POSITION OF HUMAN TRAFFICKING VICTIMS IN COURT PROCEEDINGS. Analysis of Judicial Practice for

Transcription

1 POSITION OF HUMAN TRAFFICKING VICTIMS IN COURT PROCEEDINGS Analysis of Judicial Practice for I Introduction Within its activities aimed at improving the status of victims of human trafficking, NGO ASTRA Anti Trafficking Action has been monitoring steadily the position of the human trafficking victims in court proceedings through annual analyses of the judicial practice in Serbia since The continued monitoring and analysis of the judicial practice in 2016, through observing court proceedings and analysing court judgments, represents the continuation of efforts to improve the position of trafficked persons in court proceedings. The analysis of court practice in this area, with a special focus on the position of victims of human trafficking and state of their rights in court proceedings, enables the monitoring and better understanding of changes in the implementation of the existing legal framework, the alignment of domestic legislation with international standards and the efficiency of the existing regulations. The results of the analysis represent a significant basis for further activities so as to correct the existing inadequacies and detect key areas in the existing legislation in need of improving, or activities directed towards more consistent implementation of the present norms. The monitoring and analysis of the judicial practice in the previous period ( ) indicate that, in order to fully recognise the position of victims of human trafficking, it is necessary to equally follow and monitor court proceedings, as well as to collect and analyse court decisions. The monitoring of trials gives a direct insight into the course of the proceedings and the position of victims before and during the trial, the aspect of safety and protection while participating in the proceedings and especially the attitude of the participants in the proceedings toward the victim, which cannot be entirely recognized from the content, i.e. reasoning of court decisions. Continuity in monitoring court proceedings also offers a possibility of data comparison on an annual level as well as enabling the observation of possible changes in the functioning of mechanism for the victim protection during the proceedings. On the other hand, the analysis of the court decisions provides a comprehensive insight into the course of the proceedings, the duration and evidence presented, the uniformity of case law, as well as the penal policy, which further reveals the position of the victim in the process of decision-making. Having in mind the gravity of the consequences suffered by the victims of human trafficking, providing an efficient system for victim protection and readily available mechanisms for them to exercise their rights have got to be among the priorities in the process. However, the exercise of victims rights and their protection in court practice are still far from 1

2 international standards. The results of the analysis of judicial practice in 2016 show that victim-centred and rights-centred approach are still lacking in court proceedings; the judicial authorities stull treat victims exclusively as the sources of information about the crime. As in the previous year, it may be concluded that despite a certain progress and implemented education programmes, there is still a level of misunderstanding of the vulnerable position of the victims of human trafficking, which, along with lenient penal policy and the inability of victims to obtain compensation, calls into question the degree of the victims rights realization. Despite the progress achieved at the legislative and institutional levels, the improvement of cooperation between the competent authorities and nongovernmental organizations, as well as the education conducted in this area, the case law still fails to fully fulfil basic standards of protection of rights to the extent guaranteed by ratified international instruments, especially in the area of the protection of privacy, safety and protection of the victim, the hearing of the victim in the court proceedings, and the right to compensation. The insufficient implementation of the existing laws which may improve the protection of victims in the proceedings, coupled with shortcomings in the certain aspects of the present legal framework, still represent one of the basic problems in practice. Therefore, the results so far achieved indicate that a comprehensive approach to the protection of victims interests and rights in court proceedings is impossible to achieve without conforming to the international standards in this area, consistent application of the present legislation and the participation of all involved in the proceedings. 2

3 II Monitoring and analysis of judicial practice: objectives and methodology The analysis of judicial practice for 2016 is focused, as it was in the previous years, to perceive the position of the human trafficking victims in court proceedings as thoroughly as possible, and in relation to the basic standards of protection, exercising of rights and providing assistance to the victims of human trafficking set by the Protocol to Prevent, Supress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime of (the Palermo Protocol) and the Council of Europe s Convention on Action against Trafficking in Human Begins of The continuation of monitoring and analysis of the judicial practice is aimed at regular monitoring and objective observing of problems in practice, which may be due to flaws in domestic legislation or the inconsistent application of the existing laws, thus presenting a valid basis for recommendations and further improvement of legal protection of the human trafficking victims. As the results and observations collected during the monitoring and analysis of the judicial practice in the period of have shown significant and persistent flaws in the implementation of the present legal norms, continuing to monitor and analyse the judicial practice appears justifiable in order to further improve the position of the human trafficking victims before the courts, in concordance with the obligations assumed from the ratified international documents of this field. The main objective of the analysis is, as it was in the previous years, to recognise the position of the human trafficking victims in court proceedings in order to evaluate the conformity of the internal legal norms to the international standards in this field, the efficiency and application of the present legal norms in practice, the uniformity of case law, as well as the influence of the training the employees in the judiciary have had so far, all this with the aim to improve the position of the victims of this crime in the court proceedings. The monitoring of court practice implemented in the course of 2016 follows the objectives and methodology of the previous analyses from the period It was performed through two types of activities. The first one includes the observing of court proceedings by ASTRA s researchers. The proceedings were in the most cases conducted in relation to trafficking in human beings and related offences, specifically mediation in prostitution and trafficking in minors for adoption. The researchers entered all the relevant data from the monitored trials into special forms - questionnaires. The second activity, as it has been so far, is the analysis of judgments obtained from competent courts which were passed during 2016 in first-instance and appellate criminal proceedings for the above listed offences. Within the monitoring of selected court proceedings for the offence of human trafficking, 51 trials were observed in 16 criminal proceedings before competent courts in five towns in Serbia (the Higher Courts in Belgrade, Šabac, Zrenjanin, Smederevo and Niš). ASTRA s researchers had direct contact with the victims and their representatives, as well as an insight into the course of the proceedings and activities of other participants in the proceedings. In order to improve the quality of the trial monitoring, a questionnaire in the form of trial report was used, which the researchers were filling in after the end of each session they monitored, which questionnaire was designed in such a way as to provide full insight into the position and protection of the victims rights in the proceedings. A total of 37 court decisions made in criminal proceedings in 2016 were collected for the analysis specifically 20 first-instance judgments (subject-matter jurisdiction of the Higher 1 Official Gazette of the FRY - International Treaties, No. 6/ Official Gazette of RS - International Treaties, No.19 /

