Compensation For Victims of Trafficking in Persons

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Compensation For Victims of Trafficking in
Persons UNODC Perspective and State Practice
Expert Consultation of the Special Rapporteur
on Trafficking in Persons, Especially Women and
Children, Ms. Joy Ngozi Ezeilo, onThe Right to
an Effective Remedy for Trafficked Persons
Bratislava, 22 November 2010Simone Heri,
Organized Crime Branch, UNODC Vienna
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Purposes of Compensation

• Societal level Awarding compensation
  acknowledges that trafficking is a crime
• Individual level Victims pain and suffering are
  acknowledged and compensation can constitute a
  first step towards overcoming trauma inflicted
  and abuse suffered
• Practical level Compensations can assist victims
  to rebuild their lives
• Retributive level Compensation paid by
  traffickers can constitute a form of punishment
  and deter other traffickers

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Compensation in UNTOC and TIP Protocol

• Each State Party shall establish appropriate
  procedures to provide access to compensation and
  restitution for victims (Article 25(2) UNTOC)
• Each State Party shall ensure that its domestic
  legal system contains measures that offer victims
  of trafficking in persons the possibility of
  obtaining compensation for damage suffered
  (Article 6(6) TIP)

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Compensation Legislative Guides to UNTOC

• Protocol does not specify any potential source
  of compensation, which means that any of the
  following general options that States have
  developed would suffice to meet the requirement
  of the Protocol
• (a) Provisions allowing victims to sue offenders
  or others under statutory or common-law torts for
  civil damages
• (b) Provisions allowing criminal courts to award
  criminal damages (that is, to order that
  compensation be paid by offenders to victims) or
  to impose orders for compensation or restitution
  against persons convicted of offences
• (c) Provisions establishing dedicated funds or
  schemes whereby victims can claim compensation
  from the State for injuries or damages suffered
  as a result of a criminal offence.
• (Legislative Guides for the Implementation of
  the United Nations Convention Against
  Transnational Organized Crime and the Protocols
  Thereto (pp. 285-286, para. 60)

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Recommendations Adopted by Open-ended Interim
Working Group on Trafficking in Persons

• With regard to the compensation for victims of
  trafficking, States parties should consider the
  possibility of establishing appropriate
  procedures to allow victims to obtain
  compensation and restitution. (CTOC/COP/WG.4/2009
  /2, para. 14)
• States parties should endeavour to ensure the
  availability of a compensation fund or similar
  mechanism for victims of crimes, including
  trafficking in persons. (CTOC/COP/WG.4/2010/6,
  para. 56)

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Proposed Recommendations for Adoption at the
Third Session of the TIP Working Group

• Chair of the Working Group proposed
  recommendations interpreting or adding to
  Protocol obligations such as States parties
  should provide legal assistance and information
  regarding legal assistance to victims of
  trafficking to represent his or her interests in
  criminal investigations, including the obtaining
  of compensation.
• States parties did not arrive at consensus in the
  three hours scheduled for the Working Group at
  its 3rd Meeting
• Compensation will most likely be taken up again
  at the 4th TIP Working Group Meeting on 14-16
  December 2011

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The 5th Conference of the Parties to the United
Nations Convention against Transnational
Organized Crime

• Welcomed the work of the Working Group on
  Trafficking in Persons, including the Groups
  recommendations, resulting from its meeting on 14
  and 15 April 2009, 27 and 29 January 2010, and 19
  October 2010 (CTOC/COP/2010/L.5/Rev.1, para. 5)

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Cross-cutting Issues Article 6(2) TIP Protocol

• Article 6 (2) Each State Party shall ensure that
  its domestic legal or administrative system
  contains measures that provide to victims of
  trafficking in persons, in appropriate cases
• (a) Information on relevant court and
  administrative proceedings
• (b) Assistance to enable their views and
  concerns to be presented and considered at
  appropriate stages of criminal proceedings
  against offenders, in a manner not prejudicial to
  the rights of the defence.

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Cross-cutting Issues Status of Victims of
Trafficking in Persons in Receiving States

• States Party shall consider adopting legislative
  or other appropriate measures that permit victims
  of trafficking in persons to remain in its
  territory (Article 7)
• However The immigration status or the return of
  the victim to his or her home country or other
  absence of the victim of trafficking from the
  jurisdiction shall not prevent the court from
  ordering payment of compensation (UNODC Model Law
  against Trafficking in Persons, Article 27(2) and
  28(6)).

