Human Rights law

 

 

M.P. and L.C. v Juvenia
Background of the case 1. The Kingdom of Juvenia is a country located in South-Eastern Europe, and it is politically organized as a federal representative democracy. Its legal system is a mixed system of common law
and continental civil code. It has been a member of the Council of Europe since 1982. It ratified the ECHR in 1983.2. Juvenia has an area of 350,000 km2 and a population of 20 million inhabitants. Its average human development index, per capita GDP, and economic growth and quality of life indicators—in
terms of access to basic social benefits (security, education, health, cultural goods)—have placed it at the middle of the index of European countries for several years now.3. Juvenia has not experienced any interruptions of the constitutional order over the course of its history. Its political system is bipartisan, with provincial and national elections held
every five years. 4. Over the past two decades, Juvenia has been the destination for growing waves of immigrants from Eastern European states and from central Asia. According to the last national population
census conducted in the year 2014, 20% of the population was originally from these countries. The rapid transformation of the Juvenia’s demographics has had an effect on public opinion which, at
times—especially with regard to matters of security and employment—appears not to have assimilated its new inhabitants adequately and in accordance with its tradition of democratic tolerance.The frustrated dream of Maria Pots 5. Maria Pots, 19 year old at the time and illiterate, was working on a cotton plantation in Povria, a central Asian country. Her wages were not enough to satisfy her most basic needs, and her
working conditions amounted to exploitation according to the laws in force. On 2 March 2013, she met a Juvenian woman who promised to get her into Juvenia, where she could work as a domestic
employee and, in time, obtain legal residence in order to attend school and eventually get a better job. 6. Maria told her parents, who gave her permission to travel and wished her all the best. Felicity promised to call them as soon as she was able, and to give them all her contact information.
Her boyfriend was Laco Crit, who was also 19. He was working at a fruit farm and they had been dating for a year. He told her that he would travel to the capital of Juvenia to meet her as soon as
he could. 7. On 6 March 2013, Maria met the woman who had made the offer—whose real name she did not know (she had introduced herself as ‘Biru’)—at the bus station. After talking with some men who were
unknown to the young women, Biru said goodbye to them as she introduced her to another woman, ‘Pora’, who would travel with them.8. Maria had gotten her boyfriend Laco to give her a cell phone, but when Pora saw her talking on the phone, she asked to have it. When Maria asked for it back, Pora told her she had lost it
and that she would buy her another one when they got to Juno, the capital of Juvenia. 9. When they crossed the border, Pora asked the Maria for her documents and told her not to talk to anyone. She then had a conversation with the Customs and Immigration officers. Maria could
not hear the conversation, but she saw that Pora handed the public officials an envelope. 10. The trip was very long, given that they had to travel 2800 km overland in an unidentified vehicle that made many stops, lasting several hours each, due to various mechanical problems and
searches conducted by what appeared to be security forces. 11. During the 60 hours that the journey lasted, Pora gave Maria just a few sandwiches and some water, and she arrived in the capital completely exhausted. 12. A man with a very prominent scar on his face was waiting for them at the station. He very nastily shouted to get into a pickup truck, saying that he would take them to the house where
employment had already been arranged. To the Maria’s surprise, they arrived at a very dirty apartment crowded with other women. Some were younger and some were older, they had little clothing, and
some of them showed signs of having been beaten. 13. Maria became frightened and reacted by asking for her documents so she could leave the place. Pora told her that they were going to keep the documents until they could pay for their trip.
