Published on 12 September 2022

THIRD SECTION

Application no. 22512/21 T.V. against Spain lodged on 20 April 2021 communicated on 23 August 2022

SUBJECT MATTER OF THE CASE

The application concerns the discontinuation of the criminal proceedings against two persons accused of sexually exploiting the applicant, a Nigerian woman who is a recognized victim of human trafficking in Spain.

On 9 June 2011, the applicant denounced being a victim of human trafficking before the police in Zaragoza and she was assigned an identity as protected witness. She stated that she had arrived in Spain in 2003, when she was 14 years old, and had been sexually exploited in different places in Spain by a Nigerian woman and her Spanish partner, from whom she had managed to escape in 2007.

The case was referred to the Criminal Investigation Court No. 2 of Marchena, after the Criminal Investigation Court in Zaragoza dismissed it due to lack of jurisdiction. On 7 November 2011, the Criminal Investigation Court No. 2 of Marchena ordered several investigation measures. On 24 January 2013, the same measures were ordered again. On 26 April 2013, the Criminal Investigation Court No. 2 of Marchena ordered the provisional dismissal of the case, considering that the fact of the commission of the crime had not been duly established. Following the appeal of the Public Prosecutor against this decision, the judge accepted to continue the investigation. Some additional investigative measures were taken, including the location of the accused in May and August 2014 and the submission of psychological reports on the victim. The reports concluded to a psychotic disorder and mentioned the impact of sexual exploitation on the applicant’s mental health.

Following a request from one of the defendants, the judge ordered an age assessment of the victim. The forensic report, issued in April 2016, concluded that: (i) the exploration of sexual characteristics corresponded to 15 years or more; (ii) the X-ray corresponded to 18 years or more; and (iii) the orthopantomography corresponded to “a statistical age of 22.4 +/- 1.9 years”.

On the basis of this report, the Provincial Court of Seville confirmed the provisional dismissal of the proceeding through two decisions adopted on 10 January 2017 and 14 June 2017. It considered that, since the applicant’s most probable age was 18 years old, her statements regarding her entry in Spain and her sexual exploitation were not credible.

In her application before the Court, the applicant invoked Articles 3, 4, 6 (civil and criminal limb), 8 and 13 of the Convention.

QUESTIONS TO THE PARTIES

1. In view of the recognition of the applicant as a victim of human trafficking, and in view of her being a minor at the material time, has the respondent State discharged their positive obligation under Article 4 of the Convention to take operational measures to protect her (see V.C.L. and A.N. v. the United Kingdom , nos. 77587/12 and 74603/12, §§ 153 and 156, 16 February 2021, and S.M. v. Croatia [GC], no. 60561/14, § 306, 25 June 2020)?

2. Was the criminal investigation into the applicant’s allegations of human trafficking carried out in accordance with the positive obligations arising from Article 4 of the Convention (see S.M. v. Croatia [GC], cited above, §§ 306-320)?

3. As regards the applicant’s complaint concerning her right of access to a court, does the domestic law provide for a right to compensation to those recognised as victims of human trafficking? Did the applicant have at her disposal accessible and effective avenues to lodge claims for the purposes of the determination of her civil right to such compensation, within the meaning of Article 6 § 1 of the Convention (see, mutatis mutandis, Nicolae Virgiliu Tănase v. Romania [GC], no. 41720/13, § 198, 25 June 2019)? Did she exhaust effective domestic remedies in respect of her complaint regarding the right of access to a court? If so, has the applicant’s right to a fair trial under Article 6 § 1 of the Convention been respected?

4. Did the applicant have effective domestic remedies at her disposal in respect of the above alleged violations of the Convention, as required by Article 13 of the Convention?

The parties are further requested to submit a copy of the decision of the Criminal Investigation Court No. 2 of Marchena ordering the provisional dismissal of the case and a copy of the relevant documents recognising the applicant as a victim of human trafficking.