Routledge Handbook of Human Trafficking

by Piotrowicz, Ryszard; Rijken, Conny; Uhl, Baerbel Heide

  62 CoE/GRETA, 4th General Report on GRETA’s Activities (2015), pp. 33 & 54–55. For further guidance on the application of this principle, also to children, see OSCE Office of the Special Representative and Co-ordinator for Combating Trafficking in Human Beings, Policy and Legislative Recommendations Towards the Effective Implementation of the Non-punishment Provision With Regard to Victims of Trafficking (2013).

  63 Gallagher, A.T., The International Law of Human Trafficking (Cambridge: Cambridge University Press, 2010), p. 29.

  64 “A Child Rights-based Approach to Trafficking”, in UNICEF, Child Trafficking in Europe – A Broad Vision to Put Children First (New York: UNICEF, 2008), at p. 38.

  21

  The right to a remedy and reparation for victims of trafficking in human beings

  Lorna McGregor

  Introduction

  A number of international instruments set out States’ obligations to establish a remedial framework for victims of THB. For example, Article 25 of the UN Convention against Transnational Organized Crime requires States to establish “appropriate procedures to provide access to compensation and restitution” and to “enable views and concerns of victims to be presented and considered at appropriate stages of criminal proceedings against offenders”. Article 6(6) of the Palermo Protocol provides that “[e]ach State Party shall ensure that its domestic legal system contains measures that offer victims of trafficking in persons the possibility of obtaining compensation for damage suffered”, without prescribing the form that should take. Article 15 of the Council of Europe Convention on Trafficking in Human Beings also requires that parties:

  ensure that victims have access, as from their first contact with the competent authorities, to information on relevant judicial and administrative proceedings in a language which they can understand … provide … for the right to legal assistance and to free legal aid for victims … provide … for the right of victims to compensation from the perpetrators … adopt such legislative or other measures as may be necessary to guarantee compensation for victims in accordance with the conditions under its internal law, for instance through the establishment of a fund for victim compensation or measures or programmes aimed at social assistance and social integration of victims.

  Similarly, the International Labour Organization’s 2014 Protocol to the 1930 Forced Labour Convention requires States to ensure that victims of forced or compulsory labour (who may also be victims of THB) “have access to appropriate and effective remedies, such as compensation”.1

  While these instruments establish that States have an obligation to provide access to remedies, they do not explain what makes remedies effective. Recognising this gap, the UN Special Rapporteur on Trafficking in Persons, Especially Women and Children (‘the Special Rapporteur’) has sought to clarify the meaning of the right to a remedy through the development of a set of Basic Principles on the Right to an Effective Remedy for Trafficked Persons. The Principles identify ways in which to overcome legal and practical barriers to accessing a remedy, as well as setting out the forms that reparation should take.2

  In their most recent iteration, the Principles note that:

  Regardless of whether a State is responsible for the original harm, the State shall provide and/or facilitate access to remedies as required by binding international law, including anti-trafficking instruments and international human rights law.3

  This statement highlights the two dimensions to States’ obligations to provide victims of THB with a remedy and reparation. First, State agents, or persons acting on behalf of or at the direction of a State, may be found directly responsible for engagement in THB and/or for a failure to prevent, or protect victims from, THB by third parties. A duty to provide reparation will flow from a finding of responsibility under international law. Second, even if States have not violated international law, they are required to establish a remedial framework for victims of THB at the hands of private actors. Within international human rights law, this obligation has been framed as part of a wider due diligence obligation to put in place ‘legislative and other measures’ to prevent, and protect individuals from, third party harm. For example, in relation to violence against women, the Inter-American Commission on Human Rights has underscored the “link between the duty to act with due diligence and the obligation of States to guarantee access to adequate and effective judicial remedies for victims and their family members when they suffer acts of violence”.4

  This chapter examines the meaning of an effective remedy and reparation for victims of THB under international law, and addresses some of the conceptual, legal, and practical challenges that victims may face when seeking to assert this right. First, the chapter sets out the grounds on which claims can be brought against the State and its agents for direct engagement in THB, and where the State has failed to prevent, or protect victims from, THB. Second, the chapter turns to the remedial framework that States are required to put in place regardless of whether a State or non-state actor is responsible. It examines the options and challenges for victims when bringing a claim at the national level, looking at criminal compensation funds, criminal proceedings, and claims based on tort and/or employment or labour law, as well as the use of settlement negotiations as a means to resolve the complaint. It then examines the necessary ‘ancillary’ rights to exercise a right to a remedy, and particular obstacles to accessing a remedy that victims of THB may face if they are no longer in the State in which the claim is being brought.

  Claims for reparation against the State

  Victims may be able to bring claims against the State or its officials on two grounds: first, for direct involvement in THB; and second, for a failure to prevent, or protect them from, THB.

