TY - JOUR
AU - Waisman,, Viviana
AB - Abstract This article provides a critical analysis of the transposition and the implementation in Spain of different elements of the EU Anti-Trafficking Directive, focusing on the protection and promotion of victims’ rights. The authors explain how gender stereotyping creates obstacles in the identification of victims, as well as in the realization of other state obligations under the Directive such as the special protection required for child victims of trafficking. The authors offer information based on qualitative data from their experience investigating and litigating in the field that demonstrates the need for Spain to improve its mechanisms of enforcement from a gender perspective of the non-punishment principle, data collection, and the application of international protection, amongst others. The article concludes that both the transposition of the Directive itself and the implementation of the provisions on victims’ rights are inadequate in providing effective protection from a human rights and gendered approach. 1. Introduction Directive 2011/36/EU of the European Parliament and the Council of 5 April 2011 on preventing and combating trafficking in human beings and protecting its victims (‘the Directive’) clearly mandates EU (European Union) member states to adopt an integrated, holistic, and human rights approach in the fight against trafficking in human beings, and to do so with a gender perspective. At the same time, it is important to note that the EU is undergoing a period of extreme difficulty as it seeks to implement new policies to address the current influx of refugees and other migrants entering Europe. There is evidence that women and children are in a particularly vulnerable situation and thus at risk of falling into the hands of traffickers. This situation is exacerbated when restrictions block legal entry. The current EU approach can be seen as sending a contradictory message to the member states as it relates to the mandate of this Directive. Against this background, this article seeks to analyse from a gender perspective Spain’s efforts to implement the Directive. The information and analysis offered in this article derive from the authors’ experiences of working in the field as part of the organization Women’s Link Worldwide. Since 2006 Women’s Link has been documenting the situation of trafficking victims in Spain, litigating cases on behalf of victims of trafficking to secure recognition of rights and access to justice as well as participating in civil society’s efforts to advance the rights of these women and girls. It is important to note that the efforts of Women’s Link are all directed towards the protection and recognition of the rights of trafficking victims, and not focused on prevention or prosecution. Thus, we only address prevention and prosecution where the issues relate to the protection of women and girls. As part of the article’s methodology we provide a number of case studies. Some of these are cases that Women’s Link has litigated. The ones not litigated by Women’s Link relate to cases and information provided to us by partner organizations in Spain. The information contained in the article is often anecdotal in nature, reflecting the article’s qualitative methodology. It is a product of our work, our experience in the field, as well as numerous and frequent conversations with colleagues throughout the years. One of the issues in the field is the lack of documentation and evidence-based research. Women’s Link has worked to bridge the literature gap through qualitative research and fact finding and is expert in this area (Women’s Link Worldwide 2009, 2011, 2012, 2014). The cases we include are illustrative and real-life examples of what is occurring in Spain. The article focuses on the provisions of the Directive that are the weakest due to the lack of a comprehensive human rights approach with a gender perspective. It does not seek to offer an exhaustive analysis of all the articles of the Directive. Spain is a destination, origin, and transit country for men, women, and children subjected to forced labour and sex trafficking. According to the US State Department 2015 Trafficking in Persons Report (US Department of State 2015), women from Eastern Europe (particularly Romania, Bulgaria, Ukraine, Russia, and Croatia), Latin America and the Caribbean (particularly Paraguay, Brazil, Colombia, and Ecuador), China, and Nigeria are subjected to sex trafficking in Spain. Many women forced into prostitution are held under the control of Nigerian, Romanian, and Spanish trafficking networks that operate out of major cities in Spain. In addition, victims are increasingly subjected to trafficking by individuals and smaller groups of traffickers. Unaccompanied migrant children continue to be vulnerable to sex trafficking and forced begging in Spain. It was not until relatively recently that protection measures for trafficking victims were enacted in Spanish law. Organic Law 4/2000 (Ley Orgánica 4/2000) was amended in 2009 in order to include a period of recovery and reflection, and in 2010, by an amendment of the Criminal Code (Ley Orgánica 10/1995), trafficking of human beings became a crime for the first time. The legal instruments selected for amendment by the government in order to comply with its obligations under European instruments (Council of Europe Convention on Action against Trafficking in Human Beings and the EU Council Directive of 2004) says much about the focus on these measures: namely, migration and crime control. Subsequently, the government approved a number of Action Plans (public policy documents without legal force) on trafficking for the purposes of sexual exploitation and modified a number of laws that regulate diverse issues which relate to trafficking. These measures were carried out in a patchwork and ad hoc fashion, further underlining the lack of systematic consideration of this issue. 2. Spain’s transposition of Directive 2011/36/EU In accordance with Article 1 of the Directive, Spain has transposed the Directive into domestic law as it relates to the adoption of minimum standards in the field of criminal law. An amendment to the Spanish Criminal Code (Ley Orgánica 10/1995) introducing, among others, Article 177 bis, adopts for the most part the definition of the crime of trafficking of human beings as set out in the Directive. The wording of the provisions differs from the Directive in that the Spanish Criminal Code excludes the words ‘exploitation of criminal activities’. In addition to the amendments to the Criminal Code to include the crime of human trafficking, Spain’s efforts to transpose the Directive include the passage or amendment of a number of other laws and policy papers. In its reporting to the European Commission regarding the transposition of the Directive, Spain has included a list of 36 ‘laws’ as national implementing measures concerning the Directive.1 All the documents included in the communication were published in Spain’s official state bulletin (Boletín Oficial del Estado). However, this list contains both amendments to existing Acts (or legislation) that specifically address trafficking, general legislation not intended to address trafficking,2 Acts that were repealed by subsequent legislation,3 corrections (errata sheets) and policy papers.4 Thus, despite the relatively long list of national implementing measures communicated, only four of these specifically address the crime of trafficking and its prevention, or the protection of victims. The remainder of these laws are of general application and could affect trafficking victims as well as victims of any other crimes and a number of other situations, as they deal with different aspects of the justice system such as legal aid, assistance for victims of violent crimes, or the right of victims to be part of criminal proceedings. Furthermore, if we remove from this list of 36 national implementing measures laws that simply seek to correct errors in the previous publication of a law, laws that have been repealed, laws that simply amend a law that is also listed as one of the 36, and the first National Plan against Trafficking (a policy paper which is currently not in