Download Compensation For Victims of Trafficking in Persons

Compensation For Victims of Trafficking in Persons –
UNODC Perspective and State Practice
Expert Consultation of the Special Rapporteur on Trafficking in Persons, Especially
Women and Children, Ms. Joy Ngozi Ezeilo, on
“The Right to an Effective Remedy for Trafficked Persons”
Bratislava, 22 November 2010
Simone Heri, Organized Crime Branch, UNODC Vienna
Purposes of Compensation
• Societal level: Awarding compensation acknowledges that
trafficking is a crime
• Individual level: Victim‘s pain and suffering are
acknowledged and compensation can constitute a first step
towards overcoming trauma inflicted and abuse suffered
• Practical level: Compensations can assist victims to rebuild
their lives
• Retributive level: Compensation paid by traffickers can
constitute a form of punishment and deter other traffickers
Compensation in UNTOC and TIP Protocol
• Each State Party shall establish appropriate procedures
to provide access to compensation and restitution for
victims (Article 25(2) UNTOC)
• Each State Party shall ensure that its domestic legal
system contains measures that offer victims of
trafficking in persons the possibility of obtaining
compensation for damage suffered (Article 6(6) TIP)
Compensation: Legislative Guides to UNTOC
Protocol does not specify any potential source of compensation, which
means that any of the following general options that States have developed
would suffice to meet the requirement of the Protocol:
(a) Provisions allowing victims to sue offenders or others under statutory or
common-law torts for civil damages;
(b) Provisions allowing criminal courts to award criminal damages (that is,
to order that compensation be paid by offenders to victims) or to impose
orders for compensation or restitution against persons convicted of
offences;
(c) Provisions establishing dedicated funds or schemes whereby victims
can claim compensation from the State for injuries or damages suffered as
a result of a criminal offence.
(Legislative Guides for the Implementation of the United Nations Convention Against
Transnational Organized Crime and the Protocols Thereto (pp. 285-286, para. 60)
Recommendations Adopted by Open-ended
Interim Working Group on Trafficking in Persons
“With regard to the compensation for victims of
trafficking, States parties should consider the possibility
of establishing appropriate procedures to allow victims
to obtain compensation and restitution.”
(CTOC/COP/WG.4/2009/2, para. 14)
“States parties should endeavour to ensure the
availability of a compensation fund or similar
mechanism for victims of crimes, including trafficking in
persons.“ (CTOC/COP/WG.4/2010/6, para. 56)
Proposed Recommendations for Adoption at the
Third Session of the TIP Working Group
• Chair of the Working Group proposed recommendations
interpreting or adding to Protocol obligations such as “States
parties should provide legal assistance and information
regarding legal assistance to victims of trafficking to
represent his or her interests in criminal investigations,
including the obtaining of compensation.“
• States parties did not arrive at consensus in the three hours
scheduled for the Working Group at its 3rd Meeting
• Compensation will most likely be taken up again at the 4th
TIP Working Group Meeting on 14-16 December 2011
The 5th Conference of the Parties to the United Nations
Convention against Transnational Organized Crime…
“Welcomed the work of the Working Group on
Trafficking in Persons, including the Group’s
recommendations, resulting from its meeting on 14 and
15 April 2009, 27 and 29 January 2010, and 19 October
2010” (CTOC/COP/2010/L.5/Rev.1, para. 5)
Cross-cutting Issues: Article 6(2) TIP Protocol
• Article 6 (2): Each State Party shall ensure that its domestic
legal or administrative system contains measures that
provide to victims of trafficking in persons, in appropriate
cases:
(a) Information on relevant court and administrative
proceedings;
(b) Assistance to enable their views and concerns to be
presented and considered at appropriate stages of criminal
proceedings against offenders, in a manner not prejudicial
to the rights of the defence.
Cross-cutting Issues: Status of Victims of
Trafficking in Persons in Receiving States
• States Party shall consider adopting legislative or
other appropriate measures that permit victims of
trafficking in persons to remain in its territory (Article 7)
• However: The immigration status or the return of the
victim to his or her home country or other absence of
the victim of trafficking from the jurisdiction shall not
prevent the court from ordering payment of
compensation (UNODC Model Law against Trafficking
in Persons, Article 27(2) and 28(6)).
