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POSITION OF TRAFFICKING VICTIMS IN COURT PROCEEDINGS
‐ Analysis of judicial practice for 2015 ‐
I Introduction Within its activities aimed at improving the status of the victims of human trafficking, ASTRA ‐ Anti ‐Trafficking Action has been monitoring steadily the position of the human trafficking victims through annual analyses of the judicial practice in Serbia for five years. The continued monitoring and analysis of the judicial practice in 2015, through observing court proceedings and analysing court judgments, represents the continuation of efforts to improve the position of the human trafficking victims in court proceedings. The monitoring of the situation in practice, with a special focus on the position of victims in the court proceedings, leads not only to a better understanding of the problem, but also provides the basis for further activities so as to correct the existing inadequacies and detect key areas in the existing legislation in need of improving, or activities directed toward more consistent implementation of the present norms. The monitoring and analysis of the judicial practice in the period of 2011 ‐ 2014 indicate that, in order to fully recognise the position of the human trafficking victims, it is necessary to equally follow and monitor judicial proceedings, as well as to collect and analyse court decisions. Trial monitoring gives a direct insight into the course of the proceedings and the position of the victim before and during the trial, the aspect of safety and protection during the proceedings, and especially the attitude of the participants in the proceedings toward the victim, which cannot be entirely recognised from the court decisions or trial records. Continuity in monitoring judicial proceedings also offers the possibility of data comparison on an annual level as well as enabling the observation of possible changes in the mechanism of the victims protection during the proceedings. On the other hand, the analysis of the court decisions provides a complete insight into the course of the proceedings, time span, and the evidence presented, the uniformity of case law, as well as the penal policy, which further reveals the position of the victim in the process of decision‐making. The results so far indicate that a comprehensive approach to the protection of the victims’ interests and rights is impossible to achieve without conforming to the international standards in this domain, consistent application of the present legislation, and the participation of all involved in the procedure. Despite the progress achieved at the legislation and institutional levels, the improvement of co‐operation between the competent authorities and non‐governmental organisations, as well as the relevant training provided, the case law still fails to fulfil the basic standards in the rights protection as
guaranteed by the ratified international documents, especially concerning the field of victim’s privacy protection, the safety and protection of the victim, the hearing of the victim in the court proceeding, and the right to compensation. The insufficient implementation of the existing legislation which may improve the victims’ rights protection, as well as the shortcomings in the certain aspects of the present legal framework, still represent one of the basic problems in practice. Even though providing an efficient system for the protection of the human trafficking victims as well as readily available mechanisms for them to exercise their rights have got to be among the priorities in the process, especially having in mind the gravity of the consequences suffered by the victims of human trafficking, the realisation of rights and protection of the human trafficking victims still fails to reach its full scale. Based on the presented results of the judicial practice analysis for 2015, it can be deduced that court proceedings still lack the victims oriented approach, due to which the victims in the position of injured parties are still treated exclusively as the ’sources’ of information, i.e. information about the crime. Such an approach indicates that, despite a certain progress and conducted trainings, there is still a level of misunderstanding of the vulnerable position of the human trafficking victims which, along with lenient penal policy and the inability of victims to obtain damages, calls into question the degree of the victims’ rights realisation. II Monitoring and analysis of judicial practice 1. Objectives and methodology The analysis of judicial practice for 2015 is focused, as it was in the previous years, to perceive the position of the human trafficking victims in the court proceedings as thoroughly as possible, and in relation to the basic standards of protection, exercising of rights and providing help to the victims of human trafficking set by the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against transnational organised crime of 20001 (the Palermo Protocol), and the Council of Europe Convention on Action against Trafficking in Human beings of 20052. The main objective of the analysis is, as it was in the previous years, to recognise the position of the human trafficking victims in court proceedings in order to evaluate the conformity of the internal legal norms to the international standards in this field, the efficiency and application of the present legal norms in practice, the uniformity of case law, as well as the influence of the training the employees in the judiciary have had so far, all this with the aim to improve the position of the victims of this crime in the court proceedings. The continuation of monitoring and analysis of the judicial practice is aimed at regular monitoring and objective observing of the problems in practice, which may appear due to flaws in the law or the inconsistent application of the existing legislation, thus presenting a valid basis for recommendations and further improvements in the legal protection of the human trafficking victims. As the results and observations collected during the monitoring and analysis of the judicial practice in the period of 2011‐2014 have shown significant and persistent flaws in the implementation of the present legal norms, continuing to monitor and analyse the
1 Official Gazette of the FRY ‐ International Treaties, No. 6/2001 2 Official Gazette of RS ‐ International Treaties , No.19 / 2009
judicial practice appears justifiable in order to further improve the position of the human trafficking victims before the courts, in concordance with the obligations assumed from the ratified international documents of this field. Pertaining to the objectives and methodology of the previous analysis, in 2015 the monitoring of judicial practice was performed through two types of activities. The researchers of ASTRA were observing court proceedings concerning the human trafficking crimes and entered all the relevant data from the monitored trials into special forms ‐ questionnaires. Simultaneously, in accordance with the Law on Free Access to Information of Public Importance3, ASTRA was collecting data on the number of prosecutions and judgments, as well as the judgments given during 2015 that concern crimes of human trafficking, mediation in prostitution, and trafficking in minors for the purpose of adoption. Within the monitoring of the chosen trials for the crimes of human trafficking, 46 trials (main hearings) were observed in 21 criminal proceedings before competent courts in nine towns in Serbia (Higher Courts in Belgrade, Novi Sad, Šabac, Pančevo, Kragujevac, Smederevo, Kruševac, Niš, and Leskovac). The researchers of ASTRA had direct contact with the victims and their representatives, as well as an insight into the course of the court proceedings and activities of other participants in the trials. To improve the quality of the trial monitoring, a questionnaire in the form of trial report was used, which was completed by the researchers upon the ending of the monitored trial. The questionnaire was designed in such a way as to provide full insight into the position and protection of the victim's rights. Information on the number of criminal proceedings lead or resolved in the courts, the number of judgments, as well as most judgments to have been analysed, were acquired pursuant to the Law on Free Access to Information of Public Importance from the courts of first and second instance for the proceedings conducted during 2015 for the crimes of mediation in prostitution, human trafficking, and trafficking in minors for adoption. There were 39 court judgments for analysis in total, passed in the criminal proceedings in the course of 2015. 19 of those were first instance judgments (subject‐matter jurisdiction of the Higher Courts in Belgrade, Novi Sad, Kruševac, Vranje, Sremska Mitrovica, Pančevo, Kragujevac, Šabac, Sombor, and Jagodina), and the remaining 20 were second instance judgments passed on appeals (subject‐matter jurisdiction of the Appellate Courts of Belgrade, Novi Sad, Kragujevac, and Niš), 15 of which refer to the obtained first instance judgments. Data from the questionnaires filled in by the researchers present at the trials and also from the obtained judgments was analysed quantitatively (statistically) and qualitatively. The analysis was aimed at data, i. e. indicators important for assessing the position of the victim regarding protection and realising basic rights in the court proceeding. Quantitative (statistical) analysis, depending on the available data from the questionnaires or judgments, provides information such as: basic data on the injured party and the defendants, type of crime, duration of proceedings, public attendance, detention, types of decisions, and the amount of punishment. Given that the questionnaires from the monitored trials and the obtained judgments provide different kinds of data, the specific features in the data processing have been distinctly mentioned in the general information in the chapters concerning the analysis of the trial monitoring and judgments analysis. Qualitative analysis, based on available statistical data, as well as the thorough analysis of the questionnaires and all the first
3 Official Gazette of RS, No. 120/2004, 54/2007, 104/2009 i 36/2010
instance and second instance judgments, deals with the position and rights of the victims of human trafficking through the most significant aspects, such as protection of the victim’s privacy, assistance to victims ‐ counselling and providing information, safety and protection, and especially victims’ hearing in the court proceedings, and the right to compensation, i.e. damages. Aside from these aspects of protection and exercising victim’s rights in the court proceedings, the analysis of the court judgments provides special emphases on the penal policy which is a significant indicator of the attitude of the judicial system towards certain crimes. The complete analyses of the judicial practice is, as it was before, aimed at a more comprehensive appreciation of the position and exercising of rights of the victims of human trafficking in the court proceedings compared to basic international standards of protection and exercising of rights of the victims. Therefore, the analysis for 2015 maintains the structure following the guidelines given by the most important international documents concerning the measures to provide assistance and protection to the victims in order to improve their position, such as protection of privacy and identity of victims (Article 6 of the Palermo Protocol and Article 11 of the Council of Europe Convention on Action against Trafficking in Human Beings), assistance to victims ‐ providing information and help in the exercising of the rights and interests of victims in court proceedings and measures for the safety of the victim (Article 6 of the Palermo Protocol and Articles 12 and 15 of the Council of Europe Convention on Action against trafficking in Human Beings) and compensation (Article 6 of the Palermo Protocol and Article 15 of the Council of Europe Convention on Action against Trafficking in Human Beings). With each individual segment of the rights and position of victims, special consideration was given to the possibilities and legal solutions provided by the Criminal Code4 (CC), the Law on Juvenile Offenders and Criminal Protection of Minors5, and the Criminal Procedure Code6 (CPC). In this text, terms used, where appropriate, to denote the victims of human trafficking or other crimes dealt with in the analysis are: ’victim of trafficking’, ’victim’, ’injured party’. The term ’defendant’ is used as a generic term for the suspect, the accused, and the convicted person, within the meaning of the term under Article 2 of the Criminal Procedure Code. 2. Courts’ data on the number of proceedings lead and resolved and the number of judgments In order to collect the largest possible number of judgments to be analysed, as well as data on the number of initiated and resolved court proceedings for related crimes, the competent courts were requested to submit said data in accordance with the Law on Free Access to Information of Public Importance. Requests for the information were sent to first instance courts (on the number of proceedings and judgments, final and non‐final), and to appellate courts (on the number of appellate procedures) in 2015, for the crimes of mediation in prostitution under Article 184 of the Criminal Code,
4 Official Gazette of RS, No.85 / 2005, 88 / 2005‐ corr., 107 / 2005‐ corr., 72/2009, 111/2009, 121/2012, 104/2013 and 108/2014 5 Official Gazette of RS, No.85 / 2005 6 Official Gazette of RS, No. 72/2011, 101/2011, 121/2012, 32/2013, 45/2013 and 55/2014
trafficking in persons under Article 388 of the CC, and trafficking in minors for the purpose of adoption under Article 389 of the CC.
