Compensation for Victims of Human Trafficking: What Was Achieved and What is Yet to Come?
Human trafficking is a severe violation of human rights. Compensation for the victims of this crime has a restorative, preventive and punitive function and is a key tool to combat human trafficking. Every victim of trafficking has the right to effective protection measures, including compensation. There are a number of obstacles, however, which make it impossible to consistently realize this right in practice. As a result, many victims of trafficking do not receive fair justice[1].
Legislation has been passed in most European countries to allow crime victims to claim compensation or be otherwise compensated for pecuniary and non-pecuniary damage. Regardless of existing legal provisions, victims of human trafficking and trafficking-related crimes find it difficult or even impossible to seek and receive compensation. The data shows that very few victims have the information and opportunity to seek compensation. And even fewer of them actually get it.
Despite the fact that compensation is an internationally recognized right of victims of trafficking, there are many obstacles for them to benefit from it. For this reason, European governments fail to fulfill their obligations, among which is that under Art. 15 of the Convention on Action against Trafficking in Human Beings of the Council of Europe.
The right of victims to seek and receive compensation is established in the most important international and European instruments to combat human trafficking, such as the UN Protocol on Trafficking in Human Beings, the Council of Europe Convention on Action against Trafficking in Human Beings, the EU Directive on Preventing and Combating Trafficking in Human Beings and protecting its victims, the EU Directive on the Rights of the Victims of Crimes[2] and, more recently, the Protocol to the Forced Labor Convention of the International Labor Organization. European law affirms the right of crime victims to effective legal remedies, including compensation as a form of compensation[3].
The states are obliged to provide compensation for victims of crime. This obligation arises from “the harm resulting from the violation of rights which the State is obliged to protect but has not been able to guarantee”[4]. Some of these instruments establish minimum standards for the rights of victims of crimes and especially of human trafficking in all EU member states without discrimination.
These instruments also establish a number of procedural guarantees for the access of crime victims to effective legal remedies.
Regardless of existing standards, a number of legal, procedural, financial and practical obstacles make it difficult for trafficked and exploited persons to access effective legal remedies, including compensation. The most vulnerable groups, such as undocumented migrants and irregular migrants, find themselves in an even more complex situation and are disproportionately exposed to violence and exploitation due to the difficulties they face in accessing justice and support[5].
The ability to safely report violations and access to adequate information are prerequisites both for identifying victims of human trafficking and severe forms of labor exploitation, and for their access to protection and support. Those who are extremely vulnerable or in an illegal situation have no way to report exploitation without being harmed. As a result, they also have no access to information.
According to the EU Directive on the Rights of the Victims of Crimes, information about the right to compensation must be provided at first contact in an understandable and accessible manner. The research showed that it should be taken into account that in the first contact victims do not trust the representatives of the authorities and often have other problems that need to be addressed before the person is able to perceive information about their right to compensation.
Victims may be deterred from seeking compensation because they distrust the administration of justice, know that corruption exists, and the process of awarding compensation is long and complicated.
The Directive on the Rights of the Victims of Crimes applies without discrimination to all victims of crime, including those without a right of residence. However, many of them are afraid to come forward and report that they have suffered a crime. This fear is well-founded. Because of their illegal status, they risk detention and deportation. Many countries do not have a safe reporting mechanism.
The difficulty of obtaining compensation is also due to the fact that police officers, prosecutors, lawyers and judges are not aware of its important role for victims. They are not well versed in the rights of crime victims and the procedures for national and international referral of compensation claims. This leads to a lack of adequate information to the victims.
Among the good practices that can be imposed in the future are: the participation of cultural mediators and a good information campaign about the rights of the victims and how to protect them; access to adequate legal aid; cross-border cooperation, capacity building and research; fair calculation of damages and timely payment of compensations.
[1] COMP.ACT TOOLKIT ON COMPENSATION FOR TRAFFICKED PERSONS, la Strada International, 2012.
[2] Directive 2012/29/EU of the European Parliament and of the Council of 25 October 2012 establishing minimum standards on the rights, support and protection of victims of crime, and replacing Council Framework Decision 2001/220/JHA.
[3] Art. 13 of the European Convention on Human Rights; Art. 47 of the EU Charter of Fundamental Rights.
[4] FRA Handbook on European law relating to access to justice, 2016, p. 162.
[5] PICUM (Platform for International Cooperation on Undocumented Migrants) report “Strategies to End Dual Violence Against Undocumented Migrant Women: Protecting Rights and Ensuring Justice”, at www.picum.org
