WUNRN
MONITORING REPORT ON HUMAN
TRAFFICKING VICTIMS IN COURT IN SERBIA
Serbia - The report gives
insights into the complex dynamics and challenges of trafficking victims in
court in Serbia. Detail and statistics are provided for the
court process for trafficking perpetrators and victims. The practice of
criminal courts not to decide on compensation claims but refer injured parties
to civil proceedings represents a major obstacle in realization of one’s right
to compensation. Without deciding on compensation in criminal proceedings, or
some other efficient and accessible mechanisms for realization of this right,
victim will most often end up discouraged due to the lengthy and costly civil
proceedings, and deprived of their right to be compensated for the damages
suffered.
Inconsistent
application of the existing legal norms and provisions of the ratified
international documents when it comes to the position and rights of human
trafficking victims, as well as the lack of the free legal aid system and
efficient mechanisms for compensating victims, still represent crucial
challenges indicated by the analysis of judicial practice.
Serbia - Monitoring Report on Position of Human Trafficking Victims in Court Proceedings
- Analysis of Judicial Practice for
2013 -
NGO ASTRA
– Anti Trafficking Action, in addition to providing direct assistance to
victims of human trafficking, continuously monitors the position of victims in
court proceedings, both by way of monitoring trials in which victims appear
most often as injured parties/witnesses and by analyzing judgments rendered for
the criminal offence of human trafficking. This is the summary of the Report
for 2013.
Direct
Link to Full 23-Page Report: http://www.astra.org.rs/eng/wp-content/uploads/2008/07/ASTRA-Legal-Analysis-2013.pdf
Basic aim
of the analysis was to overview the position of human trafficking victims in
court proceedings, in order to be able to estimate the state of harmonization
of domestic legislation with international standards in the field, efficiency
and implementation of the existing legislation in practice, uniformity of
judicial practice, as well as the effect of the implemented trainings for
judiciary employees, all with the purpose of improving the position of human
trafficking victims in court proceedings.
The
analysis of legal practice is based on monitoring court trials for the crime of
trafficking and on quantitative and qualitative analysis of court decisions
issued in the course of 2013 in criminal court proceedings, either by first or
second instance courts. A total of 39 criminal courts’ judgments were analysed
which, among other things, dealt with human trafficking, 16 of which being
first instance judgements and 23 appellate courts’ judgements. In analysing
court decisions, the parameters crucial for the assessment of victims’ position
were used, with the emphasis on the data on the victim and his/her hearing,
decision on compensation claims, as well as the type and severity of penalties.
Special attention in this section of the analysis was given to a final decision
adopted in civil proceedings, which was the basis for the first ever
compensation claim awarded and paid to a human trafficking victim in
Duration
of the proceedings was analysed in relation to the time period that passed from
indictment to sentencing. According to the given criteria, the longest
proceedings lasted for 5 years and 9 months; average length was 2 years and 2
months, while only three court proceedings were finalized within a year. In 44%
of cases the proceedings lasted for more than 2 years. These data indicate that
the length of court proceedings is still verging on unreasonable, given the
criteria for trial within reasonable time.
Out of 23
appellate court decisions that were analysed, first instance decisions were
confirmed in 15 cases. In one of the cases, the sentence was confirmed for
human trafficking, but was revised when it came to another act of crime. In six
of the cases first instance sentences were modified in relation to the severity
of sentence, where the original sentences were mitigated in 5 cases, while in
one of the cases first instance sentence was made to be more severe by the
appellate court.
Analysis
of the defendants’ personal data led to the conclusion that these were mainly
male (71%) Serbian citizens (33 of the defendants) while 29% of the defendants
were female. These data do not diverge significantly from the results of the
previous analysis for 2012. Age distribution of the defendants at the time when
the crime was committed indicates that the majority of them belong to the age
group of 26-35 year olds, while the youngest defendant was 19 and the oldest 60
years old. When it comes to marital status, 33% of the defendants were married,
while 62% had children (assessed by the court to be a mitigating circumstance
which allowed for shortest sentences in 11 of the cases).
When it
comes to previous convictions, statistical data of the analysed judgments
indicate that 53% of the defendants had previously been convicted (18 persons,
16 of them with multiple convictions and all of them male). These data do not
differ from the data gathered in the previous year. For 11 of the defendants,
these previous convictions were taken by the court to be an aggravating
circumstance in sentencing.
