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Analysis of Judicial Practice for 2017

Reporting on the position of trafficked persons in court proceedings through the analysis of the judicial practice for 2017 is a continuation of ASTRA’s (Anti-Trafficking Action) monitoring work in this area which started in 2011. Both monitoring and analysis are aimed at the improvement of victims’ position and assessing the results of legislative and institutional reforms implemented to date. The position of victims of human trafficking and state of their rights in court proceedings are important not only from the point of view of every individual case and the position of victims in general, but also as an indicator of the respect of human rights, the alignment of national legislation with undertaken international obligations and the readiness of the government to implement legislation efficiently and thus properly fight trafficking in human beings.

The protection of victims’ privacy, timely information and counselling, victims’ safety and respect for their dignity, especially during their hearing before the public prosecutor or judge, right to compensation, as well as the appropriate penal policy must be a priority in the system of court protection. For this reason, as it was in the previous year, the analysis of the judicial practice for 2017 maintains the structure which follows the above segments of victims’ rights.

The analysis included a total of 15 court decisions passed in criminal proceedings both by the courts of first or passed on appeal by the courts of second instance in the course of 2017.

The results of the analysis show, inter alia, the following:

The average length of the proceedings was 3 years and 5 months; the longest proceeding lasted for 9 years and 5 months and the shortest 6 months. 50% of the proceedings were completed in less than one year; in 17% cases the proceedings lasted between 1 and 3 years, and 33% lasted longer than 3 years. The percentage of proceedings which lasted up to one year increased compared to the previous years.

– Conviction was made for all crimes in 73% of the cases, which is significantly smaller than in 2016, when this percentage stood at 94% (it should be borne in mind that in earlier years, the percentage of convictions was significantly smaller).

– All persons who were found guilty of the crime of human trafficking were sentenced to imprisonment in the amount of legal minimum (minimum for the basic offence of human trafficking is 3 years and if it is committed against a minor – 5 years). The average imprisonment sentence was 3 years and 5 months. The highest individual prison sentence was 5 years and the shortest was 2 years. The imprisonment of 5 years was given in 38% of the cases, a 3 to 5 year prison sentence was given in 25% of the cases and the imprisonment of up to 3 years was given in 37% of the cases.

– Detention was imposed in 64% of the cases. The longest period of detention was 270 days and the shortest was 1 day.

– All of the defendants are male and citizens of the Republic of Serbia.

All victims are citizens of Serbia and 71% of them are female. From the total of 7 victims, 6 were underage (two of them are up to 14 years of age). Sexual exploitation (forced prostitution or other kind of sexual exploitation) as a form of human trafficking, is still predominant.

– Of 7 victims, 5 were referred by the decision of the first-instance criminal court to seek compensation in civil proceedings.

– Only in one case (repeated trial), an underage victim had the status of especially vulnerable witness which was granted to her already in the previous first-instance proceeding. This data is alarming having in mind that 85% of victims were underage at the time of the offence. The absence of the status of especially vulnerable witness in almost all cases (except for one) can hardly be explained, having in mind that victims of trafficking in the majority of cases fulfil conditions set in the law for granting this status in the proceedings (age, way of life, gender, health status, nature, manner, or consequences of the crime, and other circumstances of the case).

Of 7 victims in first-instance proceedings, 6 had to testify once or several times at the main hearing, in addition to statements given in investigation. One minor victim was also questioned in the proceedings before the court of appeal. Only in one case (repeated trial), minor victim who had been granted the status of especially vulnerable witness in the original trial was not questioned again by the first-instance court, but her statement was read.

Another final judgment awarding compensation to a trafficked person was passed in 2017. Although trafficking in human beings was criminalized as early as in 2003, and right to compensation is guaranteed by the Constitution, laws and ratified international conventions, this is only the second case in which the trafficking victim was awarded compensation, which clearly shows the absence of efficient system for compensating victims.

Concluding observations of the results of the analysis of the judicial practice for 2017 indicate to a non-satisfactory level of respect of the rights of trafficked persons in court proceedings. Inappropriate position of underage victims in all segments of exercising their rights stands out as an issue of particular interest. Existing legislative solutions with regard to the protection of victims, such as the granting of the status of especially vulnerable witness, hearing the victim without presence of the defendant by using adequate technical equipment and other measures that may contribute to the protection of trafficked persons and avoiding secondary victimisation are rarely used in practice, even when victims are underage. Further, rather lenient penal policy which is reflected in imposing prison sentences that are most often around legal minimum, is not adequate and does not result in proportional and dissuasive sanctions. Trafficked persons’ inability to realise their right to compensation in criminal proceedings, even partially, stands out as a special and continuing problem.

The existing legislative possibilities that allow the questioning of victims without the presence of defendants, without confrontation with defendants and under special circumstances, are not adequately applied in practice; specifically, they are not applied to the extent that can realistically be expected having in mind a specific position of trafficked persons and especially minors. As a conclusion, one can justly wonder whether the standard of protection of rights of trafficked persons in court proceedings can be improved only by insisting on persistent implementation of the existing regulations, especially if their implementation is not provided by the law as mandatory, but depends on the assessment of different circumstances by courts and prosecutors.



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