4 Courts in Belgrade, Novi Sad, Jagodina, Leskovac, Požarevac, Kragujevac and Smederevo; one trial was held before the Basic Court in Vranje) and 17 second-instance judgments passed on appeals (subject-matter jurisdiction of the Court of Appeal in Belgrade, Novi Sad and Kragujevac), 12 of which refer to the obtained first instance judgments. Data collected from the questionnaires filled in by the researchers present at the trials, as well as those from the obtained judgments, were analysed quantitatively (statistically) and qualitatively. The analysis aimed at data, i.e. indicators of significance for assessing the position of the victim with regard to the protection and realising basic rights in court proceedings. Quantitative (statistical) analysis, depending on the available data from the questionnaires or judgments, provides information such as: basic data on the injured party and the defendants, type of crime, duration of proceedings, presence of public, detention, type of decisions and the amount of punishment. As the questionnaires from the monitored trials and obtained judgments provide different kinds of data, the specific features in the data processing have been distinctly mentioned in the general information in the chapters concerning the analysis of the trial monitoring and judgments analysis. Qualitative analysis, based on available statistical data, as well as the thorough analysis of the questionnaires and all the first-instance and second-instance judgments, deals with the position and rights of the victims of human trafficking through the most important aspects such as protection of the victim-s privacy, victim assistance counselling and providing information, safety and protection; special attention was paid on the aspects of victims hearing in the court proceedings and the right to compensation. Aside from these aspects of protection and exercising victims rights in the court proceedings, the analysis of the court judgments puts special emphasis on the penal policy, which is an important indicator of the attitude of the judicial system towards certain criminal offences. The complete analyses of the judicial practice is, as it was in the previous years, aimed at a more comprehensive appreciation of the position and exercising of rights of the victims of human trafficking in the court proceedings compared to basic international standards of protection and exercising of rights of the victims. Therefore, the analysis for 2016 maintains the structure following the guidelines given by the most important international documents concerning the measures to provide assistance and protection to the victims in order to improve their position, such as protection of privacy and identity of victims (Article 6 of the Palermo Protocol and Article 11 of the Council of Europe Convention on Action against Trafficking in Human Beings), assistance to victims - providing information and help in the exercising of the rights and interests of victims in court proceedings and measures for the safety of the victim (Article 6 of the Palermo Protocol and Articles 12 and 15 of the Council of Europe Convention on Action against trafficking in Human Beings) and compensation (Article 6 of the Palermo Protocol and Article 15 of the Council of Europe Convention on Action against Trafficking in Human Beings). With each individual segment of the rights and position of victims, special consideration was given to the possibilities and legal solutions provided by the Criminal Code 3 (CC), the Law on Juvenile Offenders and Criminal Protection of Minors 4, and the Criminal Procedure Code 5 (CPC). In this text, terms used, where appropriate, to denote the victims of human trafficking or other crimes dealt with in the analysis are: victim of trafficking, victim, injured party. The term defendant is used as a generic term for the suspect, the accused, and the convicted person, within the meaning of the term under Article 2 of the Criminal Procedure Code. 3 Official Gazette of RS, No.85 / 2005, 88 / corr., 107 / corr., 72/2009, 111/2009, 121/2012, 104/2013 and 108/ Official Gazette of RS, No.85 / Official Gazette of RS, No. 72/2011, 101/2011, 121/2012, 32/2013, 45/2013 and 55/

