Rights of victims of human trafficking in court proceedings
23.09.2022
INTRODUCTION
Until about two decades ago, within the framework of criminal-procedural matter, the main focus was placed on the rights of the defense, while the rights of the victim were not emphasized enough. Today that is no longer the case. Namely, in addition to the rights of the defense, the focus is increasingly directed towards the rights of the victim in the criminal proceedings and strengthening the mechanisms for the protection of the victim, including victims of human trafficking.
In this sense, the text analyzes the Judgment of the Basic Criminal Court Skopje KOK no. 86/19 of 12.03.2020, confirmed by the Judgment of the Court of Appeal Skopje KOKŽ no. 49/20 of 05.10.2020, which involves the crime of "Child Trafficking", with the main subject of analysis being the procedural rights of the victim and her access to justice. It will be elaborated through the prism of international rules and standards, bearing in mind the Council of Europe's Convention on Action against Trafficking in Human Beings, as the most significant document for combating human trafficking at European level, whose main focus is the protection of victims' rights. The goal is to indicate the development of positive court practice, in the context of protecting the rights of victims of human trafficking in court proceedings.
SUMMARY OF THE FACTS OF THE CASE
In the first half of April 2019, the defendant S.O., who wanted to marry the victim-child S.J., although he knew the child's age, bought the victim from her cousin S.S.-child in conflict with the law over 16 years old for the amount of 1,600.00 euros, based on a previous agreement between the defendant S.O. and the cousin S.S. - the child in conflict with the law over 16 years old for forced marriage between the minor child and the accused S.O. Namely, after they agreed on the forced marriage, on 17 April 2019, the child in conflict with the law over 16 years old, S.S., came to the home of the victim-child S.J., and invited her for a walk and a coffee, given that as cousins they often hung out. The child S.J. agreed, so with a motorcycle driven by the child in conflict with the law over 16 years old, they drove to a forest area at a location outside a local road, where the defendant S.O., according to the previous agreement, was hidden in the surrounding forest waiting for them to arrive.
At the moment they arrived, the child in conflict with the law over 16 years old stopped the motorcycle, and while the victim was still on the back seat of the motorcycle, the defendant approached her from behind at the right moment, grabbed her by the mouth with one hand in order to stop her from shouting, and with the other hand he took her mobile phone, which the child was holding in her hand. The child resisted, but the defendant grabbed her by the waist, forcibly took her off the motorcycle and threw her to the ground, after which he paid the child in conflict with the law over 16 years old 1,600.00 euros. Then the child in conflict with the law over 16 years old left, although his cousin-the child S.J. shouted at him for help. After the child in conflict with the law over 16 years old left, the defendant, with the intention of forcing her into marriage, tried to have sexual intercourse with the child in the surrounding forest on three occasions, to which she resisted. Then the defendant started dragging her by holding her hair and they moved in that manner through the forest. When trying to escape, the child fell to the ground and injured her knee.
Given that the defendant failed to have sexual intercourse with the child, he verbally threatened to do so in his home, so that she would become his wife, and for that purpose he called the witness I.P., an unregistered taxi driver, with whom he agreed to come and pick them up and transport them to his home. While traveling, the child asked for water and the defendant asked the witness I.P. to stop. He entered the store to buy water, so using the moment of the defendant's absence, the child opened the door of the vehicle and ran towards the house of her relative, from where she called her brother. Her brother came to pick her up with their uncle, after which they went to the police station where they reported the incident.
The first instance court convicted the defendant S.O. to a prison sentence of 4 (four) years, given that with the above described actions he committed the crime of "Child Trafficking" from Article 418-d paragraph 1 in connection with Article 22 of the Criminal Code. It also partially adopted the property claim for compensation of non-material damage to the injured child-victim S.J., submitted through her lawyer, and ordered the defendant S.O. to pay the injured child-victim a total amount of 300,000.00 denars in the name of fair monetary compensation for non-material damage from injury to her personal rights to physical and mental health. Otherwise, the court determined that the collection of the property claim should be made from the money in the amount of 24,800.00 euros that was temporarily taken from the defendant. The defendant was also ordered to reimburse the costs of the procedure for fees and necessary expenses of the lawyer of the injured child. The second instance court confirmed the judgment of the first instance court.