According to the data provided by the trial courts in 2015, the Higher Court in Belgrade conducted 30 proceedings for crimes under Articles 184, 388 and 389 of the Criminal Code, specifically two for crimes under Article 184 of the CC, 27 for the crimes under Article 388 of the CC and one for crimes under Article 398 of the CC; a total of 8 judgments were passed, 6 of which become final and enforceable. Two proceedings were conducted before the High Court in Novi Sad for the crimes under Article 184 CC, one of which is final and enforceable, and the other unresolved; for the crimes under Article 388 of the CC 14 trials were conducted, two of which are finally resolved, 2 under appeal, while 9 remained unresolved; there were no court proceedings for the crimes under Article 389 of the CC. According to the records of the High Court in Sombor, for the crime under Article 184 CC, one procedure was conducted against a person who was acquitted. One procedure was conducted before the High Court in Sremska Mitrovica for a crime under Article 388 of the Criminal Code and a final judgment was passed; for the crimes under Articles 184 and 389 of the CC there were no proceedings. Before the High Court in Zrenjanin, for the crimes under Article 388 of the CC, proceedings were conducted against two persons for the same crime and the procedure has not been finalised, while there were neither filed indictments nor final judgments for the crimes under Articles 184 and 389 of the CC.
Data submitted by the High Court in Niš shows that three trials were held before the court for the crimes under Article 388 of the CC, one of which unresolved, two procedures were concluded, but for one of them the final judgment was later overturned and the case remanded for retrial, while in the second one the judgment is still non‐final; there were no procedures for the crimes under Articles 184 and 389 of the CC. During 2015, the Higher Court in Šabac conducted three proceedings for the crimes under Article 388 CC, one of which was legally finalised, but the accused was pronounced guilty for the crimes under Article 184 CC instead of those under Article 388 CC; no proceedings were conducted for the crime under Article 389 CC. The Higher Court in Jagodina conducted one proceeding for the crimes under Article 388 CC which ended with a final judgment; there were no procedures for the crimes under Articles 184 and 389 CC. According to the records of the Higher Court in Kruševac, for the crime under Article 388 CC, two proceedings were conducted against adults, one of which was suspended, and the other legally finalised. There was also a juvenile proceeding against a minor which ended in the minor receiving a court reprimand. There were no proceedings for the crimes under Articles 184 and 389 CC. For the crime under Article 388 CC, one proceeding was held before the High Court in Novi Pazar ending in the final judgment of dismissing the indictment. For the crime under Article 388 CC, one proceeding was held before the High Court in Pančevo, ending in judgment pronouncing the defendant guilty. There were no procedures for the crimes under Articles 184 and 389 CC. For the crime under Article 388 CC, three proceedings were conducted before the High Court in Vranje, two of which were legally finalised (one conviction and one acquittal), while the defendant in the remaining case was acquitted and the case is on appeal before the appellate court. There were no proceedings for the crimes under Articles 184 and 389 CC. According to data acquired from the Higher Courts in Subotica, Kraljevo, Zaječar, Leskovac, Čačak, Požarevac, Prokuplje, Negotin, Valjevo, Pirot, Smederevo, and Užice, there were no proceedings for the crimes under Articles 388, 389 or 184 CC before these courts in 2015.
The information gathered from appellate courts for 2015 show that the Appellate Court in Belgrade passed final and enforceable judgments in seven cases conducted for the crimes under Article 388, while in one case the first instance judgment was revoked and the case was returned for repeated proceeding; there were no proceedings for the crimes under Articles 184 and 389 CC. The Appellate Court in Kragujevac conducted two proceedings for the crimes under Article 184 CC, one of which ended in judgment, and the other was returned for repeated proceeding; for the crime under Article 388 CC six proceedings were conducted and finalised; there were no cases related to crimes under Article 389 CC. The Appellate Court in Novi Sad conducted six proceedings for the crimes under Article 388 CC which were resolved in 2015, two proceedings for the crimes under Article 184 CC resolved in 2015; there were no proceedings for the crimes under Article 389 CC. According to data provided by the Appellate Court in Niš, there was one proceeding conducted and resolved for the crime under Article 184 CC before this court, six proceedings for the crimes under Article 388 CC, five of which were resolved, while for the crime under Article 389 CC there were no proceedings held. III Monitoring of court proceedings 1. General data on the monitored proceedings During 2015, court proceedings for the crime of trafficking in human beings conducted before competent courts of first instance in nine cities in Serbia (Higher Courts in Belgrade, Novi Sad, Šabac, Pančevo, Kragujevac, Smederevo, Kruševac, Niš, and Leskovac) were monitored. A total of 21 individual proceedings were monitored, seven of which were in Belgrade, five in Novi Sad, three in Kragujevac, and one in Smederevo, Kruševac, Niš, Leskovac, Šabac, and Pančevo each. The researchers were present at 46 trials (main hearings). Of all the defendants in all cases (53 persons) each one was charged with the crime of trafficking in human beings under Article 388 CC, one was also tried for the crime of domestic violence under Article 194 CC, while in one proceeding, two of the defendants were tried for the crime of mediation in prostitution under Article 184 CC. During 2015, no civil proceedings for compensating the victims of human trafficking were monitored. As was noticed in the analyses for the previous years, the lack of civil proceedings for compensating the victims indicates that realising this aspect of the victims’ rights is still hindered. Given that the compensation claimed during the criminal proceedings by the human trafficking victim’s in their capacity of the injured party is almost never awarded during the very proceeding, the victims are forced to start civil proceedings for the damages from the defendants. Long civil proceedings, high costs, and the fact that the victims have to undergo testifying and forensic expertise again, obviously present obstacles which discourage the victims of human trafficking to initiate these procedures. All the monitored trials concerned the hearings in the court proceedings before competent first instance courts. As the length of the postponement periods of the main hearings is a significant indicator of the efficiency of court proceedings, it has been recorded that the shortest period between two trials in one proceeding was one day, while the longest one was four months. From the
total number of the monitored trials, 18 were not held for a variety of reasons, the most common one being the absence of the defendant (in seven cases), or the defence attorney (two cases), while the absence of the injured party was the reason for postponement in two cases. This data shows that the speed of the proceedings is not satisfactory, despite the more frequent scheduling of hearings, and that, as it was in the previous years, one of the main reasons for postponing trials is the absence of either the defendants or their attorneys (50% of the cases).
Chart 1
The postponing of trials obviously still represents a serious problem that needs special attention, especially when in the case of a victim being present at court to testify. Reappearance at court poses additional stress to the victims and is a potential source of secondary trauma because the victims are forced to repeatedly meet with the defendants, their relatives, and their friends. Compared to available statistical data from the analysis of the monitored court proceedings in 2011 and 2012, when in 45‐50% of the cases the trials were postponed because of the defendant or defence attorney’s absence, data for 2015 shows that, despite the changes in legislation and judicial reforms, this problem still remains present in 50% of cases. For the total of 31 injured parties in the monitored proceedings, it was possible to determine the age of victims in 65% of the cases, 13% of whom are minors, and 13% are over 30, while most victims (39%) were between 18 and 30 years of age. One juvenile victim reached the age of majority during the proceeding, while another was still underage in the time the crime was committed.
