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Purposes of Compensation

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Purposes of Compensation

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  1. Compensation For Victims of Trafficking in Persons – UNODC Perspective and State Practice Expert Consultation of the Special Rapporteur on Trafficking in Persons, Especially Women and Children, Ms. Joy Ngozi Ezeilo, on“The Right to an Effective Remedy for Trafficked Persons”Bratislava, 22 November 2010Simone Heri, Organized Crime Branch, UNODC Vienna

  2. Purposes of Compensation • Societal level: Awarding compensation acknowledges that trafficking is a crime • Individual level: Victim‘s pain and suffering are acknowledged and compensation can constitute a first step towards overcoming trauma inflicted and abuse suffered • Practical level: Compensations can assist victims to rebuild their lives • Retributive level: Compensation paid by traffickers can constitute a form of punishment and deter other traffickers

  3. Compensation in UNTOC and TIP Protocol • Each State Party shall establish appropriate procedures to provide access to compensation and restitution for victims (Article 25(2) UNTOC) • Each 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 (Article 6(6) TIP)

  4. Compensation: Legislative Guides to UNTOC Protocol does not specify any potential source of compensation, which means that any of the following general options that States have developed would suffice to meet the requirement of the Protocol: (a) Provisions allowing victims to sue offenders or others under statutory or common-law torts for civil damages; (b) Provisions allowing criminal courts to award criminal damages (that is, to order that compensation be paid by offenders to victims) or to impose orders for compensation or restitution against persons convicted of offences; (c) Provisions establishing dedicated funds or schemes whereby victims can claim compensation from the State for injuries or damages suffered as a result of a criminal offence. (Legislative Guides for the Implementation of the United Nations Convention Against Transnational Organized Crime and the Protocols Thereto (pp. 285-286, para. 60)

  5. Recommendations Adopted by Open-ended Interim Working Group on Trafficking in Persons “With regard to the compensation for victims of trafficking, States parties should consider the possibility of establishing appropriate procedures to allow victims to obtain compensation and restitution.” (CTOC/COP/WG.4/2009/2, para. 14) “States parties should endeavour to ensure the availability of a compensation fund or similar mechanism for victims of crimes, including trafficking in persons.“ (CTOC/COP/WG.4/2010/6, para. 56)

  6. Proposed Recommendations for Adoption at the Third Session of the TIP Working Group • Chair of the Working Group proposed recommendations interpreting or adding to Protocol obligations such as “States parties should provide legal assistance and information regarding legal assistance to victims of trafficking to represent his or her interests in criminal investigations, including the obtaining of compensation.“ • States parties did not arrive at consensus in the three hours scheduled for the Working Group at its 3rd Meeting • Compensation will most likely be taken up again at the 4th TIP Working Group Meeting on 14-16 December 2011

  7. The 5th Conference of the Parties to the United Nations Convention against Transnational Organized Crime… “Welcomedthe work of the Working Group on Trafficking in Persons, including the Group’s recommendations, resulting from its meeting on 14 and 15 April 2009, 27 and 29 January 2010, and 19 October 2010” (CTOC/COP/2010/L.5/Rev.1, para. 5)

  8. Cross-cutting Issues: Article 6(2) TIP Protocol • Article 6 (2): Each State Party shall ensure that its domestic legal or administrative system contains measures that provide to victims of trafficking in persons, in appropriate cases: (a) Information on relevant court and administrative proceedings; (b) Assistance to enable their views and concerns to be presented and considered at appropriate stages of criminal proceedings against offenders, in a manner not prejudicial to the rights of the defence.

  9. Cross-cutting Issues: Status of Victims of Trafficking in Persons in Receiving States • States Party shall consider adopting legislative or other appropriate measures that permit victims of trafficking in persons to remain in its territory (Article 7) • However: The immigration status or the return of the victim to his or her home country or other absence of the victim of trafficking from the jurisdiction shall not prevent the court from ordering payment of compensation (UNODC Model Law against Trafficking in Persons, Article 27(2) and 28(6)).

