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Analysis of Judicial Practice 2021 presented and main trends for the 2018−2021 period

Today, November 29, 2022, a round table was held in Belgrade where the findings of the HUMAN TRAFFICKING VICTIMS IN CRIMINAL PROCEEDINGS – Analysis of Judicial Practice for 2021 for the criminal offense of human trafficking and related crimes, mediation in prostitution, trafficking in minors were for adoption, as well as the offense of prostitution. On this occasion, the participants were also introduced to the observed trends and main findings of the comparative Analysis of court practice in considering human trafficking from 2018 to 2021.

A special addition to the event was the presentation of an example of positive practice – the historic decision of the Constitutional Court of the Republic of Serbia on the adoption of the appeal of ASTRA’s client – a victim of human trafficking, from March 2021.

The event was intended for the professional public, and the audience consisted mainly of court representatives, prosecutors, and lawyers.

In the beginning, the attendees were greeted by: Nenad Vujic, director of the Judicial Academy; Tamara Mirovic, Deputy Public Prosecutor, Public Prosecutor’s Office of the Republic; Daniel Carroll, representative of the US Embassy; and Marija Anđelkovic, CEO of NGO ASTRA.

Analysis of Judicial Practice and trends identified in its implementation for 2018-2021 

Since 2011, ASTRA has continuously analyzed judicial practice for the crime of human trafficking and related crimes, such as mediation in prostitution and trafficking of minors for adoption, as well as prostitution itself. The main goal of the judicial practice analysis remains to objectively present the data relevant for acquiring insight into the level of realization and respect of the protection and rights of victims in judicial proceedings, the success of legislative and institutional reforms, and harmonization of the national legislative and policy framework with the obligations contained in ratified international documents. The Analysis is simultaneously a specific contribution to improving the overall systemic response in combating trafficking in human beings and supporting victims thereof.

Unfortunately, this year’s Analysis which refers to the cases from 2021, also confirms the (negative) trends identified thus far in this field.

Data from the decisions adopted from 2018 to 2021 indicate that the prison sentences pronounced in most cases, either when it comes to the decisions adopted after plea agreements, or other decisions, have equaled legally stipulated minimum or have been very close to it. For the crime of human trafficking from Article 388 CC, the stipulated prison sentence is 3-12 years. However, in the previous four years, we had the largest share of prison sentences within the range of 3-5 years (50% in 2018, 75% in 2019, 66% in 2020, and 89% in 2021). Followed by a decrease in the share of prison sentences longer than 5 years (38% in 2018, 25% in 2019, 17% in 2020, and 11% in 2021 (one case)). Additionally, sentences below the legal minimum, i.e., less than 3 years, are not unknown. When it comes to mitigating circumstances, courts still mostly use lack of previous conviction and personal and family circumstances, even though the latter often contradict the very nature of the crime that the defendant is accused of.

In the analyzed period, an increase in the share of sexual exploitation in criminal proceedings related to human trafficking is also evident (2018−60%, 2019−82%, 2020 −100%, 2021−92%), with a constant rise in the number of decisions adopted after plea agreements (40% in 2018, 50% in 2019, 59% in 2020, 59% in 2021). Keep in mind that in 2021, the share of verdicts handed down by a plea agreement for crimes under Article 388 was 75%). These hearings (court proceedings with the acceptance of the plea agreement) are held without the presence of the public and make the victims of these crimes “invisible participants.” It is because victims are denied the right to participate in the proceedings and cannot in any way influence the course and content of the agreement, which puts into question the exercising of their rights. The defendants, as a rule, get mild sentences. The injured parties are overwhelmingly women and girls (2018−86%, 2019−97%, 2020−100%, 2021−100%). Although it is indisputable that the interests of the economy, more efficient and faster resolution of criminal proceedings with lower costs have their justification, they must not prevail over the rights of injured persons.

An increase in the share of the criminal offense of mediation in prostitution, accompanied by a decrease in the share of the criminal offense of trafficking in human beings, is another trend identified in the analyzed period. The percentage of the defendants accused of the crime from Article 184 CC was 13% in 2018, 59% in 2019, 64% in 2020 and 70% in 2021; while the percentage of the defendants accused of the crime from Article 388 CC was 80% in 2018, 29% in 2019, 27% in 2020 and 30% in 2021. In the cases involving sexual exploitation, correct understanding and distinction between the nature and elements which comprise the essence of the crime of trafficking in human beings from Article 388 CC, and those of the crime of mediation in prostitution from Article 184 CC, are relevant for a proper qualification. Proper qualification influences many aspects of protecting and realizing the victims’ rights while also being essential for an adequate response of the state, i.e., the judicial system. Through such requalification, victims lose their status and rights belonging to them according to the national legislation and ratified international documents.

ASTRA has been indicating for years that the status of especially vulnerable witnesses is exceptionally rarely granted in court proceedings for human trafficking, even in those cases where injured parties/victims are children. The share of underage injured parties in the criminal offense of trafficking in human beings was between 30% and 40% in the analyzed period. However, it is essential to highlight that victims of human trafficking and related criminal offenses, underage or adult, mainly fulfill the legally stipulated conditions to be granted this status in the court proceedings (age, life experience, lifestyle, gender, health condition, nature, manner, and consequences of the crime). It is worrying that among the court decisions adopted in 2021 there is just one case of granting the status of an especially vulnerable witness. Also, the percentage of injured parties that received this status in earlier years is extremely low (only 7% of the injured parties had this status in 2018 decisions, 16% had it in 2019, while in 2020 there was not a single case where this status was granted).