Cross-cutting issues: Financial Investigations,
Freezing, Seizing and Confiscation of Assets
• Criminal justices measures such as proactive financial
investigations and early confiscation of proceeds
necessary for the execution of compensation order
• States Parties shall, to the extent permitted by domestic
law and if so requested, give priority consideration to
returning the confiscated proceeds of crime or property
to the requesting State Party so that it can give
compensation to the victims of the crime (Article 14 (2))
Cross-cutting issues: Financial Investigations,
Freezing, Seizing and Confiscation of Assets
“Noting the low rate of convictions for trafficking in
persons globally, as reported in the Global Report on
Trafficking in Persons published by UNODC in 2009,
States parties should increase their efforts to investigate
and prosecute cases involving trafficking in persons,
including by making timely use of financial investigation
techniques, special investigative techniques and other
tools designed to combat other forms of organized crime.”
(CTOC/COP/2010/6, para. 35)
Cross-cutting Issues: Financial Investigations,
Freezing, Seizing and Confiscation of Assets
“States parties should utilize the Organized Crime Convention
and other multilateral legal instruments to develop and
strengthen international judicial cooperation, including with
regard to extradition, mutual legal assistance and confiscation
of the proceeds of trafficking in persons.“ (CTOC/COP/2010/6,
para. 28(b))
“States parties should increase cross-border criminal justice
action through enhanced use of joint investigations,
information-sharing and confiscation of assets, in line with their
domestic legislation.” (CTOC/COP/2010/6, para. 36)
State Practice: Regional Action Plans
•
BSEC Regional Action Plan for Strengthening the Criminal Justice:
– Response to Trafficking in Persons (Black Sea), states that States should
implement measures that offer victims of trafficking in human beings the
possibility of obtaining compensation (para. 20).
•
ECOWAS Initial Plan of Action Against Trafficking in Persons
– stipulates that States shall adopt legal provisions for the protection of victims of
trafficking, and ensure that their domestic legal systems contain measures
that offer victims of trafficking in persons the possibility of obtaining
compensation for damage suffered (para. 6).
•
The OSCE Action Plan to Combat Trafficking in Human Beings
– Asks participating States to consider establishing a fund based on the confiscated
proceeds of trafficking to be used for the benefit of trafficking victims
including the establishment of a compensation fund for them (section III,
para. 1.5).
State Practice I: Compensation Funds/Tribunals
• Bulgaria: Assistance and Compensation to Crime Victims Act (18
December 2006)
– Provides for compensation of victims of crime
– Authorities responsibility of informing victims of such rights
• New South Wales Victims Compensation Tribunal
– Established under Victims Support and Rehabilitation Act (1996)
– In May 2007 Tribunal awarded compensation to a Thai woman who was
trafficked to Australia as a child for the purpose of sexual exploitation
• Nigeria: Trafficking in Persons Law Enforcement and
Administration Act 2003
– The Act establishes a Trust to provide victims with compensation for
economic, physical and psychological damage
State Practice II: Compensation Funds/Tribunals
• Egypt: Law No. (64) of 2010 regarding Combating Human
Trafficking, Article 27:
– A fund shall be established to assist victims of human trafficking, which
shall have a public juristic personality under the Prime Minister to provide
financial assistance to the victims who have suffered harm resulting from
any of the crimes stipulated in this law.
A decision by the President of the Republic shall regulate this fund and
determine its jurisdiction, resources and the sources of its funding.
The proceeds of the fines sentenced for the crimes stipulated in this law,
as well as the properties, objects, and means of transportation forfeited
shall be allocated directly to the fund, which may also accept
contributions, grants, and donations from national and foreign entities.