Maria got nervous and began shouting. Then, the man with the scar on his face took her by force, raped her, and told her that from that point on she would be well advised to behave herself if she
wanted to stay out of trouble. 14. She was forced to prostitute herself at that place, which served as both a living quarters and a brothel. Later in March, Maria realised she was pregnant. They were prevented from leaving
unless accompanied by some very aggressive men, referred to as ‘the thugs’. Every so often they were given some money to buy food and sanitary items. Any complaint—no matter how mild—was met with a
brutal attack, so eventually they stopped complaining. They never received any medical attention. They were frequently given pills. They did not know what the pills were for, but they had very
strange effects on them. After taking the pills, the girls would lose consciousness and later wake up on a mattress, nearly always beaten and blood-stained. 15. On one occasion, government officials visited the place. The young women realized that the thugs had been tipped off in advance, since they told the girls what answers they had to provide
in the event that they were questioned. They had to say that they were the girlfriends of some of the men, and that they just lived there. The officials did not ask any questions, in spite of the
conditions of the place and the fact that some of the women showed signs of having been beaten, and they went out with the thugs to eat at a neighbourhood bar on the corner.16. On 5 October 2013, Maria started having contractions. She cried with tears of joy when she realised that the baby was Laco’s. A woman was called in to act as a midwife, but she said that it
was necessary for a caesarean to be performed at a health centre. Maria was taken to a place that seemed like a clinic, and her son was born there. She was immediately transported back to the
brothel, and when she asked for her baby she was told that he had to be in intensive care and would therefore remain at the clinic for a time. 17. One week later she was told that she could not keep her baby because she was not going to be able to raise him properly. However a financially well-off family could take responsibility for
him and provide him with everything she would be unable to give him. She was taken to an office where she signed some papers and said a tearful goodbye to her baby with a kiss to his forehead. Pora
and the man with the scarred face were present at all times. They greeted the man who had them sign the papers as if they already knew him, and he gave them brown envelopes that they quickly put in
their pockets. 18. According to the Civil Code of Juvenia, the direct surrender of a child (known as de facto custody) is not unlawful, and is legally accepted as pre-adoptive custody. 19. Maria’s baby was adopted by a family in the capital based on her direct surrender of de facto custody of the child. The adoption became final in July 2014. 20. Maria was still working in the brothel. Eventually she managed to contact Laco, her boyfriend, on 9 October 2015, a bit more than two years after their child was born, thanks to a cell
phone that a ‘customer’ had inadvertently left behind on a mattress. The demand for justice: Maria’s mother and Laco travel to Juvenia 21. Maria’s mother was anxious about her daughter’s situation. She was worried because in all those months she had not received a phone call or any news from Maria. Her boyfriend was very
concerned as well. They asked around everywhere: they went to the Embassy of Juvenia, to the police, to the hospitals — but no one knew anything; nor was there any record of Maria’s departure from
the country or of her entry into Juvenia. 22. When Laco received the call from Maria in October 2015, he set out to reclaim his girlfriend and his son. He also offered his assistance to Maria’s family, who had even fewer financial
resources. 23. Maria’s mother and Laco travelled by bus to Juno the capital of Juvenia. They had some difficulties, and were delayed for 12 hours at the border because they were told that the reasons for
which they wished to enter the country were unclear. Nevertheless, they were finally able to enter, and after traveling an additional 20 hours by bus, they arrived in the capital. 24. Laco had the contact information for the Juvenian fruit harvesters’s union in Juno. After checking into a room near the bus terminal with Maria’s mother, he went there to ask for help. They
gave him the office hours of the legal department, and he returned two days later to speak with the lawyer on duty, Franck Justo. Laco had no other references besides the vague information provided
by Maria, who had told him about a large supermarket five blocks from the brothel, a road, and a traffic roundabout.25. With the help of Franck, Laco and Maria’s mother applied for legal aid but it was denied on the ground that they were foreign nationals. 26. Franck took on Laco and Maria’s case due to the connections between the Juvenian and Povrian trade unions. However, he told them that he was only specialised in workers’ rights, and had no