Chart 2
According to available data from the monitored trials, the victims had attorneys in 12 cases, in six of which the victims were represented by attorneys specially trained by ASTRA to work with the victims of
human trafficking. In these cases, the victim had been informed by their attorney about the course of trial, their position in the proceeding, and their rights before the very proceeding. In one case, the victim had a court‐appointed attorney. 2. Position and rights of the victim 2.1. Protection of the victim’s privacy The protection of privacy and identity of the victims of human trafficking, indicated under Article 6 of the Palermo Protocol and Article 11 of the Council of Europe Convention on Action against Trafficking in Human Beings, represents one of the basic prerequisites for the protection of victims of human trafficking in a court proceeding. Nevertheless, the current provisions on the protection of witnesses and injured parties in a criminal procedure are not applied sufficiently, which is especially surprising given that according to the Criminal Code of the Republic of Serbia the crime of trafficking in human beings is classified as a particularly grave crime. The absence of adequate application of the legal provisions which would enable the victims to protect their identity and privacy, as well as their safety, is largely a consequence of misunderstanding the vulnerable position of the human trafficking victims by the judges and prosecutors. Out of all monitored proceedings, the public was excluded in five cases for legal reasons, while in five cases it was open to the public. In two cases, the public was excluded during the proceedings, while in one case, three trials were closed to the public, while the last one was open. The presence of media was not recorded in any of the trials. In two cases, the trials were attended by the representatives of the Centre for Human Trafficking Victims Protection, while one case was attended by the representatives of one non‐governmental organisation.
Chart 3
The data indicates that the protection of identity and privacy of the victim is still not at a satisfactory level, despite the significant number of juvenile victims. Full name of the victim was used in 12 proceedings, while the information about the victim’s dwelling was revealed in two cases. During the hearings, the victims were asked questions about their health and earlier life, mainly to determine the facts relevant to the crime. Information about the victim’s earlier life was presented in four proceedings, one of which was to do with the crime, and the other three with family circumstances.
Information about the victim’s health status was given in five cases, and referred to mental health, pregnancy, inflicted injuries or illnesses.
Chart 4
From a total of seven cases where the injured parties were interrogated in the monitored trials, in 43% of the cases, the hearing was conducted in the presence of defendants. It should be pointed out that five of the victims had the status of a particularly vulnerable witness, two of which were not questioned in the monitored trials. Of the remaining three, only one was heard via technical device for sound/image transfer (video link). The other two victims with the status of particularly vulnerable witnesses were questioned in the presence of the defendants, and in both cases, the reason given was ’technical problems or faults’ in court. This data indicates that the measures for protecting the privacy and identity of victims are insufficiently applied in court proceedings, in spite of binding international standards and constitutional provisions which allow the possibility of excluding the public in order to protect the privacy of the parties involved in the proceedings. The provisions of the Criminal Procedure Code allow this possibility because, as stipulated by Article 363, the panel may, ex officio or at the request of the parties or their attorneys, exclude the public for the entire main hearing or its part, if needed for the purposes of public order and morals, best interest of a minor, or the privacy of the parties involved. In such a case, however, the panel may allow the presence of expert public and, at the request of the defendant, the presence of their spouse or close relatives, who are obliged to keep everything they heard at the hearing as secret (Article 364). It can be concluded that internal legislation contains all the necessary institutes to ensure the protection of the privacy and identity of the human trafficking victims in court proceedings, so this aspect of victim protection is yet another example of inconsistent application of existing legislation. 2.2. Assistance to victims ‐ counselling and information Another important aspect in considering the position of the victim in court proceedings is victim assistance, i.e. giving information and assistance to enable their rights and interests in court proceedings (Article 6 of the Palermo Protocol, and Articles 12 and 15 of the Council of Europe Convention on Action against Trafficking in Human Beings). In the proceedings closely monitored, special attention was given to supporting the victim, informing the victim about their rights in the proceeding, and providing free legal aid.
The analysis of the data from the questionnaires indicates that realising the right of victims to legal aid, counselling, and information still largely depends on the involvement of non‐governmental organisations, such as ASTRA, which provides legal aid, support, and court accompaniment to the victims. In this way, the victims are enabled to realise their rights in the proceeding so as to have timely information on the course of the proceeding and the way in which the trial will develop, along with the psychological support which gives them more security. According to available data from the monitored trials, the victims as injured parties had an attorney in 12 cases, six of which were attorneys specially trained by ASTRA to deal with human trafficking victims. In these six cases, the victims were informed by their attorneys about the course of the trial, their position in the procedure, and their rights, before the very trial. Only in one case the victim had a court‐appointed attorney. In the monitored proceedings, the trials were attended by the representatives of the Centre for Human Trafficking Victims Protection in two cases while, alongside with the representatives of ASTRA, one trial was attended by the representatives of the NGO Atina. In seven out of nine cases where the victims had been present during the proceedings, the victims were accompanied by a psychologist, social worker, or other person of trust, while only in one case the support of family or friends has been recorded.
Chart 5
According to available data, the victims as injured parties were informed about their rights in five cases, whereby one must bear in mind that the law obliges the authority of the proceeding to inform the participants about their rights, as well as warn the participants about the consequences of missing out on a court action or not exercising their rights due to ignorance (Article 8 CPC). In addition, the public prosecutor and the court are obliged to inform the injured party about their rights in the proceedings (Article 50). Bearing in mind the gravity of the consequences and the overall delicate position of the human trafficking victims, it is necessary to give more attention to this aspect of victim protection. The situation could be largely improved if authorities of the proceedings would entertain the possibility of assigning the status of particularly vulnerable witnesses to the victims more often. The majority of the human trafficking victims meets one or more requirements provided by law for this status (age, way of life, gender, health status, nature, manner, or consequences of the crime, and other circumstances of the case), and the authority of the procedure may, should they consider it necessary to protect the interests of a particularly vulnerable witness, decide to appoint an attorney to the witness (Article 103, Paragraph 3 of the CPC).
2.3. Safety and protection of the victim Despite the obligation to provide the human trafficking victims with a system of measures for their safety, security, and protection (Article 6 of the Palermo Protocol and Article 12 of the Council of Europe Convention on Action against Trafficking in Human beings), in the monitored court proceedings these special measures are still not being applied sufficiently. The safety of the victim can be threatened not only by the defendant, but also by other participants in the proceeding, or the family and friends of the defendant. Undeniably the victim’s sense of security increases if the defendant is in custody during the trial, providing all the legal requirements have been met. Statistical analysis of the available data from the questionnaires on the trial monitoring shows that the defendants were in custody in 32% of the cases. In nine procedures, all of the defendants were detained (in one case, detention was cancelled during the proceeding), in one case two of the defendants were detained and one was at large. In one case one of the three defendants was in custody; in four cases the defendants were released pending trial; in six cases the data is unavailable. From the total of 53 defendants, 19 were detained during proceedings (detention was cancelled for two of them during the procedure), 16 defendants were not detained, while data is unavailable for 16 defendants.
Chart 6
Threatening, putting pressure on, and intimidating the victims by the defendants or their friends and family present a serious problem which demands adequate response from the court or prosecution. Besides meeting the defendants in court, the additional trauma for the victims is having to wait for the beginning of trial in the court building while the defendants are close by. Therefore the actions of the prosecution and courts must be directed towards providing security and safety for the victims, primarily to protect their rights and interests, avoid secondary victimisation, but also to ensure that their testimony is of structural and essential quality, so as to be in the interest of properly conducting the proceeding and determining criminal responsibility. The worrying fact is that the victims were given the status of a particularly vulnerable witness only in 22% of the cases (five victims), while only in one case a restraining order was documented, with the caveat that this measure was imposed on a defendant who was, in addition to the crime of human trafficking, also charged with domestic violence under Article 194 CC and that it cannot be determined with certainty from the available data whether it was the measure under Article 197 of the CPC determined by the court in the criminal proceedings, or the measure of protection against domestic violence possibly imposed in a civil procedure.