RELEVANT INTERNATIONAL LEGAL FRAMEWORK FOR THE RIGHTS OF VICTIMS OF HUMAN TRAFFICKING
The most significant international document to combat human trafficking is the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children,[1] adopted by the United Nations Organization (UN) in 2000 (better known as: UN Trafficking Protocol or the Palermo Protocol). This Protocol is supplementing the Convention against Transnational Organized Crime,[2] adopted by the UN in 2000. The Republic of North Macedonia ratified the Convention against Transnational Organized Crime and the Palermo Protocol on 12 January 2005.
The Palermo Protocol provides a definition of human trafficking, which has since become an internationally accepted standard. Thus, according to Article 3 of the Protocol, the definition of “trafficking in persons” is as follows: “recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation.” At the same time, the exploitation, at a minimum extent, includes: “the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs”, while the victim's consent is irrelevant to the existence of a crime when any of the means, i.e. the ways previously mentioned in the definition, were used. As far as child trafficking is concerned, this Protocol provides that the recruitment, transportation, transfer, harbouring or receipt of a child for the purpose of exploitation shall be considered human trafficking, even if it does not include any of the means, i.e. the methods of execution of these actions, which are provided for in the previously mentioned definition of human trafficking. At the same time, the Palermo Protocol establishes a framework regarding the protection of the victim.
The most significant document for combating human trafficking at the regional, i.e. European level, is the Convention on Action against Human Trafficking,[3] adopted by the Council of Europe in 2005. The Republic of North Macedonia ratified the Council of Europe Convention on Action against Trafficking in Human Beings on 27 May 2009, and on 1 September 2009, the Convention entered into force. The definition of human trafficking provided by the Palermo Protocol is almost mirrored in Article 4 of this Convention. In addition, Article 1 of the Convention includes a human rights-based approach to human trafficking. Also, this Convention, unlike the Palermo Protocol, apart from dealing with transnational organized crime, also includes standards for dealing with internal human trafficking and trafficking that does not involve an organized criminal group. However, the main focus of the Convention is the protection of victims' rights and their overall well-being.[4]
In the context of the rights of victims of trafficking in human beings in court proceedings, several provisions of the Council of Europe Convention on Action against Trafficking in Human Beings should be taken into account. According to the Convention, each contracting state should provide victims with assistance to enable their rights and interests to be presented and considered at the appropriate stages of the criminal proceedings against the perpetrators.[5] Also, the victims should be guaranteed the right to legal assistance and free legal aid,[6] as well as the right to compensation from the perpetrators.[7] Furthermore, in accordance with the European Convention on Human Rights, in particular Article 6, during the court proceedings the protection of the private life and, where appropriate, the identity of the victims, as well as their safety, should be ensured, and in the case of children-victims, special attention should be paid to the needs of children and ensuring their right to special protection measures.[8]
ANALYSIS OF THE VERDICT FROM THE ASPECT OF THE DEGREE OF PROTECTION OF THE VICTIM'S RIGHTS
The fact that the victim of the crime in this case represents a particularly vulnerable category of victim, that is, a child, requires handling with special care and attention in order to protect the interests of the child. In this sense, the court, taking into account the crime in question and the subject of protection - the child victim, in accordance with Аrticles 354 and 356 of the Law on Criminal Procedure,[9] and in connection with the provisions of Аrticle 54 paragraph 2 in connection with paragraph 4 point 2 of the Law on Criminal Procedure, as well as in accordance with the provisions of Article 147 paragraph 1, subparagraph 1, 4, 5, 6, 8 and 10 of the Law on Justice for Children,[10] made a decision to exclude the public during the entire course of the main hearing, before all for the protection of the private life and interests of the child-victim.
