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Just deserts: victim compensation

Despite ample international, regional and local provisions for compensation, the provision of restitution for trafficked persons remains under-utilized. This undermines justice as well as potentially depriving much-needed financing for anti-trafficking efforts. A State’s focus on criminal prosecution may neglect important aspects of a victim-centered approach and without stringent, enforced penalties, may not even serve as an adequate deterrent. The former might include an emphasis on a victim as a key witness at trial, without taking into account livelihood concerns involved in an individual’s ability to participate (not being to generate an income, for instance). The latter may be expressed through the limited impact of the use of fines as punishment for those convicted for forced labor offences. For example, Paul Broadbent, Chief Executive of the Gangmasters Licensing Authority (GLA) in the UK, highlighted:

We’d worked out the amount of money they’d made out of exploiting those people was way in excess of that fine […] so it’s actually worthwhile doing it on the off chance you’ll get caught, because when you do get caught and fined it’s absolutely a drop in the ocean compared with the money you’ve made.

In considering compensation, one may first think of the deterrent effect of financial penalties on traffickers and trafficking networks. However, importantly, exploitation often compounds financial difficulties faced by victims, who may become vulnerable to trafficking in the first place due to economic insecurity. For instance, victims may experience a loss of wages (which can have multiplier effects on families waiting at home for remittances), increased debt (if money was borrowed, for instance, to pay for migration), and debt compounded by out of pocket expenses for services, such as medical expenses. All of which enhances an individual’s vulnerability. In reporting on victim compensation Anti-Slavery International reiterates this last point, “not only is it an instrument of restorative justice for trafficked persons, the financial security it affords victims is also central in the prevention of retrafficking.” Although criminal prosecution may afford some sense of justice, many victims simply wish to collect what is owed to them and return home rather than participate in criminal justice proceedings.

Generally, money is collected either directly from the offender (through civil action, labor tribunals and/or criminal proceedings) or funded/redistributed by the State (via compensation schemes). In the US, for instance, civil actions allow victims to directly sue for a variety of damages and costs incurred as a result of being trafficking, including: actual damages (i.e. lost earnings, injury), compensatory damages (i.e. physical and emotional suffering), and punitive damages. Moreover, asset forfeiture laws may allow governments to seize domestic and overseas proceeds, profits, interest, and/or property of an individual or organization, in order to provide funds for victim restitution, be dispersed into a victim fund, or even subsidize law enforcement efforts against trafficking.

According to the United Nations Office on Drugs and Crime, “[b]oth the Organized Crime Convention (Articles 14 and 25 (2)) and the Trafficking in Persons Protocol (Article 6 (6)) make specific reference to and provide an international legal basis for compensation of trafficking victims and international cooperation in returning confiscated proceeds for the purpose of compensation”. As outlined in the Office of the High Commissioner for Human Rights’ Recommended Principles and Guidelines on Human Rights and Human Trafficking, States are required to develop legislation to freeze and confiscate the assets, instruments, and proceeds of trafficking and use those assets to benefit trafficking victims, by, for instance, establishing a victim compensation fund. Additionally, Article 15 of the Council of Europe Convention on Action against Trafficking in Human Beings includes the right to compensation and the adoption of necessary legislation to guarantee compensation for victims, whether or not trafficking is national or transnational, and regardless of the involvement of organized crime. Compensation is now also covered by the EU Directive on Preventing and Combating Trafficking in Human Beings EU/2011/36.

While restitution may provide victims with a greater sense of justice and enhance the recovery process, these rights require positive actions by governments to enable them to be realized. Joy Ngozi Ezeilo, the UN Special Rapporteur on Trafficking in Persons, points out that while trafficked persons have a right to seek compensation as victims of human rights violations, instead:

[i]n many States, trafficked persons do not receive remedies in a holistic manner as a matter of right, but are only provided with ad hoc measures which are predominantly aimed at facilitating criminal investigation.

The conditionality attached to such entitlements effectively restricts access to justice. For example, victims may only be conferred “victim” status upon cooperation with law enforcement. In the US, victim certification is dependent on the discretion of law enforcement officials, as shown in guidance issued by the Department of Homeland Security. To access special visa status (a “T” visa, or a “U” visa) victims “must demonstrate assistance” in investigations or prosecutions; an official has discretion to sign a declaration in support of this requirement, but that certification does not automatically confer rights – rights are determined and administered by another agency. This certification is essential for and directly impacts a victim’s accessibility to a range of federally-funded services including immigration relief, employment, housing, healthcare and counselling. Because immigration status is often linked to victim status, victims may be repatriated before they are able to seek compensation.