Chart 7
The provisions of the Criminal Procedure Code oblige the court to protect the injured party from being insulted, threatened, or attacked in any other way (Article 102). These provisions, along with those on particularly vulnerable witnesses (Articles 103 and 104), may provide more security and protection for the human trafficking victims. In addition, the protection of the victims’ safety can hugely be improved by adequate application of the provisions on the safety measures concerning the presence of the defendant, and the free conduct of the criminal proceedings under Article 188 CPC which, along detention, also prescribes other measures, such as a restraining order, prohibition of meeting or communicating with a certain person, or visiting certain places. 2.4. Hearing of victim The cited provisions of the Palermo Protocol and CoE Convention relating to the protection of the human trafficking victims' rights, exercising their rights in the proceeding, and protecting their safety, must especially be considered during the victim’s hearing. Actions of the prosecution and the courts must be directed towards the safety and protection of the victim, especially during the hearing, so as to protect their rights and avoid secondary victimisation, while simultaneously ensuring a high quality testimony in the interest of regular conduct of the proceeding and determining criminal responsibility. The feelings of fear and insecurity that the victim experiences during the hearing in the presence of the defendant affects not only the mental status of the victim, but also the credibility of the testimony. Therefore, the protection of safety and security of the victim during the presence of the defendant and testifying is a matter of public interest. Hence, it is the obligation of the judicial authorities during the proceeding to not only protect the rights of the defendants, but also to respect the rights of injured parties in the process, and to take all possible measures to ensure the safety of the victims during the testimony. The 2015 data analysis indicates that, out of the total number of cases where the victims were interrogated in the monitored trials, the hearing was conducted in the presence of defendants in 43% of the cases. It must be expressly stressed that five victims had the status of a particularly vulnerable witness, two of whom did not testify in the monitored trials, while in the remaining three cases only once the hearing was conducted via video‐link. In the other two cases, the victims with the status of particularly vulnerable witnesses were interrogated in the presence of the defendants, and the reason given was ’technical problems or faults’, although in one case it had been noted that the victim was ’visibly upset and crying’, and the hearing was conducted twice. It has been noted that in one case the judge refused the proposition of the defence to confront the victim with the defendant.
Chart 8
The data from the monitored trials’ reports indicate that the attitude of the judges, prosecution, and attorneys toward the victims had been assessed positively in all the cases with available data, which further shows that the actions and attitude of the proceedings authorities, i.e. courts and prosecution, toward the human trafficking victims in the very trials has improved significantly compared to the last year’s data. The data analysis for 2015 shows, as it did in the previous years, that testifying in the presence of the defendant leads to increased stress, fear, and nervousness of the victim, which not only amplifies the victim’s trauma, but also affects the quality of the testimony itself, as well as the behaviour of the victim during the hearing. As it is necessary to give more attention to balancing the rights of the defendants (such as the right to be present at the hearing of the victim and to pose questions) and the rights of victims in the proceedings, it is of utmost importance for the authorities of the proceeding to recognise the delicate position of the human trafficking victims in order to consistently apply the existing legislation and to prevent retraumatising the victims. The Criminal Procedure Code provides special rules for the hearing of persons with the status of particularly vulnerable witnesses (Article 104), such as questioning only through the authorities of the proceeding, acting with special care so as to avoid negative consequences on the victim’s personality and mental status, holding a hearing using technical devices without the presence of other participants, conducting the hearing in the victim’s home, or in another authorised institution, prohibiting confrontation without the consent of the particularly vulnerable witness. 2.5. Compensation The right to compensation for the victims of human trafficking represents one of the important issues towards the goal to fully protect the victims of this crime. Although this issue is included in the minimum standard of protection (Article 6 of the Palermo Protocol and Article 15 of the Council of Europe Convention on Action against Trafficking in Human Beings) and is regulated by internal law, judicial practice in this area is almost non‐existent. The court proceedings monitored during 2015 have not encompassed any court procedure dealing with compensation in a civil procedure, which starts after the completion of criminal proceedings in
which it is addressed to litigation. The fact that the victims of human trafficking are referred to pursue compensation claims in civil procedures, and that this claim is never decided in the criminal proceedings despite the legal possibilities, represents an additional obstacle in the full realisation of rights of the victims of this crime. The 2015 questionnaire data suggests that compensation claims were put forward in three cases, but were not decided during criminal proceedings. Although the provisions of the Criminal Procedure Code relating to the exercise of compensation claim (Articles 256‐258) provide a basis for deciding on this claim in the criminal procedure, in practice, compensation claims are almost never decided in criminal proceedings, which often discourages the victims’ attorneys from making the claims during the trial. The present judicial practice could be changed if there were more such requests, particularly bearing in mind that during the criminal proceedings victims undergo forensic examination, and that expert opinions contain sufficient data on the resulting non‐pecuniary damage and harmful consequences. III Court judgment analysis 1. General data and observations Monitoring and assessment of the position of human trafficking victims in judicial practice through analysing court judgments, which was conducted throughout the period of 2011‐2014, was continued during 2015. The subject of qualitative (statistical) and quantitative analysis was the collection of court decisions relating to the crime of trafficking in persons under Article 388 CC, passed during the year in the first instance or second instance courts. As with previous years, a certain number of judgments had to do with the proceedings where, along with this crime, there was also the crime of mediation in prostitution under Article 184 CC, mainly as a result of re‐qualification of charges during the proceeding where the initial charges for the crime of trafficking in persons resulted in judgment for the crime of mediating in prostitution. The analysis encompassed a total of 39 court judgments rendered in the criminal proceedings in 2015, partly before first instance courts (subject‐matter jurisdiction of the Higher Courts in Belgrade, Novi Sad, Kruševac, Vranje, Sremska Mitrovica, Pančevo, Kragujevac, Šabac, Sombor, and Jagodina), partly before appellate courts in deciding on the appeal (subject‐matter jurisdiction of the Appellate Courts in Belgrade, Novi Sad, Kragujevac, and Niš). Of the total number of judgments, the analysis covered 19 first instance judgments and 20 appellate court judgments yielded on appeal, 15 of which concern the analysed first instance judgments. Some of the judgments refer to the proceedings for rendering a concurrent sentence, two of which refer to altering the final judgments regarding the decision on punishment by yielding concurrent sentences, and were not included in the analysis because they belong in the period of 2011‐2014. The presented quantitative (statistical) analysis shows the types of crimes, duration of the proceedings, types of decisions and the amount of punishment, as well as the data on the defendants and victims, and all data was retrieved from the analysis of judgments rendered in first instance courts. The appellate court decisions served as the basis for determining the type of decision (approval revocation, or alteration of first instance decisions). Qualitative analysis, besides using
statistical data, also deals with the position and rights of human trafficking victims through the most important aspects of protecting their rights, using all the collected judgments, both from first instance courts and appellate courts, as a basis. The analysed issues include the protection of victim’s privacy, counselling and providing information, safety and protection, and especially the aspect of the victims’ hearing in court proceedings, as well as their right to compensation, i.e. damages. Aside from these aspects of protection and exercising of victims’ rights in court proceedings, the analysis also gives an insight into penal policy. First instance judgments rendered in 2015 in the criminal proceedings almost entirely refer to the crime of trafficking in persons under Article 388 of the Criminal Code, with the exception of individual cases for the crime of mediation in prostitution under Article 184 of the Criminal Code. As for the charges, statistical analysis shows that in 98% of the cases, the indictment was for the crime of trafficking in human beings ‐ 43 out of 44 defendants were charged for this crime (two of as co‐perpetrators and three for aiding and abetting), one person for the crime of mediation in prostitution, while nine persons were charged for the crime of trafficking in human beings together with other offences. One person was charged for human trafficking, but convicted of mediation in prostitution.
Chart 9
The duration of the proceedings before the first instance courts was analysed in relation to the time period from indictment to first instance judgment. According to this criterion, the maximum length of a court proceeding is five years, average length is two years and four months, while the shortest proceeding lasted for two months. Of the total number of first instance proceedings, 26% lasted up to a year, 42% from one to three years, and 32% of the proceedings lasted for more than three years. It can be noticed that the average duration of a proceeding is almost six months longer than the previous year, and that the improvement in efficiency concerning the duration of the proceedings seen in 2014 was missing this time ‐ during 2015, only 26% of the proceedings lasted up to a year, while the percentage for 2014 was 60%.
Chart 10
The data obtained by statistical analysis of the trial court decisions shows that conviction was made for all crimes in 48% of the cases, which is less than in the previous years’ data (during 2014, convicting judgment was pronounced in 59% of the cases, during 2013 in as much as 76% of the cases). 52% of the cases resulted in a verdict of acquittal. From the total number of convictions (21 convicted persons), 15 persons were convicted for the crime of trafficking in human beings (two of whom for co‐perpetration and two for aiding and abetting), four persons for the human trafficking and another crime (human trafficking, domestic violence, theft), while two persons were convicted for the crime of mediation in prostitution.
Chart 11
Chart 12
As for the amount of punishment imposed for the crime of human trafficking, most of the defendants received a 3 to 5 years prison sentence, in as much as 84% of the cases, one to three years sentence was given in 5% of the cases, while in 11% of the cases the sentence was more than five years of
imprisonment. Statistical data shows that the average prison sentence for this crime is four years and six months, the highest concurrent prison sentence being eight years, and the lowest two years (Statistical data show that the average height of a prison sentence for this offence 4 years and 6 months, the highest single fine imposed prison sentence of 8 years, while the lowest was sentenced to imprisonment for a term of 2 years (due to the possibility to apply an older version of Criminal Law, before it underwent the legislative changes that have abolished the possibility of sentencing the persons guilty of this crime below the statutory minimum). When comparing the penal policy with the data analysis for the previous years, the conclusion is that, although the average sentence imposed for 2015 (four years and six months) was somewhat higher than in 2014 (3.9 years), the percentage of prison sentences of over five years is in constant decline (27% for 2013, 14% for 2014, 11% for 2015), while the percentage for the three to five years sentences is on the increase.