force), the number of measures that actually seek to transpose the Directive is reduced to 20. Of these 20, eight are policy papers or administrative decisions. In conclusion, only 12 of the original 36 ‘laws’ communicated to the Commission are actually laws that apply either directly or indirectly to trafficking. Therefore, the Directive has not been adequately transposed with regard to obligations to prevent the crime and to protect victims of trafficking in human beings. This is partly due to the inadequacy of the implementing legal instruments that Spain has adopted (Roth 2016). One major issue is the lack of binding regulations or laws that address trafficking from a human rights perspective. Other than the provisions in the Criminal Code, the only two binding legal norms that include provisions specifically related to trafficking victims are the Victims of Crime Protection Act (Ley 4/2015) and sections of Spain’s amended 2009 Immigration Law and accompanying regulations (Real Decreto 557/2011). The other instruments that Spain has enacted are either not legally binding—thus dependent on the political will of state agents—or are general laws that apply to trafficking as well as to numerous other crimes. These non-binding instruments are two National Plans and a Framework Protocol, discussed further below. The first National Plan was in force between 2009 and 2012, and put in place the then government’s intentions in relation to trafficking of human beings for sexual exploitation. The second National Plan, currently in effect (Plan Integral de Lucha Contra la Trata de mujeres y niñas con fines de explotación sexual 2015–2018) is a policy paper that only addresses trafficking for sexual exploitation. The policy does not address trafficking for other purposes such as labour, domestic work, forced begging, forced marriage, sham marriages, and organ harvesting. In 2011 the Framework Protocol for Protection of Victims of Trafficking (Protocolo Marco de protección de las víctimas de trata de seres humanos) came into effect following agreement between a number of government ministries—Interior, Justice, Employment and Social Benefits, and Health, Social Services and Equality; the National Public Prosecutor’s Office; and the Judges’ Council. The Protocol aims to establish operational guidelines for the detection, identification, support and protection of victims of human trafficking, to foster coordination among the institutions involved in these processes and to define the mechanisms for the relationship among authorities with responsibilities in the field, along with the processes for communication and cooperation with organizations and bodies with proven experience in attending to victims of trafficking, in particular those which provide comprehensive support and are involved in public administration programmes for victim support and protection. (Framework Protocol: I.1) The Framework Protocol regulates the following: definition of human trafficking scope of application of the Protocol detection of possible victims of human trafficking and initial actions identification of presumed victims of human trafficking specific actions with victims who are ‘illegal’ foreigners, including   ○ rehabilitation and reflection period   ○ identification at the border or in foreigner internment centres specific actions in cases of victims of human trafficking who are legal minors action by organizations and bodies specializing in assistance to victims of human trafficking. While the Spanish government’s commitment to combating sexual exploitation is welcomed, in this article we draw attention to how this single focus fails to take into account other forms of exploitation. Further, we illustrate how the current understanding of tackling trafficking in human beings relates to law enforcement and the police force, meaning that other state actors are not sufficiently engaged in the process of identifying, protecting and supporting victims of trafficking. Finally, we illustrate through a number of case studies how the state is failing to adopt a human rights approach in the fight against trafficking and the protection of the victims. 3. Gender perspective: gender stereotyping and trafficking Article 1 of the Directive provides that member states must take into account a gender perspective. Although there is no further indication in the Directive as to what the ‘gender perspective’ means, the Directive and the wider EU legal and policy framework make it clear that member states need to take gender-specific actions. As the European Commission noted in its mid-term report on the implementation of the EU strategy towards the eradication of trafficking in human beings: For the first time, the Directive adopts a gender-specific approach to THB [trafficking in human beings], recognizing that women and men, girls and boys, are trafficked in different circumstances and require gender-specific assistance and support. (European Commission 2014: 5.3) The wider EU strategy on trafficking in human beings recognizes violence against women and gender inequalities as root causes of trafficking. The provisions of the EU Anti-Trafficking Directive, which call on member states to adopt a gender perspective in relation to providing victims of trafficking in human beings with protection measures, have been inadequately transposed and implemented by the Spanish government, focusing solely on sexual exploitation, with implementation measures reflecting a stereotyped view of prostitution and sex work. The result of this stereotyped and narrow focus has been that other forms of exploitation and other potential victims or issues, such as childhood, have not been considered adequately, if at all. 3.1 Gender stereotyping A stereotype is a generalized or preconceived notion of the characteristics or attributes of the members of a group or a preconceived idea of the roles that certain members of a group should play. A stereotype presumes that all members of a certain group possess those attributes or characteristics. An essential element of a stereotype is that it be used as a way of avoiding an individualized investigation into a particular person’s abilities or circumstances. Also essential is that the generalizations that amount to stereotypes have been adopted by one group as a description of other individuals, rather than derived from these individuals’ own attempts at self-definition (Moreau 2004). A gender stereotype refers to the social and cultural construction regarding men and women in relation to their different roles in society, be it based on physical, biological, social or other reasons (Fernández 2015). Stereotyping can affect the prosecution of gender-based violence cases, such as where procedures and rules of evidence in the criminal justice system are infiltrated by strong gender stereotypes which can result in engagement in gender-biased behaviour by court officials and discrimination against women by the criminal system in general (UN General Assembly 2011). It can also influence whether or not courts issue and enforce protection orders, whether perpetrators are held to account for their violent acts, and whether survivors receive reparations for those acts (Cusack 2014). 