Restitution and compensation for victims

Transcription

1 434 Toolkt to Combat Traffckng n Persons Tool 8.17 Resttuton and compensaton for vctms Overvew Ths tool refers to the provsons of the Organzed Crme Conventon and the Traffckng n Persons Protocol that requre approprate procedures to be establshed to provde compensaton. The tool also dscusses the purpose and source of compensaton, and prncples concernng ts provson contaned n nternatonal and regonal nstruments. Lastly, some promsng examples of domestc systems pro - vdng compensaton to vctms of traffckng are hghlghted and resources for strengthenng compensaton mechansms are recommended. The Traffckng n Persons Protocol and the Organzed Crme Conventon Artcle 6, paragraph 6 of the Traffckng n Persons Protocol states: Each State Party shall ensure that ts domestc legal system contans measures that offer vctms of traffckng n persons the possblty of obtanng compensaton for damage suffered. Ths means that when the possblty of obtanng compensaton does not exst under natonal law, legslaton may be requred to establsh approprate schemes. The correspondng provson of the Organzed Crme Conventon, found n artcle 25, paragraph 2, requres that at least some approprate procedures are establshed to provde access to compensaton or resttuton. The Protocol does not specfy any potental source of compensaton. Consequently any or all of the followng general optons would probably meet the requrements of the Protocol: (a) Provsons allowng vctms to sue offenders or others under statutory or commonlaw torts for cvl damages; (b) Provsons allowng crmnal courts to award crmnal damages (.e. to order that compensaton be pad by offenders to vctms) or to mpose orders for compensaton or resttuton aganst persons convcted of offences; (c) Provsons establshng dedcated funds or schemes whereby vctms can clam compensaton from the State for njures or damages suffered as the result of a crmnal offence. The legslatve framework establshng the mechansms to make compensaton clams s an mportant startng pont for provdng traffcked persons wth access to compensaton for harm suffered and wages lost. However, the mere exstence of such laws s not suffcent. Source: Legslatve Gudes for the Implementaton of the Unted Natons Conventon aganst Transnatonal Organzed Crme and the Protocols thereto (Unted Natons publcaton, Sales No. E.05.V.2). These gudes can be consulted at:

2 chapter 8 Vctm assstance 435 Vctms of human traffckng have a rght to receve compensaton from the traffcker for the physcal or mental harm suffered at the hands of the traffcker or because they dd not receve any payment for ther labour or servces. Access to compensaton s closely lnked to other ssues: Informaton. Traffcked persons are often prevented from ganng access to compensaton because they do not know about ther rght to receve compensaton and the necessary procedural steps to take. Therefore, nformaton provded by law enforcement offcers or prvate lawyers s an mportant prerequste for such access. For more on ths, see Tool 8.4 and Tool Confscaton of assets. Traffckers often hde ther money or move t abroad, whch prevents traffcked persons from enforcng ther compensaton clams. In order to overcome ths obstacle, States should confscate any property and money resultng from traffckng and use t to compensate vctms. States should also strengthen nternatonal law enforcement cooperaton to secure access to the traffckers assets moved abroad. See Tool 4.6 and Tool 5.7.! Despte the mportance to vctms of traffckng of recevng compensaton, ther rght to compensaton s much neglected. The purpose of compensaton Recevng compensaton s mportant for vctms of traffckng not only because of the fnancal component but also because t has a symbolc meanng. At a socetal level, awardng compensaton acknowledges that traffckng s a crme At an ndvdual level, the vctm s pan and sufferng are acknowledged and compensaton can consttute a frst step towards overcomng trauma nflcted and abuses suffered At a practcal level, compensaton can assst vctms n rebuldng ther lves At a retrbutve level, compensaton pad by traffckers can consttute a form of punshment and deter other traffckers Sources and types of compensaton Artcle 14 of the Organzed Crme Conventon provdes a legal bass for States partes to cooperate nternatonally n matters of compensaton. Artcle 16 of the Conventon requres States partes to gve prorty consderaton to returnng the confscated proceeds of crme or property to the requestng State party so that t can gve compensaton to vctms. Artcle 25 requres States Partes to establsh approprate procedures to provde access to compensaton and resttuton for vctms of offences covered by the Conventon. Ther rght to such access must be communcated to vctms.

