Ideally, therefore, a civil claim for compensation would be brought before the ordinary civil courts in order to enable the full nature of the claim to be considered in both tort and employment law. There are currently very few cases that take this dual approach, although organisations such as ATLEU in the UK have initiated test cases on these grounds which are now proceeding through the courts.35
A potential barrier for some victims seeking to take this dual approach is whether or not national law recognises employment relationships where no contractual agreement exists. For example, in a consultation carried out by the UN Special Rapporteur, one consultee noted that: “[b]ecause exploitation often happens in unregulated informal sectors without work contracts it is also very difficult for victims to bring labour cases before civil courts for unpaid wages”.36 Certain forms of work, such as sex work, may not be recognised as a form of labour where prostitution is criminalised, or where an individual has chosen to enter into sex work but has then been placed under debt bondage. Simmons and David have argued that: “[w]hen trafficking involving the sex industry is characterised as necessarily a problem of sexual exploitation, the remedies that may be available for labour exploitation may become invisible or inaccessible”.37 These types of challenges again indicate areas that may require further strategic litigation and law reform in order to ensure that remedies for victims of THB are fully effective.
Criminal compensation funds as remedies
Where victims are unable to bring a claim for compensation within criminal or civil proceedings, they may turn to criminal compensation funds. As an initial framing point, access to a criminal compensation fund should not be understood as a remedy proper, as the provider of the compensation is not the entity responsible for the harm suffered. This point is highlighted by the 1983 European Convention on the Compensation of Victims of Violent Crimes, which provides that: “compensation may be reduced or refused on account of the applicant’s financial situation”.38 The Council of Europe’s Committee of Ministers’ 2006 Recommendation 8 on Assistance to Crime Victims also notes that the “compensation awarded to victims should be based on the principle of social solidarity”.39 Nevertheless, as it is often difficult to access a remedy against the direct perpetrator, access to criminal compensation funds is of significant practical importance for victims of THB.
Some victims of THB may have difficulties in receiving compensation from criminal compensation funds, given that most international standards and norms on eligibility under such funds focus on particular forms of harm that may not have been experienced by all victims of THB. For example, the General Assembly’s 1985 Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power provides that:
When compensation is not fully available from the offender or other sources, States should endeavour to provide financial compensation to … [v]ictims [of crime] who have sustained significant bodily injury or impairment of physical or mental health as a result of serious crimes.40
Similarly, Article 2(1) of the European Convention on the Compensation of Victims of Violent Crimes provides that:
When compensation is not fully available from other sources the State shall contribute to [compensating] those who have sustained serious bodily injury or impairment of health directly attributable to an intentional crime of violence.
Both of these instruments potentially apply to certain victims of THB where “significant [or serious] bodily injury or impairment of physical or mental health” can be established. However, the reference to ‘significant’ or ‘serious’ injury or impairment potentially excludes certain victims who cannot demonstrate harm at such a level. It would also not address other losses, such as inadequate or non-payment for any forced labour that formed part of the THB. Article 3 of the European Convention is also restrictive, in that it only applies to nationals of the State on whose territory the crime was committed, or to “nationals of all member States of the Council of Europe who are permanent residents in the State on whose territory the crime was committed”.41 This is rectified in the Council of Europe’s Committee of Ministers’ 2006 Recommendation 8 on Assistance to Crime Victims, which provides that “compensation should be provided by the state for victims of serious, intentional, violent crimes, including sexual violence”,42 and that “States should adopt a compensation scheme for the victims of crimes committed on their territory, irrespective of the victim’s nationality”.43 Thus, challenges are also evident for victims in attempting to access criminal compensation funds, and highlight an area for potential strategic litigation and law reform to more effectively address these gaps.