3.2 Gender stereotyping and trafficking victims In the context of trafficking in human beings, it is important to highlight the ways in which gender stereotypes impact upon victims of trafficking, including issues of credibility and access to protection and support. Gender stereotyping impacts Spain’s ability to comply with the EU Anti-Trafficking Directive in that stereotyping hinders proper and timely identification of the victims of trafficking while also creating obstacles to victims’ access to justice. For example, a commonly held stereotype about women in our society is that they are more likely to be manipulative or liars (Kennedy 1993). In the context of trafficking, this stereotype can be very harmful as women victims of trafficking are often thought to be making up stories. Discrimination based on gender or gender stereotyping often interacts with other forms of discrimination. Thus, an intersectional analysis of the discrimination faced by trafficking victims reveals that women migrants face an even stronger application of this stereotype; that is, state authorities often work under the preconceived idea that a migrant woman facing deportation is highly likely to fabricate facts or claim to be a trafficking victim in order to avoid being deported. Another stereotype that creates obstacles to identifying victims of trafficking in human beings is that associated with the preconceived notion of how a victim of a violent crime ‘should’ behave—especially a female victim. Most often, authorities expect women who are ‘victims’ to behave in a certain manner, for example, scared, hurt, trapped, highly emotional, and so on. When a woman does not act in this way, her status as a victim is often questioned and could lead to her account being discredited. Furthermore, stereotypes based on the intersection of race and gender may also contribute to deficient treatment of potential victims of trafficking, including a lack of identification and access to protection, as well as discriminatory treatment in interactions with authorities. For example, black women in Spain are often stereotyped as prostitutes. A clear example of this can be seen in a case in which Spain was condemned for discrimination based on race and gender (European Court of Human Rights 2012, B. S. v. Spain). In that case, the inhumane treatment the applicant received from police officers was based on the fact that she was a black woman and thus presumed to be a prostitute, and less deserving of her fundamental human rights. She was assaulted by police officers on two separate occasions, and subjected to verbal racist assault. Significantly, the Spanish government in its answers to the European Court of Human Rights insisted on the need to control prostitution and trafficking, conflating the issues, and submitting that it needed to do so for security purposes. This case clearly demonstrates the government’s lack of understanding of trafficking and explains why there are problems with identification based on stereotypes. In order to illustrate the ways in which gender stereotypes operate vis-à-vis the identification and protection of victims of trafficking in human beings, we will present here a number of case studies. Apart from the first case study, they are taken from our own experiences of litigating trafficking cases. 3.3 Gender stereotyping in the transposition Another prevalent stereotype in Spain regarding trafficking has been largely created by the lack of implementation of the Directive itself. As set out above, all government efforts have been and are currently focused on trafficking for sexual exploitation. One of the consequences of the sole focus by Spain on trafficking for sexual exploitation is the lack of investigations or policy to address other forms of trafficking, leading to a generalized perception that other forms of human trafficking are not taking place. This means that trafficking for other types of exploitation, such as for labour, remains invisible. CASE STUDY 1. Three cloister nuns of Indian origin reported to the Spanish authorities that they were locked up against their will in a convent in Santiago de Compostela (Galicia) for nearly 20 years. When they expressed their desire to leave the convent, the abbess allegedly threatened them, telling them that they would be deported to their country of origin due to their lack of residence permit. The judge in charge of the case stated in her decision that the farming work they had carried out was performed ‘in conditions of quasi slavery’. Her comments were based on the police investigation in the case. Consequently, she ordered that the nuns should be released and started proceedings against the abbess. There was no mention in the investigation, in the case or in accompanying news stories of the possibility that the nuns were victims of trafficking for labour exploitation. Despite the fact that the crime of trafficking in persons is categorized in the Spanish Criminal Code, neither the prosecutor nor the judge in charge of the case made any reference to the possibility that trafficking had been committed, even though they discussed indicators of coercion, threats, unlawful deprivation of liberty and offences against the person (moral integrity). This case is illustrative of how the state’s focus on trafficking for sexual exploitation creates the general idea that in Spain trafficking exists only for sexual exploitation, creating a blind spot for state agents. (Order of 22 January 2016, First Instance Court No. 1, Santiago de Compostela (Galicia))5 4. Identification of trafficking victims The Directive states: ‘Member States shall take the necessary measures to establish appropriate mechanisms aimed at the early identification of, assistance to and support for victims, in cooperation with relevant support organizations’. The timely identification of trafficking victims is a crucial aspect of counter-trafficking as well as the gateway for access to a host of rights and protections for the victims. The failure to correctly identify a trafficking victim or a potential victim is in itself a violation of the rights and obligations derived from the Directive. At the same time, the lack of identification leads to a denial of a number of other rights as well as to unsuccessful criminal investigations and the impunity of traffickers. 4.1 Identification of trafficking victims with a gender perspective In Spain, the identification process is far from being effective or coherent. The impact of the lack of appropriate implementation of this article of the Directive has consequences not just for Spain, but also for other EU member states, because Spain is an important entry point of trafficking victims in Europe. The failures that are present in effective implementation of identification procedures are in large part structural. In Spain, the only institution with the legal authority to identify and certify that a person is a victim of trafficking in human beings is the National Police. In accordance with national legislation under Article 141.2 of the Regulation on Foreigners and section VI.A.1 of the Framework Protocol, police officers must receive specific training on the prevention of and fight against trafficking in human beings, and also training in order to identify and assist victims. However, the designation of the police force as the sole state agency responsible for these tasks is highly problematic in terms of combating trafficking, for several reasons. First and foremost, this structure does not allow for a human rights approach to be employed in the treatment of trafficking or potential trafficking victims. The police units are tasked with combating illegal immigration and investigating criminal offences. Thus, the fact that they are also tasked with performing identification interviews and identifying victims means that the approach can only be one that focuses on migration and crime control, and not on the human rights of the victims. The United States Department of State affirmed in its 2011 Trafficking in Persons Report that in Spain ‘[the] continued lack of formalized procedures for proactive identification increased the likelihood that unidentified victims were treated like illegal migrants and deported’ (US Department of State 2011: 331). The duty to identify, support and assist victims is currently regarded as only a secondary consideration, if that, resulting in inadequate protection for suspected victims of trafficking. Similarly, the fact that the same institution that interviews a potential victim also has the power to detain that person for illegal activity or to deport her if she is not legally in the country creates a power dynamic between the interviewer and the interviewee that is very likely to increase stress and vulnerability in a woman that has been trafficked. This is of special concern when trafficking victims fear for the safety of family and loved ones in their countries of origin. This fear often manifests as reluctance on the part of the trafficking victim to give information, exacerbating the existing stereotypes described above. Further, the fact that those who interview potential victims are police officers is problematic in view of the perceptions that exist in many parts of the world