Case summaries
The return of a survivor of trafficking and gender-based violence to the country of original harm under the Dublin III Regulation violates Articles 2(d) and 6 of the Convention on the Elimination of All Forms of Discrimination against Women, unless the state conducts an individualized, trauma-informed, and gender-sensitive assessment of the real risk of retraumatization.
Relying on general assumptions about adequate reception conditions in the receiving state is insufficient where capacity gaps in specialized psychological care exist. The non-refoulement obligation requires assessing real, personal, and foreseeable risks of gender-based violence, including from non-state actors, and prohibits removal where formal legal protections cannot guarantee safety given the individual's extreme vulnerability.
Even in the absence of a formal complaint, the repeated notifications of trafficking elements to authorities and broader awareness of migrant worker abuse reported in international resources (ECRI, GRETA reports) triggered a duty to investigate. However, the Government failed to show any effective investigation took place: no attempts were made to identify or question victims or alleged perpetrators, nor were legal-assistance mechanisms used to gather evidence from Bosnia and Herzegovina.
The Court unanimously found a violation of Article 4 § 2 under its procedural limb.
Article 4 ECHR requires that victims of trafficking are promptly identified as soon as there is credible suspicion of trafficking-related circumstances, regardless of whether the victims were able to identify and mention their experience.
To the extent that is possible, potential victims of trafficking can only be prosecuted following an assessment of whether they have been trafficked. Prosecutorial service should be aware of protocols around trafficking cases.
The lack of an assessment of whether the applicants had been trafficked prevented them from obtaining evidence that were fundamentally related to their defence in violation of their right to a fair trial under Article 6. The domestic judicial procedure was also contrary to Article 6 insofar as the applicants’ subsequent claims regarding their trafficking were not adequately assessed.
As a result of a transfer order to Italian authorities joined with house arrest, the applicant lodged an appeal. She argued she would be at risk of being exposed to inhuman and degrading treatments, as well as to systemic lapses of the Italian asylum system. In this case, the administrative tribunal granted annulment of those orders issued by the prefect of la Haute-Garonne in the light of the current Italian asylum conditions and the reasons motivating the applicant to reach France after having stayed in Italy.
The Court finds that forced labour constitutes one form of exploitation subsumed by the definition of trafficking, as is clearly shown in Article 4a) of the Council of Europe Convention on Action against Trafficking in Human Beings.
The positive obligations under Article 4(2) of the ECHR must be interpreted in light of the Council of Europe Convention and the manner in which it has been interpreted by the Council of Europe's Group of Experts on Action against Trafficking in Human Beings. Contracting States have three positive obligations under Article 4(2):
a) an appropriate legal and regulatory framework for the criminalisation of human trafficking;
b) operational measures on the prevention of human trafficking and the protection of victims’ rights
c) an effective investigation and judicial procedure.
This case primarily dealt with the lawfulness of a prolonged period of detention in the context of whether there was a reasonable prospect of deportation and also of evidence of both current mental illness and previous torture and trafficking.
In cases of reasonable suspicion that a person applying for asylum was a victim of human trafficking, the Swiss State Secretary for Migration is obliged to clarify the facts thoroughly on its own initiative.
The Court found that Article 4 had been violated because of delay by national authorities in formally recognising that the Applicant was a victim of human trafficking, and because of failings of the police and the courts in prosecuting the individuals suspected of being responsible. Further, Articles 6(1) and 13 had been violated because of delays in the length of criminal proceedings against those individuals, and because the Applicant did not have recourse to an effective remedy to complain about this.
The High Court approved of the claimant asylum seekers' and the defendant Secretary of State's consent order for settlement. The defendant accepted responsibility for failing to remove the claimants from the DFT, despite indicators that they were vulnerable and not suited to the DFT, and for failing to inform them about the National Referral Mechanism (NRM).
Considering the general situation in the country and the circumstances specific to the Applicant, the ECtHR held that there were no serious and current grounds to believe that she would be at real risk of treatment contrary to Article 3 upon her return to Nigeria.