State Practice: Right to Initiate Civil Action
• Serbia: Victims are able to file civil suits against
traffickers and are entitled to temporary residence
permits
• Hong Kong Special Administrative Region of China:
Victims may initiate civil proceedings for damages or
compensation arising form injuries sustained as a result
of being trafficked
State Practice: Cyprus
• Cyprus: Combating of Trafficking in Persons and Sexual
Exploitation of Children, Law No. 3(1), 2000
– Article 8 gives victim right to sue for special and general damages
– The Court may take into consideration the following for general damages:
a. the extent of the exploitation and the benefit the liable derived from
such exploitation,
b. the future prospects of the victim and the extent to which such
prospects were affected by the exploitation,
c. the culpability of the offender,
d. the relationship or the dominating position or influence of the offender
with regard to the victim. (Article 8(2))
– The Court, in the award of special damages, takes into consideration
every item of expense which resulted from exploitation including costs
for repatriation in the case of foreigners. (Article 8(3))
State Practice: Israel
• Israel: Legislation enables Governments to seize traffickers‘
assets for use in the rehabilitation of victims and for
compensation
– Jane Doe vs. Alexander Lifshin and Armen Ben Anatoly Reidler
(Tel Aviv Yafo District Court , 25 January 2010)
• 500,000 NIS for client’s fees withhold
• 1,000,000 NIS for the non-material damages which harmed the victims
autonomy, freedom, body and soul. The court emphasized the duration of
suffrage, and noted that this sum should also be seen as punitive
damages that highlight the need to punish the defendant beyond the
sentencing under criminal law
• All expenses incurred by the victim, incl. 150,000 NIS for victim’s lawyer
(100 NIS ~ 27 USD)
State Practices: Kenya and Portugal
• Kenya: Counter-Trafficking in Persons Act 2010
– Convicted trafficker is mandated to restitute his victim
– Law also estblishes the National Assitsance Trust Fund for
Victims of Trafficking
• Portugal:
– Criminal courts to award criminal damages
– Advance payment of compensation by State-fund
State Practices: Norway
Victim options
Civil action
against
perpetrator
Civil claim in
criminal case
against
perpetrator
Government
compensation
scheme:
victims of violent
crime
State Practice: Norway (continued)
• Information about rights
– Consultation with a lawyer
– Legal representation in criminal cases
– Assistance from lawyer in preparing civil claim in criminal
case
• Confiscation vs. Compensation
– Confiscated proceeds are not available to victims
– Case June 2010: Confiscated NOK 32 000. Damages NOK 50 000.
State Practice: Norway (continued)
• Government Compensation
– Compensation for Victims of Violent Crime Act
• ”Victims of violent crime” – includes trafficking
• Administered by Norwegian Criminal Injuries Compensation Authority
– The criminal act must be reported to the police
– Compensation even when the criminal case is dropped
– Criminal act must have been committed in Norway
• Practical Use: The Compensation Authority will often
pay the victim according to a conviction, and will seek
recovery from the convicted person.
State Practice: Norway (continued)
• Example: Albanian victim
–
–
–
–
–
NOK 200 000 in damages for non-economic loss
NOK 350 000 for permanent injury
NOK 120 000 future expenses
NOK 290 000 loss of personal income
NOK 1.300.000 future loss of personal income
(100 NOK ~ 16 USD)
State Practice: Argentina
• Law 26.364 (29 April 2008): Prevention and Sanction of
Trafficking in Persons and Assistance to its Victims
• Provides for compensation and victims receive legal aid
• One method of compensation ordered by the judges
was to confiscate all the equipment from the traffickers
and hand them to the victims of trafficking for them to
start a small business.
State Practice: United States of America
• Two Mechanisms:
– Private Lawsuit
– Restitution Following Criminal Prosecution
• Mandatory restitution
– “The court shall order restitution” for any human trafficking
offense.
• There must be a criminal conviction.
• No other prerequisites for the victims to receive restitution
• Discretionary restitution available for other offenses
State Practice: United States (continued)
• Funding Restitution
– Solely Offender Funded
• Can apply seized and forfeited assets
• Court cannot consider Defendant’s financial situation
– Practical Realities
• United States v. Webster (2009)
– $3.6 million
• United States v. Kalimlin (2006)
– $916,000
State Practice: United States (continued)
• Measuring Restitution
• “Full amount of the victim’s losses”
• Includes:
–
–
–
–
–
–
medical expenses, physical and psychological
physical therapy/rehabilitation
necessary transportation, temporary housing, child care
lost income
attorneys’ fees
any other losses proximately caused by trafficking
– Plus
• The greater of the “gross income or value to the defendant” of the
victim’s services, or
• the value of the victim’s labor as guaranteed by minimum wage and
overtime laws.
Thank you!
Questions?
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