about the role of security forces. In many cases, trafficking victims will be reluctant to speak with police officers. Furthermore, the overwhelming number of male police officers in comparison to women in the national police force means that women are often required to tell difficult stories including incidences of sexual violence and other abuses to men from a culture different from their own. The reliance on stereotypes to undermine credibility is exacerbated when trafficking victims are detained in immigration detention centres, where migrants are held (for a maximum of 60 days) before they are deported to their countries of origin. Women held in immigration detention centres who claim to be trafficking victims and/or apply for asylum are particularly affected by the stereotyped notion that migrant women are willing to do anything, including making up stories, in order to not be removed. In addition to the issues outlined above, the manner in which identification is carried out (or in some cases not at all) in these detention centres aggravates the deficient identification. First of all, there is no protocol that sets out how the identification process should be carried out. This leaves the procedure in the hands of the director of each detention centre, or even each police officer or team of officers. Second, proactive interviews are not conducted to identify potential victims in the detention centres, thus placing the onus on the victims to self-identify and ask for protection, activating suspicion that they are abusing the system by making up a trafficking story. Finally, as previously mentioned, the identification process is carried out by police officers only and with limited legal guarantees at detention centres. For example, the police officers often take women to be questioned without notifying their attorneys or civil society organizations, and without proper interpreters. We have witnessed police officers’ attitudes during the interview process which can be disrespectful, accusing and even abusive. The consequence is an environment that can lead a victim to feel as though her credibility is questioned, or as if she were the criminal. CASE STUDY 2. Ms Gladys John, a Nigerian woman, was trafficked into Spain for the purposes of sexual exploitation in 2006. Upon arrival she claimed asylum on grounds of religious persecution. She did not mention that she had been trafficked. The responsible authority (Oficina de Asilo y Refugio–OAR, a department within the Ministry of Interior) did not refer her to the authorities responsible for identifying her as a victim of trafficking, even though there were indicators that this was a possibility. Her asylum claim was dismissed despite evidence that she was a trafficking victim. It is widely known (and so the authorities knew or should have known) that a number of Nigerian women and girls are trafficked to Europe though Spain. At that time, a pattern of behaviour had been identified by the UN Refugee Agency (UNHCR) and civil society organizations regarding the operation of the Nigerian mafias. Traffickers often instructed women to make false claims based on religious persecution, which was the case here. Women’s Link has documented this situation in the publications ‘Migrant Women’s Rights: Invisible Reality’ and ‘Trafficking of Nigerian Women and Girls: Slavery across Borders and Prejudices’ (Women’s Link Worldwide 2009, 2014). The fact that a Nigerian woman enters Spain by boat and makes a manifestly ill-founded claim could itself be an indicator that the person is a potential victim of trafficking, since it forms part of a documented pattern. Ms John ended up in a shared flat near Madrid, under the control of a madame. She was forced into prostitution, and also to have sex without a condom. As a consequence, she became pregnant. She was detained by the police when she was en route to submit her application for a residence permit. She was sent to an immigration detention centre in Madrid without the many authorities with whom she interacted identifying her as a victim of trafficking in human beings. Ms John made a fresh asylum claim while she was in detention, this time alleging that she was a victim of trafficking. The UNHCR was satisfied that there were indicators that she was a victim and, together with two supporting NGOs that interviewed her (Proyecto Esperanza and Women’s Link Worldwide) gave evidence supporting her asylum application. However, the OAR dismissed her claim. Following legal advice from Women’s Link, she also applied for a reflection period. Shockingly, she was forcibly returned to Nigeria before she was notified of the decision to dismiss her claim. Subsequent investigations by a Women’s Link consultant lead us to believe that Ms John has fallen back into the hands of trafficking mafias and has been re-trafficked. (Case brought by Women’s Link) 4.2 Cooperation with relevant support organizations and training Despite the Directive’s requirement under Article 11.4 to cooperate with support organizations, in Spain there are no formal mechanisms to make this cooperation a reality. Little attention has been paid to recommendations to create a co-operative framework through which state actors fulfil their obligations to protect and promote the human rights of trafficked persons, coordinating their efforts in a strategic partnership with civil society, … to ensure that the human rights of trafficked persons are respected and to provide an effective way to refer victims of trafficking to services. (OSCE/ODIHR 2004: 15) The police are the only institution charged with identifying trafficking victims. Within this process, collaboration with NGOs is only voluntary. Also, potential victims are not entitled to legal representation during the identification interview. The Framework Protocol mentions the assistance of an interpreter where necessary during the identification interview (Section VI.B., ‘Interview Process’), but it is our experience that very often in detention there are no such interpreters available, nor is there any written information in different languages on the rights of victims of trafficking (Pueblos Unidos−Servicio Jesuita a Migrantes 2014). Despite the fact that only the police have the authority to determine if a person is a victim of trafficking, there are many state agents and authorities who could and should play a role in identifying possible victims of trafficking including judges, prosecutors and lawyers. Although legal actors frequently have contact with potential victims of trafficking, they are currently not considered as relevant actors for identification and protection purposes. For example, when authorizing the detention of a migrant, the judge must verify that the legal requirements for detention are present. If a judge is ordering the detention of a potential victim of trafficking without identifying the risks, that state actor is failing in his or her obligation. In this context, the prosecutors who issue the obligatory report that accompanies the detention and the lawyers who represent the undocumented migrant could and should also identify victims or potential victims. Currently, Spain is failing in its obligations under Article 18 of the Directive, which stipulates that EU member states should provide regular training for officials likely to come into contact with victims or potential victims of trafficking in human beings, including (but not only) front-line police officers. 