  Where a State agent is alleged to have been directly involved in THB, immunity from criminal prosecution and/or civil suit may constitute a barrier to access to a remedy in certain cases. The immunity belongs to the State and not the official; therefore, it is always possible for the State to waive any immunity. Where it is not waived, its availability will turn on a range of factors, including whether the claim is brought in the courts of the State for which the official works or elsewhere; whether the official is alleged to have been involved in THB in a private or official capacity; and the seniority of the official, as wider immunities attach to sitting high-level officials such as the Head of State.5 These are currently live issues in the USA and the UK, where suits against foreign diplomats have been brought for alleged involvement in THB and/or forced labour of foreign domestic workers. A number of these claims have been settled in the USA.6 In 2015, the Court of Appeal in England and Wales found that foreign diplomats are immune from the jurisdiction of the courts of England and Wales in cases alleging THB and forced labour (leave to appeal to the Supreme Court was granted in March 2016).7 On the same day, the Court of Appeal found that Kuwait and Libya did not enjoy immunity under the State Immunity Act for similar claims.8 The appeal of this decision is to be heard in the summer of 2017.

  Beyond the direct involvement of State officials, victims may be able to bring claims against State agencies for a failure to prevent, or protect them from, THB, even where State agents have not been directly involved in the crime. Responsibility for a failure to prevent, or protect a victim from, THB is a separate ground for reparation, meaning that in certain cases a victim could bring a claim against both the direct perpetrators and the State.

  While the principle of due diligence reflects a long-standing ground for responsibility in international human rights law,9 it is only recently that it has been activated more frequently in cases involving violence against women, domestic violence, THB, and other forms of private harm such as hate crime against persons with disabilities.10

  As a new area of jurisprudence, international human rights bodies are still defining the scope and parameters of the duty to prevent, and protect individuals from, third party harm. However, States have been found responsible for a failure to prevent, or protect victi
ms from, THB on grounds such as failing to put in place an effective legislative framework criminalising THB, or for failing to investigate or intervene before, during, or after the victim was subjected to THB. In relation to reparation, the question arises whether failures to prevent or protect should be dealt with in the same way as direct involvement in THB, and whether all failures to prevent or protect should be treated equally. For example, a distinction might be drawn between a failure to put in place laws, policies, or practices, on the one hand, and operational failures whereby, but for the State’s failure to act, the THB might have been prevented or the victim protected. The literature and jurisprudence of international and regional human rights commissions and courts does not provide obvious direction or answers on these points. The most that can be drawn from the jurisprudence of the ECtHR is an apparent distinction between substantive and procedural violations when determining reparation.

  For example, in C.N. v. United Kingdom,11 the ECtHR found a violation of Article 4 on the basis that the “investigation into the applicant’s complaints of domestic servitude was ineffective due to the absence of specific legislation criminalising such treatment”.12 The Court awarded 8,000 euro, noting the “purely procedural nature of the violation found”.13 The emphasis on the procedural nature of the violation suggests that the Court considers that reparation should be treated differently depending on whether the violation is substantive or procedural.

  In Rantsev v. Cyprus and Russia,14 the ECtHR was faced with the situation in which the State had the opportunity to prevent the third party harm happening in the first place, or to protect the victim from further harm, but failed to act. While still a procedural violation, one might have expected a stronger approach to reparation than in C.N., given the impact the failure to prevent had on the applicant’s daughter’s life. In this case, the Cypriot police had failed to recognise that Ms Rantseva met a number of indicators to suggest that she could be a victim of trafficking. Ms Rantseva was returned by the police to the trafficker; the next day she was found dead. The ECtHR found Cyprus responsible for a ‘procedural violation’ of Article 2, as regards the failure of the Cypriot authorities to “conduct an effective investigation into Ms Rantseva’s death”;15 and for two violations of Article 4 –for a failure to meet the “positive obligation to put in place an appropriate legislative and administrative framework”,16 and for a failure to meet the “positive obligation to take protective measures”,17 including to “investigate without delay and to take any necessary operational measures to protect Ms Rantseva”.18 In this regard, the Court noted that “there were sufficient indicators available to the police authorities”19 to identify Ms. Rantseva as a potential victim of trafficking, which they failed to do. The ECtHR awarded damages of 40,000 euro on an ‘equitable basis’, without explaining how it reached this figure, or whether it considered the nature of the procedural violations was material.20 Rather, it noted the “anguish and distress” that the applicant must have suffered

  as a result of the unexplained circumstances of Ms Rantseva’s death and the failure of the Cypriot authorities to take steps to protect her from trafficking and exploitation and to investigate effectively the circumstances of her arrival and stay in Cyprus.21

  It is therefore difficult to draw any concrete conclusions about how different types of procedural violations will be treated.

  The approach of the ECtHR may be different, however, to that of the Inter-American Commission and Court on Human Rights, which has recently heard its first case on forced labour and servitude:22 the Court focused its reparation order on the duty to re-initiate an investigation capable of identifying and punishing those responsible, the requirement that the State guarantee that slavery and ‘its analogous forms’ is not subject to a limitations period and compensation.23 In cases involving other forms of third party harm, however, the Inter-American Court has issued extensive reparation orders where the State failed to prevent harm or protect victims in operational settings, focusing, in particular, on the other forms of reparation foreseen by the UN Special Rapporteur, such as restitution, rehabilitation, satisfaction, and guarantees of non-repetition, as well as compensation.24 In contrast to the ECtHR, the Inter-American Court has not addressed the nature of the violations as procedural or substantive, and therefore does not suggest a distinction in approach on this basis. More consideration may therefore be required regarding the appropriate nature of reparation measures in cases where the State has violated its due diligence obligations (compared to situations in which it has been directly involved in a violation), and whether distinctions between different types of positive obligations should be made.