Furthermore, in this case, the criminal court partially adopted the property claim submitted by the victim's lawyer, whereby the defendant is obliged to pay the damaged child-victim a total amount of 300,000.00 denars in the name of fair monetary compensation for non-material damage from violation of her personal rights to physical and mental health. Namely, for the reported damage claim, the victim is not referred to civil litigation, as is the usual practice in similar cases. Moreover, an effort has been made to ensure the enforcement of the decision on the property claim, which is also not a common practice. In this sense, the court determined that if the defendant does not pay the property claim within a certain period, the collection will be made from the money in the total amount of 24,800.00 euros that was temporarily confiscated from the defendant during the search of his home by the Ministry of Internal Affairs and handed over to the Basic Public Prosecutor's Office for the Prosecution of Organized Crime and Corruption. Also, the court determined that after the execution of the decision in this part, the remaining amount of the total seized money of 24,800.00 euros should be returned to the defendant, given that the court determined that they are not objects originating from the criminal act, nor however, they were intended or used for the commission of the crime.
It is also worth pointing out that the damaged child-victim of human trafficking was represented by a lawyer during the entire procedure. Namely, the analysis of similar cases show that the latter is not always a practice, which leaves room for incomplete realization of the victim's rights during the procedure, as the relevant research and analysis show.[11] At the same time, the defendant is ordered by the court to reimburse the costs of the procedure for fees and necessary expenses of the lawyer.
In terms of exercising the rights of victims of human trafficking, it is also worth noting that the judgment was delivered to the injured child victim through her mother as a legal representative, as well as to the victim's lawyer. Namely, from the analysis of similar cases, it follows that the delivery of judgments to the injured party-victim, with the aim of possibly further exercising her rights, is not a regular practice.
CONCLUDING REMARKS
From the analysis of the Judgment of the Basic Criminal Court Skopje KOK no. 86/19 of 12.03.2020, confirmed by the Judgment of the Court of Appeal Skopje KOKŽ No. 49/20 of 05.10.2020, it can be concluded that it represents positive court practice from several aspects, in the context of realizing the rights of the victims of human trafficking in court proceedings and their access to justice, in general.
This judgment is a good example of a correct application of both international and national provisions regarding the procedural position of the victim of human trafficking and the protection of her rights. Moreover, the judgment is an example of good cooperation and communication between the court, the prosecution, the police, the victim's lawyer and all other relevant stakeholders, on which the protection of the victim of human trafficking and her rights depends.
Namely, this case is an indication that the correct application of the provisions for the protection of the rights of victims of human trafficking, in the light of international regulations, supplemented by good cooperation between all relevant actors, will inevitably lead to effective protection of particularly vulnerable victims of human trafficking, even in a situation of absence or insufficient precision of certain legal provisions and non-existence of sufficient resources.
[1] UN General Assembly, Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, Supplementing the United Nations Convention against Transnational Organized Crime, 15 November 2000
[2] UN General Assembly, United Nations Convention against Transnational Organized Crime, 15 November 2000
[3] Council of Europe, Council of Europe Convention on Action Against Trafficking in Human Beings, 16 May 2005, CETS 197 2
[4] Ristić, J. and Boskova, N., Protection of Victims of Human Trafficking, Council of Europe, 2021
[5] Article 12(1)(e) of the Council of Europe Convention on Action Against Trafficking in Human Beings
[6] Article 15(2) of the Council of Europe Convention on Action Against Trafficking in Human Beings
[7] Article 15(3) of the Council of Europe Convention on Action Against Trafficking in Human Beings
[8] Article 30 of the Council of Europe Convention on Action Against Trafficking in Human Beings
[9] Law on Criminal Procedure, Official Gazette No. 150/2010, 198/2018
[10] Law on Justice for Children, Official Gazette No. 148/2013, 152/2019, 275/2019
[11] Lazetić, G., and Zdravkova, I., The Rights of Victims of Human Trafficking in Court Proceedings, Council of Europe, 2020
Until about two decades ago, within the framework of criminal-procedural matter, the main focus was placed on the rights of the defense, while the rights of the victim were not emphasized enough. Today that is no longer the case. Namely, in addition to the rights of the defense, the focus is increasingly directed towards the rights of the victim in the criminal proceedings and strengthening the mechanisms for the protection of the victim, including victims of human trafficking.