4.3. Identification of child victims of trafficking In addition to the lack of due diligence in correctly identifying trafficking victims in a timely fashion, Spain has demonstrated an overall lack of ability to put in place mechanisms to identify child victims of trafficking and thus offer this group, which is especially vulnerable, the appropriate protection. In relation to this group, the obligation to include both a gender perspective and the perspective of the rights of the child is paramount. According to the Directive, if children are victims of any of the acts that fall under the legal definition of trafficking in human beings (recruitment, transportation, transfer, harbouring or reception of persons, including the exchange or transfer of control over those persons), their consent is irrelevant (Article 2.5). This means that it is not necessary that such acts take place 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. (Article 2.1) At all times, the best interests of the child must prevail in any legal or administrative decision. A major issue in the identification of child victims of trafficking is that the state is currently failing to act in accordance with the presumption that a person is a child when the age cannot be or has not been verified. The Directive makes it clear that, where the age is unknown or where there is uncertainty regarding the age, a potential victim of trafficking should be presumed to be a child and receive immediate assistance, support and protection. If an undocumented young person asserts that she or he is an adult, this assertion is not questioned and thus not investigated. This is problematic, because in certain circumstances child victims of trafficking assert that they are adults on instruction from their traffickers. In contrast, when the undocumented person states that the he or she is under 18, the credibility of this assertion is often questioned, and disbelieved. Under Spanish law, children are not to be held in immigration detention centres. Too often, due to the lack of identification or the lack of credibility attributed to children’s statements, children are in fact sent to immigration detention centres. Over the years, for these reasons many girls have been detected in immigration detention centres. For example, the yearly reports published by the Servicio Jesuita a Migrantes, an organization that provides direct services to migrants in these centres, always document the presence of children in different immigration detention centres throughout Spain (Pueblos Unidos−Servicio Jesuita a Migrantes 2013, 2014). There is a lack of a systematic approach to detect and identify child victims of trafficking. This is also true in the immigration detention centres as has been documented in several reports (Pueblos Unidos−Servicio Jesuita a Migrantes 2015). The impact of this lack of proper identification of girls is alarming. We have identified girls as young as ten years of age exploited by trafficking mafias (Women’s Link Worldwide 2012). Furthermore, there are no specific shelters for child victims of trafficking in Spain as there are for women. The shelters that do exist for adult women are run by NGOs but partly financed by the government. As a result of the lack of specialized care, the few children who are identified as trafficking victims are either referred to general children’s homes, which they often flee within days of arriving due to the pressures of the mafias, or sent to shelters for adult victims, where they do not receive proper child-oriented assistance and protection. CASE STUDY 3. In December 2015, V.F., aged 17, was found on a small boat (patera) that was sailing on the Alboran Sea. The 59 people on the boat were taken to Motril (Granada) where V.F. was not identified as a child or a trafficking victim and thus was sent to an immigration detention centre. At no time was she individually interviewed and her detention was ordered in a judicial decision which applied to a group, and which also affected 39 other people. After two NGOs found indicators that she could be a child trafficking victim, the prosecutor initiated proceedings to determine her age and found that she was 17. She was subsequently sent to a children’s home where she received no special assistance or protection as a trafficking victim. Despite the warnings of an NGO that she needed a special shelter for child victims of trafficking, and after six weeks at the centre receiving calls from her ‘brother’ in France, she disappeared. This case demonstrates some of the highly problematic issues that arise from the lack of specialized housing for minors who are victims of trafficking. These homes are ‘open’ and thus the girls can come and go, facilitating access to the child for the traffickers. We know of cases where the girls are living in the centres and at the same time under the control of the mafias that exploit them at night. At the same time, the lack of specialization means that they do not receive the focused attention that they require. 5. Protection and identification of member state nationals Because the only protections available to trafficking victims in Spain derive from legislation dealing with immigration, a high percentage of the victims are nationals of another member state, specifically Romania (Dottridge 2010). Once again, the lack of a comprehensive human rights based approach to trafficking in human beings that includes all forms of exploitation and all victims, regardless of their nationality, shapes and constricts the government’s actions. This is illustrated by the chronology of the legislative changes which have occurred in Spain. The first attempt to legislate on trafficking was undertaken using only an immigration framework. The 2009 amendment to the 2000 Immigration Law, for the first time in national law, introduces a reflection and recovery period. However, the provision is aimed solely at halting the deportation and removal process of undocumented migrants who are identified as victims (or potential victims) of trafficking, with no regard to the ‘recovery’ clause of that obligation pursuant to Directive 2004/81/EC (Article 6). While the introduction of this amendment was welcome, it was extremely narrow in its scope. This was partly due to the fact that it only addressed trafficking of third country nationals and did not provide any protection to victims of trafficking from within the EU. As a result of civil society and NGO pressure, the government became aware that a high number of trafficking victims in Spain were EU nationals who also needed the recovery and reflection period. Subsequently, the 2011 Immigration Regulation provided for the extension of the identification procedure to the citizens of member states. Over the years, we have witnessed how the state’s approach to legislating on trafficking yields a ‘patchwork’ of non-comprehensive measures to protect victims. Therefore, despite the numerous laws cited by government officials that can be applied to victims, there is a lack of a human rights gender-based approach. 6. Violation of the non-punishment clause from a gender perspective Article 8 of the Directive creates an obligation on member states to guarantee to victims of trafficking in human beings protection from prosecution or punishment for the criminal activities that they have been compelled to commit as a direct consequence of being under coercion. An analysis of this article from a gender perspective is crucial for its correct application. First, the interpretation of a non-punishment clause from a gender perspective should extend to administrative penalties. Women trafficked for sexual exploitation face constant police harassment when they are forced to carry out prostitution in the streets. This is because in Spain, many cities have passed laws which regulate prostitution and soliciting in public places without any regard to potential victims of trafficking. These regulations are passed under the guise of improving the security and appearance of city streets. These regulations are gender-blind, leading to a disproportionate negative impact on women (indirect discrimination) who are potential trafficking victims, resulting in intersectional discrimination for these women. As a consequence, they receive administrative penalties of fines which put at risk the renewal of their resident permits and further increase their debt with the traffickers (Morales Plaza 2011). Also, women with children may face additional violations of rights through administrative sanctions not only when they are not identified as victims of trafficking in human beings, but also when they are identified as such. Women’s Link has documented cases where women have been deprived of custody of their children because the authorities consider that they are not ‘fit’ to take care of them. These women are offered protection measures, normally a recovery and reflection period, when identified as victims. In cases where women do not accept the period (most often because