  The obligation to put a remedial framework in place for victims of THB

  International instruments on THB require States to establish a remedial framework for victims of THB, regardless of whether or not they are alleged to have been involved in the crime. A remedial framework not only requires an assessment of where the victim can lodge a claim for reparation and the adequacy of such processes, but also turns on the conditions for accessing a remedy in a jurisdiction. This section sets out the possible routes to obtain a remedy at the national level, before examining the ancillary rights necessary to make access to a remedy effective.

  Routes to claims for reparation against the perpetrator(s) at the national level

  At the national level, four routes to reparation may be available. First, claims for compensation or damages may be made within criminal proceedings. Second, victims may institute a civil claim for compensation, either based on tort law and/or labour or employment law. Third, victims may bring claims before a criminal compensation fund, although, as discussed below, this cannot be strictly understood as a route to reparation, as it does not involve a determination of responsibility. A final avenue may be to engage in settlement negotiations. This part of the chapter addresses the adequacy and appropriateness of each route for addressing claims for compensation by victims.

  An important overall point that relates to all avenues for a remedy and reparation for victims of THB is the extent to which reparation under national law aligns with the forms foreseen by the UN Special Rapporteur on Trafficking in Persons, Especially Women and Children as including restitution, compensation, rehabilitation, satisfaction, and guarantees of non-repetition. Regardless of the procedure, at the national level, reparation is typically reduced to financial compensation. Moreover, the compensation may not cover the full range of material and non-material damages experienced by the victim. An illustration of this point is the case of US v. Sabhnani,25 in which damages were awarded on the basis of loss of wages, without attention to the claims of physical ill-treatment and the overall situation of trafficking in persons described in the case. Accordingly, the avenues available for a remedy may inadequately capture the nature of THB as a composite crime involving many dimensions. This closely reflects the challenges in defining THB generally, and the debates over whether it constitutes a single or multiple human rights violation.26

  Access to remedies through criminal proceedings

  Where criminal proceedings are brought against the individual trafficker(s), victims may be able to attach a claim for compensation to the proceedings, or the prosecutor may have the discretion, or be required, to request an order for compensation for the victim should the accused be found guilty. Prosecutions of THB still remain relatively low, and criminal proceedings enabling victims to claim compensation even lower. The UN Special Rapporteur has previously noted that “compensation for trafficked persons through criminal proceedings is the exception rather than the rule”.27 The EU Fundamental Rights Agency (FRA) has also noted that: “[c]ompensation claims [for forced labour] attached to criminal proceedings are still rare and, where they are submitted, they are often transferred to civil courts”.28

  Not all jurisdictions allow victims to lodge claims for compensation in criminal proceedings, particularly common law jurisdictions. In some jurisdictions, prosecutors are r
equired to request a compensation order for the victim. While this is not the same as a victim bringing a claim for compensation, and restricts his or her ability to frame the harm they have suffered, it nonetheless reflects an important area of practice that may lead to compensation. For example, the FRA, in a recent report on labour exploitation, noted areas of best practice such as the Netherlands, where an “active policy in criminal proceedings [has been adopted] of contacting victims of any type of crime, informing them about the possibility of filing a compensation claim and providing assistance in doing so”.29

  Civil claims for reparation

  Where victims cannot bring a claim for compensation within criminal proceedings, they may seek to institute a civil claim. As with criminal proceedings, La Strada and the OSCE have jointly noted that:

  in this study civil proceedings not connected with criminal proceedings were in little evidence except in the US. In the UK and Romania legal practitioners responded that a civil claim was not an option considered on behalf of their clients due to the difficulties of negotiating the civil legal system (expense, time) and the novelty of such an action.30

  Similarly, standalone civil suits based on tort or employment law are low.31 Legal aid and court fees may constitute some of the main barriers to bringing civil claims for reparation in national courts.32

  Where victims are able to bring their claims before the ordinary courts, the question of how to frame the case arises, particularly in the absence of a specific tort of THB. Ordinary tort law will provide a basis to address at least some of the physical and psychological harms carried out during, or caused by, the THB – such as assault and battery and false imprisonment. However, tort law will generally fail to fully capture the extent of the harm caused to the victim. Labour or employment law is increasingly used as a basis for claims for compensation in order to address low (or lack of) wages. For example, the UN Special Rapporteur has noted that: “[t]rafficked persons may also have options of claiming compensation based on labour law violations, such as discrimination, breach of national minimum wage, and unreasonable overtime”.33 In certain jurisdictions, victims may be forced to choose between basing their claims on tort or on employment law if the forum in which they lodge their claim is restricted in the nature of the claims victims can bring. For example, employment tribunals typically do not have jurisdiction to consider claims based on tort law, although they may be able to consider certain forms of harm under headings such as ‘injury to feelings’.34