Chart 12 During trial, detention was imposed in 64% of the cases, which is similar to the data for the previous year. The longest period of detention was 44 months, and the shortest was two weeks.
Chart 13 By analysing the personal information of the defendants, it can be concluded that they are mostly citizens of the Republic of Serbia (35 defendants, no data for nine defendants), male (86%), and this data is not significantly different from the previous year’s analysis data. As for the age of the defendants, where there is no data for 43% of the persons, it can be stated that the largest number of the defendants is between 30 and 50 years of age. Concerning marital status, 37% of the defendants are married, 11% are in common‐law marriage, and nine percent are divorced. Most defendants have children, and in 16% of the cases, they have more than four children. The fact that
defendants have children was assessed as a mitigating factor in determining the amount of punishment in most cases.
Chart 14
Chart 15
Chart 16 Chart 17
Statistical analysis of the educational and employment status of the defendants shows a lower level of education and high unemployment rate. With regard to education, the available data indicates 2% of the defendants have graduated from university, 2% from secondary school, 16% elementary school, 14% have not finished elementary school, while 5% have never attended school. Analysis of the defendants’ employment status shows that 19 persons are unemployed, five are employed, while for twenty persons there is no data.
Chart 18
Chart 19
Concerning the information on the defendants’ previous convictions, the statistical data on the analysed judgments indicates that 43% of the defendants had no previous convictions, which is somewhat lower than in 2014 (53%). From the total number of persons previously convicted, two persons had previous convictions for the crime of trafficking in persons, and one person for the crime of mediation in prostitution. Previous convictions were always considered as aggravating circumstances by courts when deciding the amount of punishment.
Chart 20
From the total of 47 injured parties in the analysed trial court judgments, 26 persons are women, 34 are citizens of the Republic of Serbia, one victim is from Moldova, while there is no data on 12 victims. The information from the analysed judgments show that a significant number of victims had still been underage when the crime was committed (12 persons), and that sexual exploitation is still predominant (forced prostitution or other kind of sexual exploitation) which was determined in 24 cases; forced labour exploitation was determined in one case, forced labour and sex exploitation combined in one case, while one case was to do with forcing the victim into criminal activities. In all
cases, those victims who pursued compensation claims were directed towards civil proceedings in order to realise said claims.
Chart 21
A total of 20 appellate judgments have been collected and analysed. When deciding on appeals, in 13 cases (65%) it was confirmed, in one case first instance decision was revoked and the case was returned to the first instance court for retrial (5%), while in four cases, the Appellate Court reversed the first instance judgment (30%) concerning punishment, of which in three cases the punishment was reduced. The longest period of decision‐making, as measured from the date of the first instance until the appellate decision, was 9 months, which represents an improvement compared to 2014 when this period was 2 years, while the shortest period of decision‐making was 2 months.
Chart 22 2. The position and rights of victims The analysis of judiciary practice, in particular the 2015 court judgments, as in previous years is focused on the position of victims of human trafficking in court proceedings, following the basic standards of protection and assistance to the human trafficking victims set by the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against transnational organised crime of 2000 (Palermo Protocol) and the Council of Europe Convention on Action against Trafficking in Human Beings from 2005. With the aim to protect and improve the position of the human trafficking victims, protection of human rights and freedom of victims, as well as creating an all‐encompassing frame for help and assistance, special attention is given to measures that ensure help and protection of the victims in order to improve their position, the measures being protection of privacy and identity of the victims, assistance to the victims ‐ providing information and help toward exercising victim’s rights and interests in the court proceeding, measures for the victim’s safety, as well as those concerning achieving compensation.
2.1. Protection of victim’s privacy Protecting the privacy and identity of victims of trafficking, prescribed by Article 6 of the Palermo Protocol and Article 11 of the Council of Europe Convention on Action against Trafficking in Human Beings is one of the basic requirements for the protection of human trafficking victims in court proceedings. Nevertheless, the existing provisions on the exclusion of the public, as well as provisions on the protection of witnesses and injured parties in the proceedings for trafficking are not sufficiently applied in practice, which is especially surprising given that, according to the Criminal Code, the crime of trafficking in classified as a particularly grave crime. Inadequate implementation of legal provisions that would allow victims protection of identity and privacy as well as safety, is largely the result of failure to understand the vulnerable position of the victims of trafficking by judges and prosecutors. This aspect of protection of the human trafficking victims is especially important when taking into account data on age of the victims and the prevalent type of exploitation. The data on the analysis of convictions in 2015 shows that a significant number of victims were still underage at the time the crime was committed (12 persons), and that prevalent type of exploitation is still sexual exploitation (prostitution or other kind of sexual exploitation), determined in 24 cases. The analysis of the first instance judgments indicates that the public was excluded from the main hearing in six proceedings, therefore only in one third of the cases, while in twelve cases the hearings were public, including one case where the victim was a minor. In most cases (where justified), the exclusion of the public was based on the provisions of Article 363 CPC, i.e. to protect the interests of minors or the privacy of participants in the proceedings. Protection of the victims’ privacy has been largely compromised by exhibiting certain evidence during the proceedings and entering them in the judgments, such as forensic expertise of the victims by psychologists or psychiatrists, or guardianship authority reports collected during the process. Psychological and psychiatric expertise of the victims, performed in the proceedings chiefly to determine the credibility of the victims’ testimony, as well as the guardianship authority reports, although necessary evidence concerning the ability of the witness to testify, or to determine the elements of the crime, are often too detailed and can compromise the privacy of the victim. The Criminal Procedure Code (Article 131, paragraph 2) stipulates that psychiatric assessment of the victim is ordered if suspicion arises about the capacity of a witness to convey their knowledge or observations in connection with the subject matter of the testimony, the expert witness will establish whether the witness is mentally disturbed and issue an opinion whether the witness is capable of testifying (Article 132, paragraph 3). Information about the victims in the findings of experts is disproportionately detailed compared to that concerning the defendants, thus often spreading through several pages, while the experts’ opinion concerning the defendants comes down to one paragraph. Despite such intricate victims’ assessments, which often determine psychological trauma of the victims as well, there is no recommendation for the victims to not testify at the hearing. The assessments were also not once used to decide on the victims’ compensation claims, not even when they contained abundant data on the experienced fear and adverse consequences (post‐traumatic stress disorder, etc.).
Breach of victim’s privacy can be stated in this way in numerous judgments supported by reports of experts or guardianship authorities, e.g. information not often necessary such as detailed family situation and the victim’s living conditions, property of the family, disturbed family relations, alcoholism of victim’s parents, addiction, and mental illnesses. According to these reports, in certain cases the judgments contained the information such as full names of the juvenile victim’s siblings who were also minors, with the description of living conditions of the whole family, including hygienic conditions; information on the divorce of the young adult victims; the primary school report the victim attended describing her problems in that period; details on prior abuse the victim suffered inflicted by fellow residents while in the home for children and youth , etc. Considering that in most cases victims were exposed to sexual exploitation, the question of victim’s prior engagement in prostitution often arises. Thus in one case the first instance judgment stated that ’the victim has earned a living by engaging in prostitution before, so she is familiar to this kind of activity, and she is also familiar to this way of earning’. In this case, the appellate court dismissed the appeal which indicated that the court of first instance failed to recognise the fact that the victim was identified as a human trafficking victim by the Centre for Human Trafficking Victims Protection. In contrast, a positive example can be seen in a judgment stating that ’the question of whether the victim once engaged in prostitution is of no significance for her status as a victim and the right to privacy of the victim should be fully respected in every way possible.’ This data shows that the measures for the protection of privacy and identity of victims are insufficiently used in court proceedings. The provisions of the Criminal Code Procedure provide this possibility, for it is stipulated (Article 363) that the panel may, ex officio or at the request of the involved parties or defence, exclude the public from the entire main hearing or a part of it, if deemed necessary for the purpose of public order and morals, the best interests of a minor, or the privacy of the participants in the proceedings. In such a case, however, the panel may allow the presence of expert public and, at the request of the defendant, the presence of their spouse or other close relatives, who are obliged to keep everything they heard at the hearing as secret (Article 364). Furthermore, the provisions of this law on particularly vulnerable witnesses (Article 104) anticipate the possibility of interrogating the witness without the presence of interested parties or other participants in the proceeding in the room where the witness is being heard, if the testimony is conducted with the aid of technical devices for transmitting sound and picture, which should surely be more consistently used in the cases of human trafficking. 2.2. Assistance to victims ‐ counselling and information Another important aspect in considering the position of the victim in a court proceeding is assistance to victims, i.e. providing information and assistance in realising the rights and interests of the victim in a court proceeding (Article 6 of the Palermo Protocol and Articles 12 and 15 of the Council of Europe Convention on Action against Trafficking in Human Beings). In majority of cases, the analysis of court decisions cannot provide detailed information about this aspect, given that court decisions are by their nature void of data relevant to the area of providing information and assistance in realising the rights and interests of the victim in a court proceeding.