they do not self-identify as trafficking victims or because they are very afraid) the Prosecutor’s Office together with the Child Protection Authorities often place their children in either child care facilities or foster families. Some of these children may end up being adopted by a foster family. Often, the best interest of the child is not examined individually and is interpreted in light of the stereotyped idea that a victim of trafficking for sexual exploitation cannot be a good mother, because she is merely seen as a ‘prostitute’, hindering the exercise of these women’s right to family life and to be mothers. Importantly, there is a lack of family shelters or other facilities where these women could go to stay with their children and receive support as a family. At the same time, applying a gender perspective to implementation of the non-punishment clause requires an understanding of how women and women’s bodies are utilized by traffickers. The strategies employed by the mafias include controlling the reproductive capacity of women and also their children. Trafficking networks often decide when women can get pregnant and when they cannot—frequently forcing them to undergo unsafe abortions. The mafias also determine what happens with the children of the trafficked women when they are indebted to the mafia. The mafias use young children—often babies—as a strategy to have the trafficked women cross borders, especially in the south of Spain (Women’s Link Worldwide 2014, 2011, 2009). Thus, women are often forced to give up their children or forced to cross borders with other women’s children, as per the orders of the mafias. This is because heavily pregnant women and women carrying babies or children are referred to protection centres instead of to immigration detention centres and have a better chance to stay in the country instead of being directly deported. CASE STUDY 4. Maris Ossaro, a Nigerian national, reached Spain from Morocco on a small boat (patera). She was holding a baby who was not her own. Although there was evidence that she was a potential victim of trafficking, and despite the fact that other women in the same boat were identified as trafficking victims, including the mother of the child she was carrying, no identification assessment was carried out. Criminal proceedings were opened against her for the crime of smuggling. The judge in charge of the criminal investigations asked the police to investigate whether she had potentially been trafficked but the police just answered there was no evidence of this, and no further investigation was conducted. Ms Ossaro was sentenced to nine months and 12 days in prison. There was no investigation as to whether she had been trafficked and no identification assessment was ever carried out. Her traffickers are still free and she is currently being sexually exploited in Spain. (Order of the Second Chamber of the Supreme Court, 20 May 2013, Appeal No. 20162/2013) 7. Due process violations restricting victims’ right to freedom of movement and other rights Due to the deficient identification processes in Spain, combined with the application of an immigration control model, many women who are victims of trafficking are deprived of their freedom of movement when they are placed in immigration detention centres. As already stated, the police authorities tasked with identifying victims focus on the enforcement of immigration laws and policies, rather than screening and identifying victims of trafficking. Therefore, in many cases victims are treated as undocumented migrants without recognition of the human rights violations they have suffered or are suffering. At the immigration detention centres many women suffer high levels of stress due to the fear of being returned to their countries of origin where they might face risks to their life or physical integrity. Women’s Link has documented cases where women face stigma from their social environment and even from the authorities (Women’s Link Worldwide 2012). CASE STUDY 5. Ms A.B.M., from Uruguay, was trafficked by close relatives, who persuaded her to travel to Italy, where she would supposedly work at a hotel, but instead she was violently forced into prostitution. She managed to escape and arrive in Spain, where her sister resided. She was detained in Gijón and sent to an immigration detention centre in Madrid. Once there, she resisted a first attempt at deportation. She was terrified of being returned to her country, where she faced death threats from her traffickers, so she refused to board the plane. When she was returned to the immigration detention centre, she explained to the authorities that she was a victim of trafficking and asked for protection. She also offered to collaborate with the police to assist in an investigation of the traffickers. She was denied victim status and no investigation was initiated. She was further subjected to a second deportation attempt that she also resisted. No individualized risk assessment, in compliance with the principle of non-refoulement, was carried out before the deportation attempt, thus preventing the state authorities from adequately verifying whether there were reasons to expel her. This case clearly demonstrates how the lack of proper identification leads to the violation of the victim’s right to freedom of movement due to the use of detention centres in Spain. In this case a trafficking victim was detained for a total of 58 days. (Ruling of the Superior Court of Justice of Madrid, Contentious-Administrative Chamber, Ninth Section, 687/13, 15 July 2013) The Directive also establishes the rights of victims of trafficking to assistance measures such as medical treatment, including psychological assistance and counselling, information and translation and interpretation services, if necessary (Article 11.5). In the specific case of child victims, additional support measures are to be taken, including physical and psychosocial care, access to education and, where appropriate, the possibility to appoint a guardian or representative (Article 14). In Spain, failures to identify victims as set out above means that instead of being granted the assistance and support to which they are entitled (Article 11.2), the unidentified victims are either deported or released undocumented, despite the real risk of re-trafficking. This is illustrated by the case below. CASE STUDY 5 (continued). As a consequence of A.B.M. resisting the second deportation attempt, the police officers used disproportionate force against her. She subsequently filed a complaint against the officer for the violence, and the police officer filed a ‘counter’ complaint. A.B.M. was eventually released from the detention centre in Spain on the grounds that deportation was not feasible (allegedly because she did not have a passport). Although the authorities were aware of her allegations of her status as a trafficking victim, the failure to identify her as such had a number of negative consequences. She was released but was not offered any documentation or protection, leaving her in a very vulnerable situation. Furthermore, she was later sentenced to six months in prison for resisting a police officer. She now has a criminal record heightening her situation of vulnerability because it blocks her access to a residence permit. (Ruling 408/2014 of the Criminal Court No. 20 of Madrid, 9 December, Oral Trial No. 73/2014) 8. Consequences of the crime control model Article 11.3 of the Directive states: Member States shall take the necessary measures to ensure that assistance and support for a victim are not made conditional on the victim’s willingness to cooperate in the criminal investigation, prosecution or trial. However, due to the emphasis on the criminal prosecution under the crime control model, trafficking victims who are unable or unwilling to participate in criminal proceedings are often not given access to protection. In Spain the authorities have a tendency to offer protection only in situations where a victim agrees to cooperate with the police. Victims of trafficking who come forward are asked to provide information so as to identify and prosecute their traffickers. Thus, even in the few cases where women are correctly identified as