5 III Monitoring of Court Proceedings 1. General Information on the Monitored Proceedings In the course of 2016, criminal proceedings for the crime of human trafficking and related crimes conducted before competent courts of first instance in five towns in Serbia (Belgrade, Šabac, Zrenjanin, Smederevo and Niš) were monitored. A total of 16 individual proceedings were monitored, 11 of which were in Belgrade, two in Niš and one in Šabac, Zrenjanin and Smederevo each. The researchers were present at 51 trials (main hearings). Monitored proceedings include a total of 22 injured persons and 35 defendants, 78% of whom were charged with the offence of human trafficking under Article 388 CC, 11% with the offence of trafficking in minors for adoption under Article 389 CC and 8% of the defendants were tried for the crime of mediation of prostitution under Article 184 CC. Indictment 38% 11% 8% 3% Trafficking in human beings Trafficking in minors for adoption Mediation of prostitution Aiding the defendant after the commission of the offence During 2016 no civil proceedings for compensating the victims of human trafficking were monitored. As was noticed in the analyses for the previous years, the lack of civil proceedings in which victims may claim compensation shows that realising this aspect of the victims rights is still hindered. Given that the compensation claimed during the criminal proceedings by the human trafficking victims in their capacity of the injured party is almost never awarded during the very proceeding; the victims are forced to start civil proceedings for the damages from the defendants after the final completion of criminal proceedings. Long civil proceedings, high costs and the fact that victims have to undergo testifying and forensic expertise all over again, obviously present obstacles which discourage the victims to initiate such proceedings. All monitored trials concerned the hearings in criminal proceedings before competent first-instance courts. As the length of the postponement periods of the main hearings is a significant indicator of the efficiency of court proceedings, it has been recorded that the shortest period between two trials in one proceeding was one day while the longest one was four months (which corresponds to the data from the last year s analysis); the average period between main hearings was 51 days. From the total number of the monitored trials, more than half specifically 28 were not held for a variety of reasons, the most common one being the absence of the defendant (in 15 cases, whereby in two cases because the defendant was not brought from the detention facility), followed by the absence of the defence attorney (4 cases), the absence of the victim (3 cases), the absence of the judge (2 cases) and the absence of the forensic witness (2 cases). This data shows that the speed of the proceedings is still not satisfactory, despite the more frequent scheduling of the trials and that, as it was in the previous years, one of the main reasons for postponing trials is the absence of either the defendants or their attorneys (a total of 61% of cases, which is more than in 2015, when this percentage stood at 50%). 5

6 Reasons for not holding a hearing 13% 7% 6% 6% 10% 10% 48% Absence of the defendants Absence of the victims Absence of the defence attorney Absence of the judge Absence of the forensic expert Other reasons Unknown The postponing of trials obviously still represents a serious problem that needs special attention, especially in the case of a victim being present at court to testify. Reappearance at court poses additional stress to the victims and is a potential source of secondary trauma because the victims are forced to repeatedly meet with the defendants, their relatives, and their friends. Compared to available statistical data from the analysis of the monitored court proceedings in 2011 and 2012, as well as in 2015, when in 45-50% of the cases the trials were postponed because of the defendant s or defence attorney s absence, data for 2016 show that, despite changes of legislation and judicial reform, this problem still remains present, even to a greater extent, specifically in 61% of cases. According to available data on the age of victims (known in 59% of cases), out of 22 victims in observed trials, 50% are minors and 9% adults. Age of the victims 9% 50% 41% Minor Adult No data According to available data from the monitored trials, the victims had attorneys in eight cases, in two of which the victims were represented by attorneys specially trained by ASTRA to work with the victims of human trafficking. In 1 proceeding the attorney was engaged by the Centre for Trafficking Victims Protection. In one case the victim did not have an attorney while there is no data on the remaining seven proceedings. 2. Position and rights of the victims 2.1. Protection of Victims Privacy The protection of privacy and identity of the victims of human trafficking, indicated under Article 6 of the Palermo Protocol and Article 11 of the Council of Europe Convention on Action against Trafficking in Human Beings, represents one of the basic prerequisites for the protection of trafficked persons in a court proceeding. Analysed data from the questionnaires on monitored trials indicate that the current provisions on the protection of victims in criminal proceedings are not sufficiently applied, although according to the Criminal Code of Serbia, trafficking in human beings is classified as a particularly grave criminal offence. The absence of adequate application of the legal provisions which would enable the victims to protect their identity and privacy, as well as their safety, is largely a consequence of misunderstanding the vulnerable position of the human trafficking victims by the judges and prosecutors. 6

