For the fourth year in a row ASTRA has released the analysis of the position of victims of human trafficking in court proceedings which has been done based on the examination of judicial practice in 2014. Presenting the main findings and observations with regard to the position and rights of victims in court proceedings in comparison to the minimum standards provided by international documents, with adequate recommendations, the analysis seeks to highlight the challenges in judicial practice in this area which may be resulting from shortcomings of domestic legislation or inconsistent enforcement of the law in criminal proceedings or civil proceedings in compensation cases. Continuous monitoring of court practice from the point of view of the position of victims in the proceedings enables not only the assessment of harmonization of domestic legal norms with international standards in this area, but also consistency in the enforcement of the existing legislation in practice, the uniformity of the case law as well as the impact of education programs organized so far for judicial professionals on proper understanding of the position of victims of this serious crime in court proceedings.
Monitoring of judicial practice for 2014 was carried out by monitoring and analysis of first- and second-instance decisions of the Serbian courts for the purpose of obtaining a comprehensive insight into changes of the position of victims and realization of their rights, specificities such as trends in the type of exploitation the victims were exposed to, and penal policy at the annual level. This year’s analysis does not indicate any significant improvement or changes regarding the approach to the protection of interests and rights of victims in court proceedings. The degree of realization of the rights of human trafficking victims guaranteed by the ratified international documents is still not achieved in practice. This is especially true in areas of victim’s safety and protection, hearing in the court proceedings and particularly victim’s right to compensation. Secondary victimization, court hearing and direct confrontation with perpetrators in the court, impossibility of realization of compensation claims in criminal proceedings, along with unchanged penal policy, indicate that the existing legal framework, which has been significantly improved, is still inconsistently implemented in practice.
Legal regulations in the area of protection under criminal law, the majority of which are harmonized with international standards, are not fully and consistently implemented in practice. Basic rights of victims, such as the right to protection of privacy, right to assistance, counselling and information on rights and free legal aid, right to safety and compensation of damages are still not realized to a sufficient degree. In addition to the data indicating a certain reduction of the duration of court proceedings and rendering the decisions, victims of human trafficking are still exposed to hearings in the presence of the defendants, sporadic cases of confrontation of victims with the defendants and witnesses are still recorded in practice, along with the absence of reaction in regard to protection of victims’ security. The victims’ right to compensation in criminal proceedings is not exercised, while the penal policy in cases of the crime of human trafficking remains unchanged compared to previous years. While some of these problems can be addressed by insisting on a consistent implementation of the existing legal norms and further training and education for employees in judiciary, the issue of free legal aid and compensation for the victims, as persisting problems in practice, require new legal solutions and serious dedication of the state to solving them.
Data from the analysis show that the percentage of first instance convictions is lower in respect to the previous year. Also, by comparing these penal policy data with those from the 2013 analysis, it may be concluded that the average sentence for the crime of human trafficking does not significantly differ from that in 2013, and is ranging close to 4 years of imprisonment, which leads to the conclusion that despite certain improvement recorded in respect to the previous period, low prison sentences are still being pronounced in practice and the penal policy is still mild. This is indicated in the data of almost double decrease of the percentage of sentenced terms of imprisonment of more than 5 years in respect to the previous year as well as the fact that the prison sentences ranging from 2-5 years are pronounced more often than during the previous year.
The distribution of the perpetrators is almost unchanged, with half of the defendants being persons with conviction history. Analysis for 2014 shows that when determining the penalty the court most often takes as mitigating circumstances those pertaining to personal situation of the defendant, such as family life and underage children. In all analysed first instance decisions, the fact that the defendants had children was taken as a mitigating circumstance, even in cases where the defendants committed criminal offence against his own child or the child who is a member of extended family, or against other underage child. In the analysed judgements issued by the first- and second-instance courts, circumstances prescribed by the law, such as the degree of endangering protected goods, circumstances under which the offence was committed, behaviour after the commission of the criminal offence, and particularly defendant’s attitude towards the victim, were not assessed in an adequate manner, which indicates the lack of understanding of the criminal offence of human trafficking and the position of the victims of this crime.
Key problems pointed at in the 2013 analysis were also noticed in 2014 as obstacles in realization of the victims’ rights in court proceedings. It may be concluded that there was no progress accomplished in regard to measures for prevention of secondary victimization, especially in regard to examination of the victim in court proceedings and realization of the right to compensation.