3 436 Toolkt to Combat Traffckng n Persons Wthn dfferent legal frameworks, there are three man methods of obtanng compensaton payment: through crmnal proceedngs, through cvl acton (ncludng clams for damages and under labour laws) and through admnstratve systems (such as State compensaton schemes funds establshed by Governments). Compensaton From the perpetrator From the State Cvl acton Crmnal proceedngs Vctm funds An assocaton of a cvl clam wth crmnal proceedng (cvl-law jursdcton) Compensaton payments as a subsdary penalty (common-law jursdcton) Source: OSCE, Natonal Referral Mechansms: Jonng Efforts to Protect the Rghts of Traffcked Persons; a Practcal Handbook, p. 84 Cvl law procedures In most countres, vctms can pursue a cvl clam for compensaton on the bass of a wrongdong whch has caused them loss n tort law or under contractual rghts (fraud, assault, mprsonment, debt). It s also necessary to note that vctms of traffckng may have rghts n labour law regardless of the exstence of any form of contract. Although such cvl law proceedngs may seem more accessble to a traffckng vctm than crmnal proceedngs, as the polce are not nvolved, they stll requre a perpetrator to have been dentfed and, f the vctm s to receve compensaton, the perpetrator must be wthn the jursdcton and fnancally solvent. Damages wll be calculated on the bass of natonal cvl law and wll usually nclude both moral and materal damages. Crmnal law procedures Some countres connect cvl actons for compensaton wth crmnal proceedngs aganst the perpetrator. Ths means that a sngle tral both punshes the perpetrator and compensates the vctm, thus reducng the stress on vctms. Ths s also acheved n countres where payment of compensaton s part of the sentence mposed on the perpetrator. Where cvl proceedngs are appended to a crmnal case, there s the dual advantage of havng two procedures rolled nto one, and the prosecutor s responsble for gatherng and presentng

4 chapter 8 Vctm assstance 437 evdence on the lablty of the perpetrator to pay compensaton. In some countres, a court order for compensaton to be pad by the perpetrator can be made at the sentencng. Crmnal compensaton calculatons may be made on the same bass as n natonal cvl law or on a completely dfferent bass. These types of clam requre a vctm to have been dentfed by the authortes and for a perpetrator to have been prosecuted and found gulty n crmnal proceedngs. Prosecutng traffckng offences s dffcult, however, because often the offender s unknown or has fled the jursdcton or there s nsuffcent evdence of the nvoluntary nature of the work performed by the vctm, or the vctm s unwllng or unable to cooperate wth law enforcement. Specal funds to provde compensaton clams Compensaton can also be pad by or through the State. Some countres have establshed State-admnstered schemes for vctms of volent crme. State-funded or State-subsdzed compensaton schemes have the great advantage of provdng a guaranteed payment of compensaton to the vctm and t s not necessary for a specfc perpetrator to be located or dentfed. A polce report, together wth a wllngness on the part of the vctm to assst the polce wth the nvestgaton s usually suffcent. State schemes may also be relatvely streamlned and unbureaucratc, and qucker than cvl proceedngs. Compensaton schemes may be funded from several sources, ncludng: fnes, confscated property of the perpetrators, tax revenues, other means of State fundng, donatons from prvate ndvduals and nsttutons. In order for such funds to assst vctms effectvely: There should be no excluson on the grounds of llegalty (gven that people who are traffcked rarely have legal status n ther destnaton country) The process should be smple and effcent (gven that most vctms are promptly returned to ther country of orgn) Vctms should be protected from revctmzaton by the court process to the greatest extent possble The compensaton clam A clam can potentally be made up of several bases on whch compensaton s requested, ncludng but not lmted to: Pan and sufferng due to physcal or psychologcal volence Medcal expenses Unpad or underpad wages Rembursement of llegal fees pad to a recrutment or employment agency, or for smugglng or transportaton Fnes mposed by traffckers for bad behavour Excessve, fraudulent or llegal deductons from wages for rent, subsstence, transport, tax or socal securty payments Enforcement s far easer where assets have been traced, sezed or frozen and confscated n the course of cvl or crmnal proceedngs. For more on asset sezure and confscaton, see Tool 4.6 and Tool 5.7.