7 Of all monitored trials in criminal proceedings, the public was excluded only in two cases for the reasons envisaged by the law; in one of these cases, the trial became public pending the proceedings. A total of ten proceedings were open to the public. The presence of media was not recorded in any of the trials. The representatives of NGO Atina attended one trial. Public attendance 6% 63% 6% 25% Open to public Closed to public Public included during proceedings No data The data indicates that the protection of identity and privacy of the victim is still not at a satisfactory level, despite the significant number of juvenile victims. Full name of the victim was used in 11 proceedings, while the information about victim s dwelling was revealed in one case. The data on previous life of the victim were disclosed in one case, as well as the data on victim s health status which relate to addiction diseases. Information on the victims 7% 7% 7% 79% Name Information on the previous life Information on the health status Address Regarding of two cases where the injured parties were interrogated in the monitored trials, in one case the defendant was removed from the courtroom during the interrogation of the victim who was awarded the status of especially vulnerable witness, because it was not possible to organize questioning via video link. In the other case, there is no data on the manner of interrogation of the victim. Only one victim had the status of especially vulnerable witness, while in one case there was a measure of prohibition of approaching the victim. This data indicates that the measures for protecting the privacy and identity of victims are insufficiently applied in court proceedings, despite binding international standards and constitutional provisions which allow the possibility of excluding the public in order to protect the privacy of the parties involved in the proceedings. The provisions of the Criminal Procedure Code allow this possibility because, as stipulated by Article 363, the panel may, ex officio or at the request of the parties or their attorneys, exclude the public for the entire main hearing or its part, if needed for the purposes of public order and morals, best interest of a minor, or the privacy of the parties involved. In such a case, however, the panel may allow the presence of expert public and, at the request of the defendant, the presence of their spouse or close relatives, who are obliged to keep everything they heard at the hearing as secret (Article 364). It can be concluded that domestic legislation contains all the necessary institutes to ensure the protection of the privacy and identity of the human trafficking victims in court proceedings, so this aspect of victim protection is yet another example of inconsistent application of existing legislation. 7

8 2.2. Victim assistance counselling and information Another important aspect in considering the position of the victim in court proceedings is victim assistance, i.e. giving information and assistance to enable their rights and interests in court proceedings (Article 6 of the Palermo Protocol, and Articles 12 and 15 of the Council of Europe Convention on Action against Trafficking in Human Beings). In the proceedings directly monitored, special attention was given to supporting the victim, informing the victim about their rights in the proceeding, and providing free legal aid. The analysis of the data from the questionnaires indicates that realising the right of victims to legal aid, counselling, and information still largely depends on the involvement of nongovernmental organisations, such as ASTRA, which provides legal aid, support, and court accompaniment to the victims, with significant engagement of the Centre for Trafficking Victims Protection. It is necessary to provide victims with assistance in the realization of their rights in the proceedings in greater number of cases, In this way, the victims are enabled to realise their rights in the proceeding so as to have timely information on the course of the proceeding and the way in which the trial will develop, along with the psychological support which gives them more security. According to available data from the monitored trials, the victims as injured parties had an attorney in eight cases, two of which were attorneys specially trained by ASTRA to deal with human trafficking victims; in one proceeding the attorney was engaged by the Centre for Trafficking Victims Protection. In one case the victim did not have an attorney while there is no data on the remaining seven proceedings. In the monitored proceedings, the victims were present at six trials. In all these cases they had support from other persons (four victims were accompanied by ASTRA, one victim was accompanied by two psychologists and one by a family member). Accompaniment of psychologist, social worker or persons of trust 29% 57% 14% ASTRA s representative Psychologist Father Bearing in mind the gravity of the consequences and the overall delicate position of the human trafficking victims, it is necessary to give more attention to this aspect of victim protection. The situation could be largely improved if authorities of the proceedings would entertain the possibility of assigning the status of particularly vulnerable witnesses to the victims more often. The majority of the human trafficking victims meet one or more requirements provided by law for this status (age, way of life, gender, health status, nature, manner, or consequences of the crime, and other circumstances of the case), and the authority of the procedure may, should they consider it necessary to protect the interests of a particularly vulnerable witness, decide to appoint an attorney to the witness (Article 103, Paragraph 3 of the CPC). In addition, the law obliges the authority of the proceeding to inform the participants about their rights, as well as warn the participants about the consequences of missing out on a court action or not exercising their rights due to ignorance (Article 8 CPC). In addition, the public prosecutor and the court are obliged to inform the injured party about their rights in the proceedings (Article 50). 8

9 2.3. Safety and Protection of the Victim Despite the obligation to provide the human trafficking victims with a system of measures for their safety, security, and protection (Article 6 of the Palermo Protocol and Article 12 of the Council of Europe Convention on Action against Trafficking in Human Beings), in the monitored court proceedings these special measures are still not being applied sufficiently. The safety of the victim can be threatened not only by the defendant, but also by other participants in the proceeding, or the family and friends of the defendant. Undeniably the victim s sense of security increases if the defendant is in custody during the trial, providing all the legal requirements have been met. Statistical analysis of the available data from the questionnaires on the trial monitoring shows that the defendants were in custody in 22% of the cases. Eight defendants were detained, but in one case detention was cancelled during the proceedings; 22 defendants were not detained, while data is unavailable for 5 defendants Detention of defendants 14% 61% 22% 3% Not in detention No data In detention Detainee released during proceeding Threatening, putting pressure on, and intimidating the victims by the defendants or their friends and family present a serious problem which demands adequate response from the court or prosecution. Besides meeting the defendants in court, the additional trauma for the victims is having to wait for the beginning of trial in the court building while the defendants are close by. Therefore the actions of the prosecution and courts must be directed towards providing security and safety for the victims, primarily to protect their rights and interests, avoid secondary victimisation, but also to ensure that their testimony is of structural and essential quality, so as to be in the interest of properly conducting the proceeding and determining criminal responsibility. The worrying fact is that only one victim was given the status of a particularly vulnerable witness while in another case there was a measure of prohibition of approaching the victim. Victim protection measures 4% 5% 91% No data Status of especially vulnerable witness Prohibition of approaching the victim The provisions of the Criminal Procedure Code oblige the court to protect the injured party from being insulted, threatened, or attacked in any other way (Article 102). These provisions, along with those on particularly vulnerable witnesses (Articles 103 and 104), may provide more security and protection for the human trafficking victims. In addition, the protection of the victims safety can hugely be improved by adequate application of the provisions on the safety measures concerning the presence of the defendant, and the free conduct of the criminal proceedings under Article 188 CPC which, along detention, also prescribes other measures, such as a restraining order, prohibition of meeting or communicating with a certain person, or visiting certain places. 9

