WUNRN
Via ASTRA – Serbia
Access to Compensation for Trafficked Persons in the Region
Conference - Belgrade, Serbia – October 2014
Summary and Conclusions by
Marjan Wijers, Dutch Independent Expert
Up till now only limited
attention has been paid to compensation of victims, despite the fact that by
now trafficking and its forced labour and slavery-like outcomes are recognised
as a serious violation of human rights. An important judgment in this respect
is that of the European Court on Human Rights in the case of Rantsev
v. Cyprus and Russia (Application No. 25965/04, 7 January 2010), in which the Court
held that trafficking in human beings itself falls within the scope of article
4 of the European Convention on Human Rights, without the need to identify
whether it constitutes slavery, servitude or forced and compulsory labor. This
implies that States have a positive obligation not only to properly identify
victims, prevent trafficking, prosecute traffickers and protectvictims, but
also to provide victims with an effective remedy.
Compensation is a key element of
an effective remedy. The word ‘effective’ is crucial here. It means that a
theoretical possibility is not enough. There must be an actual possibility for
victims to claim and de facto receive compensation. This poses a
considerable challenge.
Although the law in Serbia,
Bosnia-Herzegovina, Croatia and Macedonia allows for the possibility to claim
compensation as part of the criminal proceedings, in practice, only a small
number of victims actually received compensation, either from the traffickers
or from the State. A small number of victims receive compensation through civil
proceedings, too. In practice, victims are severely discouraged from claiming
compensation. In criminal proceedings any claims are, as a rule, rejected or
not decided upon on the argument that this would prolong the proceedings. In
civil proceedings claims for compensation are prohibitively long and difficult
to prove, apart from the fact that victims do not have the financial means to
conduct long and expensive legal proceedings. And, even if claims are awarded,
they are extremely difficult or impossible to enforce for a variety of reasons.
State Funds for compensation of victims of serious crimes do not exist or are
dysfunctional.
For victims, compensation is a
key element of justice. Compensation is an acknowledgment by society of the
wrong done to them and a condition to regain confidence in the justice system
and a just world. It helps them to recover and empowers them to pick up their
lives. It also works as deterrence by targeting traffickers where it hurts
most: money.
Yet, there are many obstacles to
overcome. To mention some: lack of awareness or knowledge among the relevant
actors within the justice system, lack of information and access to free legal
aid or the requirement for victims to have regular immigration status or to be
physically presentin the jurisdiction concerned. Financial investigations
targeting the flows of the proceeds of trafficking are not yet common or, if
assets are confiscated, they go to the state instead of being used to
compensate the victim, leaving them with empty hands. And specifically for
victims of trafficking for forced prostitution: too often consent to sex work
is taken as consent to abuse and exploitation. This sends two messages: first,
sex workers can be abused with impunity, and secondly: the right of women to protection
against violence depends on their sexual innocence, or, in more traditional
terms, their ‘honour’. We have to seriously question ourselves if this is
really the message we wantto send. Do we really belief that human rights apply
to everybody, or are some of us more equal than others?
There are different mechanisms
to claim compensation: from the offender through the criminal proceedings or
through a civil action, or, if it is not possible to get compensation from the
offender, through a state fund. Experience learns that a civil action is not a
real possibility: it is expensive, can take years, is extremely burdening, and
even in case of a positive decision it is the victim who has to enforce the
judgment. Most victims will not even dare to try so and certainly not in the
case of organized crime. And most traffickers will have made certain that they
have no assets on their own name. Not to mention the fact that if the victim
loses the case, he or she risks to be sentenced to paying all legal costs, including
those of the trafficker. Overseeing these obstacles, the question can even be
posed whether it is morally right to refer victims of trafficking to civil
proceedings. But certainly, it cannot be qualified as an effective remedy.
That leaves us with compensation
through the criminal proceedings and a State Fund. A major obstacle in criminal
proceedings is the requirement that a civil claim should not delay the criminal
case. Yet, this obstacle can be overcome as the practice in the Netherlands shows.
It takes time, motivated judges and persistent lawyers, but it is possible. It
also requires up stepping financial investigations and the possibilities to
freeze and confiscate criminal assets. And use them for compensation of the
victims. But if it is not possible to get compensation from the offender,
because they cannot be identified or prosecuted, a State Fund for compensation
of victims of violent crimes is indispensable. As showed, such a fund can be
financed in different ways: from general taxes as in the Netherlands, or –more
creative – from a small percentage of each insurance contract like in France,
or simply from confiscated criminal assets.
A major conclusion of this conference is that in most cases the tools are there. The conventions are ratified. The laws are in place. What we need is to use them. We do not need new laws. We need the existing laws to be implemented. It is here that there is a world to win. To win this world, we need creativity, persistence and, above all, committed lawyers, prosecutors and judges. It is this, that this conference has hoped to achieve.