5 438 Toolkt to Combat Traffckng n Persons Aggravated, exemplary or puntve damages may be avalable to traffckng vctms n some jursdctons. They usually serve to punsh a wrongdoer for partcularly outrageous conduct, therefore havng a deterrent element, and can be related to the wealth of the wrongdoer. These concepts wll be novel to other jursdctons but there s nothng to prevent States ntroducng such concepts where the types of acton for whch compensaton s beng clamed warrant a partcularly puntve response as a matter of publc polcy. The qucker and easer a compensaton scheme s to navgate, the more accessble t wll be for vctms, both nternally and nternatonally. Specfc challenges are posed by the transnatonal nature of traffckng n human bengs. Vctms who have changed jursdcton face clear practcal dffcultes n pursung a compensaton clam across borders. They also face dffcultes when a traffcker s transferred to another jursdcton for prosecuton or when a crmnal or defendant n a cvl/labour lawsut has assets located manly outsde the terrtory. Some mportant thngs to ensure are: Access to translators to overcome language barrers (see Tool 8.4) Access to nformaton about laws and procedures n the country where the clam s made (see Tool 8.15) Effcent and comprehensve evdence gatherng (see Chapter 5) Assstance to cover travel costs and n obtanng vsas for attendng hearngs Source: Natonal Referral Mechansms: Jonng Efforts to Protect the Rghts of Traffcked Persons; a Practcal Handbook (Warsaw, OSCE, 2004), avalable at: Prncples of provdng compensaton to vctms of crme Internatonal prncples Declaraton of Basc Prncples of Justce for Vctms of Crme and Abuse of Power In accordance wth prncples 8 to 13 of the Declaraton of Basc Prncples of Justce for Vctms of Crme and Abuse of Power (General Assembly resoluton 40/34, annex), compensaton should nclude the return of property or payment for harm or loss suffered, rembursement of expenses ncurred as a result of the vctmzaton, provson of servces and restoraton of rghts. States should encourage the establshment, strengthenng and expanson of natonal funds for compensaton to vctms of crme. Resttuton 8. Offenders or thrd partes responsble for ther behavour should, where approprate, make far resttuton to vctms, ther famles or dependants. Such resttuton should nclude the return of property or payment for the harm or loss suffered, rembursement of expenses ncurred as a result of the vctmzaton, the provson of servces and the restoraton of rghts.

6 chapter 8 Vctm assstance Governments should revew ther practces, regulatons and laws to consder resttuton as an avalable sentencng opton n crmnal cases, n addton to other crmnal sanctons. 10. In cases of substantal harm to the envronment, resttuton, f ordered, should nclude, as far as possble, restoraton of the envronment, reconstructon of the nfrastructure, replacement of communty facltes and rembursement of the expenses of relocaton, whenever such harm results n the dslocaton of a communty. 11. Where publc offcals or other agents actng n an offcal or quas-offcal capa cty have volated natonal crmnal laws, the vctms should receve resttuton from the State whose offcals or agents were responsble for the harm nflcted. In cases where the Government under whose authorty the vctmzng act or omsson occurred s no longer n exstence, the State or Government successor n ttle should provde resttuton to the vctms. Compensaton 12. When compensaton s not fully avalable from the offender or other sources, States should endeavour to provde fnancal compensaton to: (a) Vctms who have sustaned sgnfcant bodly njury or mparment of physcal or mental health as a result of serous crmes; (b) The famly, n partcular dependants, of persons who have ded or become physcally or mentally ncapactated as a result of such vctmzaton. 13. The establshment, strengthenng and expanson of natonal funds for compensaton to vctms should be encouraged. Where approprate, other funds may also be establshed for ths purpose, ncludng n those cases where the State of whch the vctm s a natonal s not n a poston to compensate the vctm for the harm. The Declaraton s avalable at: Basc Prncples and Gudelnes on the Rght to a Remedy and Reparaton for Vctms of Gross Volatons of Internatonal Human Rghts Law and Serous Volatons of Internatonal Humantaran Law The relevant paragraphs of the Basc Prncples and Gudelnes (General Assembly resoluton 60/147, annex) read: 19. Resttuton should, whenever possble, restore the vctm to the orgnal stuaton before the gross volatons of nternatonal human rghts law or serous volatons of nternatonal humantaran law occurred. Resttuton ncludes, as approprate: restoraton of lberty, enjoyment of human rghts, dentty, famly lfe and ctzenshp, return to one s place of resdence, restoraton of employment and return of property.

