• E4J University Module Series: Trafficking in Persons & Smuggling of Migrants

• Module 9: Criminal Justice Responses to Trafficking in Persons

• Introduction and learning outcomes

• Key issues

• • Criminal justice duties imposed on States by the Protocol against Trafficking in Persons
  • The Role of the Criminal Justice System
  • Current low levels of prosecutions and convictions
  • Challenges to an effective criminal justice response
  • Rights of victims to justice and protection
  • Potential strategies to "turn the tide"

• Exercises

• Possible class structure

• Core reading

• Advanced reading

• Other resources

• Student assessment

• Additional teaching tools

 

Published in May 2019 

 

 

  This module is a resource for lecturers  

 

Rights of victims to justice and protection

 

Victims of trafficking must be afforded due protection to encourage them to testify against traffickers and to ensure their rights are respected throughout criminal justice procedures. In many jurisdictions, laws must be amended, or new provisions enacted, to ensure that victims, who frequently fear or experience intimidation and reprisals from traffickers, are protected effectively. In addition, laws must take specific account of the special needs of victim witnesses, including children. This forms part of a human rights-based approach to trafficking in persons (further explored in Module 8; UNODC, 2009). Too strong a focus on criminal justice may also have a detrimental effect on victims, especially where protection measures are tied exclusively to those who cooperate with authorities (George, McNaughton, and Tsourtos, 2017, p. 90). For more on this issue, see Module 11 "Justice for Victims" of the University Modules Series on Crime Prevention and Criminal Justice.

As McSherry and Cullen (2007, p. 219) note, "[i]t appears that criminal prosecutions are more often successful where human rights are taken into account through comprehensive victim support programmes. Successful prosecutions rely heavily on the testimony of victims and such evidence is more forthcoming in an environment in which victims feel supported. If too much emphasis is placed on trafficking in persons as a criminal justice problem, there is a danger that the victim will be seen purely as a witness for the prosecution".

There are numerous steps that States should take to ensure victims' rights and protection are respected during criminal justice processes. These include the provision of legal aid and assistance where appropriate to victims. As observed by the UN Principles and Guidelines on Access to Legal Aid in Criminal Justice Systems, an effective legal aid system can reduce the amount of time victims (and offenders) spend in the trial process, can reduce revictimization and reoffending, and can also 'contribute to the prevention of crime by increasing awareness of the law' (para 3). Broadly speaking, victims should be treated with compassion and respect for their dignity. As stated by the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, victims of crime (including victims of trafficking) must be 'entitled to access to the mechanisms of justice and to prompt redress, as provided for by national legislation, for the harm that they have suffered' (para 4). Inter alia, their views should be respected, their privacy must be ensured, and any unnecessary delays should be avoided throughout criminal justice procedures.

Integrally, victims of trafficking should also be protected from intimidation or retaliation. Article 24(1) of the United Nations Convention against Transnational Organized Crime states:

"Each State Party shall take appropriate measures within its means to provide effective protection from potential retaliation or intimidation for witnesses in criminal proceedings who give testimony concerning offences covered by this Convention and, as appropriate, for their relatives and other persons close to them".

Article 23 mandates the criminalization of attempts to interfere with the criminal justice process, including by various forms of obstruction, the use of physical force, threats or intimidation. Similarly, the Council of Europe Convention provides, in article 30, that:

"Each Party shall adopt such legislative or other measures as may be necessary to ensure in the course of judicial proceedings:

• the protection of victims' private life and, where appropriate, identity;
• victims' safety and protection from intimidation, in accordance with the conditions under its internal law and, in the case of child victims, by taking special care of children's needs and ensuring their right to special protection measures".

Many States have set up witness protection mechanisms that are not necessarily specific to victims of trafficking but can and should be applied to them. Where these witness protection mechanisms do not exist, witness protection laws and fund protection programmes should be enacted and developed ( UNODC, 2009).

Experience has shown that the primary concerns of victims are commonly:

• Their personal safety and that of their family and other persons close to them.
• Confidentiality and the risk of disclosure of sensitive information to their family, their community or in the media. The fear of stigmatization in cases involving sexual exploitation can exert a powerful influence on a victim's decisions.
• Fear of being in the physical presence of their trafficker(s). This is a genuine and at times debilitating fear, especially in cases where victims have experienced sexual and physical abuse ( IOM, 2007).

