G.J. v. SPAIN
Inadmissible
Alena Poláčková;Branko Lubarda;Georgios A. Serghides;Helen Keller;Helena Jäderblom;Luis López Guerra;Pere Pastor Vilanova
1. The applicant, Ms G.J., is a Nigerian national who was born in 1985. According to the case file, she lives in Nigeria. She was represented before the Court by Ms G. Fernández Rodríguez de Liévana, a lawyer at the nongovernmental organisation Women’s Links Worldwide (hereafter “WLW”) based in Madrid. 2. The facts of the case, as submitted by the parties, may be summarised as follows. 3. In 2006 the applicant arrived in Spain and submitted an asylum request (also referred to hereafter as the first set of asylum proceedings). She alleged that she was a Catholic and had fled Sudan after her father’s assassination by a radical Muslim group. 4. On 12 July 2007 the Spanish authorities issued an expulsion order in respect of the applicant. According to the case file, the applicant did not seek judicial redress against that order. 5. Her first asylum request was dismissed on 13 July 2009. The administrative authorities found that the inconsistent and contradictory statement of facts provided by the applicant cast doubts on her current nationality and the existence of the alleged persecution. On 7 December 2009 Ms M.E. was appointed as the applicant’s legal aid lawyer. 6. The dismissal decision of 13 July 2009 was challenged on 22 March 2010 by means of an appeal introduced by Ms M.E. before the Audiencia Nacional (Court sitting in Madrid with jurisdiction in asylum cases). 7. On 15 October 2010 the Audiencia Nacional dismissed the appeal on its merits. It found that the applicant had not provided any documents proving her identity and nationality. Nor had the applicant provided a minimum of evidence to support her allegations. The court noted that she did not speak Arabic, the official language in Sudan, and that her mother tongues were English and Niala, the latter being a dialect which was not spoken anywhere in Sudan. Lastly, violent incidents similar to those recounted by the applicant had been reported as occurring in Dafur, but not in Yala, the applicant’s alleged city of origin. 8. In the meantime, on 19 February 2010 two police officers stopped the applicant on the street and asked her to prove her identity. She was detained and, with a view to enforcement of the 2007 expulsion order, placed in an aliens’ detention centre. At the time of her detention the applicant was pregnant. 9. On 25 February 2010 the applicant filed a new asylum request (hereafter referred to as the second set of asylum proceedings). She claimed that she was of Nigerian nationality and a Catholic and had fled Nigeria after her parents’ assassination, having been helped to flee by a man called V. Upon her arrival in Spain, however, V. had forced her into prostitution in order to repay her travel expenses, which amounted to 20,000 euros (EUR). After having sex with clients she had become pregnant and V. had suggested she should have an abortion, but she had been detained just a few days prior to her appointment at the abortion clinic. She wished to have the baby and feared being killed if returned to Nigeria as she had not managed to repay her debt. The United Nations Refugee Agency (hereafter, the “UNHCR”) had supported the applicant’s request since it considered that, on the basis of the facts recounted by the applicant, she had been a victim of ‒ and might still be a victim of ‒ human trafficking. In the second set of asylum proceedings the applicant was represented by the lawyer Mr A.P. 10. On 26 February 2010 this second asylum request was declared inadmissible by the Deputy Director on Asylum. She found that the applicant’s account of facts as to the alleged persecution was incoherent and inconsistent and she had already presented similar submissions in her first asylum request, which had been rejected. 11. On 3 March 2010 the NGO Proyecto Esperanza ‒ an agency which specialises in the investigation of trafficking and which had been informed about the applicant’s case by the UNHCR ‒ interviewed the applicant at the aliens’ detention centre and submitted a report to the Asylum Office of the Ministry of Internal Affairs supporting the applicant’s allegations. 12. On 4 March 2010 the applicant applied for a re-examination of the second asylum request. She departed from her initial claim alleging persecution on religious grounds, instead focussing exclusively on the fact that she had been trafficked to Spain for the purpose of being forced into prostitution, and provided a more detailed account of facts. The request for re-examination was dismissed on 5 March 2010, the applicant’s new submissions not being sufficient to alter the conclusions reached in the inadmissibility decision. 13. The applicant instituted administrative judicial proceedings (procedimiento contencioso administrativo) against the refusal decision. Additionally, the applicant requested the suspension of the expulsion order, arguing that she was a victim of trafficking and that she should not be removed from Spain until the identification procedure was completed. 