WUNRN
VICTIM COMPENSATION:
WINNING A CASE
Presentation by Loretta Bondi
Be Free Social
Cooperative - Italy
HRC 23 Event:
Femicide--The Strategic Role of NGO's in Making States Responsible for
Implementation of Due Diligence Obligations
Geneva, June 5, 2013
Dear Colleagues,
I wish to thank the
organizers for inviting me to this important discussion. It’s literally vital
that violence against women, one of the most pressing human rights challenges
all over the world, figures prominently on the radar of human rights advocates
everywhere and the international community as a whole.
I am speaking on behalf
of Be Free, a Rome-based social cooperative and a member of the CEDAW
platform. Violence against women and the fight against human trafficking
are at the core of Be Free’s mandate and actions. Among its activities, Be Free
has developed a five-year experience in psycho-social and legal counseling
through a help-desk at the migrant-related detention center of Ponte Galeria
(Rome, Italy). Be Free also facilitates access to justice for the victims.
This background allowed Be Free to spearhead a case in 2010 involving
Nigerian women who were trafficked to central Italy and two years later, win compensation
for 17 of the victims in a criminal court. To the best of our knowledge,
this is unprecedented in Italy. I will explain why in a moment.
For those of you who work
to combat trafficking in human beings, the story of the victims at the center of
Be Free’s case is tragically familiar. It’s a story of intimidation,
confiscation of documents, financial exploitation, ill-treatment, torture,
rape, forced prostitution, forced abortion, and conditions of slavery. In
our case, most of the women were trafficked from Benin City in southern Nigeria
by a prostitution ring of Nigerian criminals with bases of operations in the
village of Martinsicuro near the cities of Teramo and L’Aquila in central
Italy. Once in Italy, the women were made to work every day of the week
with very little time for rest, were often denied adequate food as well as
access to medical treatment. They were routinely assaulted if they failed to
meet their exploiters’ expectations while their families in Nigeria were
threatened by local operators of the racket. The women were placed
as virtual detainees in apartments owned by the ring, shuttled by trusted taxi
drivers to their places of work, that is, to main roads outside populated
centers, and submitted to a strict regime of surveillance and abuse by
iron-fisted “mamans” and their accomplishes. It was a very profitable operation
which went on for years.
A breach in this daily
inferno occurred in 2007 when a Carabinieri patrol intercepted one of the women
who showed clear marks of physical abuse. This set in motion an
investigation and finally a raid on the ring as well as, crucially, a series of
protection measures for the trafficked women. A network of support was offered
by “On the Road,” a non-governmental organization, and ultimately by Be
Free. Through their courage, and their determination, bolstered by NGO
services, the victims were empowered to overcome their fears, fight back, and
have their day in court.
When the case against the
trafficking racket was heard before the Criminal Court of L’Aquila, all
defendants were found guilty of conspiracy for the purpose of trafficking,
slavery, and illegal immigration. Their assets were confiscated and the ring
was dismantled. Yet the victims and their rights, including their right
to compensation, remained in the background. Be Free and On the Road were
not satisfied. We had argued that any repressive measure against human
trafficking would fail in its primary obligation of protection if the victims
and their rights were not placed squarely at the center of State action and due
compensation for their suffering granted.
On our side of the
argument we had international law, including European Council Directive 2004/80/EC of 29 April 2004 relating to
compensation to crime victims. This Directive sets up a system of cooperation
to facilitate access to compensation to victims of crimes in cross-border
situations. Article 12 states that: “All Member States shall ensure that their
national rules provide for the existence of a scheme on compensation to victims
of violent intentional crimes committed in their respective territories, which
guarantees fair and appropriate compensation to victims.” These
principles were reaffirmed in European Union Directive 36/2011 on preventing and combating trafficking in human beings and
protecting its victims which in article 17 specifically holds that: “Member
States shall ensure that victims of trafficking in human beings have access to
existing schemes of compensation”.
However, these directives had not been translated into Italian
law. Further, the focus of criminal courts in Italy has traditionally been on
the perpetrator rather than the victim. Thus, when the assets of a perpetrator
are seized, this confiscation accrues to the State, not the victim. The
victim is left to find recourse and compensation through expensive and lengthy
civil court procedures.
As Carla Quinto, Be Free’s lead-lawyer, would say: “When I meet
obstacles, I also get good ideas.” Carla found a legal ground to pursue
an appeal on behalf of the Nigerian women and to seek compensation contextually
with the judgment of the Appeal Court. That ground was offered by the dormant
article 600, paragraph 7 of the Italian Penal Code which stipulates that goods
can be seized by the State only if they are not needed by the victims. Clearly,
the victims supported by Be Free were in dire need of compensation for the
physical, psychological and financial abuse they had suffered.
Be Free and On the Road made sure that this argument resonated
when the case was appealed both by the two NGOs in a class action, and by the
defendants. On April 25, 2012, the Court of Assize of L’Aquila (the appellate
court) revoked the confiscation order delivered in the original trial. Instead,
it granted each of the 17 victim 350,000 Euros in damages, with 50,000 Euros to
be paid immediately. As participants in a class action, Be Free and On the Road
received 10,000 Euros each. Fourteen defendants were sentenced to prison
terms ranging from 5 to eighteen years.
Subsequently, the perpetrators have lodged an appeal with the
Corte di Cassazione—the last port of call in the Italian judicial system.
This high Court rules only on procedural issues and errors, rather than the
substance of the matter at hand. Thus, we are confident that the judgment of
the Court of Assize of Aquila will be upheld in higher jurisdiction.
L’Aquila case set a very important precedent that can and must be
replicated. But frankly, propitious circumstances also played their part.
To begin with, the victims were able to come forward and seek redress under a
protective shield. This is not always the case since all too many endure abuse
in total isolation and fear. Further, the racketeers had identifiable assets
that could be seized, including real estate and the taxis that shuttled the
victims to work. Such conditions do not always obtain, as criminal rings
are often also well versed in hiding their wealth.
In this process, we have learned many lessons, but two are of
critical importance. First, in criminal proceedings involving victims of grave
human rights violations, such as trafficking in human beings and gender-based
violence, it is imperative to sensitize the courts to the needs and rights of
victims, including their entitlement to immediate compensation. The neglect of
courts to tackle such issues is regrettably systemic rather than
occasional. Let’s not forget that when victims are forced to pursue
exclusively the track of civil courts to obtain compensation, not only are
their entitlements deferred and their needs put on hold, but the expansion of
the temporal horizon to obtain justice also exposes them to higher risks of
re-victimization.
Second, States must heed international law and ensure that
dedicated funds are created and devoted to compensation of victims of
transnational crime. They are often the most vulnerable to abuse and the least
likely to be protected.
Both these lessons are and will continue to be main points of
advocacy for Be Free and our colleagues. We will keep working to ensure
that L’Aquila case will not stand in “splendid isolation.”