Settlement and alternative forms of dispute resolution
Finally, the use of settlements has been promoted as a means to resolve claims, particularly where victims face difficulties in accessing the formal legal system. For example, La Strada has argued that settlements “are more likely to be paid” and that:
Such schemes avoid the need for lengthy, expensive and alienating litigation and have the benefit that they can agree settlements for a number of trafficked persons through collective action e.g. a group of employees rather than having to pursue their own claims as individual victims.44
Examples of settlement include the case of a foreign domestic worker from Kuwait who alleged that she was raped “on many occasions” by a diplomat while in the USA. She withdrew her civil claim for compensation after reaching an undisclosed settlement.45 Similarly, a foreign domestic worker alleged that the foreign diplomat for whom she worked in the US underpaid, verbally abused, and mistreated her. The claim was initially dismissed on account of the immunity of the diplomat. While on appeal, a confidential settlement was reached.46
The discussion on the use of settlement has tended to focus on the practical realities victims of trafficking face. At the same time, great care has to be taken in the use of such processes, due to the unequal positions of power between the parties. Much more consideration of when settlement proceedings are appropriate, and the manner in which they are conducted, including ensuring protections are in place for the victim, is required. Issues that may be important to consider include the point at which the settlement negotiations take place, particularly before or after a criminal investigation; whether the complainant is present at the negotiations; whether the complainant is represented; the role of the person conducting the negotiations, particularly in ensuring that no coercion or undue influence affects the process or outcome; and the adherence of the agreement to the law, to ensure that the victim does not agree to anything illegal, or receive significantly less than they would have through court proceedings.47 Moreover, in line with the Council of Europe Convention on Violence against Women, settlement, conciliation, or mediation should only be used where the complainant voluntarily agrees to the process, and not through any mandatory requirement to consider an alternative form of dispute resolution prior to lodging a claim before a court.
Ancillary rights and ‘portable’ justice
Available routes to accessing justice will be meaningless if effective conditions for accessing a remedy and reparation are not in place. THB is a crime associated with under-reporting, often motivated by threats made by traffickers that victims will be prosecuted or deported if they try to seek assistance.48 Under-reporting and the fear of authority underline the need for intermediary organisations between the State and the victim to provide victims with support and assistance in making a claim. This raises issues of adequate funding being made available to support the work of intermediary organisations while enabling them to function independently and without interference from the State. It is unlikely that victims of THB will be able to pay for legal representation, and will thus require legal aid in order to pursue a claim. While legal aid is not an automatic right in international human rights law, the ECtHR has indicated that it will be required in complex cases.49 The law relating to THB is complex and underdeveloped, and thus it is unlikely that self-representation would be consider
ed appropriate. Given this context, a key aspect of a State’s obligation to provide a remedial framework involves addressing what the UN Special Rapporteur has framed as ‘ancillary rights’.50 She has argued that ancillary rights require that victims are “promptly and accurately identified”; “fully and promptly informed” of their legal rights and provided with equal access and assistance to access remedies; and provided with a reflection and recovery period and access to services such as “housing psychological, medical, social, legal, employment, professional and material assistance”. She has also noted that access to remedies is not conditioned on co-operation with criminal prosecution, and that victims have “rights, and the rights of their families and witnesses, to safety (including from intimidation and retaliation), privacy and confidentiality protected before, during and after proceedings”.51
Significant in accessing a remedy for victims of THB is the location of the victim at the point of lodging the complaint and while it is processed. There is a risk that non-national victims will be deported if their status is not regularised and they cannot establish an entitlement to international protection.52 Article 13(1) of the Council of Europe Convention on Trafficking in Human Beings introduces a period of ‘recovery and reflection’, after a victim has been identified, in order to “allow victims to recover and escape the influence of traffickers”53 and to “allow victims to come to a decision ‘on cooperating with the competent authorities’ … in a prosecution of the traffickers”.54 The recovery and reflection period does not explicitly address situations in which the victim intends to bring a civil claim for compensation or brings a claim before a criminal compensation fund, neither of which require co-operation with the competent authorities. However, in such cases, the victim would presumably have to rely on the first ground of recovery under Article 13(1) and escape from the traffickers in order to stay within the State for a temporary period. Within this time period, it may be possible for a victim to engage legal representatives; although, this very much turns on the health and recovery of the victim, the adequacy of information that has been provided, the existence of support groups as well as lawyers specialising in THB, and the readiness of the victim to decide and begin participating in evidence collection and interviews concerning their experience. This may not be possible within the timeframe of the recovery and reflection period, which is likely to be short: the Council of Europe Convention requires a minimum period of 30 days. Accordingly, advocates have argued for a temporary residence permit to be provided to victims in order to enable them to remain in the jurisdiction for the duration of their case. While Article 14 of the Council of Europe Convention addresses residence permits, it does not include the pursuit of a civil claim for compensation as a ground for applying for such a permit. This reflects a gap that may require further consideration by States in the future.