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Cross-cutting issues Financial Investigations,
Freezing, Seizing and Confiscation of Assets

• Criminal justices measures such as proactive
  financial investigations and early confiscation
  of proceeds necessary for the execution of
  compensation order
• States Parties shall, to the extent permitted by
  domestic law and if so requested, give priority
  consideration to returning the confiscated
  proceeds of crime or property to the requesting
  State Party so that it can give compensation to
  the victims of the crime (Article 14 (2))

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Cross-cutting issues Financial Investigations,
Freezing, Seizing and Confiscation of Assets

• Noting the low rate of convictions for
  trafficking in persons globally, as reported in
  the Global Report on Trafficking in Persons
  published by UNODC in 2009, States parties should
  increase their efforts to investigate and
  prosecute cases involving trafficking in persons,
  including by making timely use of financial
  investigation techniques, special investigative
  techniques and other tools designed to combat
  other forms of organized crime.
  (CTOC/COP/2010/6, para. 35)

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Cross-cutting Issues Financial Investigations,
Freezing, Seizing and Confiscation of Assets

• States parties should utilize the Organized
  Crime Convention and other multilateral legal
  instruments to develop and strengthen
  international judicial cooperation, including
  with regard to extradition, mutual legal
  assistance and confiscation of the proceeds of
  trafficking in persons. (CTOC/COP/2010/6, para.
  28(b))
• States parties should increase cross-border
  criminal justice action through enhanced use of
  joint investigations, information-sharing and
  confiscation of assets, in line with their
  domestic legislation. (CTOC/COP/2010/6, para. 36)

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State Practice Regional Action Plans

• BSEC Regional Action Plan for Strengthening the
  Criminal Justice
• Response to Trafficking in Persons (Black Sea),
  states that States should implement measures that
  offer victims of trafficking in human beings the
  possibility of obtaining compensation (para. 20).
• ECOWAS Initial Plan of Action Against Trafficking
  in Persons
• stipulates that States shall adopt legal
  provisions for the protection of victims of
  trafficking, and ensure that their domestic legal
  systems contain measures that offer victims of
  trafficking in persons the possibility of
  obtaining compensation for damage suffered (para.
  6).
• The OSCE Action Plan to Combat Trafficking in
  Human Beings
• Asks participating States to consider
  establishing a fund based on the confiscated
  proceeds of trafficking to be used for the
  benefit of trafficking victims including the
  establishment of a compensation fund for them
  (section III, para. 1.5).

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State Practice I Compensation Funds/Tribunals

• Bulgaria Assistance and Compensation to Crime
  Victims Act (18 December 2006)
• Provides for compensation of victims of crime
• Authorities responsibility of informing victims
  of such rights
• New South Wales Victims Compensation Tribunal
• Established under Victims Support and
  Rehabilitation Act (1996)
• In May 2007 Tribunal awarded compensation to a
  Thai woman who was trafficked to Australia as a
  child for the purpose of sexual exploitation
• Nigeria Trafficking in Persons Law Enforcement
  and Administration Act 2003
• The Act establishes a Trust to provide victims
  with compensation for economic, physical and
  psychological damage

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State Practice II Compensation Funds/Tribunals

• Egypt Law No. (64) of 2010 regarding Combating
  Human Trafficking, Article 27
• A fund shall be established to assist victims of
  human trafficking, which shall have a public
  juristic personality under the Prime Minister to
  provide financial assistance to the victims who
  have suffered harm resulting from any of the
  crimes stipulated in this law.
• A decision by the President of the Republic
  shall regulate this fund and determine its
  jurisdiction, resources and the sources of its
  funding.
• The proceeds of the fines sentenced for the
  crimes stipulated in this law, as well as the
  properties, objects, and means of transportation
  forfeited shall be allocated directly to the
  fund, which may also accept contributions,
  grants, and donations from national and foreign
  entities.