It can be stated that the right of the victims to counselling and information still largely depends on the involvement of non‐governmental organisations such as ASTRA, which provide the victims with assistance to exercise their rights in the proceedings ‐ both psychological support and apt information on the course of the proceeding and the manner in which the proceeding will unfold, as well as free legal aid. The Centre for Human Trafficking Victims Protection also has a significant role in the field of identification and referring the victims to get help, thus often having their reports stated in the justifications of the analysed judgments. Consequently, it is stated in several cases that the victim has been sheltered in ’a shelter, or ’a temporary home’; that based on the report of the Centre for Human Trafficking Victims Protection it was established that the victim was going to be provided with adequate assistance and it was ’even suggested that adequate measures to assistance be undertaken’; that based on the report of the Centre for Human Trafficking Victims Protection it was stated that the victim was assisted by the NGO Atina in order to further recuperate and reintegrate; that the victim testified in the presence of the Centre for Human Trafficking Victims Protection representatives. Although the activities of the Centre for Human Trafficking Victims Protection are of great significance to victims, these reports are mostly used in the proceedings exclusively as additional confirmation of the victim’s testimony credibility. Occasionally the problem of terminology arises, so gaining the status of ’victim’ from the Centre leads to situations where courts obviously need to additionally justify the assessments in these reports in the evidentiary hearing, bearing in mind that the Criminal Procedure Code does not recognise this term, but the term ’injured party’. Thus it is stated in one case: ’The fact that the injured party has been identified as a victim, although our legislation has not specifically defined this term, additionally confirms the existence of the crime in this matter. As the international conventions, as well as Article 4 of the Council of Europe Convention provide that the victim is any natural person who is subject to trafficking in human beings, and that comparative legislation designate the victim as the person who, because of the crime, suffers from physical and mental consequences, as well as substantial violation of fundamental rights and freedoms, by analysing the evidence presented above it can certainly be concluded that present here is the victim of this crime and that the committing of this crime breached her basic human rights and freedoms’. In a similar case, the justification states that ’the very concept of victim refers to a person who was subjected to human trafficking, i.e. a person who, due to the crime committed, suffers from certain consequences whether they be physical, psychological, or material, i.e. a person whose basic rights and freedoms were breached’. On the other hand, in one case the appellate court dismissed the appeal which indicated that the first instance court did not recognise that the injured party had gained the status of victim from the Centre for Human Trafficking Victims Protection, with explanation that these allegations were not of significance concerning the acts of perpetration the defendant was charged with. A case was also recorded where the appellate judgment states that the appeal of the defence attorney contains groundless claims that the first instance judgment was based on the report ’from some imaginary’ Centre for Human Trafficking Victims Protection, so the appellate court explains that the Centre is in fact a social welfare institution founded by the Government of the Republic of Serbia and states the tasks of the Centre. It is important to bear in mind that the law stipulates the obligation of the authorities of the proceedings to advise the participants on their rights, as well as to warn the participants about the consequences of missing out on a court action or not exercising their rights due to ignorance (Article 8 CPC). Moreover, the Public Prosecutor and the Court are obliged to introduce the injured party with
their rights in the proceeding (Article 50). Given that the Constitution guarantees the right to legal aid in the cases provided by law, it is clear that the adoption of the law on free legal aid is, along with improving the position of particularly vulnerable victims in court proceedings, one of the priorities in exercising the rights of timely information and free legal aid as well as representation in criminal proceedings. 2.3. Safety and protection of the victim The obligation to provide the human trafficking victims with a system of measures for their safety, security and protection (Article 6 of the Palermo Protocol and Article 12 of the Council of Europe Convention on Action against Trafficking in Human Beings) is one of the most important aspects in realising the rights of victims in court proceedings. Analysis of court decisions indicate that this aspect still does not pay enough attention, despite the existing legal provisions that could contribute to promoting the rights of injured persons. The analysis of the court judgments indicates that this aspect is still not given sufficient attention, despite the existing legislation which may help to improve the rights of injured parties. Safety and protection of the victim in and outside court is best ensured when the defendant is in detention, providing that legal requirements for this were met. Statistical data from the first instance judgments passed in 2015 indicate that during first instance proceedings, defendants were detained in 64% of the cases, which does not differ notably from the last year’s data. The worrying fact is that in only one case the injured party was given the status of a particularly vulnerable witness, while other measures for ensuring the safety and protection of the victim were not recorded, especially bearing in mind the significant number of juvenile victims. As the victims usually negatively respond to the presence of defendants, acting of the competent prosecution offices and courts must be directed at ensuring the safety and security of the victim, especially during the hearing, so as to protect the rights of the victim and avoid secondary victimisation, but at the same time to ensure that their testimony is of structural and essential quality, so as to be in the interest of properly conducting the proceeding and determining criminal responsibility. Hence there were cases in which the court lacked any reaction or employing measures to protect and secure the safety of the victim, even though the circumstances of the case demanded so. In the case of one injured party, an expert witness stated in the report that the victim was unable to testify in court after she had seen the defendant, and that she was diagnosed with post‐traumatic stress disorder. Nevertheless, the victim testified three times during the proceeding, twice before the Higher Public Prosecutor's Office and once at the main hearing. In another case, the victim testified that she was in a state of constant fear, that she ’keeps looking over her shoulder while in the street’, that she has been having nightmares, and this only resulted in excluding the public from the hearing. One of the acquittals which has been the subject of the analysis was a direct consequence of the victim’s changed statement at the main hearing, where she stated, contrary to her previous statement, that there was no use of force or abuse by the defendant, even though at the same time she said that she was afraid of the defendant ’even now as she testifies in court’. The provisions of the Code of Criminal Procedure prescribe the obligation of the court to protect the victim from insult, threat, or any other kind of attack (Article 102). Additionally, there are other
measures which can contribute to the protection of the victims, such as the measures concerning the presence of the defendant, and the free conduct of the criminal proceeding under Article 188 CPC ‐ a restraining order, prohibition of meeting or communicating with a certain person, or visiting certain places. 2.4. Hearing The provisions of the Palermo Protocol and the Council of Europe Convention concerning the protection of rights of the victims and exercising their rights in the proceedings must be especially prominent during the hearing of the victim. Actions of the competent prosecutor's offices and courts must be directed at ensuring the safety and security of the victims, especially during the hearing, in order to protect their rights and to avoid secondary victimisation, while at the same time providing a quality statement in the interests of the proper conduct of the proceedings and determining criminal responsibility. The analysis of judicial practice for 2015 indicates similar results and problems that were noted in the analyses for previous years, in terms of the position of human trafficking victims as injured parties in criminal proceedings. The position of the victims in criminal proceedings was not improved in relation to the rights of victims of trafficking, such as information, protection of privacy and safety, and is still far from the standards given by the ratified international documents in this field. The analysis of first instance judgments indicates that the main hearing was closed to the public only in six cases, so only in one third of the cases. Only one injured party had the status of particularly vulnerable witness, although the conviction data shows that a significant number of victims (twelve persons) were still minors at the time the crimes were committed. It is clear that, as in the judgments analysed in the previous years, in most cases where the judgments were analysed, the practice was for the human trafficking victims to testify in open hearings in the presence of the defendants, despite there being adequate legal framework providing the basis to avoid or at least minimise secondary victimisation. Human trafficking victims, in their capacity of injured parties, most commonly testify three times during the entirety of a proceeding, usually once during the investigative proceeding, and up to two times at the main hearing, which sometimes applies to juvenile victims as well. It has been stated that only in several cases previous statements of the victims were read at the main hearing, usually when it involved minors. In one case, it was done on the basis of reports and opinions of expert witnesses that another hearing of the victims before the court would enhance secondary victimisation of the injured parties. In this occasion, the court also invoked the provisions of Article 153 of the Law on Juvenile Offenders and Criminal Justice Protection of Juveniles. In another case, however, the expert witness stated that the victim suffered from post‐traumatic stress disorder, but without recommending for the victim not to testify again in the hearing. A repeated testimony was observed in one case, on the orders of appellate court. The injured parties changed their statements twice in the main hearing so as not to incriminate the defendants, which lead to an acquittal in one case, while in the other one the defendant was pronounced guilty despite the victim’s change of statement. One case of confronting the victim with two defendants in the main hearing has been observed.