10 2.4. Hearing of Victim The cited provisions of the Palermo Protocol and Council of Europe Convention relating to the protection of the human trafficking victims rights, exercising their rights in the proceeding, and protecting their safety, must especially be considered during the victim s hearing. Actions of the prosecution and the courts must be directed towards the safety and protection of the victim, especially during the hearing, so as to protect their rights and avoid secondary victimisation, while simultaneously ensuring a high quality testimony in the interest of regular conduct of the proceeding and determining criminal responsibility. The feelings of fear and insecurity that the victim experiences during the hearing in the presence of the defendant affects not only the mental status of the victim, but also the credibility of the testimony. Therefore, the protection of safety and security of the victim during the presence of the defendant and testifying is a matter of public interest. Hence, it is the obligation of the judicial authorities during the proceeding to not only protect the rights of the defendants, but also to respect the rights of injured parties in the process, and to take all possible measures to ensure the safety of the victims during the testimony. The analysis of available data for 2016 show that the victims were interrogated in two cases in the monitored trials. In one case when a victim who had the status of especially vulnerable victim was interrogated, the defendant was removed from the courtroom. In the other case, there is no data whether the victim testified in the presence of the defendant. Testifying in the presence of the defendant 50% 50% No No data The data from the monitored trials reports indicate that the attitude of the judges and prosecution toward the victims had been assessed positively in all the cases with available data (i.e. in cases when the victims were giving statements). In view of the fact that interrogation of the victim in the presence of the defendant leads to increased stress, fear, and nervousness of the victim, which not only amplifies the victim s trauma, but also affects the quality of the testimony itself, as well as the behaviour of the victim during the hearing, the conclusion made in the last year s analysis is still valid it is necessary to give more attention to balancing the rights of the defendants (such as the right to be present at the hearing of the victim and to pose questions) and the rights of victims in the proceedings. It is of utmost importance for the authorities of the proceeding to recognise the delicate position of the human trafficking victims in order to consistently apply the existing legislation and to prevent retraumatising the victims. The Criminal Procedure Code provides special rules for the hearing of persons with the status of particularly vulnerable witnesses (Article 104), such as questioning only through the authorities of the proceeding, acting with special care so as to avoid negative consequences on the victim s personality and mental status, holding a hearing using technical devices without the presence of other participants, conducting the hearing in the victim s home, or in another authorised institution, prohibiting confrontation without the consent of the particularly vulnerable witness. 10

11 2.5. Compensation The right to compensation for the victims of human trafficking represents one of the important issues towards the goal to fully protect the victims of this crime. Although this issue is included in the minimum standard of protection (Article 6 of the Palermo Protocol and Article 15 of the Council of Europe Convention on Action against Trafficking in Human Beings) and is regulated by internal law, judicial practice in this area is almost non-existent. The court proceedings monitored during 2016 have not encompassed any court procedure dealing with compensation in a civil procedure, which starts after the completion of criminal proceedings in which it is addressed to litigation. The fact that the victims of human trafficking are referred to pursue compensation claims in civil procedures, and that this claim is never decided in the criminal proceedings despite the legal possibilities, represents an additional obstacle in the full realisation of rights of the victims of this crime. The 2016 questionnaire data suggests that compensation claims were put forward in two cases, but were not decided during criminal proceedings. Although the provisions of the Criminal Procedure Code relating to the exercise of compensation claim (Articles ) provide a basis for deciding on this claim in the criminal procedure, in practice, compensation claims are almost never decided in criminal proceedings, which often discourages the victims attorneys from making the claims during the trial. The present judicial practice could be changed if there were more such requests, particularly bearing in mind that during the criminal proceedings victims undergo forensic examination, and that expert opinions contain sufficient data on the resulting non-pecuniary damage and harmful consequences. 11