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State Practice Right to Initiate Civil Action

• Serbia Victims are able to file civil suits
  against traffickers and are entitled to temporary
  residence permits
• Hong Kong Special Administrative Region of China
  Victims may initiate civil proceedings for
  damages or compensation arising form injuries
  sustained as a result of being trafficked

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State Practice Cyprus

• Cyprus Combating of Trafficking in Persons and
  Sexual Exploitation of Children, Law No. 3(1),
  2000
• Article 8 gives victim right to sue for special
  and general damages
• The Court may take into consideration the
  following for general damages
• a. the extent of the exploitation and the
  benefit the liable derived from such
  exploitation,
• b. the future prospects of the victim and the
  extent to which such prospects were affected by
  the exploitation,
• c. the culpability of the offender,
• d. the relationship or the dominating position
  or influence of the offender with regard to the
  victim. (Article 8(2))
• The Court, in the award of special damages, takes
  into consideration every item of expense which
  resulted from exploitation including costs for
  repatriation in the case of foreigners. (Article
  8(3))

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State Practice Israel

• Israel Legislation enables Governments to seize
  traffickers assets for use in the rehabilitation
  of victims and for compensation
• Jane Doe vs. Alexander Lifshin and Armen Ben
  Anatoly Reidler (Tel Aviv Yafo District Court ,
  25 January 2010)
• 500,000 NIS for clients fees withhold
• 1,000,000 NIS for the non-material damages which
  harmed the victims autonomy, freedom, body and
  soul. The court emphasized the duration of
  suffrage, and noted that this sum should also be
  seen as punitive damages that highlight the need
  to punish the defendant beyond the sentencing
  under criminal law
• All expenses incurred by the victim, incl.
  150,000 NIS for victims lawyer
• (100 NIS 27 USD)

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State Practices Kenya and Portugal

• Kenya Counter-Trafficking in Persons Act 2010
• Convicted trafficker is mandated to restitute his
  victim
• Law also estblishes the National Assitsance Trust
  Fund for Victims of Trafficking
• Portugal
• Criminal courts to award criminal damages
• Advance payment of compensation by State-fund

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State Practices Norway
Victim options
Government compensation scheme victims of
violent crime
Civil action against perpetrator
Civil claim in criminal case against perpetrator
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State Practice Norway (continued)

• Information about rights
• Consultation with a lawyer
• Legal representation in criminal cases
• Assistance from lawyer in preparing civil claim
  in criminal case
• Confiscation vs. Compensation
• Confiscated proceeds are not available to victims
• Case June 2010 Confiscated NOK 32 000. Damages
  NOK 50 000.

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State Practice Norway (continued)

• Government Compensation
• Compensation for Victims of Violent Crime Act
• Victims of violent crime includes trafficking
• Administered by Norwegian Criminal Injuries
  Compensation Authority
• The criminal act must be reported to the police
• Compensation even when the criminal case is
  dropped
• Criminal act must have been committed in Norway
• Practical Use The Compensation Authority will
  often pay the victim according to a conviction,
  and will seek recovery from the convicted person.

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State Practice Norway (continued)

• Example Albanian victim
• NOK 200 000 in damages for non-economic loss
• NOK 350 000 for permanent injury
• NOK 120 000 future expenses
• NOK 290 000 loss of personal income
• NOK 1.300.000 future loss of personal income
• (100 NOK 16 USD)

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State Practice Argentina

• Law 26.364 (29 April 2008) Prevention and
  Sanction of Trafficking in Persons and
  Assistance to its Victims
• Provides for compensation and victims receive
  legal aid
• One method of compensation ordered by the judges
  was to confiscate all the equipment from the
  traffickers and hand them to the victims of
  trafficking for them to start a small business.

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State Practice United States of America

• Two Mechanisms
• Private Lawsuit
• Restitution Following Criminal Prosecution
• Mandatory restitution
• The court shall order restitution for any human
  trafficking offense.
• There must be a criminal conviction.
• No other prerequisites for the victims to receive
  restitution
• Discretionary restitution available for other
  offenses

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State Practice United States (continued)

• Funding Restitution
• Solely Offender Funded
• Can apply seized and forfeited assets
• Court cannot consider Defendants financial
  situation
• Practical Realities
• United States v. Webster (2009)
• 3.6 million
• United States v. Kalimlin (2006)
• 916,000

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State Practice United States (continued)

• Measuring Restitution
• Full amount of the victims losses
• Includes
• medical expenses, physical and psychological
• physical therapy/rehabilitation
• necessary transportation, temporary housing,
  child care
• lost income
• attorneys fees
• any other losses proximately caused by
  trafficking
• Plus
• The greater of the gross income or value to the
  defendant of the victims services, or
• the value of the victims labor as guaranteed by
  minimum wage and overtime laws.

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