7 440 Toolkt to Combat Traffckng n Persons 20. Compensaton should be provded for any economcally assessable damage, as approprate and proportonal to the gravty of the volaton and the crcumstances of each case, resultng from gross volatons of nternatonal human rghts law and serous volatons of nternatonal humantaran law, such as: (a) Physcal or mental harm; (b) Lost opportuntes, ncludng employment, educaton and socal benefts; (c) Materal damages and loss of earnngs, ncludng loss of earnng potental; (d) Moral damage; (e) Costs requred for legal or expert assstance, medcne and medcal servces, and psychologcal and socal servces. The Basc Prncples and Gudelnes are avalable at: www2.ohchr.org/englsh/law/remedy.htm Internatonal Conventon on the Protecton of the Rghts of All Mgrant Workers and Members of Ther Famles The Internatonal Conventon on the Protecton of the Rghts of All Mgrant Workers and Members of Ther Famles (General Assembly resoluton 45/158, annex) stresses the rght of mgrant workers to receve compensaton even n the case of ther expulson (art. 22, paras. 6 and 9; art. 68, para. 2). Expulson shall not prejudce any rghts of a mgrant worker acqured n accordance wth the law of the State of employment, ncludng the rght to receve wages and other enttlements due to her or hm. Before or after departure, the person concerned shall have a reasonable opportunty to settle any clams for wages and other enttlements due to hm or her and any pendng labltes. Measures to elmnate the employment of undocumented mgrant workers shall not mpar ther rghts wth respect to the ablty to brng cvl clams aganst ther employers. The text of Conventon on the Protecton of the Rghts of All Mgrant Workers and Members of Ther Famles s avalable at: European prncples Councl Framework Decson of 15 March 2001 on the standng of vctms n crmnal proceedngs Ths Framework Decson of the Councl of the European Unon s desgned to afford the best legal protecton and defence to vctms, rrespectve of the member State n whch they fnd themselves. To that end, member States are called upon to algn ther legslaton so as

8 chapter 8 Vctm assstance 441 to guarantee vctms varous rghts, ncludng those of compensaton and refund of legal costs. In relaton to vctms rghts to compensaton n crmnal proceedngs, artcle 9 of the Framework Decson states: 1. Each Member State shall ensure that vctms of crmnal acts are enttled to obtan a decson wthn reasonable tme lmts on compensaton by the offender n the course of crmnal proceedngs, except where, n certan cases, natonal law provdes for compensaton to be awarded n another manner. 2. Each Member State shall take approprate measures to encourage the offender to provde adequate compensaton to vctms. 3. Unless urgently requred for the purpose of crmnal proceedngs, recoverable property belongng to vctms whch s sezed n the course of crmnal proceedngs shall be returned to them wthout delay. The full text of the Councl Framework Decson s avalable at: ntro_en.htm European Conventon on the Compensaton of Vctms of Volent Crmes The European Conventon on the Compensaton of Vctms of Volent Crmes (European Treaty Seres, No. 116) of 1983 provdes for vctm compensaton as follows: Artcle 2 1. When compensaton s not fully avalable from other sources the State shall contrbute to compensate: (a) Those who have sustaned serous bodly njury or mparment of health drectly attrbutable to an ntentonal crme of volence; (b) The dependants of persons who have ded as a result of such crme. 2. Compensaton shall be awarded n the above cases even f the offender cannot be prosecuted or punshed.... Artcle 3 Compensaton shall be pad by the State on whose terrtory the crme was commtted: (a) To natonals of the States party to ths Conventon; (b) To natonals of all member States of the Councl of Europe who are permanent resdents n the State on whose terrtory the crme was commtted....

