remove her, and
considers that both this act and the subsequent judgments constitute violations of
article 5 (a) of the Convention.
11.6
With regard to the attack with stereotyped insults to which the author claims
to have been subjected during the attempt to remove her, the Committee notes that
the author considers that she was a victim of stereotyped prejudices that led to the
attack on her and that the subsequent judgments were based on stereotyped prejudices.
The Committee notes that the State party alleges that, after judicial review, with all
safeguards, no attack on the author had been proven, whereas the author’s attack on
police officers had been proven. The Committee recalls that it is generally for the
authorities of States parties to the Convention to evaluate the facts and evidence and
the application of national law in a particular case, unless it can be established that
the evaluation was biased or based on gender stereotypes that constitute
discrimination against women, was clearly arbitrary or amounted to a denial of
__________________
39 See general recommendation No. 38 (2020) on trafficking in women and girls in the context of
global migration, para. 39.
40 Ibid., para. 92.
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justice.41 The question before the Committee is therefore whether there were any
irregularities in the decision-making process that led to the establishment of the facts.
The Committee notes that the facts relating to the alleged attack on the author by the
officers and vice versa have been brought to the attention of the judicial authorities
in two sets of proceedings. The proceedings arising from the author’s complaint were
closed. The Committee notes that there were no eyewitnesses to the incident, only
earwitnesses; that the author refused to be examined by a forensic doctor; and that the
only medical report in the file merely mentioned the author’s self-harm. In the
proceedings arising from the officers’ complaint, which was examined by three
different courts, it was decided to convict the author after the analysis of evidence,
including medical reports and testimonies. The Committee notes that the author has
not substantiated the extent to which the decisions taken at the domestic level suffered
from manifest arbitrariness, denial of justice, or evidence of the use of stereotypes or
biases contrary to the Convention. Accordingly, the Committee considers that the
information in the file before it does not permit it to conclude that the facts are
evidence of a violation of article 5 (a) of the Convention.
11.7
With regard to the author’s claim that she is a victim of trafficking and as such
should have had access to protection by the State, consisting in the first place of not
removing her, and to an investigation based on the information she provided in her
statement and in her administrative appeal, the author claims that the lack of an
investigation resulted in discrimination against her and a failure to protect her rights
as a victim of trafficking under article 6 of the Convention, and that the related court
decisions were based on gender stereotypes. In that respect, the Committee noted that
the State party’s judicial authorities have considered and dismissed the possibility that
the author was a victim of trafficking, noting that the author’s statement contained
numerous inaccuracies and vague references and that six years had elapsed since the
alleged events with no new developments regarding the alleged trafficking. In
particular, the High Court of Madrid, in its judgment of 15 July 2013, states that “there
is, in the author’s statement, complete vagueness with regard to all details concerning
the persons whom she states forced her into prostitution, which is significant when
she says that she was in contact with these persons for six months; it is also significant
that she provides no details with regard to the persons who might threaten her in her
country, especially if, as she states, her daughter was subjected to attacks there”.
While the author claims that those judgments are based on gender stereotypes, she
cannot point to any specific aspects of those judgments that might indicate the use of
such stereotypes. The Committee further notes that the limited information and
documentation provided by the author to the Committee, and the time that has elapsed
since the commission of the acts, in the territory of a third State that she left more
than 15 years ago, without any proof of real danger to the author or her family, support
the determination by authorities of the State party that her allegations were
unsubstantiated.
11.8
The Committee emphasizes that, in the prevention of the crime of trafficking,
consideration must be given to the nature of that crime and the difficulty encountered
by its victims, who are often traumatized, in providing accurate and detailed
information about their experiences.42 The Committee notes, however, that because
of the gaps and contradictions in the author’s account, she has not been able to present
sufficient arguments, either to the courts of the State party or to the Committee, to
reverse the burden of proof and place it on the State party. Therefore, in this case, a
reading of the decisions and the file do not provide the Committee with proof of
manifest arbitrariness, denial of justice, or evidence of the use of stereotypes or biases
__________________
41 See, for example, S.J.A. v. Denmark (CEDAW/C/68/D/79/2014), para. 7.8.
42 See European Court of Human Rights (First Section), S.M. v. Croatia, (application
No. 60561/14), judgment of 19 July 2018 (referral to the Grand Chamber), para. 80.
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contrary to the Convention. Having found nothing that would require the Committee
to depart from the State party’s assessment of the facts and the conclusion that the
author was not a victim of trafficking, the Committee considers that the facts in this
case do not constitute evidence of any violation of the Convention.
12.
In the light of the above, acting under article 7, paragraph 3, of the Optional
Protocol to the Convention, the Committee is of the view that the facts before it do
not reveal any violation of the rights of the author under article 6 of the Convention.