In this sense, the text analyzes the Judgment of the Basic Criminal Court Skopje KOK no. 86/19 of 12.03.2020, confirmed by the Judgment of the Court of Appeal Skopje KOKŽ no. 49/20 of 05.10.2020, which involves the crime of "Child Trafficking", with the main subject of analysis being the procedural rights of the victim and her access to justice. It will be elaborated through the prism of international rules and standards, bearing in mind the Council of Europe's Convention on Action against Trafficking in Human Beings, as the most significant document for combating human trafficking at European level, whose main focus is the protection of victims' rights. The goal is to indicate the development of positive court practice, in the context of protecting the rights of victims of human trafficking in court proceedings.
SUMMARY OF THE FACTS OF THE CASE
In the first half of April 2019, the defendant S.O., who wanted to marry the victim-child S.J., although he knew the child's age, bought the victim from her cousin S.S.-child in conflict with the law over 16 years old for the amount of 1,600.00 euros, based on a previous agreement between the defendant S.O. and the cousin S.S. - the child in conflict with the law over 16 years old for forced marriage between the minor child and the accused S.O. Namely, after they agreed on the forced marriage, on 17 April 2019, the child in conflict with the law over 16 years old, S.S., came to the home of the victim-child S.J., and invited her for a walk and a coffee, given that as cousins they often hung out. The child S.J. agreed, so with a motorcycle driven by the child in conflict with the law over 16 years old, they drove to a forest area at a location outside a local road, where the defendant S.O., according to the previous agreement, was hidden in the surrounding forest waiting for them to arrive.
At the moment they arrived, the child in conflict with the law over 16 years old stopped the motorcycle, and while the victim was still on the back seat of the motorcycle, the defendant approached her from behind at the right moment, grabbed her by the mouth with one hand in order to stop her from shouting, and with the other hand he took her mobile phone, which the child was holding in her hand. The child resisted, but the defendant grabbed her by the waist, forcibly took her off the motorcycle and threw her to the ground, after which he paid the child in conflict with the law over 16 years old 1,600.00 euros. Then the child in conflict with the law over 16 years old left, although his cousin-the child S.J. shouted at him for help. After the child in conflict with the law over 16 years old left, the defendant, with the intention of forcing her into marriage, tried to have sexual intercourse with the child in the surrounding forest on three occasions, to which she resisted. Then the defendant started dragging her by holding her hair and they moved in that manner through the forest. When trying to escape, the child fell to the ground and injured her knee.
Given that the defendant failed to have sexual intercourse with the child, he verbally threatened to do so in his home, so that she would become his wife, and for that purpose he called the witness I.P., an unregistered taxi driver, with whom he agreed to come and pick them up and transport them to his home. While traveling, the child asked for water and the defendant asked the witness I.P. to stop. He entered the store to buy water, so using the moment of the defendant's absence, the child opened the door of the vehicle and ran towards the house of her relative, from where she called her brother. Her brother came to pick her up with their uncle, after which they went to the police station where they reported the incident.
The first instance court convicted the defendant S.O. to a prison sentence of 4 (four) years, given that with the above described actions he committed the crime of "Child Trafficking" from Article 418-d paragraph 1 in connection with Article 22 of the Criminal Code. It also partially adopted the property claim for compensation of non-material damage to the injured child-victim S.J., submitted through her lawyer, and ordered the defendant S.O. to pay the injured child-victim a total amount of 300,000.00 denars in the name of fair monetary compensation for non-material damage from injury to her personal rights to physical and mental health. Otherwise, the court determined that the collection of the property claim should be made from the money in the amount of 24,800.00 euros that was temporarily taken from the defendant. The defendant was also ordered to reimburse the costs of the procedure for fees and necessary expenses of the lawyer of the injured child. The second instance court confirmed the judgment of the first instance court.