  10. Cross-cutting issues: Financial Investigations, Freezing, Seizing and Confiscation of Assets • Criminal justices measures such as proactive financial investigations and early confiscation of proceeds necessary for the execution of compensation order • States Parties shall, to the extent permitted by domestic law and if so requested, give priority consideration to returning the confiscated proceeds of crime or property to the requesting State Party so that it can give compensation to the victims of the crime (Article 14 (2))

  11. Cross-cutting issues: Financial Investigations, Freezing, Seizing and Confiscation of Assets “Noting the low rate of convictions for trafficking in persons globally, as reported in the Global Report on Trafficking in Persons published by UNODC in 2009, States parties should increase their efforts to investigate and prosecute cases involving trafficking in persons, including by making timely use of financial investigation techniques, special investigative techniques and other tools designed to combat other forms of organized crime.” (CTOC/COP/2010/6, para. 35)

  12. Cross-cutting Issues: Financial Investigations, Freezing, Seizing and Confiscation of Assets “States parties should utilize the Organized Crime Convention and other multilateral legal instruments to develop and strengthen international judicial cooperation, including with regard to extradition, mutual legal assistance and confiscation of the proceeds oftrafficking in persons.“ (CTOC/COP/2010/6, para. 28(b)) “States parties should increase cross-border criminal justice action through enhanced use of joint investigations, information-sharing and confiscation of assets, in line with their domestic legislation.” (CTOC/COP/2010/6, para. 36)

  13. State Practice: Regional Action Plans • BSEC Regional Action Plan for Strengthening the Criminal Justice: • Response to Trafficking in Persons (Black Sea), states that States should implement measures that offer victims of trafficking in human beings the possibility of obtaining compensation (para. 20). • ECOWAS Initial Plan of Action Against Trafficking in Persons • stipulates that States shall adopt legal provisions for the protection of victims of trafficking, and ensure that their domestic legal systems contain measures that offer victims of trafficking in persons the possibility of obtaining compensation for damage suffered (para. 6). • The OSCE Action Plan to Combat Trafficking in Human Beings • Asks participating States to consider establishing a fund based on the confiscated proceeds of trafficking to be used for the benefit of trafficking victims including the establishment of a compensation fund for them (section III, para. 1.5).

  14. State Practice I: Compensation Funds/Tribunals Bulgaria: Assistance and Compensation to Crime Victims Act (18 December 2006) Provides for compensation of victims of crime Authorities responsibility of informing victims of such rights New South Wales Victims Compensation Tribunal Established under Victims Support and Rehabilitation Act (1996) In May 2007 Tribunal awarded compensation to a Thai woman who was trafficked to Australia as a child for the purpose of sexual exploitation Nigeria: Trafficking in Persons Law Enforcement and Administration Act 2003 The Act establishes a Trust to provide victims with compensation for economic, physical and psychological damage

  15. State Practice II: Compensation Funds/Tribunals Egypt: Law No. (64) of 2010 regarding Combating Human Trafficking, Article 27: A fund shall be established to assist victims of human trafficking, which shall have a public juristic personality under the Prime Minister to provide financial assistance to the victims who have suffered harm resulting from any of the crimes stipulated in this law. A decision by the President of the Republic shall regulate this fund and determine its jurisdiction, resources and the sources of its funding. The proceeds of the fines sentenced for the crimes stipulated in this law, as well as the properties, objects, and means of transportation forfeited shall be allocated directly to the fund, which may also accept contributions, grants, and donations from national and foreign entities.

  16. State Practice: Right to Initiate Civil Action Serbia: Victims are able to file civil suits against traffickers and are entitled to temporary residence permits Hong Kong Special Administrative Region of China: Victims may initiate civil proceedings for damages or compensation arising form injuries sustained as a result of being trafficked

  17. State Practice: Cyprus Cyprus: Combating of Trafficking in Persons and Sexual Exploitation of Children, Law No. 3(1), 2000 Article 8 gives victim right to sue for special and general damages The Court may take into consideration the following for general damages: a. the extent of the exploitation and the benefit the liable derived from such exploitation, b. the future prospects of the victim and the extent to which such prospects were affected by the exploitation, c. the culpability of the offender, d. the relationship or the dominating position or influence of the offender with regard to the victim. (Article 8(2)) The Court, in the award of special damages, takes into consideration every item of expense which resulted from exploitation including costs for repatriation in the case of foreigners. (Article 8(3))

