Notwithstanding the variety of legal approaches, there are many factors which impact on a full and effective implementation of this provision. A major challenge relates to the recognition and accurate identification of victims, which, combined with the provision of appropriate assistance (especially early legal aid), is a prerequisite for the application of the non-punishment clause. Information from case law, investigations, and NGOs in Europe and beyond confirms that when victims are not identified at an early enough stage in the criminal justice process, it is more likely that penalties will be imposed on them. The later they are identified, the harder it is to halt the prosecution or prevent other administrative penalties, and the less likely it is that they will receive justice. Failure to identify a victim “is likely to result in the victim being treated as a ‘normal’ offender, that is one who would normally be required to take full legal responsibility, including being sanctioned for their acts”.26
Failure to identify victims may be related to a number of issues, including limited capacity to identify victims among frontline services (e.g., police, border guards, prosecutors) –who fail to look behind the apparent offender when they encounter victims either at a crime scene or committing a crime. In those circumstances, victims are usually too scared and ashamed to tell their stories; they may have suffered tremendous psychological and physical abuse; and may remain afraid of their exploiters, whose threats do not necessarily disappear upon arrest. Victims may also still be debt-bonded to traffickers. They do not know whom to trust, and are afraid of being detained and deported. Moreover, as a result of the trauma experienced, victims may not be able to present evidence in a coherent and linear way. A culture of disbelief continues to be deeply entrenched in the minds of law enforcement, prosecutors, and judges – thus evidencing a persistent lack of recognition and understanding of human trafficking situations.
Victim identification is even more challenging in cases of trafficking for forced criminality. For example, a recent case in Ireland illustrates these very difficulties. The case related to trafficking for forced criminality (cannabis production); in addition to flaws in the mechanism for victim identification, the judge raised concerns regarding the fairness of procedures when the same investigating body deals with both the potential drug offences and the trafficking circumstances, resulting in a potential conflict of interest in treating the same person simultaneously as both a potential victim and a criminal suspect.27
Other factors influencing the application of the non-punishment provision are connected with the proper qualification of the trafficking crime, the sensitivity of prosecutors and judges, and the lack of appreciation of constraint and of abuse of a position of vulnerability in situations of trafficking. The latter element is particularly important in a context where traffickers increasingly resort to insidious and subtle means of abuse and control over their victims, which are less obvious and apparent (e.g., psychological violence and pressure, debt-bondage) but equally effective. Traffickers also often instruct victims about what to say if and when they are arrested. All too often, prosecutors may decide to press charges not for THB but for related crimes – to have more realistic chances of securing convictions; yet this may have a tremendous impact on the protection of rights of a trafficked person, and on their possibilities to receive redress.
Evidence from some countries suggests that national courts tend to adopt quite restrictive interpretations of the non-punishment provision, often in the form of post-conviction sentencing considerations; i.e., victims are punished but their trafficking experience is considered as a mitigating factor. For example, in a landmark criminal appeal against the conviction of four victims of trafficking, the Court of Appeal of England and Wales elaborated on the exercise of prosecutor discretion:
the distinct question for decision once it is found that the defendant is a victim of trafficking is the extent to which the offences with which he is charged, or of which he has been found guilty are integral to or consequent on the exploitation of which he was the victim. We cannot be prescriptive. In some cases the facts will indeed show that he was under levels of compulsion which mean that in reality culpability was extinguished. If so when such cases are prosecuted, an abuse of process submission is likely to succeed. That is the test we have applied in these appeals. In other cases, more likely in the case of a defendant who is no longer a child, culpability may be diminished but nevertheless be significant. For these individuals prosecution may well be appropriate, with due allowance to be made in the sentencing decision for their diminished culpability. In yet other cases, the fact that the defendant was a victim of trafficking will provide no more than a colourable excuse for criminality which is unconnected to and does not arise from their victimisation. In such cases an abuse of process submission would fail.28
The Court of Appeal further explained the reasoning behind the non-prosecution of victims:
The criminality, or putting it another way, the culpability, of any victim of trafficking may be significantly diminished, and in some cases effectively extinguished, not merely because of age (always a relevant factor in the case of a child defendant) but because no realistic alternative was available to the exploited victim but to comply with the dominant force of another individual, or group of individuals.29
Available case law thus suggests that judicial authorities often consider that the non-punishment obligation allows the exercise of discretion about whether or not to prosecute.