12 IV Court Judgments Analysis 1. General Information and Observations Monitoring and assessment of the position of human trafficking victims in judicial practice through analysing court judgments was continued during The subject of qualitative (statistical) and quantitative analysis was the collection of court decisions relating to the crime of trafficking in persons under Article 388 CC, mediation in prostitution (Article 184 CC) and trafficking in minors for adoption (Article 389 CC), passed during the year in the first instance or second instance courts. Although the offence of human trafficking prevails, a certain number of judgments had to do with the proceedings where, along with this crime, there was also the crime of mediation in prostitution under Article 184 CC, mainly as a result of re-qualification of charges during the proceedings where the initial charges for the crime of trafficking in persons resulted in judgment for the crime of mediating in prostitution. The analysis encompassed a total of 37 court judgments rendered in the criminal proceedings in 2016, partly before first instance courts (subject matter jurisdiction of the Higher Courts in Belgrade, Novi Sad, Jagodina, Leskovac, Požarevac, Kragujevac and Smederevo and one case was conducted before the Basic Court in Vranje) partly before appellate courts in deciding on the appeal (subject matter jurisdictions of the Courts of Appeal in Belgrade, Novi Sad and Kragujevac). Of the total number of judgments, the analysis covered 20 first instance judgments and 17 appellate court judgments yielded on appeal, 12 of which concern the analysed first instance judgments. Of 20 first instance decisions, 19 are judgments and one decision on stopping the proceedings as the Higher Public Prosecutor gave up prosecution. Four first-instance judgments were made based on plea agreement (one in relation to trafficking in human beings, two in relation to mediation in prostitution and one in relation to trafficking in minors for adoption). The presented quantitative (statistical) analysis shows the types of crimes, duration of the proceedings, types of decisions and the amount of punishment, as well as the data on the defendants and victims. All data was retrieved from the analysis of judgments rendered in first instance courts. The appellate court decisions served as the basis for determining the type of decision (approval revocation, or alteration of first instance decisions). Qualitative analysis, besides using statistical data, also deals with the position and rights of human trafficking victims through the most important aspects of protecting their rights, using all the collected judgments, both from first instance courts and appellate courts, as a basis. The analysed issues include the protection of victim s privacy, counselling and providing information, safety and protection, and especially the aspect of the victims hearing in court proceedings, as well as their right to compensation. Aside from these aspects of protection and exercising of victims rights in court proceedings, the analysis also gives an insight into penal policy. First instance judgments made in 2016 in the criminal proceedings mostly refer to the criminal offence of human trafficking (Article 388 CC), followed by the offence of mediation of prostitution (Article 184 CC) and trafficking in minors for adoption (Article 389 CC). The analysed judgments include 31 defendants. As for the charges, statistical analysis shows that in 71% of the cases, the indictment was for the crime of trafficking in human 12

13 beings (22 persons were charged with this offense). Of this figure, indictments for one count of human trafficking (include three persons charged as co-perpetrators) refer to 17 persons; two persons are charged for human trafficking and human trafficking in coperpetration; one person was charged for three counts of human trafficking and the offence of mediation of prostitution in two different proceedings (in both cases the defendant was found guilty only of the offence of mediation of prostitution due to the change of qualification); two persons were charged for the offence of human trafficking and other offences. A total of five persons (13%) were charged for the crime of mediation of prostitution, of whom one in concurrence with human trafficking, two only for the offence of mediation of prostitution and two for this and other criminal offences. Three persons (10%) were charged for the offence of trafficking in minors for adoption. One person was charged for the offence of aiding the perpetrator after the commission of the offence under Article 333 CC and one for attempted under from Article 178 CC. Indictment 10% 71% 13% 6% Trafficking in human beings Trafficking in minors for adoption Mediation of prostitution Other crimes The duration of the proceedings before the first instance courts was analysed in relation to the time period from indictment to first instance judgment. According to this criterion, the maximum length of a court proceeding is five years and 9 months and the shortest 2 months; the average length of the proceedings was 2 years and 4 months. This does not differ significantly from 2015, except for the fact that the longest proceedings lasted 9 months longer. Regarding statistical data on the duration of first-instance court proceedings, the comparison with the previous analyses shows that the percent of proceedings which lasted up to one year increased year-to year, being 40% in 2016 (26% in 2015). Although this point to certain acceleration of the proceedings, it may still be observed that the efficiency registered in 2014, when as much as 60% of the proceedings were completed in less than one year, has not been achieved. Statistical data indicate that in 25% cases the proceedings lasted between 1 and 3 years, and, as it was in the last year, 30% lasted longer than 3 years. Duration of trial 25% 40% 30% 5% Up to one year 1-3 years More than 3 years No data The data obtained by statistical analysis of the trial court decisions shows that conviction was made for all crimes in 94% of the cases, which is significantly higher percent than in all previous analysis conducted in (the largest percentage of convictions was previously recorded in %). Of all the convictions, 16% of judgments were made based on plea agreement. In one case the proceeding was adjourned. Of all the convictions, 19 persons were convicted for human trafficking (including human trafficking in co-perpetration). In that respect, convictions for this offence relate to 64% of cases, of which one person was accused of two counts of trafficking in human beings and one of trafficking in human beings and mediation of prostitution. As a result of 13