Despite the expertise and good intentions of police officers and prosecutors, victims may be worried with self-protection and survival, and thus may be reluctant witnesses. The arrest and charging of traffickers, for instance, does not automatically reassure victims. In this sense, victims need to feel safe and know that their traffickers are not nearby ( Office for Victims of Crime). As such, appropriate support and protection of victims at all stages of the criminal justice process is essential to protecting their rights as victims of crime, as well as for their safe and effective participation in the prosecution of traffickers.

The following range of protection measures may apply to the victims and their families:

• Relocation.
• New accommodation.
• Change of identity.
• Physical protection.

The level and nature of security/protection measures may change throughout the criminal justice process:

• Pre-trial security: Important components of protection start during the investigation and case-preparation phase. Victims must be kept informed about all procedures and circumstances including, for instance, by explaining to them what is happening, how long processes may take and the reasons why their personal belongings may have been taken away to be used as evidence. Victims can also be assisted in the pre-trial phase by providing them with counselling or other emotional support.
• Pre-trial detention of suspects: where appropriate and consistent with the defendants' rights, bail applications should be declined, and traffickers taken into custody. This may be useful to prevent forms of retaliation against victims and families, while enhancing their sense of security. Pre-trial detention is also useful for preventing the suspect from tampering with evidence, as well as bribing or paying off the victim or other witnesses.
• Security during trial: To help victims give evidence in court, some countries have introduced special measures for vulnerable witnesses, including:
• • Allowing victims to give evidence by closed circuit television or video link, or alternatively from behind a screen, rather than in open court.
  • Imposing limits on the ability of defendants and members of the public to have contact or communicate with victims, including clearing the court of the public when sensitive or embarrassing testimony is given.
  • Allowing a support person to be present and sit in close proximity to the victim when they are giving evidence (or a social worker or counsellor to sit with or close to children when they are testifying).
  • Allowing evidence given in one trial to be admitted as evidence in later trials to minimize the risk of re-traumatization.
  • Allowing victims who are residing overseas to give evidence by video link rather than incur the risks and costs of travelling to the country in which the trial is conducted and where security is a greater issue.
  • Protecting the identity of victims and their families by prohibiting and creating offences for the unauthorized publication of their names and identifying details.

These measures aim at ensuring that victims can provide their best possible testimony, by minimizing the risk of intimidation, further trauma, fear for personal safety and/or unnecessary public embarrassment. However, victims should be warned, first, that these measures must be balanced against the defendants' rights to a fair trial and, second, that it is often difficult to predict how a judge will exercise discretion in considering such measures (The Bali Process, 2015).

The 2002 OHCHR Recommended Principles and Guidelines on Human Rights and Human Trafficking  provide for number of guiding principles to ensure an adequate law enforcement response. Guideline 5 recommends that States

[Make] appropriate efforts to protect individual trafficked persons during the investigation and trial process and any subsequent period when the safety of the trafficked person so requires. Appropriate protection programmes may include some or all of the following elements: identification of a safe place in the country of destination; access to independent legal counsel; protection of identity during legal proceedings; identification of options for continued stay, resettlement or repatriation.

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Child victims/witnesses

When prosecuting trafficking in persons cases, the special rights, needs and vulnerabilities of children must always be considered. Children are entitled to numerous rights beyond those granted to adults under international law. In particular, all actions taken by States must take into account a child's best interests as a primary consideration (Convention on the Rights of the Child, article 3). The rights and standards of protection owed to children is further explained in Module 8 and Module 12 as well as in the University Module Series on Crime Prevention and Criminal Justice (see Module 12 on Violence against Children and Module 13 on Justice for Children).

In the context of legal proceedings, extra measures of protection that go beyond those guaranteed to adult witnesses must be afforded to children. These can include special interviewing techniques, as well as vulnerable witness directions by trial judges to prevent them testifying in the presence of their abuser. In some jurisdictions, audio-visual recording of hearings of children are used, while in others children may appear before the court behind a screen to prevent them from seeing the accused (UNODC, Inter-Parliamentary Union and UN.GIFT, 2009). Various international guidelines should inform the treatment and protection of children during criminal proceedings. These include the Handbook for Professionals and Policymakers on justice in matters involving child victims and witnesses of crimes and the Guidelines on Justice in Matters involving Child Victims and Witnesses of Crime among others.

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Next: Potential strategies to "turn the tide"

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