9 442 Toolkt to Combat Traffckng n Persons Artcle 8 1. Compensaton may be reduced or refused on account of the vctm s or the applcant s conduct before, durng or after the crme, or n relaton to the njury or death. 2. Compensaton may also be reduced or refused on account of the vctm s or the applcant s nvolvement n organzed crme or hs membershp of an organzaton whch engages n crmes of volence. 3. Compensaton may also be reduced or refused f an award or a full award would be contrary to a sense of justce or to publc polcy (ordre publc). The full text of the European Conventon on the Compensaton of Vctms of Volent Crmes s avalable at: Councl of Europe Conventon on Acton aganst Traffckng n Human Bengs The Councl of Europe Conventon on Acton aganst Traffckng n Human Bengs (Councl of Europe Treaty Seres, No. 197, adopted by the Commttee of Mnsters on 3 May 2005 and opened for sgnature n Warsaw on 16 May 2005), contans several provsons about compensaton, ncludng the followng key artcle: Artcle 15. Compensaton and legal redress 1. Each Party shall ensure that vctms have access, as from ther frst contact wth the competent authortes, to nformaton on relevant judcal and admnstratve proceedngs n a language whch they can understand. 2. Each Party shall provde, n ts nternal law, for the rght to legal assstance and to free legal ad for vctms under the condtons provded by ts nternal law. 3. Each Party shall provde, n ts nternal law, for the rght of vctms to compensaton from the perpetrators. 4. Each Party shall adopt such legslatve or other measures as may be necessary to guarantee compensaton for vctms n accordance wth the condtons under ts nternal law, for nstance through the establshment of a fund for vctm compensaton or measures or programmes amed at socal assstance and socal ntegraton of vctms, whch could be funded by the assets resultng from the applcaton of measures provded n artcle 23. The full text of the Councl of Europe Conventon on Acton aganst Traffckng n Human Bengs s avalable at:

10 chapter 8 Vctm assstance 443 Offce for Democratc Insttutons and Human Rghts of the Organzaton for Securty and Cooperaton n Europe The OSCE Offce for Democratc Insttutons and Human Rghts conducted an eghtcountry study to revew systems and practce of awardng compensaton to traffcked and exploted persons n Albana, France, Moldova, Romana, the Russan Federaton, Ukrane, the Unted Kngdom and the Unted States, representng dfferent legal tradtons wthn the OSCE regon. A background paper on the study, enttled Compensaton for traffcked and exploted persons n the OSCE regon was prepared for a workshop on the ssue held n Barcelona, Span, from 10 to 12 December It reported that there were varous ways n whch compensaton can be pad: State-funded or subsdzed compensaton schemes Damages pad by the person responsble for loss or njury through crmnal or cvl proceedngs Compensaton through labour court proceedngs In assessng the effectveness of compensaton systems, the background paper found, nter ala, that: Access to other rghts, so-called ancllary rghts, such as advce servces, securty, legal, socal and medcal assstance as well as resdence permts, for the duraton of a clam procedure, s crucal to makng compensaton schemes accessble and effectve for traffcked persons. The offence of traffckng may not be the offence prosecuted n a partcular case, even though t exsts n natonal law. Ths n turn may affect the vctm s elgblty for compensaton. The effectveness of a compensaton system s dependant on ts overall legal envronment; therefore efforts to mprove compensaton schemes may be frutless f the rule of law s not adequate n a partcular country and unless broader rule of law reforms are undertaken at the same tme. The background paper enttled Compensaton for traffcked and exploted persons n the OSCE regon wll be publshed n 2008 and made avalable at: Promsng practce Assstance and Compensaton to Crme Vctms Act (Bulgara) At ts plenary sttng on 18 December 2006, the Natonal Assembly of Bulgara adopted the Assstance and Compensaton to Crme Vctms Act, whch provdes for the compensaton of vctms of crme, ncludng persons who have been traffcked, and for the provson to them of support, such as medcal assstance and legal advce. The authortes are gven the responsblty of nformng vctms of such rghts.