14 changed qualification regarding the offence of trafficking in human beings, one person was found guilty of ill-treatment and torture and one (in two different proceedings) of mediation of prostitution. 20% of the convictions refer to the offence of facilitation of prostitution and 10% to trafficking in minors for adoption. First instance judgments 78% 16% 6% Conviction Plea agreement Adjournment Convictions 10% 20% 3% 3% 64% Trafficking in human beings Facilitation of prostitution Trafficking in minors for adoption Ill/treatment and torture Prohibited sexual acts Data on the types and amount of punishment indicate that of the total number of 19 persons who were found guilty of human trafficking, 18 were sentenced to imprisonment and one person to suspended sentence of 1 year and 6 months with probation period of 4 years (Article 388, Para. 9 in relation to Para.8 and 1 CC). Sentences for the offence of mediation of prostitution ranged between 6 months and 1 year, whereby the highest uniform sentence was 3 years with a fine, while persons convicted for the offence of trafficking in minors for adoption were sentenced to suspended sentences. As for the amount of punishment imposed for the crime of human trafficking, most of the defendants received a 3 to 5 years prison sentence, in as much as 84% of the cases (63% imprisonment of 3-4 years and 21% imprisonment of 4-5 years). The imprisonment of up to 3 years was given in 5% of the cases and the imprisonment longer than 5 years in 11%. These figures fully correspond to the data obtained in the 2015 analysis. Statistical data show that the average prison sentence for this offence was 3 years and 9 months; the highest individual prison sentence was 6 years and the shortest prison sentence was 1 year and 6 months, which is lower compared to the last year s data, when, for example, the average prison sentence stood at 4 years and 6 months. Having in mind data on penal policy from the analyses conducted in the previous years, it can still be concluded that the percentage of prison sentences longer than 5 years is in permanent decline (27% in 2013, 14% in 2014, 11% in 2015 and 11% in 2016), while prison sentences ranging from 3 to 4 years prevail. Prison sentences for human trafficking 21% 63% 11% 5% 3 to 4 years 4 to 5 years More than 5 years Less than 3 years During trial, detention was imposed in 62% of the cases, which is not significantly different from the data for the previous year, whereby in another 6% of the cases the defendants were in detention, i.e. serving a prison sentence, but in relation to other court proceedings that were not the subject of this analysis. The longest period of detention was 34 months and the shortest was three days. 14

15 Detention 32% 62% 3% 3% Yes No In detention in relation to other proceedings Serving prison sentence By analysing the personal information of the defendants, it can be concluded that they are mostly citizens of the Republic of Serbia (28 defendants); one person is the citizen of Montenegro and for two persons there is no data. They are male in 77% of the cases. This does not significantly differ from the previous year s analysis. As for the age of the defendants, where there is no data for 32% of the persons, it can be stated that the largest number of the defendants is between 30 and 50 years of age. The fact that the defendant was a young person was assessed as a mitigating factor when deciding on penalty in 5 cases, as well as the fact that the defendant is an elderly person in poor health in one case. Gender of defendants 77% 23% Male Female Age of defendants 32% 23% 19% 26% Older than 50 Between 30 and 50 Younger than 30 No data According to the available data on marital and family status of the defendant, 37% are married, 10% are in common-law marriage and 19% are divorced. The majority of the defendants have children. The fact that the accused have children was assessed as a mitigating factor in determining the amount of punishment in most cases. Marital status of defendants 26% 26% 10% 19% 19% Married Common-law marriage Divorced Single No data Children of defendants 3% 32% 23% 13% 29% No children One child Two children Three children No data Statistical analysis of the educational and employment status of the defendants shows a lower level of education and high unemployment rate. With regard to education, the available data indicates 3% of the defendants have graduated from university, 29% from secondary school, 13% elementary school, 13% have not finished elementary school, 15

16 while 7% have never attended school. Analysis of the defendants employment status shows that 32% of persons are unemployed. Difficult family and material situation of the defendant was assessed by the court as a mitigating factor in determining the amount of punishment in nine cases. Education of defendants 3% 29% 32% 3% Higher education 13% Secondary education Incomplete secondary education 13% Elementary school 7% Incomplete elementary school No school No data Employment status of defendants 32% 7% 13% 45% 3% Unemployed Occasional jobs Employed Retired No data Concerning the information on the defendants previous convictions, the statistical data show that 43% of the defendants had previous convictions, which is in line with data from the 2015 analysis. From the total number of persons previously convicted, one person had had previous convictions for the offence of mediation of prostitution, while 9 persons had multiple previous convictions. Previous convictions were always considered as aggravating circumstances by courts in determining the amount of punishment. Previous convictions of defendants 43% 50% 7% No Yes No data According to available data from the analysed first-instance judgments, from the total of 34 victims, 90% are female and for 10 persons there is data that they are citizens of Serbia. The information from the analysed judgments show that a significant number of victims had still been underage when the crime was committed (one third, that is, 33%) and that sexual exploitation (forced prostitution or other kind of sexual exploitation) as a form of human trafficking is still predominant. Sexual exploitation was determined in 19 cases; in some cases it is mixed with forced begging and labour exploitation. Forced begging, labour exploitation and establishment of slavery were determined in 7 cases, while in one case the victim was forced to commit crimes. In one case, the victim was married to the defendant, in 4 cases the victim was in common-law marriage or emotional relationship with the defendant and in one case the victim was a child of the defendant. In all cases, those victims who pursued compensation claims were directed towards civil proceedings in order to realise said claims. Gender of victims 90% 10% Female Male 16