Petya Nestorova, Executive Secretary of the Council of Europe Convention on Action against Trafficking in Human Beings, stated in The Guardian, “[m]ost European Countries provide the right to compensation for trafficking victims from both the perpetrators and also the state. In practice few ever receive anything.” Internationally, barriers to the implementation and enforcement of rights relating to compensation may include a lack of: awareness among service providers, available (legal) assistance, the ability to trace and secure the funds/ assets of perpetrators, and/or funding for services. Obstacles faced by victims can include a lack of information about their rights (to compensation, to legal advice) and available support in a language they know (Including age appropriate advice for children), all of which can be compounded by no/inadequate accommodation and/or limited access to physical and medical assistance. If the State is unwilling or unable to provide specialist aftercare services, victims may be left with either no recourse for assistance or financially prohibitive options for care. For instance, girls who experienced sexual exploitation in the Rochdale case in the UK were left with little frontline support from the local council, including specialist psychological support catered to victims of abuse or financially viable methods to recoup years of lost education.

Lack of awareness about and access to legal aid for human trafficking cases can be a substantial barrier to seeking compensation, even where legal services exist. For example, the Scottish Legal Service Agency (LSA) “is one of a few legal service providers of advice and assistance to victims to make applications for criminal injuries compensation (Article 17)”. But the LSA does not provide services to male victims over the age of 25 (as they recently started a service for young people up to and including this age). The LSA has reported a lack of awareness by individuals regarding a right to apply for compensation as well as a lack of awareness on human trafficking in the Criminal Injuries Compensation Authority. More concerning in the UK, is the 12-month residence test proposed in the consultation on Transforming Legal Aid. This would delay access to legal aid until claimant has been legally resident for 12 months, potentially undercutting the rights of trafficking victims, among other vulnerable groups, and putting those who wish to seek compensation at a profound disadvantage.

Other systemic problems complicate victim access to compensation. The issue receives little attention from statutory agencies and/or those agencies face a limited capacity to address the issue. In the US, for example, while the Federal Trafficking Victims Protection Act (TVPA) provides for mandatory asset forfeiture, the federal government does not have the capacity to keep up with the nationwide human trafficking caseload, relying on individual states to step in. However, according to Polaris Project, only “thirty-two states [out of fifty] and the District of Columbia have laws that authorize asset forfeiture in human trafficking cases,” leaving significant cross-jurisdictional gaps in an interstate (and international) crime. In the UK, the Anti-Trafficking Monitoring Group recently assessed the effectiveness of the Criminal Justice System’s response to trafficking. It found that prosecutorial and administrative barriers. For example, “judges are very unlikely to impose compensation orders if they impose a custodial sentence on the trafficker”; the victim compensation fund poses considerable hurdles to non-native English speakers in addition to a lack of legal counseling to applicants; and, without pro bono legal aid, civil claims “require the claimant to fund their own case, which may not be a viable option.”

While research projects such as that undertaken by Euro-based COMP.ACT on the obstacles faced by victims in accessing compensation may result in much-needed guidance, awareness-raising and advocacy measures, States must not forget they have international legal obligations to provide victims with the opportunity to claim compensation. This is not only a matter of justice. As explained in COMP.ACT’s Findings and Results of the European Action for Compensation for Trafficked Persons:

Compensation can also mean financial autonomy for former victims of human trafficking and may prevent re-victimisation. Economic independence has been shown to significantly reduce the risk of re-trafficking and compensation empowers victims by placing them in a stronger position to support themselves and their families without having to pursue risky job opportunities. Compensation counters the contributing vulnerability factors of poverty and deprivation in human trafficking.

If used effectively, financial penalties could prove to be a powerful deterrent for criminals in the highly lucrative business of exploitation. In doing so, the State could fund anti-trafficking initiatives and provide critical services for victims; as with any support service, this would need to be supplemented with strategic long-term funding. However, the pursuit of criminal assets may go a long way in generating funds for specialist support services, which are often financially constrained, inhibiting or prohibiting the provision of resources for victim protection.

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