RELEVANT INTERNATIONAL LEGAL FRAMEWORK FOR THE RIGHTS OF VICTIMS OF HUMAN TRAFFICKING
The most significant international document to combat human trafficking is the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children,[1] adopted by the United Nations Organization (UN) in 2000 (better known as: UN Trafficking Protocol or the Palermo Protocol). This Protocol is supplementing the Convention against Transnational Organized Crime,[2] adopted by the UN in 2000. The Republic of North Macedonia ratified the Convention against Transnational Organized Crime and the Palermo Protocol on 12 January 2005.
The Palermo Protocol provides a definition of human trafficking, which has since become an internationally accepted standard. Thus, according to Article 3 of the Protocol, the definition of “trafficking in persons” is as follows: “recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation.” At the same time, the exploitation, at a minimum extent, includes: “the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs”, while the victim's consent is irrelevant to the existence of a crime when any of the means, i.e. the ways previously mentioned in the definition, were used. As far as child trafficking is concerned, this Protocol provides that the recruitment, transportation, transfer, harbouring or receipt of a child for the purpose of exploitation shall be considered human trafficking, even if it does not include any of the means, i.e. the methods of execution of these actions, which are provided for in the previously mentioned definition of human trafficking. At the same time, the Palermo Protocol establishes a framework regarding the protection of the victim.
The most significant document for combating human trafficking at the regional, i.e. European level, is the Convention on Action against Human Trafficking,[3] adopted by the Council of Europe in 2005. The Republic of North Macedonia ratified the Council of Europe Convention on Action against Trafficking in Human Beings on 27 May 2009, and on 1 September 2009, the Convention entered into force. The definition of human trafficking provided by the Palermo Protocol is almost mirrored in Article 4 of this Convention. In addition, Article 1 of the Convention includes a human rights-based approach to human trafficking. Also, this Convention, unlike the Palermo Protocol, apart from dealing with transnational organized crime, also includes standards for dealing with internal human trafficking and trafficking that does not involve an organized criminal group. However, the main focus of the Convention is the protection of victims' rights and their overall well-being.[4]
In the context of the rights of victims of trafficking in human beings in court proceedings, several provisions of the Council of Europe Convention on Action against Trafficking in Human Beings should be taken into account. According to the Convention, each contracting state should provide victims with assistance to enable their rights and interests to be presented and considered at the appropriate stages of the criminal proceedings against the perpetrators.[5] Also, the victims should be guaranteed the right to legal assistance and free legal aid,[6] as well as the right to compensation from the perpetrators.[7] Furthermore, in accordance with the European Convention on Human Rights, in particular Article 6, during the court proceedings the protection of the private life and, where appropriate, the identity of the victims, as well as their safety, should be ensured, and in the case of children-victims, special attention should be paid to the needs of children and ensuring their right to special protection measures.[8]
ANALYSIS OF THE VERDICT FROM THE ASPECT OF THE DEGREE OF PROTECTION OF THE VICTIM'S RIGHTS
The fact that the victim of the crime in this case represents a particularly vulnerable category of victim, that is, a child, requires handling with special care and attention in order to protect the interests of the child. In this sense, the court, taking into account the crime in question and the subject of protection - the child victim, in accordance with Аrticles 354 and 356 of the Law on Criminal Procedure,[9] and in connection with the provisions of Аrticle 54 paragraph 2 in connection with paragraph 4 point 2 of the Law on Criminal Procedure, as well as in accordance with the provisions of Article 147 paragraph 1, subparagraph 1, 4, 5, 6, 8 and 10 of the Law on Justice for Children,[10] made a decision to exclude the public during the entire course of the main hearing, before all for the protection of the private life and interests of the child-victim.