14. On 10 March 2010 Madrid administrative judge no. 6 rejected the applicant’s request to have her expulsion suspended on the following grounds: the applicant had failed to demonstrate the existence of a risk to her life or physical integrity if returned to Nigeria; the applicant had submitted an international protection request only after having been detained and held in immigrant detention; the applicant had already sought asylum unsuccessfully in 2007; the reports compiled by the administrative authorities supporting rejection of the asylum request were better reasoned and more convincing than the report produced by the UNHCR office. According to the case file, the applicant did not appeal against the rejection of the suspension. 15. On 13 April 2010 Madrid administrative judge no. 6 ruled that he lacked jurisdiction to examine the applicant’s appeal, and relinquished the case to the Audiencia Nacional. It does not follow from the case file that either the applicant or the administrative courts have taken any further steps in pursuance of these proceedings. 16. On 11 March 2010, while the above-mentioned judicial proceedings were pending before Madrid administrative judge no. 6, two lawyers from WLW visited the applicant in the detention centre. The applicant signed a written authority to act (hereafter referred to as “the authority dated 11 March 2010”), instructing Ms Fernández Rodríguez de Liébana, one of the lawyers, to apply for the granting of a “recovery and reflection period” under section 59 bis of Organic Law 4/2000 of 11 January on the rights and freedoms of aliens in Spain. In the application, which was introduced on 12 March 2010, WLW asked for a stay of the applicant’s expulsion. 17. WLW informed Mr. A.P., the applicant’s lawyer in the second set of asylum proceedings, that the organisation’s lawyers would represent the applicant from 11 March 2010 onwards. On an unknown date Mr. A.P. gave his consent thereto, but no power of attorney was signed by the applicant to formalise this. 18. On 15 March 2010 WLW applied to the Government Delegation in the Community of Madrid (Delegación del Gobierno en la Comunidad de Madrid) to have the applicant’s expulsion order revoked. It claimed that the applicant satisfied all the legal requirements to be granted a residence permit in view of her social integration in Spanish society. 19. On 17 March 2010 at 7 a.m. the applicant was expelled to Nigeria. WLW first learnt of the applicant’s expulsion on 18 March 2010, the date on which she was served with a decision by the Government Delegation dated 16 March 2010 rejecting the request for a recovery and reflection period. On the basis of an interview conducted by police officers, the Government Delegation found that there was no evidence to support the argument that the applicant was a victim of human trafficking. It was clear that she had not been forced into prostitution since she worked independently and voluntarily without being controlled, lived alone and had not been deprived of her freedom of movement. Furthermore, she had no relatives in Nigeria who might be threatened. 20. On 31 March 2010 WLW instituted administrative judicial proceedings for the protection of fundamental human rights (procedimiento contencioso administrativo para la defensa de los derechos fundamentales), claiming that the applicant had been expelled before the Spanish authorities had examined the substance of her request for a recovery and reflection period. 21. On 5 April 2010 Madrid administrative judge no. 14 asked WLW to submit a power of attorney signed by the applicant before a relevant authority, namely a notary, a judicial secretary or a consular authority. He stated that the application would be deemed valid if the applicant had signed it herself. 22. On 7 May 2010 WLW argued before the judge that the manner in which the applicant had been expelled had prevented the organisation from having a power of attorney signed by the applicant before a notary or a judicial secretary. WLW contended that it had not been informed about the expulsion beforehand and had not been able to contact the applicant since then. In its view, the written authority dated 11 March 2010 (see paragraph 16 above) should be regarded as valid for the purposes of representation before domestic courts. 23. On 7 June 2010 the administrative judge rejected WLW’s submissions. He referred to sections 23 and 45 (2) (a) of Law 29/1998 of 13 July on Administrative Judicial Procedure, which established the obligation to furnish a power of attorney in cases where applicants had instructed a lawyer to represent them before an administrative judge, and to section 24 of Law 1/2000 of 7 January on Civil Judicial Procedure, which provided that the power of attorney must be signed before a notary or a judicial secretary. The judge observed that the aim of these requirements was to demonstrate the genuine existence of the person intending to apply to the judicial authorities for the purpose of defending his or her individual rights. 24. On 19 July 2010, as a result of a claim lodged by WLW concerning the applicant’s case, the Spanish Ombudsman issued a recommendation to the Asylum Office of the Ministry of Internal Affairs to the effect that the asylum authorities should automatically initiate a procedure aimed at determining whether the alleged victim should be granted a recovery and reflection period in cases where an international protection request has been supported by the UNHCR office because it is thought that the person concerned might be a victim of human trafficking. 