victims of trafficking, they are treated differently from victims of other crimes: no other victim is asked to choose between collaborating with the police and having their victim status recognized. The obligation on trafficking victims to collaborate with the police fails to take into account a number of things they are likely to fear, including traffickers taking reprisals against them or their families, or being sent back to the trafficking network and being re-trafficked. Even when the women are willing and able to participate in criminal proceedings, women are still often left unprotected. We have witnessed that the complexity of the issues means that many cases are not fully prosecuted. When the case does not go forward, for reasons outside of the control of the trafficking victims, the protection is withdrawn. This of course leads to a lack of ability to access compensation as is mandated by the Directive. In addition to the pressure placed on victims to collaborate with the police before being granted victim status, victims of trafficking are currently inadequately informed of their rights. Indeed it is nearly impossible for many victims to fully understand the consequences of their identification as victims of trafficking in human beings. This is, in part, due to the problems discussed above. The exclusive competency of the police in assessing whether someone is a victim and the lack of a multidisciplinary team’s presence during identification procedures means that the Spanish state is currently failing to comply with Article 11.5 of the Directive. As the Directive has recognized, it is imperative that a victim has knowledge of the assistance and support measures that should be provided. This is currently not the case. The alarmingly low number of women who accept the reflection period that is offered to them demonstrates the inadequacy of the procedures. Police officers often merely hand women a paper with the information about a reflection period when they have just arrived. This transaction is not accompanied with an in-depth interview or any other mechanism to work with the woman so that she can understand the procedure. For diverse reasons, women often do not self-identify as trafficking victims in a first interview. They are often very afraid of the consequences of speaking to the police. They also may be afraid of the police officers, as they view them as a threat. The biggest threat to them is removal or deportation. Even on occasions when NGOs are called to participate in identification interviews, the procedures are rushed, and the women do not have time to enter into a relationship of trust with the interviewer. For example, in 2013, the police offered reflection periods in 736 cases to trafficking victims, and 603 of those rejected the protection mechanism (Becerril Bustamante 2014). Data from 2011 and 2012 yield similar results. (It is important to note that since 2013, this information has not been compiled or made public.) The crime control model also means that the only way that a woman can effectively prove that she is a victim of trafficking is when there is a final judgment against her traffickers. This has been clearly demonstrated by the Supreme Court (creating binding precedent) when they failed to recognize the legitimacy of the identification of the police as a valid document to prove that one of our clients was a trafficking victim: CASE STUDY 4 (continued). After Ms Ossaro served her sentence in prison, she was sent to an immigration detention centre in order to be deported to Nigeria. When she was in detention, she was finally identified by the police as a victim of trafficking, and granted a recovery and reflection period. Ms. Ossaro then filed a case at the Supreme Court (Tribunal Supremo) which sought to apply the non-punishment clause of the Directive that is also reflected in Spain’s Criminal Code. In Spain, once there is a criminal conviction, the only court that may repeal it is the Supreme Court. In this case, the Supreme Court denied her request, because they did not find that the police document was valid legal proof of her status as a trafficking victim. Ms Ossaro then filed for a review at the Constitutional Court, which did not admit her case. The case is currently pending at the European Court of Human Rights. This case demonstrates that even where the police identify someone as a victim of trafficking, other state actors, including the judiciary, are failing to comply with their obligations under the Directive. European Court of Human Rights, Ossaro v.Spain, Application no. 36769/14. Pending (not yet communicated to the state) 9. Lack of access to international protection The Directive reiterates that member states are obliged to ensure full compliance with the principle of non-refoulement. Victims of trafficking have the right to apply for asylum on grounds of gender persecution and should be granted international protection and not be deported when they have a well-founded fear of persecution in case of return. As the Directive states itself in Recital 10: (t)his Directive is without prejudice to the principle of non-refoulement in accordance with the 1951 Convention relating to the Status of Refugees (Geneva Convention), and is in accordance with Article 4 and Article 19(2) of the Charter of Fundamental Rights of the European Union. In Spain, however, international protection is commonly conceived by the authorities as being incompatible with other protection mechanisms, such as the recovery and reflection period. The body responsible for examining and deciding asylum claims and subsidiary protection (OAR), both at the border and in the territory, denies applications based on trafficking allegations on a regular basis, on the grounds that there is no relationship between trafficking and the legal basis for granting international protection. The OAR’s rationale is that the agents of persecution are non-state actors and thus the lack of protection by the state of origin is not sufficiently proved. This is contrary to, and in violation of, clear international standards on this issue, as set out by the UNHCR Guidelines on the Application of Article 1A(2) of the 1951 Convention and/or 1967 Protocol Relating to the Status of Refugees to Victims of Trafficking and Persons at Risk of Being Trafficked (UNHCR 2006). Furthermore, the OAR often considers that these cases fall under the Immigration Law, and not within the protection that the Asylum Law (Ley 12/2009) provides. Almost all the decisions to deny asylum to victims of trafficking lack a proper analysis of the allegations of trafficking made by the applicants and a risk assessment in case of return. This has been confirmed by research carried out in 2012 by the Ombudsperson in Spain (Defensora del Pueblo 2012). The figures are clear in this respect: the first time that a victim of trafficking was granted asylum in Spain was as late as 2013 (Spanish Commission for Refugee Aid (CEAR) 2013), and since then, according to the Spanish Network against Trafficking in Persons, only seven other women victims of trafficking have been granted international protection: five of them were granted refugee status and three subsidiary protection (Red Española contra la Trata de Personas 2015). According to the Ministry of Interior, in 2015 there were 13,879 potential victims of trafficking for sexual exploitation in Spain. Of these, 133 people had been identified as (actual) victims of trafficking for sexual exploitation and 650 people were (actual) victims of sexual exploitation. In 2015 there were 10,835 potential victims of trafficking for labour exploitation. Of these, 134 people had been identified as (actual) victims of trafficking for labour exploitation and 676 people were (actual) victims of labour exploitation (Ministry of Interior, undated). 