Compensation. International framework Marjan Wijers

Transcription

1 Compensation International framework Marjan Wijers

2 Why? Legal basis International human rights law ECrtHR, Rantsev vs Russia and Cyprus (2010): trafficking falls within the scope of Art. 4 ECHR without the need to determine whether it should be qualified as slavery, servitude or forced labour Trafficking & non trafficking specific binding instruments (Conventions, Directives) Non binding instruments

3 International Human Rights Law Obligation of States to: Prevent human rights violations Investigate alleged violations & punish violators Provide victims with adequate and appropriate remedies & protect them from further harm: restitution compensation rehabilitation guarantee of non repetition

4 What is meant by adequate remedy Restitution restoring the situation before the violation, incl. return of property, safe repatriation (if in the interest of the victim), release from detention, assistance & support to facilitate social integration Compensation for economically assessable damage may cover a wide range of injury, loss or damage: costs ofmedical or psychological treatment, legal costs, lost income and unpaid wages, physical & emotional pain and suffering, any other costs or losses incurred by the victim as a direct result of the crime Rehabilitation/recovery restoring of status and position in the eyes of the law and community, incl. medical, psychological, legal and social care Satisfaction & guarentees of non repetition justice done, protection from re trafficking, effective investigation, prosecution & sanctioning of traffickers (Basic principles and Guidelines on Remedy and Reparation, 2006, A/RES/60147)

5 Why? Purposes of compensation Recognition of the harm done Payment or reparation for injury, loss or harm Access to justice Empowerment& recovery of victims Reducing the risk of re trafficking Punishment & deterrence of traffickers.

6 Ancillary procedural rights Right to information about available remedies in a language the victim understands Right to legal assistance and (free) legal aid, including to pursue compensation Protection against unlawful interference with the victim s privacy; safety from intimidation and retaliation before, during and after proceedings Right to play a meaningful role in legal proceedings: being heard and act Right to remain in the country during proceedings for compensation Medical, psychological, social, andministrative & other assistance needed to exercise the right to a remedy (2011 Report Special Rapporteur on Trafficking, Joy Ngozi Ezeilo)

7 Mechanisms for compensation Offender funded Criminal proceedings Civil action Labour court or tribunals State funded Victim Fund (independent of criminal case and identification or conviction of the offender)

8 Trafficking specific instruments UN Convention on transnational organised crime Art. 14: priority consideration to returning confiscated assets to a requesting state party for compensation of or retur to the victim Art. 25: appropriate procedures to provide access to compensation & restitution UN Trafficking Protocol Art. 6: ensure provision of information on relevant court & administrative proceedings; measures that offer victims the possibility of obtaining compensation CoE Convention on Action against Trafficking Art. 15: right to compensation from the perpetrators (material &nonmaterial damages); measures to guarantee right to compensation, e.g. through a victim fund; access to information on the relevant proceedings; provide for access to legal assistance & free legal aid

9 Non trafficking specific CoE Convention on the Compensation of Victims of Violent Crimes (Ratified by Bosnia & Croatia; signed by Serbia) Art. 2.1 envisages a State funded compensation scheme which, at a minimum, covers nationals and permanent residents who are victims of serious bodily injury or impairment of health directly attributable to an intentional crime of violence. The compensation should be available even where the offender is not prosecuted or punished (art. 2.2), and should cover at a minimum loss of earnings, medical, hospital and funeral costs, and maintenance for dependants (art. 4). Art. 8 allows limitations on the eligibility of the claimant related to their character and antecedents, e.g. the conduct of the applicant before, during or after the crime, or in relation to the injury or death. This means that a claimant can be denied compensation if s/he is deemed to have provoked the crime or when s/he has an unrelated criminal record.

10 EU law I EU Directive 2011/36/EU on trafficking Art. 12(2): Access to legal counseling & free legal representation, including for the purpose of claiming compensation Art. 17: Access to existing compensation schemes Directive 2009/52/EC providing for minimum standards on sanctions and measures against employers of illegally staying third country nationals Establish mechanisms to ensure that employers are liable to pay any outstanding remuneration: presumed to have been at least the minimum wage (or comparable standard) for at least 3 months, unless proved otherwise

11 EU law II Victims Directive 2012/29/EU Art. 4: Information on how to claim compensation Art. 16: Right to obtain a decision on compensation from the offender in the course of criminal proceedings; promote measures to encourage perpetrators to provide adequate compensation in the course of criminal proceedings Directive 2004/80/EC on compensation to crime victims in cross border situations Crime victims should be entitled to fair and appropriate compensation for the injuriss they have suffered, regardless of the place of crime (in the EU) obligation to set up a national (state funded) compensation scheme for victims of violent intentional crimes committed in the MS cooperation to facilitate access to compensation for victims in crossborder situations

12 Non binding instruments UN HCHR Recommended Principles and Guidelines on Human Rights and Human Trafficking (2002) & Commentary (2010) Principle 16 & 17: States shall ensure that trafficked persons have access to effective and appropriate legal remedies, and that, to the extent possible, confiscated assets shall be used to support and compensate victims. Guideline 4.4 (ensuring an adequate legal framework): States should consider making legislative provision for confiscation of the instruments and proceeds of trafficking and related offences. Where possible, legislation should specify that the confiscated proceeds of trafficking will be used for the benefit of victims of trafficking. Consideration should be given to the establishment of a compensation fund for victims of trafficking and the use of confiscated assets to finance such a fund. Guideline 9 (access to remedies): States should consider ensuring that victims have an enforceable right to fair and adequate remedies; providing information as well as legal and other assistance to enable trafficked persons to access remedies; making arrangements for trafficked persons to remain safely in the country in which the remedy is being sought for the duration of any criminal, civil or administrative proceedings.

13 However: in practice. barriers for compensation Lack of awareness and/or knowledge among relevant actors (police, prosecutors, judges, lawyers, service providers, NGOs, trade unions) Lack of financial investigations targeting the flows of proceeds from trafficking; difficulties in the effective tracing and seizure of criminal assets Confiscated assets go to the State and are not used to compensate victims Lack of international cooperation in returning confiscated assets Duration of the trial State compensation funds (if existing) are often limited and may exclude groups on moral grounds (e.g. illegal migrants or sex workers)

14 Barriers for compensation II Lack of access to information, assistance and legal representation of trafficked persons Requirement to have a regular immigration status Requirement to be physically present in the jurisdiction Requirement that the offender must be identified and convicted of a crime Fear, intimidation, language barriers, feelings of humiliation and/or insecurity about immigration status of the trafficked person Specifically in relation to children: lack of systems of social work and guardianship to ensure that the grant and expenditure of any compensation money is monitored and used in the best interest of the child

15 Current situation Actual receipt of compensation payment by a trafficked person is rare Although the law in all four countries allows for the possibility to claim compensation as part of the criminal proceedings, in practice not one victim received compensation, either from their traffickers or from the State. Nor did any victim receive compensation through civil proceedings. In practice, victims are severely discouraged from claiming compensation. In criminal proceedings any claims are, as a rule, rejected or not decided upon on the argument that this would prolong the proceedings. In civil proceedings claims for compensation are prohibitively long and difficult to prove, apart from the fact that victims do not have the financial means to conduct long and expensive legal proceedings. But even if claims are awarded, they are extremely difficult or impossible to enforce because traffickers generally ensure that they have no assets in their own names. State Funds for compensation of victims of serious crimes do not exist or are dysfunctional.

16 Let s make a step forward!