25. On 3 August 2010, after holding a hearing in the presence of WLW, Madrid administrative judge no. 14 declared the appeal inadmissible as WLW had no locus standi to represent the applicant. The judge found that WLW had failed to substantiate its assertion that its lawyers had tried three times to procure the attendance of a notary at the aliens’ detention centre. 26. On 27 May 2011 the Madrid High Court of Justice upheld this decision, observing that WLW had not demonstrated that it had approached the professional association of notaries for the purpose of requesting the attendance of a duty notary at the aliens’ detention centre. The High Court also found that no evidence had been produced showing that the applicant was unable to avail herself of consular services in her country of origin as provided by section 65 (2) of Organic Law 4/2000 of 11 January on Rights and Freedoms of Aliens in Spain. In view of the above, the High Court declared that the written authority dated 11 March 2010, which was valid for the purposes of the applicant’s representation in administrative proceedings, was not sufficient to satisfy the representation requirements under section 24 of Law 1/2000. On 7 March 2012 the Constitutional Court declared the applicant’s amparo appeal inadmissible for lack of any special constitutional significance. 27. Section 59 bis of Organic Law 4/2000 of 11 January on the Rights and Freedoms of Aliens in Spain imposes on the competent domestic authorities the obligation to adopt the measures necessary for the identification of victims of trafficking in human beings. This provision reads: “1. The competent authorities shall adopt the necessary measures for the identification of victims of trafficking in human beings in compliance with Article 10 of the Council of Europe Convention on Action against Trafficking in Human Beings, of 16 May 2005. 2. Whenever they consider that there are reasonable grounds to believe that an illegal immigrant is a victim of trafficking in human beings, the competent administrative bodies shall inform the person concerned of the provisions of this section and shall submit, in accordance with the relevant procedure, a proposal to the competent authority for the adoption of a decision on whether a recovery and reflection period should be granted in the case. The recovery and reflection period shall last at least thirty days and shall be sufficient for the victim to make a decision on cooperating with the authorities in the investigation of the crime and, if appropriate, in the criminal proceedings thereafter. During the victim identification period and the recovery and reflection period no infringement proceedings may be instituted for a violation of section 53 (1) (a). Any infringement proceedings that may have been instituted and any expulsion or deportation decisions adopted will be suspended. Likewise, during the recovery and reflection period, the person concerned shall be authorised to stay in the territory temporarily and the competent administrations will provide for his or her subsistence and, if necessary, for the security and protection of the victim and any of his or her children who are minors or disabled and were in Spain at the moment of identification ... 3. The recovery and reflection period may be denied or revoked for reasons of public order or if it is found that victim status has been claimed improperly. The denial or revocation shall be properly reasoned and can be appealed against as provided for by Law 30/1992 of 26 November on the Legal System of the Public Administration and on Common Administrative Procedure. ...” 28. The relevant Spanish legislation setting out the formal requirement to provide legal representation (in force on the date of the institution of the proceedings for the protection of fundamental rights) provides as follows: “1. In proceedings before a single judge, the parties may choose to be represented by a procedural representative and shall, in any event, be advised by a legal counsel ...” “1. Claims for judicial review shall be initiated in the form of a written application that merely cites the decision, act, inaction or action constituting the challenged ultra vires operation and the petitum that the claim be held to have been filed, unless otherwise provided by this law. 2. This application shall be accompanied by: a) The document ascertaining the capacity of the person appearing on behalf of the party, unless this document has been previously attached to the judicial file of a case pending before the same court, in which case a certificate may be requested, to be attached to the new judicial file. ...” “1. The authority to act on behalf of a party shall be conferred through a notarial power of attorney witnessed by a public notary or through the party’s appearance in the office of a judicial secretary. ...” “1. The administrative decisions imposing an administrative sanction may be appealed against as provided for in the relevant regulations. These decisions shall be enforced according to the relevant general legislation. 2. Where the alien is outside Spain, he or she may introduce administrative or judicial proceedings through the relevant diplomatic or consular services, which shall forward the appeal to the relevant body in Spain.”