practical knowledge of criminal law. The case of Maria, Laco, and their son 27. Franck filed a criminal complaint alleging human trafficking, grievous bodily harm, subjecting another to servitude, and violation of the Prophylaxis Law. The court issued a search warrant
on 2 November 2015 at the request of the Office of the Public Prosecutor, but when it was executed, the brothel was deserted. In view of the lack of evidence, the complaint was dismissed by the
criminal court without further proceedings. The Office of the Public Prosecutor did not file an appeal. 28. Driven to despair by the situation, and unable to make any further contact with his girlfriend, Laco asked Franck to help him find Maria and their son. They filed a writ of habeas corpus on
4 February 2016 on behalf of his girlfriend. The sitting judge ordered several measures involving searches of brothels in the area, inquiries to immigration authorities, hospitals, and security
forces, as well as investigations based on newspaper advertisements offering sexual services. The judge exhausted all of the measures requested by Laco’s lawyer, and ordered new measures when the
prior measures failed to yield results; nevertheless, it was impossible to find Maria. 29. Regarding Laco’s son, the lawyer made several inquiries that enabled him to locate the de facto custody file, and he then filed suit in family court to recover the child and annul the
adoption. 30. The request was denied on first instance by the Family court on 11 February 2016, on the argument that the adoption was legal and that, given the length of time that had elapsed, it was in
the best interests of the child to remain with his adoptive family because it was the only family he had ever known. The Court of appeal confirmed the first instance judgment on 22 June 2016. The
Supreme Court of Juvenia denied the extraordinary appeal on procedural grounds on 8 October 2016. 31. Sometime earlier, Franck had started a professional development class through the trade union. By chance, he was taking classes on the ECHR at the time. The union lawyer had never before
thought to bring a case before the European Court, but he was so committed to the defence of Laco and Maria’s rights that he thought it was the opportunity of his professional lifetime.
Accordingly, he consulted with the course tutor, who gave him a suggested bibliography and advised him on how to proceed. 32. Basically, the tutor told him to request provisional measures on behalf of Maria and to file an application before the European Court of Human Rights (hereinafter ‘the Court’) in the case
of her son. The accounts provided to the European Court of human rights 33. On 22 October 2016, Franck filed an application on behalf of Laco before the European Court of Human Rights against Juvenia alleging the violation of Articles 3 (prohibition of inhuman and
degrading treatments), 4 (freedom from slavery), 5 (right to personal liberty), 6 (right to a fair trial), 8 (rights to family life), of the European Convention on Human Rights (hereinafter “the
Convention”). 34. The application requested that Maria be located immediately, and the annulment of the procedure whereby her son had been given up for adoption and, consequently, the return of the child to
his birth family. 35. The applicant also requested that the Court issue provisional measures concerning the urgent need to locate Maria. 36. The Court accepted the request for provisional measures on 14 November 2016.37. In its reply to the Court on issues of admissibility, Juvenia asserted, with respect to Maria, that the domestic remedies had not been exhausted; and with respect to the adoption
proceedings, that the application was manifestly ill-founded. It maintained that there had been no violation of any human right contained in the Convention, insofar as the adoption was carried out
legally because the biological mother had consented to the surrender of her child. Finally, in any case, the State underscored that it would be contrary to the best interests of the child to annul
the adoption, given the length of time that had passed and the bonds that had already been formed with the adoptive family. According to all of the expert reports, the family cares for the child in
the best possible way, as it has all of the material and emotional resources to do so. The State also forwarded new expert reports from the Psychology Department at Juno University pointing to the
child’s attachment to his adoptive family as well as the harmful effects that his separation from them could cause. 38. The Court decided to join the study of admissibility and of the substance of the claim.39. On 11 January 2017, Maria was found as a result of a search conducted at a brothel by order of a federal judge who was investigating a network engaged in human trafficking for purposes of
sexual exploitation. She was referred to a service for the protection of human trafficking victims, where she has received comprehensive psychological and medical treatment. She was then placed in
contact with Laco and with her family from Povria. She then decided to join the application as a co-applicant, which was accepted by the Court.

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