Analysis of a judicial practice shows that the approach of the judicial authorities that would be focused on the trafficking victims’ rights is still missing, and that instead of that the victims are treated in the process only as source of information about the criminal act; conclude Katarina Jovanovic and Ivana Radovic from NGO ASTRA – Anti trafficking action.
The text is part of the 10th newsletter rEUformator - informator about chapters 23 and 24.
INTRODUCTION
ASTRA - Anti trafficking action has since 2011. continuously monitored the position of the trafficking victims in a judicial proceeding through anual analysis of judicial practice in Serbia. In these analysis particular emphasis has been placed on a position and the excercise of rights of the trafficking victims in a judicial proceeding, monitoring and review of changes in implementation of existing legal framework, compatibility of national legislation with international standards and efficiency of existing legal norms.
Monitoring the trial proceedings offers an immediate insight in process flow and victim’s position before and during the trial, aspect of security and protection during participation in the proceeding, and especially the attitude of the participant in the procedure towards the victim that can not be completely perceived from the content or explanation of court decisions. A continuity of monitoring the court proceedings also provides a possibility to compare the results on an anual basis and enables monitoring of possible changes in functioning of the victim protection mechanism in the procedure.
On the other hand, the analysis of court decisions provides a comprehensive insight into the course of the proceedings, time duration and the evidence produced, the uniformity of court practice, as well as the penal policy, which additionally illuminates the victim's position in the decision-making process. Bellow are brief summarized results of the analysis, as well as a review of the most important conclusions and recommendations relating to the rights of trafficking victims during the judicial process.
MAIN RESULTS OF THE RESEARCH
As in the previous year, it can be concluded that despite some progress and conducted trainings, there is still a lack of understanding of the vulnerable situation of trafficking victims, which together with the mild penal policy and the inability of the victims to be compensated for committed injuries, makes the degree of realization of their rights questionable.
- Regarding the duration of the first-instance procedures, the data indicate that during 2016 there was no significant improvement compared to the previous years. Based on the analysis of judgements made in 2016, as well as accordinng to the data for 2015, it can be established that 30% of the procedures, lasted more than 3 years. The percentage of procedures that lasted up to one year increased compared to the previous year and amounted to 40% (in 2015 it was 26%). Although, this data indicates some acceleration of proceedures, the lack of efficiency that was observed during 2014, when this percentage was as high as 60%, can still be identified. The decision-making period of the second instance courts is unchanged from the previous year and is significantly shorter compared to the period 2011-2014.
- The duration of the first-instance proceedings was analyzed in relation to the period from the raising of indicment until the first instance-verdict was reached. According to the aforementioned criteria, maximum duration of judicial proceedings is 5 years and 9 months, while the shortest procedure lasted 2 months, and average procedure duration is 2 years and 4 months. Therefore, these data do not differ significantly in regard to 2015, except that the maximum duration of the procedure is longer for 9 months.
- The data from the questionnaire on the monitoring of trial show that the highest percentage of trial (61% of cases) are not upheld, because of the absence of the accused or defender, and that percentage is even increased in comparisom to the previous year when it was 50%.
- The protection of the victim’s privacy, the right to assistance, or counseling and information, as well as the safety of the victim remain far from the priorities in the court proceedings. From the analysis of court verdicts it can be concluded taht the date on the injured persons, that are mostly exposed to sexual exploatation, continue to be used in the procedure, and the public was exluded in a negligible number of cases. The victim’s right to get information and legal aid is still, by all means, determined by the commitment, meaning the capacities of the NGOs like ASTRA, and by the activities of the Centre for Human Trafficking Victims Protection.
- As the previous years verdicts analyses shows, it is obvious that, in the most cases, both the victim and the accused are present in the public hearings at the same time, despite the clearly available legislative framework that suggests the possibility of secondary victimization denial or at least its reduction to the minimum. Trial verdicts analyses indicates that from 34 damaged parties, only 6 got the particularly sensitive witness status.
- Data available by given convictions is showing that a significant number of victims includes minors (1/3 or 11 subjects), and that among human trafficking criminal acts, sexual exploitation (like prostitution) still leads before others, and it is present in 19 cases.
- By comparing penal policy data with those of previous years, we can see the decrease in level of more- than-five-years imprisonments, showing that the percentage of these cases is the same for the last two years, 2016 and 2015 - 11%, for 2014 - 14%, and for 2013 - 27%. Analysed convictions data for 2016 that shows the most imprisonment verdicts are those between 3 and 5 years - 84% (of which 63% are those between 3 and 4 years), is indicating inappropriately mild penal policy that is not changing for years. This is particularly troubling, having in mind the fact that the minimal penalty for human trafficking is 3 years, while in case of minor victims is 5 years.
- As in previous years, in no criminal proceeding that resulted in conviction in 2016, the court reasoned on the victim’s compensation claim. Also, in no verdict that dealt with the victim’s adjudgement, the compensation for damages was brought even in the litigation procedure.
RECOMMENDATIONS
Despite certain improvements on legislative and institutional levels, bringing closer the supervisors and NGOs, as well as education programmes implemented in this field, the court practice still lacks the level of basic protection of rights as guaranteed by ratified international documents, especially in the fields of victims’ privacy rights, its safety and protection, court hearings and victims’ compensation for damages right. Not fully implemented current legislative solutions, that could enhance the victim’s rights, still presents one of the biggest problems in real life practice.
Finally, current results are indicating that it is impossible to achieve one comprehensive approach to protection of victims interests and rights in court cases, without fully respecting the international standards, fully implementing the legislative norms and thoroughly engaging all those involved in the procedures.