A prosecutor may be confronted with challenging cases where it is not easy to distinguish between victims and perpetrators, such as in cases when victims of trafficking for sexual exploitation are apparently involved in the recruitment and exploitation of others.30 Yet case law suggests that even in more straightforward cases, when victims commit offences while they are under traffickers’ control, or in an attempt to escape such control, prosecutors may find that there was not enough compulsion (i.e., control falling short of the defence of duress), or that the offence was not closely enough connected with the trafficking situation. The latter scenario occurs frequently, especially when victims commit offences after they have escaped from their traffickers but have not been recognised as victims of a serious crime, have received no remedies, and, consequently, have no other options to survive but to violate the law.31
These restrictive views notwithstanding, here it is argued that, from a human rights perspective, which is at the core of the Council of Europe Convention, the discretion element of the non-punishment provision relates only to the way States decide to implement their obligation – not about whether or not to prosecute, and not about whether or not to impose penalties on victims for offences caused or directly linked with their trafficking.32
Decisions on the application of the non-punishment clause frequently also revolve around assessing the victim’s credibility; and since the trauma stemming from the trafficking experience affects a victim’s ability to recall events accurately, their credibility is regularly questioned – reflecting a culture of disbelief and a lack of appreciation of the typical features of the trafficking crime.
Children trafficked for exploitation in criminal activities and begging are often misidentified; the authorities may fail to recognise that they are children and that they are being exploited, and as a result they are criminalised and end up in prison or adult immigration detention.33 Children are vulnerable by virtue of their age alone. It is very hard for them to escape the control of their traffickers; they depend on their exploiters, who are often the only adult persons they know in the country. Furthermore, children are very afraid of police, believe what they are told by their traffickers, fear that they might be punished, and may feel very ashamed of what has happened to them. Authorities often lack capacity to recognise these forms of trafficking, and may even display discriminatory attitudes towards some child victims, especially those belonging to ethnic minorities such as the Roma (e.g., suggesting a cultural factor as justification for their situation). In some
documented cases, the judicial response reflects not only a lack of sensitivity but also an interpretation of child trafficking as requiring serious physical harm and restriction of movement.34 In some instances, there may be reluctance to identify a child as a victim where they appear be acting with full capacity, seem to be self-confident and happy, and do not disclose any details of their situation.35
A human rights approach to non-punishment: how can we improve the protection of victims’ rights?
The obligation of non-punishment is tied to the State’s obligation to exercise due diligence to identify, assist, and protect victims, and also to its duty to duly investigate a trafficking situation and to bring the true perpetrator to justice. This means taking a human rights and victim-centred approach to the implementation of the non-punishment provision, thus putting at the centre of all efforts to prevent and combat trafficking – whether by law enforcement, prosecutors, or judges – the protection of the rights of victims of trafficking.36
In this regard, it is worth recalling the main elements of States’ positive obligations, as they directly impact on a full and effective implementation of the non-punishment provision. Jurisprudence from the European Court of Human Rights (ECtHR), and the work of legal scholars, provides useful guidance in defining the scope of such positive obligations.37 Three parameters are particularly relevant in our context.
First, as the ECtHR has clarified in Rantsev, the State’s human rights obligations entail having in place legislation “adequate to ensure the practical and effective protection of the rights of victims or potential victims of trafficking”.38
This emphasis on the protection of victims’ rights in reality indicates that the obligation extends to include ensuring that such persons are not punished for offences that were caused or directly linked to their having been trafficked: few acts could constitute a more flagrant violation of a victim’s rights than for the State to prosecute or otherwise punish a person for acts they were compelled by their trafficker or trafficking to do.39
Second, States’ obligations include establishing procedures for accurate and early identification of victims, and for immediate referral to support.40 Therefore, the onus is on public authorities to establish a multi-agency co-operative process, involving civil society organisations, to accurately identify victims; it is not for victims to prove their status. States must also make appropriate inquiries to establish whether the victim is a child. When victims are not identified and assisted the whole investigation and prosecution of the trafficking crime is compromised, if not failed, and they may be unjustly placed in detention or subjected to other forms of punishment at the hands of the State.
In Rantsev, the ECtHR made clear that States’ positive obligations towards trafficking victims begin when “the State authorities were aware, or ought to have been aware, of circumstances giving rise to a credible suspicion that an identified individual had been, or was at real and immediate risk of being, trafficked or exploited”.41 Therefore, when authorities have reasonable grounds to believe that a person might be a victim of trafficking, and at the same time they suspect that (s)he might be involved in illicit activities, they should immediately identify and refer the potential victim to assistance, and proactively investigate THB as a serious crime. They should also assess whether the victim’s involvement in the illicit activities was integral or consequent to the trafficking (or caused or directly linked with their trafficking), and, if so, the person should not be prosecuted nor otherwise penalised.