  18. State Practice: Israel • Israel: LegislationenablesGovernmentstoseizetraffickers‘ assetsforuse in therehabilitationofvictimsandforcompensation • Jane Doe vs. Alexander Lifshin and Armen Ben Anatoly Reidler (Tel Aviv Yafo District Court , 25 January 2010) • 500,000 NIS for client’s fees withhold • 1,000,000 NIS for the non-material damages which harmed the victims autonomy, freedom, body and soul. The court emphasized the duration of suffrage, and noted that this sum should also be seen as punitive damages that highlight the need to punish the defendant beyond the sentencing under criminal law • All expenses incurred by the victim, incl. 150,000 NIS for victim’s lawyer (100 NIS ~ 27 USD)

  19. State Practices: Kenya and Portugal • Kenya: Counter-Trafficking in Persons Act 2010 • Convicted trafficker is mandated to restitute his victim • Law also estblishes the National Assitsance Trust Fund for Victims of Trafficking • Portugal: • Criminal courts to award criminal damages • Advance payment of compensation by State-fund

  20. State Practices: Norway Victim options Governmentcompensationscheme: victims of violent crime Civil action againstperpetrator Civilclaim in criminal case againstperpetrator

  21. State Practice: Norway (continued) • Information about rights • Consultation with a lawyer • Legal representation in criminal cases • Assistance from lawyer in preparing civil claim in criminal case • Confiscation vs. Compensation • Confiscated proceeds are not available to victims • Case June 2010: Confiscated NOK 32000. Damages NOK 50 000.

  22. State Practice: Norway (continued) • Government Compensation • Compensation for Victims of Violent Crime Act • ”Victims of violent crime” – includes trafficking • Administered by Norwegian Criminal Injuries Compensation Authority • The criminal act must be reported to the police • Compensation even when the criminal case is dropped • Criminal act must have been committed in Norway • Practical Use: The Compensation Authority will often pay the victim according to a conviction, and will seek recovery from the convicted person.

  23. State Practice: Norway (continued) • Example: Albanian victim • NOK 200 000 in damages for non-economic loss • NOK 350 000 for permanent injury • NOK 120 000 future expenses • NOK 290 000 loss of personal income • NOK 1.300.000 future loss of personal income (100 NOK ~ 16 USD)

  24. State Practice: Argentina • Law 26.364 (29 April 2008): Prevention and Sanction of Trafficking in Persons and Assistance to its Victims • Provides for compensation and victims receive legal aid • One method of compensation ordered by the judges was to confiscate all the equipment from the traffickers and hand them to the victims of trafficking for them to start a small business.

  25. State Practice: United States of America • TwoMechanisms: • Private Lawsuit • Restitution FollowingCriminalProsecution • Mandatoryrestitution • “The court shall order restitution” for any human trafficking offense. • There must be a criminal conviction. • No other prerequisites for the victims to receive restitution • Discretionary restitution available for other offenses

  26. State Practice: United States (continued) • Funding Restitution • Solely Offender Funded • Can apply seized and forfeited assets • Court cannot consider Defendant’s financial situation • Practical Realities • United States v. Webster (2009) • $3.6 million • United States v. Kalimlin (2006) • $916,000

  27. State Practice: United States (continued) • Measuring Restitution • “Full amount of the victim’s losses” • Includes: • medical expenses, physical and psychological • physical therapy/rehabilitation • necessary transportation, temporary housing, child care • lost income • attorneys’ fees • any other losses proximately caused by trafficking • Plus • The greater of the “gross income or value to the defendant” of the victim’s services, or • the value of the victim’s labor as guaranteed by minimum wage and overtime laws.

  28. Thank you! Questions? CONTACT: ahtmsu@unodc.org www.unodc.org Tools and Publications www.unodc.org/unodc/en/human-trafficking/publications.html

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