17 A total of 20 second-instance (appellate) judgments have been collected and analysed. When deciding on appeals, the first-instance judgment was confirmed in 71% of cases, which is slightly more compared to one year earlier (65%); in 6% of the cases the firstinstance judgment was revoked and the case was returned to the first-instance court for new trial. In 23% of the cases the Court of Appeal reversed the first instance judgment in terms of punishment, of which in one case the punishment was increased and in 3 cases reduced. The longest of decision-making, as measured from the date of the first instance until the appellate decision, was 8.5 months, while the shortest period of decision-making was 30 days, which corresponds to the data from the 2015 analysis. Second-instance judgments 6% 71% 23% Trial court judgment upheld Trial court judgment revoked Trial court judgment reversed 2. The Position and Rights of Victims The analysis of the judicial practice, in particular the 2016 court judgments, as in the previous years, is focused on the position of victims of human trafficking in court proceedings, following the basic standards of protection and assistance to the human trafficking victims set by the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against transnational organised crime of 2000 (Palermo Protocol) and the Council of Europe Convention on Action against Trafficking in Human Beings from With the aim to protect and improve the position of the human trafficking victims, protection of human rights and freedom of victims, as well as creating a comprehensive framework for the provision of protection and assistance, special attention is given to measures that ensure assistance and protection of the victims, such as protection of privacy and identity of the victims, assistance to the victims - providing information and help toward exercising victim s rights and interests in the court proceeding, measures for the victim s safety, as well as those concerning achieving compensation Protection of victims privacy Protecting the privacy and identity of victims of trafficking, prescribed by Article 6 of the Palermo Protocol and Article 11 of the Council of Europe Convention on Action against Trafficking in Human Beings is one of the basic requirements for the protection of human trafficking victims in court proceedings. Nevertheless, the existing provisions on the exclusion of the public, as well as provisions on the protection of witnesses in the proceedings for human trafficking are not sufficiently applied in practice, which is especially surprising given that, according to the Criminal Code, the crime of trafficking in classified as a particularly grave crime. Inadequate implementation of legal provisions that would allow victims protection of identity and privacy as well as safety, is largely the result of failure to understand the vulnerable position of the victims of trafficking by judges and prosecutors. 17

18 This aspect of protection of the human trafficking victims is especially important taking into account data on age of the victims and the prevalent type of exploitation. The data on the analysis of first-instance judgments in 2016 show that a significant number of victims were still underage at the time the offence was committed (one third, i.e. 11 out of 34 victims), and that sexual exploitation (forced prostitution or some other form of sexual exploitation) was determined in 19 cases, thus being the prevalent type of exploitation. Available data from the first-instance judgments show that in only 5 cases public was excluded from the main hearing. Protection of the victims privacy has been largely compromised by exhibiting certain evidence during the proceedings and entering them in the judgments, such as forensic expertise of the victims by psychologists or psychiatrists, or guardianship authority reports collected during the process. Psychological and psychiatric expertise of the victims, performed in the proceedings chiefly to determine the credibility of the victims testimony, as well as the guardianship authority reports, although necessary evidence concerning the ability of the witness to testify, or to determine the elements of the crime, are often too detailed and can compromise the privacy of the victim. The Criminal Procedure Code (Article 131, paragraph 2) stipulates that psychiatric assessment of the victim is ordered if suspicion arises about the capacity of a witness to convey their knowledge or observations in connection with the subject matter of the testimony, the expert witness will establish whether the witness is mentally disturbed and issue an opinion whether the witness is capable of testifying (Article 132, paragraph 3). Violation of victim s privacy can be stated in this way in a certain number of judgments in which findings of forensic experts or guardianship authority are quoted. Thus, data which are often unnecessary are quoted, such as detailed family situation and living conditions of the victims, disturbed family relations, alcoholism of victim s parents, addiction diseases, and psychiatric illnesses. According to these reports, in certain cases the judgments contained information such as the history of treatment in psychiatric institutions with detailed diagnoses, detailed report on health status of the victims listing sexually transmitted diseases and the details of the gynaecological examination, the detailed circumstances of family relations, including the outcome of a family dispute over the custody of a child and the model of visitation of the victim with her underage child in controlled conditions, behaviour of victim s parents who refused to support her etc. It should be especially emphasized that, despite detailed forensic examination of victims which often include the determination of psychiatric trauma, a recommendation not to question the victim at the main hearing is often missing and such findings were not used in even one case for making the decision on victim s compensation claim even when they contained detailed data on suffered fear, injuries and other harmful consequences. All this indicates that the measures for the protection of privacy and identity of victims are insufficiently used in court proceedings. The provisions of the Criminal Code Procedure provide this possibility, for it is stipulated (Article 363) that the panel may, ex officio or at the request of the involved parties or defence, exclude the public from the entire main hearing or a part of it, if deemed necessary for the purpose of public order and morals, the best interests of a minor, or the privacy of the participants in the proceedings. In such a case, however, the panel may allow the presence of expert public and, at the request of the defendant, the presence of their spouse or other close relatives, who are obliged to keep everything they heard at the hearing as secret (Article 364). Furthermore, 18