Furthermore, in this case, the criminal court partially adopted the property claim submitted by the victim's lawyer, whereby the defendant is obliged to pay the damaged child-victim a total amount of 300,000.00 denars in the name of fair monetary compensation for non-material damage from violation of her personal rights to physical and mental health. Namely, for the reported damage claim, the victim is not referred to civil litigation, as is the usual practice in similar cases. Moreover, an effort has been made to ensure the enforcement of the decision on the property claim, which is also not a common practice. In this sense, the court determined that if the defendant does not pay the property claim within a certain period, the collection will be made from the money in the total amount of 24,800.00 euros that was temporarily confiscated from the defendant during the search of his home by the Ministry of Internal Affairs and handed over to the Basic Public Prosecutor's Office for the Prosecution of Organized Crime and Corruption. Also, the court determined that after the execution of the decision in this part, the remaining amount of the total seized money of 24,800.00 euros should be returned to the defendant, given that the court determined that they are not objects originating from the criminal act, nor however, they were intended or used for the commission of the crime.
It is also worth pointing out that the damaged child-victim of human trafficking was represented by a lawyer during the entire procedure. Namely, the analysis of similar cases show that the latter is not always a practice, which leaves room for incomplete realization of the victim's rights during the procedure, as the relevant research and analysis show.[11] At the same time, the defendant is ordered by the court to reimburse the costs of the procedure for fees and necessary expenses of the lawyer.
In terms of exercising the rights of victims of human trafficking, it is also worth noting that the judgment was delivered to the injured child victim through her mother as a legal representative, as well as to the victim's lawyer. Namely, from the analysis of similar cases, it follows that the delivery of judgments to the injured party-victim, with the aim of possibly further exercising her rights, is not a regular practice.
CONCLUDING REMARKS
From the analysis of the Judgment of the Basic Criminal Court Skopje KOK no. 86/19 of 12.03.2020, confirmed by the Judgment of the Court of Appeal Skopje KOKŽ No. 49/20 of 05.10.2020, it can be concluded that it represents positive court practice from several aspects, in the context of realizing the rights of the victims of human trafficking in court proceedings and their access to justice, in general.
This judgment is a good example of a correct application of both international and national provisions regarding the procedural position of the victim of human trafficking and the protection of her rights. Moreover, the judgment is an example of good cooperation and communication between the court, the prosecution, the police, the victim's lawyer and all other relevant stakeholders, on which the protection of the victim of human trafficking and her rights depends.
Namely, this case is an indication that the correct application of the provisions for the protection of the rights of victims of human trafficking, in the light of international regulations, supplemented by good cooperation between all relevant actors, will inevitably lead to effective protection of particularly vulnerable victims of human trafficking, even in a situation of absence or insufficient precision of certain legal provisions and non-existence of sufficient resources.
[1] UN General Assembly, Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, Supplementing the United Nations Convention against Transnational Organized Crime, 15 November 2000
[2] UN General Assembly, United Nations Convention against Transnational Organized Crime, 15 November 2000
[3] Council of Europe, Council of Europe Convention on Action Against Trafficking in Human Beings, 16 May 2005, CETS 197 2
[4] Ristić, J. and Boskova, N., Protection of Victims of Human Trafficking, Council of Europe, 2021
[5] Article 12(1)(e) of the Council of Europe Convention on Action Against Trafficking in Human Beings
[6] Article 15(2) of the Council of Europe Convention on Action Against Trafficking in Human Beings
[7] Article 15(3) of the Council of Europe Convention on Action Against Trafficking in Human Beings
[8] Article 30 of the Council of Europe Convention on Action Against Trafficking in Human Beings
[9] Law on Criminal Procedure, Official Gazette No. 150/2010, 198/2018
[10] Law on Justice for Children, Official Gazette No. 148/2013, 152/2019, 275/2019
[11] Lazetić, G., and Zdravkova, I., The Rights of Victims of Human Trafficking in Court Proceedings, Council of Europe, 2020