The Criminalization of Victims of Trafficking: the European Court of Human Rights on the "Non-Punishment Clause" and the Positive Obligations of Protection Deriving from Art. 4 ECHR

European Court of Human Right, IV Section, February 16, 2021, V.C.L. a. A.N. v. UK

To read the Court’s judgement, click here.

To read the official Information Note, click here.


The V.C.L. and A.N. v. UK judgement, issued on February 16, 2021, was the first occasion on which the Court was called upon to consider if and when a case concerning the prosecution of (potential) victims of trafficking for crimes related to their condition of exploitation might raise an issue under Art. 4 ECHR. Therefore, the Court had the opportunity to further specify the extent of the positive obligations deriving from Art. 4 ECHR, as well as to clarify the relevance to the Convention of the so-called “non-punishment clause” contained within the international and European anti-trafficking legislation.

As is well known, starting from the Rantsev v. Cyprus judgement (January 7, 2010) the ECtHR has openly included the prohibition of trafficking in human beings in the scope of application of Art. 4 ECHR, which verbatim prohibits slavery, servitude and forced labor. The effect of this interpretation has been to enrich and strengthen the apparatus of positive obligations already stemming from all the international and European instruments to combat human trafficking: the Palermo Protocol on trafficking in human beings (additional to the United Nations Convention against Transnational Organized Crime), the Council of Europe Convention on Action against Trafficking in Human Beings and Directive 2011/36/EU. The result is an articulated system, which imposes on the Member States both precise obligations to criminalize, prevent and punish the criminal phenomenon in question, and to identify, protect and assist trafficking victims.

On this occasion, the applicants were two Vietnamese nationals who, when still minors, had been taken to England to be employed in a cannabis factory, where they were discovered and arrested by the British authorities to be charged and convicted for the production and sale of drugs. In both cases, even though the competent authorities later determined that the two minors had been trafficked, the prosecutor disagreed with that assessment, asserting that the offences were very serious and there was no clear evidence of trafficking. Consequently, the two applicants claimed the violation of Art. 4 ECHR, given domestic authorities’ failure to take operational measures in line with international standards to protect minors prosecuted, despite credible suspicion they were trafficking victims.

The ECtHR takes into consideration the provisions of Articles 26 of the Warsaw Convention and 8 of Directive 2011/36/EU, which – in order to ensure real and effective protection for victims of trafficking – recommend the adoption by the Member States of specific non-punishable clauses to prevent criminal convictions for crimes committed by trafficking victims as a direct consequence of their condition of exploitation. The Court immediately clarifies that these provisions do not actually impose a general prohibition for States to prosecute victims of human trafficking: in fact, they just request the Member States to consider the possibility of not prosecuting trafficking victims who have been forced to commit crimes as a result of their condition (see § 158 of the judgement).

Nonetheless, the Court considers how prosecuting actual or potential victims of human trafficking can, in some cases, be at odds with the State’s duty to take operational measures to protect them whenever they are aware, or ought to be aware, of circumstances giving rise to credible suspicion that an individual has been trafficked. In fact, the prosecution of victims of trafficking can be injurious to their physical, psychological and social recovery and could potentially leave them vulnerable to being re-trafficked in future (§ 159).

Moreover, the exploitation of human beings in illegal activities is a phenomenon in significant growth in the global and European context and it is expressly contemplated as a possible purpose of the trafficking conduct by Art. 2§3 of Directive 2011/36/EU. The British authorities, then, should have assured an early identification of the applicants as potential victims of trafficking from the moment of their discovery in the cannabis factory, since there were clear indicators of such condition. Once a trafficking assessment has been made by a qualified person, any subsequent prosecutorial decision would have to take that assessment into account; the prosecutor would need to have clear reasons which are consistent with the definition of trafficking contained in the Palermo Protocol and the Anti-Trafficking Convention for disagreeing with it. Since this had not happened in the present cases, the ECtHR ascertained the violation by the United Kingdom of the positive obligations deriving from Art. 4 ECHR.

The Court also finds a violation of the procedural guarantees provided by Art. 6 ECHR, since the failure to identify the minors as victims of trafficking during their criminal proceedings compromised their right to a fair trial, resulting in inadequate investigations. Although the defendants were assisted by defenders, in fact, they were induced to plead guilty, in a context in which they were unable to recognize and assert their rights.