The data from the analysed judgments in relation to the hearings of victims in the proceedings in some cases shows lack of understanding for the delicate position of the human trafficking victims, as well as neglecting the rights and interests of victims by the court. Prosecution and court still treat injured parties as sources of information exclusively, which takes away their guaranteed rights and protection in the proceeding. An example which can serve as an illustration would be the case where the court refused the proposal of the defence to re‐examine the injured party, who had already testified twice during the main hearing, before the same presiding judge, but the reason given to justify this decision was that ’re‐examination would lead to delays in the proceeding, while not clarifying the facts’, without one single reference to the position of the victim who had to testify about their traumatic ordeal as the victim of human trafficking three times (once in the investigative proceeding, and twice during the main hearing). Much of the evidence in the proceedings, such as psychological ‐ psychiatric expertise, reports of guardianship authorities, even the reports of the Centre for Human Trafficking Victims Protection, cannot serve as the basis for taking measures to improve the position of the victims. Despite expert evidence on the victims, the reports and opinions of the expert witnesses often determine harmful consequences in victims, but do not contain recommendations for the victim to not testify in court, and are used by courts mainly to confirm the credibility of the victim’s statement. Thus, in one case it was stated that the expertise was conducted ’to evaluate the psychological state of the victim, as well as to determine whether she is inclined to manipulation and lying’, while in another it was asserted that the fact an expert has determined the victim suffered from post‐traumatic stress disorder indicated that her testimony was credible. The reports of the Centre for Human Trafficking Victims Protection are treated in a similar manner. These reports determine that the injured parties have been identified as human trafficking victims and the courts usually considers them particularly important concerning the veracity of the victims’ statements ‐ in one case it was asserted that ’the fact that the injured party has obtained the status of the victim indirectly makes their statement more credible, because they obtained that status from the competent authorities’. Consistent application of existing legislation that comply with international standards, with the understanding of the specific situation of human trafficking victims by the court or prosecutor's office can, to a large extent, lead to improvement of the status of trafficked persons in criminal proceedings. This especially applies to the provisions of the Criminal Procedure Code, which are concerned with the rules for the hearing of persons with the status of particularly vulnerable witnesses (treating with particular care, examining in the presence of a psychologist or social worker, testifying using technical devices transmitting images and sounds with no other participants present, examining the witness in their dwelling or in an authorised institution, prohibition of confrontation without the consent of the particularly vulnerable witness), as well as to the provisions of the Law on Juvenile Offenders and Criminal Justice Protection of Juveniles (the possibility to examine the witness by using technical devices transmitting images and sounds with no other parties or participants present), and which are rarely used in practice. 2.5. Compensation The right to compensation, as one of the more important issues in the field of human trafficking victims’ rights, has been included in the international standards of protection, such as Article 6 of the Palermo Protocol and Article 15 of the Council of Europe Convention on Action against Trafficking in
Human Beings. The existence of an appropriate legal framework which guarantees the victims of human trafficking the realisation of their rights to compensation is indisputable and is on the level of internal legislation. The analysis of the judgments issued in criminal proceedings in 2015 indicates that the situation in this field has not changed compared to previous years, and that human trafficking victims are deprived of this aspect of protection. Most injured parties filed a compensation claim (six of them did not), and only in one case a particular amount of money was specified, with a request that the compensation be decided upon in the criminal proceedings. In all cases where the compensation claim was filed, the court directed the victims to realise the claim in the civil proceeding, most commonly without additional explanation or, in certain cases, with an explanation that the court did not have evidence to support solid basis even for a partial judgment in the criminal proceedings. Bearing in mind the provisions of the Criminal Procedure Code, consistent implementation of the present legal provisions would certainly encourage victims to file compensation claims in all cases, as well as it would encourage their attorneys to demand the decision be reached in the criminal proceedings. In cases where the compensation claim has been set and defined, employing present legal solutions would provide the possibility for the greater number of cases to be resolved during the very proceedings, especially given that in all cases the victims undergo forensic expertise and that reports and opinions of the experts usually thorough enough as to serve as evidence to decide on the type and amount of compensation, especially non‐pecuniary. Psychiatric expertise, as in the previous years, included statements on physical injuries, fear, as well as psychological consequences resulting from the crime, as well as post‐traumatic stress disorder. The Criminal Procedure Code (Article 252‐260) provides for the obligation of the court and prosecutor’s office to collect evidence needed to decide on the claim before the claim itself has been filed, unless it would significantly prolong the proceeding. The provisions of the law regulating the procedure of enforcement and security allows for a possibility that in a criminal proceeding provisional measures may be ordered to secure the compensation claim arising from the commission of the crime. It is prescribed that in the judgment pronouncing the defendant guilty, the court will award full or partial property claim, and refer potential surplus to civil proceedings, with restrictions that, should the data of criminal proceedings not provide a reliable basis for either full or partial judgment, the court will refer the authorised person to realise the compensation claim in its entirety in a civil proceedings. The results of the analysis of judicial practice for the period of 2011‐2015 indicate that it is necessary to change the practice so as to resolve compensation claims in criminal proceedings, to avoid lengthy and expensive civil procedures and spare the victims from having to repeat the proceedings, testifying, and forensic expertise. In this five‐year period, not one case was recorded of a compensation claim having been decided in the criminal proceedings, while only one case was observed where the human trafficking victim was awarded compensation in the civil proceeding. 3. Penal policy The data obtained by statistical analysis of the first instance judgments shows that in 48% a conviction was made for all crimes (Articles 184, 388, and 389 PC), which is less compared to the
analysis from the previous years (during 2014, a conviction was made in 59% of the cases, during 2013 in as much as 76%). An acquittal was made in 52% of the cases. Of the total number of convictions (21 defendants), for a single crime of trafficking in human beings, 15 were pronounced guilty (of which two persons for co‐perpetration and two for aiding and abetting), four persons for the crime of trafficking in persons and another crime (trafficking in humans, domestic violence, theft), while two persons were pronounced guilty for the crime of mediation in prostitution. As for the amount of punishment for the crime of trafficking in humans, the majority of defendants were sentenced to 3 ‐ 5 years in prison, in 84% of the cases, in 5% of the cases, the sentence was up to three years in prison, while in 11% of the cases, the sentence was over five years in prison. Statistical data shows that the average prison sentence for this crime is 4 years and six months, the longest being eight years, and the shortest two years (due to the possibility to apply an older version of the Criminal Law, before it underwent the legislative changes that have abolished the possibility of sentencing the persons guilty of this crime below the statutory minimum). The comparison of the penal policy with the analysis data for the previous years leads to the conclusion that, even though the average sentence for 2015 (four years and six months) is somewhat longer than it was in 2014 (3.9 years), the percentage of over‐five‐year prison sentences is in constant decline (27% for 2013, 14% for 2014, 11% for 2015), while the percentage for the 3 to 5‐year sentences is increasing. When deciding on appeals, the first instance judgment was upheld in 13 cases (65%), in one case the first instance judgment was revoked and the case was returned to the first instance for re‐trial (5%), while in four cases the Appellate Court overturned the first instance judgment (30%) in terms of punishment, of which in three cases the punishment was reduced. Due to lapse of time, the prior possibility of sentencing below the statutory minimum7 for the crime of human trafficking was observed, as it was in 2014, only in one case. In this particular case, the defendant was sentenced to two years in prison, given that the court found particularly mitigating circumstances for the defendant to justify the sentence below the statutory minimum, such as the fact that the defendant was in a common‐law marriage, that he was childless, and that ’had spent the last seven years of his life in prison’. The appellate court overturned the sentence and reduced it to one year and six months of prison, finding that the first instance court had properly assessed the mitigating circumstances, but had exaggerated the importance of the aggravating circumstance, i.e. the fact that the defendant had previously been convicted for the same crime, with certainty that this punishment, given that the defendant had been imprisoned for over seven years, would serve its purpose. According to the provisions of the Criminal Code, the court weighs the sentence within the limits prescribed by law for that crime, taking into account aggravating and mitigating circumstances, and in particular the degree of culpability, the motives for the crime, the degree of danger or injury to the protected object, the circumstances under which the crime was committed, the past conduct of the offender, personal circumstances, conduct after the crime was committed, and especially conduct towards the victim, and other circumstances related to the personality of the offender (Article 54). The analysis of the judgments issued in 2015 shows that circumstances concerning personal situation
7 Until the adoption of amendments to the Criminal Code in August 2009