Where a foreign victim is removed after the recovery and reflection period (or chooses to leave the country), procedures will need to be in place to enable them to access legal assistance and representation, to continue the claim, and to receive reparation where it is awarded. Here, greater attention is needed to improving the mechanisms to enable a victim to initiate or continue a complaint from outside the jurisdiction, particularly if the lawyer loses contact with the victim for temporary periods of time, which may result in the courts discontinuing the case. This has been referred to as ‘portable justice’.55
La Strada argues that the nature of the process for obtaining a remedy and reparation should be as quick and easy as possible if the victim is outside the jurisdiction. It notes that “obvious linguistic and communication barriers arise and there are difficulties relating to the provision of evidence, travel costs and the need to obtain visas for attending hearings, and limited possibilities for transferring and investing funds obtained”.56 It details co-ordination between non-governmental organisations in different States to enable victims to continue the complaint, noting that “[a]ttempts have been made to resolve these problems, e.g. some NGOs in Mexico exist specifically to assist those returning from the US in pursuing their civil claims over the border”.57
However, reliance on the capacity of NGOs fails to provide any certainty to victims, and is likely to result in inconsistencies and unevenness in approach. Of greater importance is the development and implementation of duties on States to co-operate to ensure that any victim who chooses to leave the State in which the claim is (to be) brought can continue to fully participate and receive any eventual reparation award. The 2014 Protocol to the 1930 Forced Labour Convention recognises this need in setting out the obligation of States to “ensure that all victims of forced or compulsory labour irrespective of their presence or legal status in the national territory, have access to appropriate and effective remedies”.58 Borland also recommends that:
[B]ilateral cooperation between countries of destination and origin, especially on legal proceedings, should be enhanced allowing victims to realize their right to redress and compensation even when they leave the country in which the exploitation occurred.59
Some examples of best practice are beginning to emerge. For example, in a recent report the FRA pointed to the practice of the French Office for Immigration and Integration that works “for the recovery and transfer of wages owed to third-country nationals in an irregular situation by employers”.60 The FRA notes that if the victim has left the State, the “payment system will be organised through the relevant French consulates”.61
However, it is clear that much greater thought and consideration is needed into how bilateral co-operation should work, and into what else needs to be in place to ensure that victims can effectively pursue their claims from outside the jurisdiction in which the claim is lodged. If such systems and co-ordination are resolved in relation to victims of trafficking, it may be transformational for victims of human rights violations living outside the State in which the violation was committed. Increasingly, international human rights tribunals apply the exhaustion of domestic remedies rule strictly. Yet, virtually no attention has been paid to States’ obligations to facilitate access to domestic remedies when the complainant is outside the jurisdiction, despite the fact that the reasons why a person has fled the State may be the basis for the complaint.62
Conclusion
International instruments clearly set out an obligation on States to establish a remedial framework for victims of THB. However, significant work is required to ensure that these rights and obligations are implemented in practice. This deficiency may be because of the traditional focus on criminal accountability rather than on a victim-centred approach. This suggests that full implementation of the right to a remedy and reparation will not be achieved through a focus on changes in discrete areas, but rather requires a systemisation of a victim-centred approach to THB that places the needs and rights of victims at the centre. This would address many of the practical barriers to a right to a remedy and reparation, such as communicating the victim’s rights at point of first contact; regularising compensation complaints within criminal proceedings; recognising the victim’s rights to a remedy and to reparation as a ground for accessing the recovery and reflection period and temporary residence; and ensuring that the victim is supported throughout the process to avoid complaints being abandoned.
Greater attention is also needed to ensuring that the avenues for bringing a complaint capture the full extent of THB, so that victims are able to recover against the full nature of the harm, rather than having to choose between recovering for physical and mental harm or loss of wages. These processes also need to ensure that the victim can recover against the full range of actors responsible, including the State where it has failed to prevent or protect the victim from THB. Much of the progress so far has been achieved by international actors and lawyers and NGOs litigating cases at the national level. In order to ensure that victims can enjoy their rights, States need to fully assess whether their laws, policies, and practices are adequate to enable victims to asse
rt their rights to a remedy and reparation and to pursue the complaint, including from outside of the country.
Notes
1 Article 4.
2 Basic Principles on the Right to an Effective Remedy for Victims of Trafficking (Annex, U.N. Doc. A/69/33797, 28 July 2014).
3 Ibid., I(3).
4 Jessica Lenahan (Gonzales) v. United States, Case 12.626, Report No. 80/11 (2011), para 127; see also United Nations General Assembly Resolution, Intensification of Efforts to Eliminate All Forms of Violence Against Women (A/RES/63/155, Washington, DC, 30 January 2009), p. 11, 14, 15, and 16; IACHR, Access to Justice for Women Victims of Violence in the Americas (Inter-Am. C.H.R., OEA/Ser.L/V/II, Doc. 68, Washington, DC, 20 January 2007), pp. 123–216; IACHR, Report No. 54/01, Case 12.051, Maria Da Penha Maia Fernandes (Brazil), Annual Report of the IACHR 2001, 36–44.
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