10. Process and data collection from a gender perspective The Directive is clear that the EU should continue to develop its work on methodologies and data collection methods to produce comparable statistics, in order to evaluate the results of anti-trafficking action. It also establishes that member states must appoint a national rapporteur or an equivalent mechanism to assess trends in trafficking in human beings, and measure results of anti-trafficking actions, including by gathering statistics in close cooperation with relevant civil society organizations active in this field. Although Spain has appointed a National Rapporteur, it is important to note that this position is within the Ministry of the Interior and the statistics gathered on trafficking are conflated with information about immigration, criminal investigations and prostitution. The first ever National Rapporteur on Trafficking of Human Beings was appointed on 3 April 2014. The position resides with the Secretary for Security within the Ministry of Interior. At the same time, the government agency tasked with issues of gender violence and discrimination (Delegación del Gobierno Contra la Violencia de Género) does not gather any statistics or other data on trafficking. Thus, it is clear that this provision of the Directive has not been transposed with a gender perspective. Therefore, the government is not able to properly monitor and evaluate any of its efforts in relation to trafficking with a gender perspective. Moreover, this leaves advocates in the field without the necessary tools to address the issues. 11. Conclusion As was recently pointed out by the UN Special Rapporteur on torture: Human trafficking is a particularly egregious human rights violation and a form of gender-based violence specifically targeting girls and women for exploitation and placing them at high risk of physical and psychological abuse, trauma and disease. Systemic discrimination against women and girls, including lack of access to education, resources and employment, renders them especially vulnerable to trafficking. Trafficked women and girls are routinely subjected to confinement, severe physical and sexual abuse, humiliation and threats for the purposes of commercial sexual exploitation, domestic servitude, forced and bonded labour and organ removal. These practices unequivocally amount to torture and ill-treatment. (UN Human Rights Council 2016: 40) Despite efforts made by Spain since the adoption of the Directive, there continues to be an ineffective application of a gender perspective both in terms of legal and policy framework and in terms of implementation of measures required by the Directive. As has been demonstrated in this article, Spain’s transposition of the Directive has not created an appropriate human rights framework to address trafficking and adequately protect and promote the rights of trafficking victims. This lack of a human rights framework is the basis of the government’s inability to create the necessary infrastructure to apply a gender perspective. The framework is clearly lacking in terms of, inter alia, strategies to address trafficking for means other than sexual exploitation, appropriate protocols to identify girls who are trafficked to Spain and appropriate mechanisms to collect data. The failure to properly implement the Directive means that there is a lack of a gender perspective and an inadequate structure in which identification is taking place. The direct result of this failure is the ongoing presence of obstacles to the recognition of trafficking victims and their access to rights. At the same time, it is also a good time for civil society organizations and human rights practitioners working in the field of trafficking to reflect on our work to date and engage in constructive self-criticism. Civil society organizations can unintentionally be part of the problem—when instead, they should be part of the solution. Undertaking an evaluation exercise can be useful to understand if and how we might be contributing to the ineffectiveness resulting from the lack of a human rights framework with a gender perspective. In a workshop organized in October 2016 by Women’s Link to share the findings of this article with member organizations of the Spanish Network against Trafficking in Persons, the idea emerged that civil society organizations may sometimes lapse into dynamics that reproduce those characteristics of the authorities that we at the same time criticize. In order to reduce the risk of reproducing practices and discourses that work against our vision, it is important that civil society organizations create spaces to discuss and evaluate our work and devote time and resources, when possible, to foster the debate around this issue. For example, we can consciously consider the audiences that we need to reach with the events, congresses and seminars on trafficking that we organize, so that we avoid ‘preaching to the converted’ and creating microcosms where the same experts speak to the same audience. An important challenge that we still must overcome is the need to widen the scope and reach of training sessions on how to apply a human rights framework and a gender perspective to the protection of victims’ human rights, ensuring that we are consciously striving to look beyond the ‘usual suspects’ in the field and designing effective strategies to reach and engage a wider audience that includes decision makers and the judiciary. Footnotes 1 " National Transposition Measures communicated by the Member States concerning 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, and replacing Council Framework Decision 2002/629/JHA. http://eur-lex.europa.eu/legal-content/EN/NIM/?uri=CELEX:32011L0036&qid=1456330803729 (referenced 26 June 2017). 2 " These are the Ley Orgánica 19/1994 and the Ley Orgánica 13/2015 (laws on the protection of witnesses and expert witnesses in criminal trials, and on fair trial guarantees and new technologies of investigation). 3 " This is the case with the Ley Orgánica 3/2000, on corruption of foreign public agents relating to international commercial transactions). 4 " These are the following: Corrección de errores de la Ley Orgánica 13/2015, de 5 de octubre, de modificación de la Ley de Enjuiciamiento Criminal para el fortalecimiento de las garantías procesales y la regulación de las medidas de investigación tecnológica; Corrección de errores de la Ley 26/2015, de 28 de julio, de modificación del sistema de protección a la infancia y a la adolescencia; and Corrección de errores de la Ley 41/2015, de 5 de octubre, de modificación de la Ley de Enjuiciamiento Criminal para la agilización de la justicia penal y el fortalecimiento de las garantías procesales. (Laws updating and modifying fair trial guarantees and the regulation of investigation involving new technology; systems of protection of children and young persons; and the improvement of fair trial guarantees and criminal justice). 5 " Reviewed by the authors after the case appeared in the press. Acknowledgements The authors would like to thank Dr Patricia Orejudo Prieto de los Mozos and Dr Keina Yoshida for their contributions and comments. Funding Research work funded by the European Parliament, EPRS/IMPT/SER/16/205N, and Women's Link Worldwide. This study has been written at the request of the Impact Assessment Unit of the Directorate for Impact Assessment and European Added Value, within the Directorate General for Parliamentary Research Services (DG EPRS) of the General Secretariat of the European Parliament. References Becerril Bustamante S. 2014 . 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Real Decreto 557/2011, de 20 de abril, por el que se aprueba el Reglamento de la Ley Orgánica 4/2000, sobre derechos y libertades de los extranjeros en España y su integración social, tras su reforma por Ley Orgánica 2/2009 (Royal Decree 557/2011, 20 April, passing the Regulation of the Organic Law 4/2000, 11 January, on the rights and freedoms of foreigners in Spain and their social integration). BOE de 30 de abril de 2011. http://www.boe.es/boe/dias/2011/04/30/pdfs/BOE-A-2011-7703.pdf. © The Author(s) 2018. Published by Oxford University Press. All rights reserved. For Permissions, please email: journals.permissions@oup.com
TI - ‘Lost in Translation’: Assessment of the (Non)-Implementation of the Trafficking Directive from a Gender Perspective in Spain
JO - Journal of Human Rights Practice
DO - 10.1093/jhuman/hux034
DA - 2017-11-01
UR - https://www.deepdyve.com/lp/oxford-university-press/lost-in-translation-assessment-of-the-non-implementation-of-the-P7xsdUDhHs
SP - 504
VL - 9
IS - 3
DP - DeepDyve
ER -