Monitoring Report on Human Trafficking Victims in Court in Serbia

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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 Serbia.

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.