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The Constitutional Court of Serbia determined a violation of the right to prohibition of human trafficking

On March 4, 2021, the Constitutional Court of the Republic of Serbia accepted the constitutional complaint of ASTRA’s client, a victim of human trafficking who was a minor at the time of the crime, and ruled that her right to prohibition of human trafficking, granted by Article 26, paragraph 2 of the Constitution of the Republic of Serbia, as well as the right to a trial within a reasonable time, granted by Article 32 of the Constitution of the Republic of Serbia, were violated.

This decision of the Constitutional Court is extremely important from the point of view of the entire legal system of the Republic of Serbia. By determining the violation of the constitutional prohibition of human trafficking, it has been indicated that trafficking in human beings cannot be reduced only to the criminal aspect, but that it has its own constitutional character with the main goal of protecting trafficking victims.

The Constitutional Court considered the prohibition of human trafficking in relation to three groups of positive obligations of the state: 1) the obligation to establish a legislative and administrative framework for the prevention and punishment of trafficking in human beings; 2) the obligation to protect victims of trafficking by providing measures of prevention, registration and assistance to such persons; 3) the obligation to conduct an investigation and court proceedings when there is a reasonable suspicion that a criminal offense of human trafficking has been committed.

The Constitutional Court, in its deliberation, started from the conclusion that human trafficking is a modern form of slavery, and as such is contrary to the principle of humanity, that it insults human dignity and the fundamental values ​​on which a civilized democratic society is based.

In making its decision, the Constitutional Court considered the provisions of the Constitution and the regulations of the Republic of Serbia, international treaties, positions and case law of the European Court of Human Rights, as well as the opinions of international monitoring bodies, such as the Group of Experts on Action against Trafficking in Human Beings (GRETA), which had been expressed in the first and second evaluation rounds of the implementation of the Council of Europe Convention on Action against Trafficking in Human Beings in relation to Serbia.

The Constitutional Court found that there was a violation of the positive obligation of the state in relation to the victim of trafficking in human beings by non-compliance with the preventive measures, protection and assistance to such persons granted by Article 26 para. 2 of the Constitution, as the court did not provide any measures of protection and assistance to the victim, who at the time of the crime was a child according to international treaties, or a juvenile according to the Criminal Code; that it did not adjust the conduct of the proceedings to the finding of the court expert, in which the state of traumatization of the victim had been established; that it did not respond to the request for granting the status of a particularly sensitive witness, as well as the request regarding the method of examining the injured person as a witness, which led to the secondary victimization of the injured.

The Constitutional Court found that the principle of opportunity, which deviates from the principle of legality of official prosecution, was based on the need to avoid lengthy costly criminal proceedings, and that it was applicable to less serious criminal offenses, in cases of which, summary proceedings are conducted. In view of the above, the Constitutional Court reiterates that the principle of opportunity in this case was applied after five years and six months of proceedings, which violated the essential ratio of this procedural mechanism.

Considering the fact that the principle of opportunity was applied on the basis of reclassification of the criminal offense from a serious offense of human trafficking into a minor offense of aiding and abetting the perpetrator, where the victim was a child, by misapplication of procedural rules, the Constitutional Court has concluded that, for the crime of human trafficking, proceedings should include thorough consideration of all the constituent elements and available evidence until a court decision is made.

The Constitutional Court considers that in this concrete case, the competent state bodies – the Higher Public Prosecutor’s Office in Belgrade and the Higher Court in Belgrade have not fulfilled their positive obligations in the procedural aspect in relation to the prohibition of all forms of trafficking granted by Article 26 para. 2 of the Constitution, i.e. obligations to conduct an effective and fair procedure, which would result in delivery of a relevant court decision.

The Constitutional Court pointed out that in the present case, no amount of money could compensate for the human rights violations suffered by the complainant, but it still determined the compensation for non-material damage in the total amount of EUR 5,800, at the expense of the Ministry of Justice.

The decision was published in the “Official Gazette of the Republic of Serbia”.

Bearing in mind that for many years ASTRA has been pointing out, in the legal analysis of court decisions for the crime of Human Trafficking under Article 388 of the CC of RS, to the omissions in the treatment of trafficking victims, as well as the trend of reclassification of this crime into minor offenses, after which a plea agreement is concluded with the defendant, this decision of the Constitutional Court gives hope to trafficking victims in better treatment and protection of their rights.



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