Furthermore, States are to ensure that their competent authorities are well trained and qualified in identifying victims and in investigating, prosecuting, and preventing trafficking.42 This may require establishing specialised anti-trafficking police and, possibly, prosecutors – which is becoming a third benchmark of States’ positive obligations in investigation and prosecution.43 In practice, this means early and accurate victim identification and the provision of adequate support; proactive investigation into the trafficking situation; suspension of any deportation order; and effective application of the non-punishment obligation for victims involved in offences caused or directly linked with their trafficking. In other words, once the competent authorities have reasonable grounds or indications that a suspect is a victim of trafficking, the person should be treated as a victim of a serious crime and afforded the support and assistance (s)he is entitled to; any prosecution against them for offences which are integral to, or consequent on, their trafficking should not be initiated, or should be discontinued as soon as possible. In cases where the prosecution of a victim continues, it is crucial that the court, on the one hand, protects the rights of a victim of trafficking and ensures that victims are treated in a respectful manner and that they are able to access their rights, including the right to assistance, and, on the other hand, that it exercises its jurisdiction to stay the proceedings against the victim and to request additional inquiries into the alleged trafficking.44
Victim support services have a crucial role to play in accompanying the victim through this process. When victims are provided with timely and adequate protection,45 they begin to feel safe and are able to re-establish trust; they also become more willing to co-operate, and are able to provide much more solid accounts of their ordeal. The chances of obtaining a reliable and coherent statement from victims depend on early victim identification, and on the provision of appropriate support, especially legal aid.46
Undeniably, a key step to ensure the protection of trafficked persons’ rights is providing them with immediate legal counselling and assistance to help them make informed decisions about their options and avoid the risk of being punished. A recent study, which builds on the experience of legal advocates, suggests that early legal interventions are much more effective in protecting and defending victims’ rights and interests against unjust punishment. By contrast, legal interventions at a later stage are more challenging: when a prosecution has already been initiated, it may be difficult to halt the proceedings and/or overturn a conviction. It is also more complex to deal with the eventual administrative fines and criminal records stemming from administrative and criminal proceedings.47 The provision of legal assistance to trafficked persons is underfunded in many countries, so good legal assistance is often lacking and may compromise victims’ access to justice.
Conclusions
The non-punishment provision establishes a duty for States not to prosecute, detain, or otherwise penalise trafficked persons for offences caused by or directly linked to their trafficking. As such, this right should be safeguarded through the adoption of specific legislation.
Policy guidelines for competent authorities on the implementation of the non-punishment obligation may also be very useful to deal with specific issues. For example, to ensure transparency, fairness, and due process when authorities encounter a suspect who might be a victim of trafficking it is crucial to provide that two separate investigating units deal with the matter: i.e., one with the trafficking and one with the other offence (e.g., a drug-related offence).
Guidance and training for police, judges, prosecutors, victims’ lawyers, pro-bono lawyers, and NGO advocates are very important to ensure full and effective implementation of this obligation – one which is based on the promotion of human rights and a victim-centred approach.
Finally, strong and dynamic co-operation between NGOs, social welfare authorities, child protection services, and law enforcement is critical for protecting women, men, and child victims, and for prosecuting perpetrators.
Notes
1 This chapter is, in part, based on the document Policy and legislative recommendations towards the effective implementation of the non-punishment provision with regard to victims of trafficking, published by the OSCE’s Office of the Special Representative and Co-ordinator for Combating Trafficking in Human Beings (2013), which was drafted by the authors.
2 OSCE, Trafficking in Human Beings Amounting to Torture and Other Forms of Ill-Treatment (2013), p. 117
.
3 UN General Assembly, Trafficking in Persons, Especially Women and Children: Report of the Special Rapporteur on Trafficking in Persons, Especially Women and Children (2 August 2013), A/68/256, p. 17.
4 UN Office of the HCHR, Recommended Principles and Guidelines on Human Rights and Human Trafficking (2002), E/2002/68/Add.1, Principle 7 concerning victim protection and assistance. Recommended Guidelines 2 and 4 articulate further this protection, and the latter (4.5) specifies that States should consider also:
Ensuring that legislation prevents trafficked persons from being prosecuted, detained or punished for the illegality of their entry or residence or for the activities they are involved in as a direct consequence of their situation as trafficked person.
For a detailed commentary on Principle 7 and related guidelines, see UN OHCHR, Commentary to the Recommended Principles and Guidelines on Human Rights and Human Trafficking (2010), p. 129, et seq.
5 UN OHCHR, Recommended Principles and Guidelines on Human Rights and Human Trafficking (2002), E/2002/68/Add.1 –see Guideline 8 concerning special measures for the protection and support of child victims of trafficking.
6 UNICEF, Guidelines on the Protection of Child Victims of Trafficking (2006). The Guidelines refer also to CRC Articles 37 & 40. See, also, United Nations Committee on the Rights of the Child (CRC), CRC General Comment No. 6 (2005): Treatment of Unaccompanied and Separated Children Outside Their Country of Origin (CRC/GC/2005/6, 2005), para. 62.
7 OSCE, Ministerial Council Decision No. 1: Enhancing the OSCE’s Efforts to Combat Trafficking in Human Beings [Vienna, 28 November 2000], MC(8).DEC/1, para. 9. See, also, OSCE, Declaration on Trafficking in Human Beings (2002); and OSCE Permanent Council, Decision No. 1107: Addendum to the OSCE Action Plan To Combat Trafficking in Human Beings: One Decade Later (2013), PC.DEC/1107/Corr.1 [6 December 2013], Annex, chapter IV, para. 2.6.
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