Out of the
total number of 19 human trafficking victims that had the status of injured
parties in the analysed court decisions, all were female (the data are missing
for one person only). When it comes to the victims’ age, it is important to note
that a high percentage of the victims were underage at the time when the crime
was committed, almost half of them (47% of all the injured parties for whom the
data exist), with the youngest injured party being only 12 years old at the
time when the crime was committed.
Results of
the judicial practice analysis indicate that the position of human trafficking
victims in court proceedings has not been significantly improved compared to
what was evidenced by the 2011-2012 analyses, as there are still substantial
challenges in realizing full protection of and respect for the rights of the
victims before court. Legislation in the field of prosecution and criminal
proceedings, largely harmonized with international standards, does not achieve
its full and consistent implementation in practice. Basic rights of victims,
such as the right to protection of privacy, right to assistance, counselling
and informing about the rights and entitlement to free legal aid, as well as
right to safety and compensation are still not realized to the extent which
would provide minimum standard of protection to the victims of this serious
crime.
Human
trafficking victims are exposed to long lasting court proceedings, multiple
hearings usually in the presence of defendants, confrontations with defendants
and witnesses, without due understanding of their specific position as victims,
or response aimed at protecting their safety and integrity. Penal policy in the
cases of the crime of human trafficking is mild and does not reflect the expected
reaction of the state to this crime, so the adopted sentences, though they are
stricter on average than in the previous years, are insignificantly above
legally stipulated minimum, while it needs to be noted that the number of the
decisions under which perpetrators were pronounced to be guilty has fallen by
1/5. The structure of perpetrators is almost unchanged, and it is
important to note that half of the perpetrators are still previously convicted
persons. The analysis of the court decisions adopted in 2013 indicate that the
circumstances which are taken to be mitigating while sentencing perpetrators
are still those related to the personal circumstances of perpetrators, such as
family life, underage children and health condition. The circumstances
stipulated by the law, such as intensity of jeopardizing one’s wellbeing,
behaviour after the crime was committed, and especially the relation with the
victim, were not valued properly in the analysed decisions of first and second
instance courts, which indicates the lack of understanding of the very crime of
human trafficking, as well as of the position of its victims.
When it
comes to the severity of the adopted sentences, majority of the defendants were
sentenced to 2-5 years of imprisonment (14 defendants, or 54%), 5 defendants
(19%) were sentenced to up to two years of imprisonment, while 7 defendants
(27%) were sentenced to more than 5 years of prison. The longest adopted
sentence was 8 years for the crime of rape, while for the crime of human trafficking,
the longest adopted sentence was 6 years and 2 months. The shortest adopted
sentence for the act of human trafficking was 8 months which was below legally
stipulated minimum, since in this case it was possible to apply older criminal
code, before the adoption of the legal amendments which abolished the
possibility of mitigating the sentence for this act of crime, so especially
mitigating circumstances were applied, while in the rest of the cases the
sentences for this crime ranged from 3 to 5 years. Statistical data indicate
that the average sentence for the crime of human trafficking was 4 years, while
the average length of the adopted sentences for all crimes was 4 years and 2
months. During the court proceedings, 21 of the defendants spent time in
detention.
The right
to compensation for human trafficking victims, as an important element of
access to justice, is still the one which is hardest to realize in practice and
needs to be paid additional attention. The analysis of 2013 judicial practice indicates
that the circumstances in the field have not changed significantly in
comparison to the previous years, so out of the total number of the analysed
court decisions, there was only one civil case related to compensation claim
for the damages resulting from the crime of human trafficking. The practice of
criminal courts not to decide on compensation claims but refer injured parties
to civil proceedings represents a major obstacle in realization of one’s right
to compensation. Without deciding on compensation in criminal proceedings, or
some other efficient and accessible mechanisms for realization of this right,
victim will most often end up discouraged due to the lengthy and costly civil
proceedings, and deprived of their right to be compensated for the damages
suffered.
Inconsistent
application of the existing legal norms and provisions of the ratified
international documents when it comes to the position and rights of human
trafficking victims, as well as the lack of the free legal aid system and
efficient mechanisms for compensating victims, still represent crucial
challenges indicated by the analysis of judicial practice.