of the defendant (family life and children) or no prior convictions of the defendant are still the most common mitigating circumstances taken into account when deciding on a sentence. The circumstances prescribed by law, such as the motive for the crime, the degree of danger or injury to the protected object, the circumstances and conduct after the crime was committed, and especially conduct towards the victim, are still rarely appreciated the way they should be. Particularly worrying is the fact that the courts, as was observed in the analysis of judicial practice for the period of 2011‐2014, do not give enough consideration to the nature of the crime, and the victims, in sentencing and the assessment of mitigating circumstances, still following the established practice of citing family situation as mitigating circumstances, even when those circumstances are contradictory to the crime itself. The most common aggravating factors are previous convictions, although in some cases injury to the protected object is cited, usually where the victims are minors, while in one case, the aggravating factor was that the injured party had joined the criminal proceeding. In almost all analysed first instance judgments, the fact that the defendant is ’a family man’, and that he has children was used as a mitigating factor (except in two cases), even the defendant has committed a crime against a minor victim, which was recorded in six cases. An outstanding example is the case of a defendant who was found guilty for the crime of trafficking in humans, as well as for domestic violence against his ex‐common‐law wife, where the mitigating factor was the fact that the defendant is a father to a minor child, although the justification of the judgment cites the report of the guardianship authorities that the child of the defendant was grossly neglected by the father who ’failed to adequately satisfy the basic needs of the child, that the child did not attend school, did not have basic hygienic conditions or adequate nutrition, was exposed to dangerous places and substances, and was repeatedly indirectly exposed to the violence his father had directed at the child’s mother in different forms’. In one case, the fact that the defendant is a father of three, one of which minor, was explicitly refused as a mitigating factor, considering that ’the defendant has failed to take care even of his own children, because all three of his sons are currently in prison’. IV Concluding observations and recommendations Monitoring and analysis of judicial practice for 2015 was conducted with the aim of objectively reviewing and improving the situation of human trafficking victims in the court proceedings, in accordance with international standards in this field. Continuous monitoring of judicial practice provides an opportunity to examine the effectiveness and implementation of existing legal standards, uniformity of judicial practice, the efficiency of the established co‐operation mechanisms and the government bodies, as well as the impact of previous trainings of government employees. The results of the analysis of judicial practice suggest that the position of human trafficking victims in court proceedings has not significantly improved compared to the state observed in the practice analysis of 2011‐2014, and that there are still serious obstacles to the full protection of and respect for the rights of victims before the court. Criminal justice legislation, which is largely in line with international standards, does not have full and consistent application in practice. In terms of duration of the first instance proceedings, the data indicates lengthier proceedings during 2015 than in the previous year. Thus, according to the analysis, it can be determined that 32% of the proceedings lasted longer than three years, and that the number of proceedings lasting up to a year has declined to 26% compared to the previous year, when the percentage was 60%. The data from
the trial monitoring questionnaires shows that about 50% of the trials are still not held due to the absence of the defendant or their attorney. In contrast, the period of decision making on appeals of the appellate courts was significantly shorter than in the previous year. The protection of victim’s privacy, right to assistance, counselling, information, and safety of the victim is still far from being given priority in the court proceeding. Human trafficking victims usually testify in public hearings with the defendants present, and most commonly testify up to three times during the entire, including the investigative proceeding. While according to the data analysis from the monitored court proceedings, five injured parties had the status of particularly vulnerable witnesses, only in one case a hearing was conducted with the aid of technical devices for transmitting sound and picture, while in two cases, ’technical problems’ were stated and the victim testified in the presence of the defendants. In all the analysed court trial judgments, only in one instance was the injured party given the status of a particularly vulnerable witness. The right of the victim to information on rights, as well as to legal aid, still largely depends on the involvement and capacities of non‐governmental organisations, such as ASTRA, although a significant improvement regarding the activities of the Centre for Human Trafficking Victims Protection is evident. The analysis of the monitored court proceedings indicates that in majority of cases the victim was accompanied by a psychologist, representative of the Centre, or some non‐governmental organisation, while only in 11% of the cases the victim had no support. In the analysed court decisions, the report of the Centre for Human Trafficking Victims Protection on recognising the status of a human trafficking victim was acknowledged in most cases, but usually only as additional ’confirmation’ of the validity of the injured party’s testimony, and not as a basis to provide additional protection of their rights by the authorities of the proceeding. Much as the reports of the Centre for Human Trafficking Victims Protection, other evidence in the proceedings such as psychological and psychiatric expertise, or the reports of guardianship authorities is acknowledged chiefly to determine the credibility of the injured parties’ testimonies, and most often do not represent a basis to undertaking measures to improve the position of the victims. This fact indicates that the authorities of the proceeding still treat the injured parties as the ’sources’ of information on the crime, so it can be concluded that there is no approach directed towards the victim’s rights, nor is there consideration for the peculiar and delicate position of the human trafficking victim. In addition, the expert evidence and reports of guardianship authorities often contain information on the private and family life of the victims and their medical condition which are excessive and may endanger the victims' right to privacy, but at the same time, these are not used as the basis to grant the victims the status of particularly vulnerable witnesses, or to decide on the property claims. Such practice demonstrates the importance of a comprehensive approach to protecting the rights and interests of the victims in the proceedings, because numerous aspects of protection and potentially adverse consequences are intertwined. By recognising the status of a particularly vulnerable witness, having in mind that most human trafficking victims are eligible in a number of ways for that status, the victims would be provided for in terms of realising the rights to the protection of privacy, safety, as well as the possibility of the court appointing a proxy. The evidence exhibited during the procedure, such as medical expertise, the reports of the guardianship authorities and the Centre for Human Trafficking Victims Protection, would also have to be used as the basis for
obtaining the status of a particularly vulnerable victim, but also as a foundation to decide on the compensation claims of the injured party which, according to current results, are never decided in the criminal proceedings. Since these are continuing problems in judicial practice, it is obvious that solving them requires serious commitment of all relevant participants. The judgments analysis data shows that the percentage of first instance convictions is in constant decline, so for 2015 it is 48%, while for 2014, that percentage was 59%, and 76% in 2013. Likewise, by comparing penal policy with the data from previous years, it may be concluded that the number of over five‐year prison sentences is declining, so the percentage of this punishment for 2015 is 11%, while for 2014 it was 14%, and for 2013 it was 27%. The analysis of judgments in 2015 shows that the most acknowledged mitigating factors in deciding on the amount of punishment are still the personal situation of the defendant, such as family life and juvenile children, even in cases where the crime has been committed against a minor victim. The circumstances prescribed by law, such as the degree of injury to the protected object, the circumstances, conduct after the crime was committed, and especially conduct towards the victim, are not adequately appreciated in the analysed first instance and appellate court judgments, which indicates there is still certain ’automaticity’ in acknowledging these circumstances, which has a significant influence on penal policy. The mentioned problems observed during the analysis of judicial practice indicate that the actions taken at the legislative and institutional levels must continue to improve the position of the human trafficking victims and direct it to the more consistent application of existing legal norms in the field of criminal justice protection, constant education of employees in the judiciary, with continuous monitoring of judicial practice. The key problems asserted in the previous analyses are still observed as obstacles in realising the rights of victims in court proceedings, despite the improvement of the legislative framework in recent years. The majority of stated problems in the realisation of full protection and exercising the rights of the victims are the result of inadequate application of existing legislation, which cannot be solved without changing the attitude of the authorities of the proceedings towards the position of the human trafficking victims, and establishing a balance between the key interests in the court proceedings ‐ a reliable determination of the facts, the rights of defendants and the rights of victims. Bearing in mind the problems observed in practice, as well as the seriousness of the consequences suffered by the victims of the crime of trafficking in human beings, creating an effective and comprehensive system of protection, with co‐ordinated co‐operation of all relevant participants in the fight against human trafficking, is an imperative for improving the status of victims in court proceedings, and to that end taking the following measures and activities is proposed: � consistent implementation of existing legislation in order to protect the rights of human
trafficking victims to privacy, safety, assistance and information in criminal proceedings, especially the provision on particularly vulnerable witnesses;
� improving the equipment of venues of jurisdiction in terms of technical equipment to be used in the hearings of particularly vulnerable witnesses, by using technical devices for picture and sound transmission (video‐links, etc.);
� consistent implementation of the existing legislation to protect the rights to compensation of the human trafficking victims, concerning realisation of property claims in criminal proceedings;
� improvement and harmonisation of the internal legal framework with international standards
in the field of protection of human trafficking victims, especially in the field of free legal aid and the right to compensation;
� tightening of penal policy;
� continuous education in order to standardise the actions of professionals employed in
government bodies, particularly in the judiciary, in order to adopt an approach that is focused on the victim and a better understanding of the situation of human trafficking victims;
� continued co‐operation between non‐governmental organisations for human trafficking
victims’ protection with competent government bodies with aim to establish a more efficient network of support to victims, so as to provide timely identification, legal aid and representation, psychological and medical support;
� continuous monitoring of judicial practice and the application of existing legislation to protect
the rights of victims through monitoring trials for the crime of human trafficking and related crimes, as well as the results of proceedings through collecting and analysing court decisions;
� improvement of statistical monitoring and systematic collection of data on victims,
prosecution and punishment of perpetrators of trafficking in human beings;
� recruitment of organisations, independent bodies and competent institutions, especially institutions of social protection, in the prevention of sexual and labor exploitation in order to reduce risk factors and susceptibility of special risk groups such as minors, residents of social care institutions and families registered with the social security system.