The inability of victims to realize their right to compensation in criminal proceedings, with courts deciding on their property claims – represents a chronic problem and one of the negative trends in the judicial practice. An exception was the judicial practice of 2020, when a property claim was decided on/awarded in criminal proceedings to one injured party. Even though they make their property claims, victims are instructed to seek compensation in civil proceedings. The data for the last 4 years indicate that: 2018 – out of 14 victims, only 5 decisions note that the injured parties made property claims; 2019 – 16 : 7; 2020 – 13 : 2; 2021 – 26 : 10). The inexistence of the efficient system of compensating victims is also indicated by the fact that, from 2011 to 2021, there were only 2 cases where victims realized their right to compensation in civil proceedings. The realization of the right to compensation for damage in criminal proceedings would result in avoiding long and expensive civil proceedings, protecting victims’ rights, as they would be spared further proceedings and repeated testimonies and medical and legal experts’ examinations. Additionally, it is necessary to harmonize the existing legal and institutional framework with relevant international standards by adopting the Law on Compensation to Victims and establishing the Compensation Fund for Victims.

While global trends indicate an increase in the number of cases of labor exploitation, in the analyzed period there was a noticeable absence of court proceedings for cases of human trafficking for labor exploitation. As indicated by the 2021 GRETA (Group of Experts on Action against Trafficking in Human Beings) Report, labor exploitation as a form of human trafficking is present in both official and grey economy, and it involves men, women, and children. This document also highlights that combating human trafficking for the purpose of labor exploitation is still problematic in many ways, primarily due to the relative limitations in understanding the very concept by institutions (unlike sexual exploitation) which results in the lack of proactive identification of labor exploitation cases; furthermore, due to differences in interpretation and application of labor standards, there are problems in defining labor exploitation. In the US State Department’s TIP Report for 2021 and 2022, one of the priority recommendations refers to the need to provide labor inspectors with the resources and training necessary to regulate recruitment agencies and investigate cases of fraudulent recruitment. The report notes that, in practice, public prosecutor’s offices failed to “effectively distinguish between labor violations and forced labor.” This certainly impacted the potential mass trafficking of Vietnamese migrants for labor exploitation in constructing the Chinese tire factory Linglong. At the same time, it also influenced the reactions of the international public.

An intense discussion took place after these first presentations. The main subject was whether the obtained data were interpreted negatively when we say that the number of victims is much bigger than the number of officially identified victims. Also, the claim that the qualification of criminal acts (much more often as mediation in prostitution) and requalification during court proceedings (when the criminal offense of human trafficking is reclassified as mediation in prostitution) takes place to the detriment of the victims. Part of the audience claimed that the initial consent means that we are actually talking about prostitution, while longtime professionals in this field, Judge Rada Dragičević Dičić, and Professor Milan Žarković, explained that judges should always take into account the potential conditioning of victims by external circumstances, violence, poverty, physical and psychological blackmail, and coercion. Those present were then reminded that in cases where children or minors are harmed, no coercion is necessary to classify the act as human trafficking. Also, during the discussion, there was talk about the problem of identification and self-identification of the victims, who are often unable to see their position realistically because they are dealing with severe and long-term traumas that are not easy to face.

It may be concluded that it is necessary to continue with the activities of improving legal, strategic, and institutional framework in order to improve the position of human trafficking victims through amending certain legislative solutions, but it is also necessary to consistently implement the existing legal norms, in addition to continuous education of judicial professionals and monitoring of judicial practice of human trafficking. 

Therefore, the set of recommendations contained in this year’s “Analysis of judicial practice for 2021 for the crimes of human trafficking, trafficking in minors for adoption and mediation in prostitution is made in this vein too.

This edition of the Analysis of Judicial Practice was made within the biannual project “Improving Response to Human Trafficking – Above the Existing Framework” and with support from the USA Embassy in the Republic of Serbia. The project aims at improving the overall systemic response in combating human trafficking and supporting the persons at risk of becoming human trafficking victims.

The decision of the Constitutional Court of the Republic of Serbia

Constitutional Court Judge Tijana Šurlan (one of the panel members in this case) presented an example of positive practice at this gathering, the adopted appeal of ASTRA’s beneficiary, a former victim of human trafficking, brought in March 2021. The Constitutional Court accepted the constitutional appeal of ASTRA’s client (a minor at the time of the crime). It ruled that her right to the prohibition of human trafficking and the right to a trial within a reasonable time was violated — both guaranteed by the Serbian Constitution.

The Constitutional Court considers that the competent state authorities – the High Public Prosecutor’s Office in Belgrade and the High Court in Belgrade – did not fulfill their positive obligations in the procedural aspect concerning the prohibition of all forms of human trafficking guaranteed by Article 26, Paragraph 2 of the Constitution, i.e. to conduct an effective and fair procedure, which would result in the passing of a relevant court verdict – the decision states.

The Constitutional Court pointed out that in this particular case, no amount of money can be proper compensation for the human rights violations suffered by the applicant of the constitutional appeal. Still, it nevertheless determined compensation for non-material damages in the total amount of 5,800 euros at the expense of the budget funds of the Ministry of Justice.

This decision of the Constitutional Court gives hope to victims of human trafficking in better treatment and protection of their rights.

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