11 444 Toolkt to Combat Traffckng n Persons New South Wales Vctms Compensaton Trbunal (Australa) The New South Wales Vctms Compensaton Trbunal was establshed under the Vctms Support and Rehabltaton Act 1996, and conssts of magstrates who determne appeals aganst rulngs and make orders for recovery of money from convcted offenders, compensaton assessors who make determnatons n compensaton clams and approve counsellng applcatons, and trbunal staff who provde admnstratve support n the processng and determnaton of compensaton and counsellng clams, appeals and resttuton. In May 2007, the Trbunal awarded compensaton to a Tha woman who was traffcked to Australa as a chld for the purpose of sexual explotaton. Law on Combatng of Traffckng n Persons and Sexual Explotaton of Chldren Law No. 3 (1) of 2000 (Cyprus) By vrtue of artcle 8 of ths law, vctms of explotaton have a rght to specal and general damages from ther perpetrators. In assessng such damages, courts can take nto account the extent of explotaton, the beneft the perpetrator derved from the explotaton, the extent to whch the future prospects of the vctm were adversely affected by havng beng traffcked, the culpablty of the offender and the relatonshp of the offender wth the vctm. Specal damages can nclude all costs ncurred as a result of the traffckng, ncludng the cost of repatraton. Israel Legslaton enables the Government to seze traffckers assets for use n the rehabltaton of vctms and for compensaton. Ngera The Natonal Agency for the Prohbton of Traffc n Persons and other Related Matters of Ngera was establshed pursuant to the Traffckng n Persons (Prohbton) Law Enforcement and Admnstraton Act That Act, as amended n December 2005, provdes for the creaton of a trust fund to provde for vctms needs whle they are n the care of the Agency and to provde them wth compensaton. The fund s to be derved from the aucton of the sezed and forfeted assets of traffckers. The Vctm s Support Manual of the Agency states that a traffcked person has a rght to compensaton aganst hs or her traffcker for economc, physcal and psychologcal damage. Serba Vctms are able to fle cvl suts aganst traffckers. Vctms pursung crmnal or cvl suts are enttled to temporary resdence permts and may obtan employment or leave the country pendng tral proceedngs. Thaland The draft preventon and suppresson of human traffckng act crmnalzes all forms of traffckng and provdes for greater care and compensaton for vctms.

12 chapter 8 Vctm assstance 445 The former Yugoslav Republc of Macedona Vctms can nsttute cvl proceedngs aganst traffckers to clam damages and compensaton. Hong Kong Specal Admnstratve Regon of Chna Vctms may ntate cvl proceedngs for damages or compensaton arsng from njures sustaned as a result of beng traffcked. Recommended resources Global Allance aganst Traffc n Women, Materal justce: seekng compensaton n traffckng cases Allance News, Issue 27 July 2007 In ths ssue of ts Allance News, GAATW provdes overvews and analyses of avenues of compensaton for traffcked persons. Issue 27 of Allance News s avalable at: News_July07fnal.pdf Organzaton for Securty and Cooperaton n Europe, Natonal Referral Mechansms: Jonng Efforts to Protect the Rghts of Traffcked Persons; a Practcal Handbook The OSCE natonal referral mechansms handbook dscusses compensaton and sezure of crmnal gans or assets. In secton 5 of the handbook, types of compensaton vctms may be enttled to are examned, as well as the mechansms by whch such compensaton can be delvered. Natonal Referral Mechansms: Jonng Efforts to Protect the Rghts of Traffcked Persons; a Practcal Handbook (Warsaw, OSCE, 2004) s avalable at:

13 446 Toolkt to Combat Traffckng n Persons Compensaton for traffcked and exploted persons n the OSCE regon Ths document was prepared by Katy Thompson and Allson Jernow for the workshop on compensatng traffcked and exploted persons n the OSCE regon, organzed by the OSCE Offce for Democratc Insttutons and Human Rghts n Barcelona, Span, from 10 to 12 December Upon publcaton n 2008, the document wll be avalable from: Cvl Ltgaton on Behalf of Vctms of Human Traffckng Ths manual on cvl ltgaton by Kathleen Km and Danel Werner was publshed n 2005 by the Legal Ad Foundaton of Los Angeles. The manual can be downloaded by vstng: Legslatve Gudes for the Implementaton of the Unted Natons Conventon aganst Transnatonal Organzed Crme and the Protocols Thereto The UNODC legslatve gudes to the Organzed Crme Conventon and ts Protocols provde some gudance on those provsons pertanng to compensaton. The gudes can be consulted at: