Department of Theology
Spring Term 2017
Master's Thesis in Human Rights
30 ECTS
State compensation as
trafficking victims’ recall for
justice.
- A comparative study of the implementation of
trafficking victims’ right to state compensation in
five EU-member states, as a measure of
transnational justice and equality before the law.
Author: Emma Tengwall
Abstract
State compensation is considered a complementary tool for victims of crimes’ access to restorative justice. Particular benefits with state compensation for trafficked persons is the non-involvement of the offender, which by the nature of the crime usually implies a major obstacle for their access to financial compensation. The access to compensation for cross border victims, which includes victims of trafficking, and the importance of enforcing victims of crimes’ right to justice and equality before the law, has undergone a major
actualization in step with the free movement - which led to an increased mobility across EU-borders. The correlation between equality before the law -as an expression for cross border victims’ access to state compensation regardless of citizenship- and the prevailing
increasement of freedom of movement in the EU will among others be analyzed down Dworkin’s perception on equality and freedom as reciprocal musts. The right to
compensation for victims of trafficking is established in binding EU-acts and therefore requires compliance, particularly since Directive 2004/80/EG - which enforces cross border victims’ right to compensation - was adopted. Due to the lack of contrasting research in the area of victims’ access to state compensation in the EU-member states five different countries is hereby being analyzed, intending to compare national policies on compensation and their compliance with Directive 2004/80/EG. The member states in focus are Spain, Greece, Portugal, Malta and Italy. My conclusion asserts that the member states do comply with the EU-obligations on compensation but the protection of trafficked persons’ right - and access to - state compensation is notwithstanding beneath contempt and requires urgent progress.
INNEHÅLL
1. Introduction ... 6
2. Purpose and background ... 8
2.1 Compensation for victims of THB ... 8
2.2 The free movement ... 9
2.3 Boundaries ... 9
2.4 The utility of state compensation for victims of crimes ... 10
2.4.1 State compensation as more benefic than other compensation systems ... 10
2.5 Definitions ... 11
3. Theory ... 12
3.1 Introduction ... 12
3.2 Freedom and equality ... 12
3.2.1 Two approaches on equality ... 13
3.2.2 Two approaches of freedom ... 14
3.3 The nation state ... 15
4. Method ... 18 4.1 Legal dogmatics ... 18 4.2 A comparative approach ... 19 4.3 Disposition ... 21 4.4 Interviews ... 21 5. Previous research ... 23
6. Trafficking in human beings ... 25
7. EU-law on compensation ... 27
7.1 Introduction ... 27
7.2 The compensation background in the European Union ... 27
7.3 Directive 2004/80/EG - The member states’ obligations ... 28
7.3.1 Requirements for the victim to be entitled with state compensation ... 29
7.3.2 Injuries entitled for compensation ... 29
7.3.3 The amount of compensation ... 30
7.3.4 Provocation of crime ... 30
7.4 Directive 2012/29/EU ... 30
7.5 The right to effective remedies ... 31
7.6 EU-law on compensation for trafficking in human beings. ... 32
8. The purpose with compensation ... 33
8.2 Obstacles for victims of THB to award state compensation ... 33
8.2.1 Definitions of eligible crime victims ... 33
8.2.2 Information ... 34
8.2.3 The relation to the offender ... 34
8.2.4 Exclusion of entitlement ... 34
8.2.5 Lack of financial resources ... 35
8.2.6 Time-limits for submitting the application ... 35
8.3 Identified obstacles for cross border victims to award state compensation ... 35
9. Compensation policies in five member states ... 36
9.1 Italian legislation ... 36
9.1.1 Italian legislation ... 36
9.1.2 Conditions for the crime victim ... 37
9.1.3 Obstacles awarding state compensation in Italy ... 37
9.2 Greece Legislation ... 38
9.2.1 Greece legislation ... 38
9.2.2 Conditions/obligations for the crime victim ... 39
9.2.3 Obstacles awarding state compensation in Greece... 39
9.3 Malta ... 40
9.3.1 Maltese legislation ... 40
9.3.2 Conditions for the victim... 41
9.3.3 Obstacles in Malta... 42 9.4 Portugal ... 42 9.4.1 Legislation ... 42 9.4.3 Obstacles in Portugal ... 44 9.5 Spain ... 44 9.5.1 legislation ... 44
9.5.2 Condition for the victim ... 45
9.5.3 Obstacles ... 46
10. Analysis and discussion ... 47
10.1 Italy ... 47
10.2 Greece ... 48
10.3 Malta ... 49
10.4 Portugal ... 50
10.5 Spain ... 50
10.5 The realization of justice for victims of THB in the EU ... 52
10.5.2 From nation state to cosmopolitanism ... 54
11. Summarize/conclusion ... 56
11.1 Compliance with EU-acts ... 56
11.2 Obstacles for victims of THB to access state compensation ... 56
11.3 New norms for transnational justice ... 56
12. Relevance and recommendations ... 58
1. INTRODUCTION
Aristoteles asserted that the society should be governed by the law, rather than a human being. The purpose of the law is to punish the offender, serve justice for the victim and to prevent violations. Aristoteles’ idea is embodied as a part of the universal rule of law, which additionally requires the law to be impartial, unbound and equally applied to every human being.1 Since the origin of the United Nations the term rule of law also implies compliance of the Universal Human Rights. Rule of law basically means that the prevailing law protects the citizens from abuse and violations, which is realized when the jurisprudence is being
implemented effectively and predictably. To protect the citizens from abuse and to promote human dignity is further mentioned as one of the main objectives of the Human Rights, which reinforces the symbiosa ratio between the Human Rights and the rule of law.2
All human beings have the right to be treated with dignity and respect. Such dignity and respect are afforded to people through the enjoyment of all human rights and are protected through the rule of law.3
When someone becomes a crime victim his or her dignity is being violated. The promotion and protection of crime victims’ rights is therefore a crucial part of the human rights, as well as of the rule of law. As mentioned above the rule of law implies the restoration of justice for crime victims. The right to financial compensation serves as a major part in this restorative purpose. Crime victims’ right to compensation is also explicit embedded in the human rights as well as the EU-law - through the right to effective remedies, established in article 47 in the EU-charter, and the explicit right to compensation, established in Directive 2004/80/EG.4
Trafficking in human beings (THB) is categorized as an international violent crime in terms of the violation of several human rights: the prohibition of slavery (article 5 in the EU-charter), the right to life, liberty and security of person (article 6 in the EU-EU-charter), the right to the integrity of the person (article 3(c) in the EU-charter) and the freedom of movement
1 Frank, Jill. Aristotle on Constitutionalism and the Rule of Law. Theoretical Inquiries in Law 8.1, Tel Aviv.
2007:4
2 United Nations. Rule of law and human rights.
<https://www.un.org/ruleoflaw/rule-of-law-and-human-rights/>
3 Ibid
4 Council Directive 2004/80/EC of 29 April 2004 relating to compensation to crime victims. and the Charter of
and of residence (article 45 in the EU-charter). Article 20 in the EU-charter further states that everyone is equal before the law, which connotes that a crime victim is entitled to
compensation upon a non-discriminatory principle. By that means cross border victims own the right to compensation in all EU-member states regardless of citizenship, nationality or other discriminatory grounds.5 A report submitted by the EU-initiative COMPACT
additionally confirms that victims of THBs’ right to state compensation in the EU-member states is being protected under EU-law and the human rights.6
Crime victims’ right to compensation is demonstrably protected under EU-law, the human rights and the rule of law, but which actual importance does compensation play for victims of THBs’ access to restorative justice? COMPACT asserts that financial compensation for victims of THB has restorative as well as preventive functions. The restorative part involves the distribution of guilt and an acknowledge of the caused harm while the preventive factor intends to remedy the common lack of financial resources among victims of THB. Stronger financial capital promotes financial autonomy and thus the reintegration into a life of dignity and minimizes the risk for victims of THB to experience re-victimization.7
5 Charter of Fundamental Rights of the European Union, 2012.
6 COMPACT, Findings and Results of the European Action for Compensation for Trafficked Persons - toolkit
on compensation for trafficked persons. 2012:8
<http://lastradainternational.org/lsidocs/Findings%20and%20results%20of%20Comp.Act.pdf>
2. PURPOSE AND BACKGROUND
In 1989 an individual complained to the European Court of Justice regarding financial compensation in a country other than his resident. The complainant referred to community law, in terms of his right to transnational freedom. Transnational protection and security was claimed as a corollary for the validity of this freedom. The court concluded that conditions preventing other EU-citizens the same entitlements as national citizens are to be considered invalidated. This case laid the foundation for the progress of cross border compensation schemes to victims of crime in the EU.8 Transnational freedom further embraces a non-discriminatory approach and presume equality before the law. The prohibition of
discrimination and the right to equality before the law are additionally protected under article 20 and 21 in the European charter of fundamental rights.9 It is further widely accepted that equality and non-discrimination are positive and negative statements of the same principle.10
2.1 Compensation for victims of THB
The right to compensation includes the right to claim and receive compensation, in other words: the access to compensation. The access to compensation will by that means work as the means to measure to what extent trafficking victims’ right to compensation is being protected or violated. Low access to compensation indicates insufficiency regarding the European Union’s purpose, in terms of reinforcing human rights through transnational cooperation. The vulnerable nature of victims of THB underlies their central part in the following study. Victim Support Europe (VSE), an European umbrella organization, was by the European Commission assigned to remedy parts of the issueof cross border
compensation. I will, within the framework of this prject, assist VSE in compiling data from five southern member states, namely: Italy, Portugal, Spain, Greece and Malta. The
actualization of compensation for victims of THB has gained momentum in the past years and the next step is to transpose the right to compensation for victims of THB into practice. Measures for support and access to compensation for victims of THB must be embedded and implemented into compensation policies and schemes at national levels, which is what I intend to examine. A particular lack of comparative research within the area of state
8 Judgment of the Court of 2 February 1989. - Ian William Cowan v Trésor public - Reference for a preliminary
ruling: Tribunal de grande instance de Paris, France, Tourists as recipients of services, Right to compensation following an assault. Case no 186/87. ECLI:EU:C:1989:47
9 Charter of Fundamental Rights of the European Union, 2012.
10 Bayefsky, Ann F. The principle of Equality or Non-discrimination in International Law. Human Rights
compensation is addressed by Mulder.11 My study intends to remedy a small part of a much bigger vacancy in this matter of comparative research on state compensation.
2.2 The free movement
The need to enforce cross border victims’ rights mainly derives from the increased movement across EU-borders, caused by the policy of free movement in the EU.
With the entry into force of the Treaty of Amsterdam the EU faces the challenge of ensuring that the right to move freely throughout the EU can be enjoyed in conditions of security and justice accessible to all.12
In this statement the European Commission addresses the increased need of protecting cross border victims right to justice and equality before the law since more EU-citizens are moving and travelling accross borders. The parallel promotion of equality before the law and the free movement gives rise to the dynamics between the conceptions of freedom and
security/equality. The controversy, or potential reciprocity, of these two concepts will serve as my theoretical approach throughout my writings. The realization of victims of THBs’ access to compensation requires the latter approach. Traditionally these two concepts have been interpreted as separated values. I will in my analysis rather suggest an optional
perspective, based on the ones of Dworkin and Spicker, which implies a more nuanced and less totalitarian approach on equality and freedom which enables an reciprocal unification.
Research question;
In what terms are victims of trafficking in human beings’ right to compensation being protected or violated - in accordance with state compensation schemes in five EU-member states?
2.3 Boundaries
Victims of THB are entitled to various amount of rights, in accordance with Directive 2011/36/EU.13 The only right that will be examined in this study is the explicit right to
11 Mulder, J.D.W.E. How do we compensate a victim’s losses? An economic perspective. International Review
of Victimology. 2009, Vol. 16:81
12 European Commission. GREEN PAPER: Compensation to crime victims, COM(2001) 536 final, Brussels, 28
compensation, which actualizes the priority of Directive 2004/80/EG. The right to compensation itself covers a lot of different alternatives such as offender compensation though criminal proceedings, civil proceeding, insurances, labour or employment schemes on compensation and state compensation schemes. This study with explicit focus on the right to state compensation. This is due to the fact that loads of research on offender compensation have already been made over years. The complexity of state compensation as well as offender compensation requires them to be examined separately.
2.4 The utility of state compensation for victims of crimes
Marlene A. Young states that state compensation programs were the first generation of modern victim services. Young, refers to the ancient Babylonia and cites the Hammurabi code when asserting that a victim of crime, as a symbol for justice, must be restored by either the offender or the state. She suggests that in the evolution of criminal justice the victim posed the central point of the proceedings while today the criminal action- in extension the offender - rather owe that role. This primordial system enhanced the importance of the restoration of the victim while the modern penal system aims to punish the offender. Young bases the state’s obligation to restore victims in financial terms on the state’s failure to
protect its citizens from violations and as amoral stance to distribute the guilt according to the moral of the society, hence she recalls the need of a re-establishment of the centralization of the crime victim.14
2.4.1 STATE COMPENSATION AS MORE BENEFIC THAN OTHER COMPENSATION
SYSTEMS
Van dijk believes that state compensation doubtless is a favorable system for the satisfaction of victims of crimes. Still, he urges the challenge with state compensation to be how the schemes can be more effectively as part of a comprehensive victim policy, a matter I intend to partly remedy.15 Mellerqvist is another state compensation advocate who suggests that state compensation schemes are the most favourable compensation systems.16 Benefits
13 Directive 2011/36/EU of the European parliament and of the council of 5 April 2011 on preventing and
combating trafficking in human beings and protecting its victims.
14 Young, Marlene A. Victim Compensation: The Role of Victim Compensation in Rebuilding Victims’ Lives.
2009. <http://www.iovahelp.org/About/MarleneAYoung/RoleOfVictComp.pdf>
15 Van Dijk, Jan. Towards a Research-Based Victim Policy Report of the General Rapporteurs, Part II. WSV,
Mönchengladbach, 1992:20
16 Mannelqvist, Ruth. Compensation for Victims in Public Legislation and as a Civil Right. Stockholm Institute
particularly with state compensation for victims of THB is that the victim avoid extended court proceedings and that the offender neither is involved nor informed which is good since the victims normally has a much complex relationship with the offender.17 State
compensation plays a vital part to increase the awarded compensation by victims of THB and to protect -and in extension promote- the inherent right to compensation for a particular vulnerable group of victims, who normally do not get their human rights and their human dignity protected and promoted by the judiciary. By applying to a state fund, trafficked persons can avoid some of the issues with the judicial proceedings described above: the trafficker does not need to be persecuted or convicted, a long trial can be avoided, and the payment is usually prompt.18
2.5 Definitions
A victim is according to Directive 2012/29/EU, article 2, a person who suffered harm or loss directly caused by a criminal action, under national law.19 2004/80/EG, article 9, confirms that a compensation proceeding only can be initiated if the law in the deciding state consider the asserted violated a criminal action. Indirect victims, such as family members to a
deceased person, will not be included in my definition of a crime victim since the crime of trafficking does not directly cause someone’s death. A cross border victim is someone falling victim for an offence in another state than where he or she is either a permanent resident or a citizen.20
17 COMPACT. Guidance on representing trafficked persons in compensation claims - A practical tool for
lawyers, counselling centres and service providers: 8
<http://www.ungift.org/doc/knowledgehub/resource-centre/CSOs/Guidance_on_representing_trafficked_persons_in_compensation_claims.pdf >
18 COMPACT, 2012:36
19 Directive 2012/29/EU of the European parliament and of the Council of 25 October 2012 establishing
minimum standards on the rights, support and protection of victims of crime.
3. THEORY
3.1 Introduction
Non-discrimination and equality are positive and negative statements of the same principle and both of them are crucial for the realization of trafficking victims’ access to restorative justice - in terms of state compensation. What created the need to chart cross border victims’ obstacles to compensation and enforce their access to it was the increased mobility of citizens in the EU, a corollary of the right to free movement.21 This individual freedom to move freely across EU-borders requires individual security and equality under the law to avoid
discrimination and obtain equality and justice as well as to comply with the human rights. Equality before the law - as a measure of non-discrimination and the protection of trafficking victims’ and all cross border victims’ right to compensation - therefore needs to be tested in relation to the right of free movement as a conception of individual freedom. Darlei argues that the relation between freedom and equality is one of the main issues in modern legal theory and will serve as my central theoretical approach.22 My theory further asserts that EU-law serves as a core tool in the achievement of the promotion of these two concepts. The claim for transnational justice based upon the dynamics of equality and freedom challenges the traditional perception on the nation state, which will also be discussed in the following chapter.
3.2 Freedom and equality
My theory, dominated by the writings of Dworkin and Spicker, will not offer an explication of right or left politics. Still, it rather embraces the latter than the first. A liberal approach underlies the free movement in the EU in terms of the priority of the free individual choice, in this case of physical mobility. Dworkin understands equality as the core value of liberalism and he argues the freedom is not a fundamental right without equality, but that equality makes freedom a valid individual right. By that means freedom and equality works
complementary. Dworkin further argues that freedom is an aspect of the egalitarian ideal and cannot possibly be dealt with as competing antipoles nor separate values and the depends on which approach on the two concepts we embrace, these will be presented below.23
21 COM(2001) 536 final:6
22 Darlei Dall, Agnol. Dworkin’s liberal egalitarianism. Kriterion: revista da filosofia: vol.2, Pampulha, Belo Horizonte, 2006:1
23 Dworkin, Ronald. Sovereign Virtue: The Theory and Practice of Equality. Harvard University Press, Boston.
3.2.1 TWO APPROACHES ON EQUALITY
Dworkin distinguishes treating people as equals and treating people equally and he puts it in terms of sameness or equal concern. These are the two types of distributional equality; equality of welfare (equal concern), which treats people as equals in terms of needs when distributing assets while equality of resources treats people equally in an instrumental matter and distributes total equal resources and shares.24 Speaker confirm this theory by stating that equality and sameness are contrary. It is, in true liberal spirit, in the opportunities the equality or potential inequality flourish rather than in the actual outcome or assets. Equal treatment is by that means not the same as being treated the same way.25 Dworkin argues that equality of welfare is to prefer due to the fact that it makes people’s lives equally desirable and gives them equal means to reach their goals and wishes. He simply argues that more needs require more resources.26
Dworkin´s perception of equality is by that means not as total equal distribution of assets but rather - in traditional liberal spirit - equal distributed access to the vital tools to achieve individual goals.27 Equality is solely achieved if the society’s resources are auctioned out with the stipulation of the participation of all citizens, this further implies the importance of informing citizens of their opportunities to participate.28 Dworkin asserts that there is no utopia in everybody possessing the exact same wealth nor is that a measure on equality but rather equal distribution of resources. Equal concern should protect every individual’s life goals. Dworkin argues that equal concern serve as a producer and upholder of justice. He underlines this with his perception on happiness, which by individual choices and perceptions creates different life goals for different individuals. Dworkin underlies his theory of liberal egilitarianism with the so called envy test. For political community to stand the envy test nobody should have reason to envy anyone else, if so befalls, equal consideration in the distribution of resources is accomplished.29
24Dworkin, 2000:part 1, chapter 1
25 Spicker, Paul. Why Freedom Implies Equality. Journal of Applied Philosophy: vol 2, No 2, New Jersey,
1985.
26Dworkin, 2000:part 1, chapter 1 27Ibid
3.2.2 TWO APPROACHES OF FREEDOM
Dworkin asserts that liberty, like equality, can be interpreted in two ways. Firstly, in a absolute instrumental sense; to indicate the absence of constraints and secondly, a more nuanced approach of that people are meant to be free.30 Freedom is, in accordance with the second approach, measured along the amount of options a person has as well as how accessible the options are, rather than a unlimited freedom of choice. This egalitarian
approach on freedom aims not to eliminate differences but rather the disadvantages occurring from different prerequisites.31
The freedom of one requires the restriction of another’s freedom the same way as equality requires the restriction of one person's advantages. Spicker, as an egalitarian, implies that this redistribution is what is uniting these two and that freedom has clear egalitarian
implications.32 Edmund Burke takes on the same approach and argues that equal rights are not necessarily rights to equal things. For individual freedom and equal rights some people bear costs for the benefit of others with the purpose of reducing disadvantages.33
An anarchist, instrumental, perception on freedom for instance is indubitable conflicting with most conceptions of equality. Any legitimate society, aiming to protect its citizens and make the lives of their citizens better must therefore embrace a more nuanced interpretation, like the one advocated by Dworkin. Dworkin states that opponents towards freedom and equality as reciprocal political concepts normally embrace an instrumental approach which by natural reason rule out the possibility to combine these two since unlimited freedom must invoke on equality.34 Spicker asserts that the traditional perception on these as contrasting values is firstly that the state must intrude people‘s individual freedom aiming to achieve equality, and secondly that equality serves to remedy the disadvantages for some and therefore requires the elimination of advantages for others - in extension limiting the freedom of some. Spicker exemplifies by asserting that paying taxes aims to remedy disadvantages but simuntainasly it does restrict the freedom for some concerning the limitations of choosing where and how to spend your money. On the contrary, Spicker underlies his conviction of equality and freedom
30Ibid
31 Spicker, 1985:1 32 Ibid:7
33 Burke, Edmund. Reflections on the Revolution in France. Holt, Rinehart and Winston Inc, New York,
1959:70
as reciprocal by stating that equality aims to eliminate disadvantages while the realization of freedom requires the restriction of freedom for others and by that means they both do serve to remedy disadvantages, by restricting others advantages.35
3.2.2.1 The perception of social and individual freedom
This two approaches of freedom discussed by Dworkin can also categorized into Speakers two definitions of individual and social freedom. Individual freedom underlies a presumption of that every person is self-determining in terms of making his or her choices while social freedom adds the relative freedom of others for this individual freedom to be valid. For instance, if taxes restrict the person's autonomy in being self-determining social freedom still exists if the taxes are demanded equality in relation to others, hence social freedom and equality are closely connected. This more nuanced approaches on freedom that social freedom offers allow us to dismiss the perception of freedom and equality as contrasting values. Spicker further argues that not everyone is entitled to equal individual freedom but can with the help of a legitimate government access the some resources to fulfill their individual freedom, through the concept of social freedom. This equal right to freedom instead of totalitarian individual freedom automatically prevents disadvantages and
inequalities.36 Rawls further argues that the freedom of some is justified only if the restriction improves the circumstances of those who are disadvantaged, which indicates that even Rawls let precedence to social freedom, intending to not invoke on equality.37
3.3 The nation state
Dworkin´s theory derives from a nation based approach, which requires an extended
perspective on justice across borders to better understand the issue of equality before the law with international validity. Therefore Dworkin’s theory will be complemented by De Witte´s perception of the nation state’s transformation in real-time. De Witte discusses this
controversies from a financial perspective which legitimates the use of her theory
additionally. As mentioned before the restoration of justice across borders tends to challenge the traditional perception on - and priority of - the nation state, on which most former policies and norms of justice has been based upon. De Witte argues that these implicit compromises
35 Spicker, 1985:8-9 36 Ibid:4-5
required by the outbreaks of personal mobility in the EU, challenges the internal dynamics and require a re-validation of the nation state´s authority.
The challenge than is to understand how national political institutions can produce a type of justice that takes account of the relationships between citizenships across borders.38
De Wittes suggests that community law, in this case EU-law, serves as an instrument of the realization of transnational justice within the framework of national political institutions. EU-law entitles every EU-citizen with the same legal minimum standards whereas De Witte asserts that EU-law works as a tool to reinforce the right to freedom and security- in terms of preventing inequality and discrimination based on nationality and citizenship. The nation state´s perception of justice is based on the idea that the distribution of assets and rights are tied to the nation state´s territory and divided within there. Since societies are currently changing from the nation state to cosmopolitanism the territorial borders are fading or at least gets partially extended. This requires a re-definition of which persons are now ´included´or ´excluded´ for different entitlements. Within the framework of the nation state justice involving money is normally discussed in terms of earning the entitlement to certain means. This earning is often correlated with individual accomplishments. De Witte exemplifies with that most people agree on that someone working and paying taxes in a country for 20 years is more entitled to financial aid in that country than an unemployed person living in the same country for a shorter period of time. De Witte concludes that justice, from a nation based perspective, is highly relational and associative.39
The realization of equality as well as freedom requires that the political community acts in a coherent and principled manner toward all its members. Dworkin argues that an equal approach is what legitimates every government and that law functions as the tool in
distributing assets and uphold equality. By that means equality works as a precondition for the realization of political legitimacy- and in extension the validity of people enforcing their convictions and wills into legal concerns.40
38 De Witte, Floris. Justice in the EU - the emergence of transnational Solidarity. OUP, Oxford 2015:4 39 De Witte, 2005:chapter 1.2
What kind of transnational standards of justice than is moderate? De Witte asserts that the use of EU-law to establish transnational justice does not require an unified and harmonized conception of justice - but rather minimum standards of justice.41 Directive 2004/80/EG confirms the EU’s aim to establish minimum standards within the EU, rather than unified compensation schemes. De Witte further addresses three issues thats needs to be remedied for the realization of new cosmopolitan justice norms: 1) Eliminate the synonymizing of self determination and justice, 2) Establish a new normative model involving both the nation state and the EU, for the realization of the free movement, which undertakes security under the law, 3) To establish new concepts of transnational solidarity that requires us to embrace our obligations.42 The new need for standards challenging the nation state is defined as the challenge of international legitimacy, due to the fact that law is the realization of politics. Political cosmopolitanism is the view that national communities are not the exclusive source of political legitimacy in the global realm. Political cosmopolitanism, in this case
Europeanism, is much compatible with the idea of replacing nation states —at least in certain areas—by global, European, institutions.43
41 De Witte, 2005:70-74 42 Ibid:4
4. METHOD
4.1 Legal dogmatics
EU-law regulated the free movement which engendered the need of reinforced rights for cross border victims to ensure equality before the law. The prevention of discrimination upon nationality or citizenship requires a comparison between countries since it concerns the matter of the coexistence and cooperation of different EU-member states. Therefore a comparative approach will be embraced. The purpose of this thesis is further to examine victims of THBs’ legal right to compensation and the national compensation schemes’ compliance with Directive 2004/80/EG will work as a tool in this achievement, which requires the embracement of a legal dogmatic method. My legal dogmatic approach will serve to contribute to a better understanding of the protection of the right to compensation, which further may give direction to re-validations of political and legal action that can be taken towards improvements of victims’ of THBs access to state compensation.
The result of the implementation and compliance of EU-acts on state compensation is being tested on a particular vulnerable group of cross border victims, victims of THB. The main purpose with legal dogmatics is to test the practice of the law in a concrete context. National legal arrangements on state compensation are here being tested upon their compliance with the EU-acts in question. This to create a base upon which trafficked victims’ right to
compensation can be tested. Primarily a literature review, focussed on legislation concerning state compensation in the EU, will be carried out. This step will be conducted with
comparability between the national legislation and the EU-acts.
EU-legislation requires minimum standards and norms while national legislation consists of concrete rules. Testing compliance with international law can only be made if examining the common denominator of the two compared objects, therefore I choose to embrace a
EU-act at date the most actual legislation will be taken into consideration, to ensure timeliness.44
A common critique against dogmatics is that the method cannot bear the test of time, because it should intrinsically depict something changeless. It might be true that results highly
characterized by its epoque - as dogmatics sometimes asserts - require revalidation to be legit in another time. This can fortunately be dismissed since the intention of my writings, as mentioned before, is to study the current implementation of a national legal policy and
therefore does not require an infinite durability of validity to serve its purpose. Due to the fact that laws are temporarily valid due to the constant changes in societies the underlying rational meaning of the law is vital for any dogmatic survey. The rational meaning of the legal policy is however something I need to take into consideration, particularly since the central
legislation of this study was enacted in 2004. This is additionally what underlies the choice of examining minimum standards rather than concrete rules. Despite this no further use of intertemporal law comparison or legal archeology will be adopted due to its lack of relevant for the purpose.45
4.2 A comparative approach
Due to the lack of contrasting paths on compensation schemes in the EU-member states this study will embrace a comparative approach. Pieters stresses that the prime step of using comparative law is to address the purpose of the comparison. These following three intentions of comparison is referred to as nearby goals. The primary function of law
comparison is basically to better understand foreign legal policies, which by the Commission is stated as one of the primary wants to ensure transnational justice. Pieter further asserts that the intention of approaching other countries implementation of legal policies is to better understand and improve our own legal schemes, allowing to see the specificities of the own solutions. The identification of good, and bad, practices in different member states serves as an attempt in doing this. To get grips on foreign legal arrangements, we must situate them in their larger context, Pieter asserts. This last appeal expresses the need to present, even though briefly, other compensation sources than state compensation in each member state, to ensure that the state compensation schemes are compared on equal terms. Therefore other
44 Narits, Raul. Principles of Law and Legal Dogmatics as Methods Used by Constitutional Courts. Juridica
international XII, 2007:15-22
compensation sources will be briefly examined. Pieters also calls for the importance of great translations when comparing law across borders, due to the high importance of formulations of terms in legal matters. This was initially contemplated in my decision to elect southern member states, based on my skills in roman languages. Greek is the only nation diverging from this benefit of mine which will require particular precaution.46
Pieter claims, as a immediate goal with the comparative approach, that the understanding of foreign legal policies increases our knowledge of community legal instruments though these originally are based upon the preconceptions of the legal servants from different states. This makes the comparison of different states´ compliance with community law, in my case EU-law, well handy. The main distant goal with this method, addressed by Piters, is de lege ferenda solutions. This concept involves the use of foreign good and bad practices to improve and to prevent mistakes while enacting national reforms. Inter-national law comparison requires a justification of the chosen countries referred to the inherent purpose. The gain in examining five countries with a closer geographical extent is that all the five states are based on a similar civil law system, deriving from either the Napoleonic Code, German Civil Law or Roman law. Unitary national legal systems simplifies the comparative approach though I do not need to clarify several major differences in their legal systems to account for potential similarities or differences in each compensation scheme. This combined with my knowledge of the languages in matter underlies the choice of the five member states. Personal
restrictions as a comparatist and other methodological flaws potentially affecting my conclusions will be discussed in the analysis.47
Since a part of the Commission’s request - and the intention of this study - is to remedy the obstacles in understanding foreign compensation policies, to facilitate the cross
border-cooperation in compensation cases an external perspective of the chosen states is vital. Due to my inevitable advantages within the Swedish system it is desirable not to use Sweden as one of the countries due to the inevitable elimination of an external perspective. The comparison between different states’ compliances of EU-acts generates the identification of similarities
46 Pieters, Danny. Functions of comparative law and practical methodology of comparing - or how the goal
determines the road:3-13
<https://www.law.kuleuven.be/personal/mstorme/Functions%20of%20comparative%20law%20and%20practica l%20methodology%20of%20comparing.pdf>
and differences, which will generate the upbringing of good and bad practices, which the Commission expressly inquired for.
4.3 Disposition
My workflow commences by charting the relevant EU-legislation, whereas the most central act will be Directive 2004/80/EG. To access if, and how, the presented EU-legislation is being implemented and complied, two materials will be adopted; Official publications on the countries compensation schemes, submitted both by European organs and national bodies, and interviews with the member states in questions’ ministries of justice, or more exact - compensation delegate. Interviews were as planned conducted with Portugal, Greece and Malta. But due to lacking response the interview with Spain was defaulted and Italy choose not to participate due to current compensation reforms. Still Italy provided some information on their existing state compensation scheme through email. Since not all interviews were completed they will serve as a complementary material rather than the main source. The information taken from the interviews will be referred as the national contact points in the running text. When this is accomplished the next step, which is the purpose of this thesis, is to examine to what extent national compensation schemes helps or hinders
trafficking-victims’ access to state compensation. The material used in this matter is official publications on trafficking victims’ position as a particular vulnerable and complex group of cross border victims analyzed in relation to the national state compensation schemes.
4.4 Interviews
using a direct interview form would be considerably foolhardy, due to the very obvious risk of partiality. The material collected from the interviews plays the role of a cornerstone which together with the official publications and my theoretical approach aim to remedy my
5. PREVIOUS RESEARCH
Mulder is an economist researching in the field of financial compensation as part of crime victims’ recovery process. Mulder claims that very little research has been made on financial compensation for crime victims and that more research is needed. His research mostly
concerns what impact state compensation has on the victim’s wellbeing and recovery process and till what extent emotional loss can be calculated in financial means which do not lies in line with the purpose of this study and will therefore not be used till any larger extent. All of the informants included in Mulder’s research on level of satisfaction did award some kind of financial compensation which indicates that his optimistic perception on state compensation resulting from his research might look different if people not awarding compensation also were included.48 Young and Strang are two other researchers in the field of compensation for crime victims but they are both mostly, in conformity with Mulder, focused on what impact compensation has on victims’ wellbeings and recoveries, rather than the dogmatic approach which I am embracing.49 Ruth Mannelqvist is, as a legal servant, in her publication
´Compensation for Victims in Public Legislation and as a Civil Right´ closer to my
comparative dogmatic approach on state compensation but she still embraces a more general approach on the access compensation from all kinds of compensation sources in sweden and the correlation and dynamics between these different compensation schemes the Swedish traditional welfare system followed by a discussion of the complicated interaction between different compensation schemes in civil and public law. Mannelqvist argues that the befit with the welfare system as a source for compensation is that welfare is based on humanity not on duty, as she further states that compensation should redress the victim out of humanity rather than obligation.50
Shapland is another researcher problematizing the frequent prevalence of limitations from state compensation entitlements such as ´conduct of living´ since it reproduces a
discrimination of particular vulnerable victims because, by definition, the entitled victims are seen as somewhat more deserving than other victims and their violation as more grave and violent than victims with a certain lifestyle. Victims who in this matter falls outside the scope of the stereotype of an ´innocent victim´ might experience re-victimization, which is
48 Mulder, 2013. 49 Young, 2009
counterproductive for the purpose of compensation as a justice restorative remedy.51
O’Connell is a Australian victims of crime co-ordinator and is trying to remedy the issue of whether the society should or should not be obligated to compensate victims of crimes. He, like previous authors, is trying to seek the answer of the actual means of state compensation and the impact on victims’ recoveries. O’Connell concludes state compensation as an ex gratia, which means that the state compensate victims out of grace not by duty. In general O´Connell is sceptical towards the gain of state compensation but is also critical toward other compensation sources. Due to his perception of state compensation as an act of grace it is likely to conclude that he do not consider state compensation as the key to justice. O´Connell further asserts that financial restoration do not meet the needs of the victims in terms of its function as placebo. He summarize the advocates arguments for state compensation as a moral responsibility to compensate, a part of the state’s welfare responsibility or simply an act of grace.52 Chappell, as an advocate of state compensation, points out that those who are least able to afford becoming a victim stand the greater chance of suffering criminal
victimisation and that compensation schemes remedy this unjust situation caused by a criminal action and therefore generates a enforces protection against discrimination.53
51 Shapland, J, Willmore, J and Duff, P. Victims in the Criminal Justice System. Gower, Aldershot. 1985 52 O’Connell, Michael. Criminal injuries compensation revisiting the rationale for state funded compensation
for crime victims. Paper presented at the Innovation: Promising Practices for Victims and Witnesses in the Criminal Justice System – A National Conference, University House, ANU, Australia. 24 June, 2003
53 Chappell, D. Providing for the Victims of Crime: Political placebos or progressive programs?. Adelaide Law
6. TRAFFICKING IN HUMAN BEINGS
The recruitment, transportation, transfer, harbouring or reception of persons, including the exchange or transfer of control over those persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation.54
This EU-definition of trafficking in human beings is what will be examined in this following paper. The Palermo protocol stresses that ´the action to prevent and combat trafficking in persons, requires an international approach in the countries of origin, transit and destination that includes measures to prevent such trafficking´.55 This statement indicates that THB is a cross border issue and by that means victims of THB are included as cross border victims. Saying that the acknowledging of the apparent prevalence of trafficking within borders is vital, but still does not fall within the scope of the purpose of this paper.
THB is considered to be an important income source of organized crime groups, grossing an estimated revenue of 114 billion euro each year worldwide.56 According to Eurostat 30,124 victims of THB was identified during 2015 in the European Union. The same source witness of that 69 percent of all human trafficking is for the purpose of sexual exploitation. The victims of THB are primarily women (67%) and girls (13%). 65 percent of registered victims were EU citizens.57 The Directive 2004/80/EG solely provides protection for EU-citizens and EU-residents, which generates an approximately exclusion of 35 percent of trafficked victims in the EU.
54 Directive 2011/36/EU
55 Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children,
supplementing the United Nations Convention against Transnational Organized Crime. New York, 15 November 2000
56 Savona, E. U, & Riccardi, M. From Illegal Markets to Legitimate Businesses: The Portfolio of Organised
Crime in Europe. Università degli Studi di Trento, Trento, 2015:57 <http://www.transcrime.it/pubblicazioni/the-portfolio-of-organised-crime-in-europe/>
57 Eurostat. Statistical working papers: Trafficking in Human Beings. Publication office of the European Union,
Luxemburg, 2015:21-32
Traffickers are part of a lucrative organized criminality transporting assets across borders. This transnational circumstances leads to the very low awarded compensations paid by the offender due to their hidden assets in other states than where the offender is being prosecuted. State compensation is more adequate due to the transferred focused from the offender to the victim and the victim’s right and access to compensation, indifferent of the status and assets of the offender, for the area of human rights.58
7. EU-LAW ON COMPENSATION
7.1 Introduction
To examine to what extent EU- member states implement and comply the right to
compensation the legal framework on which the study will be based upon must be addressed. The five countries in question are all members of both the European Union and the Council of Europe and have ratified ECHR, which means that both EU- and ECHR-acts apply to all countries in question. Legal acts submitted by these organs will therefore be taken into consideration, such as conventions and directives. The document with the prime correspondence in the matter off cross border victim´s access to compensation is the Directive 2004/80/EG. The implementation and compliance of this Directive which by that means will serve as the most central part of this study. The Directive 2004/80/EG is further, as an EU-act, legally binding to all EU-member states which enforces its legal importance and relevance in this matter. To broaden the understanding of the European organ´s stance in the compensation-issue various appurtenant preparatory and investigative - or in other terms associated - publications will also be examined. Seeing that the main purpose of the directive is to establish minimum standards and not to re-establish new perfectly unified compensation schemes it seems fair to test the directive´s core values upon the member states rather than definite requirements. Hence the purpose and the most central requirements of the directive will be accounted for and thereafter tested in correlation with the compensation schemes in the member states in question. This more open course of action allows differences and similarities to be presented as well as the identification of lacks and good practices outside the framework of the directive´s requirements. No case from the ECJ will be presented due to their lack of relevance in state compensation proceedings.
7.2 The compensation background in the European Union
and state compensation is mentioned as a safety net for crime victims.59 The conclusions of the European Council in Tampere 1993 still expressed the urge for enforced unified
minimum standards for compensation. The ratification of the convention 1988 did not imply the expectations to improve the situation due to the lack of provisions assisting cross-border victims. The lack of equality between victims of crimes in different member states but also to facilitate cross border victims access to compensation in other member states. It was, by that means, in the 90´s the need of improved of cross border compensation schemes was initiated. As a consequence of the compensation recency the first study on state compensation for victims in the European Union was conducted in 2000. In the report of this study the
Commission reformulates the crimes entitling compensation as solely serious. This proves a significant de-escalation of the requirement for physical damage from 1983. The report addresses two main issues: The access to compensation for national victims and for cross border victims.60 This report led to Directive 2004/80/EG which protects cross border victims’ right to compensation in the EU.
7.3 Directive 2004/80/EG - The member states’ obligations
In accordance with Directive 2004/80/EG crime victims in the European Union are entitled to fair and appropriate compensation for the injuries they have suffered, regardless of in which state it occurred. The main purpose of Directive 2004/80/EG is to establish minimum standards that facilitates the access to fair and appropriate compensation to victims in cross-border situations. The directive targeting victims for international violent crimes.
Chapter 1 requires the member states to set up a EU-cooperation scheme consisting of the setting up an assisting and deciding authority and a central contact point, article 3. The assisting authority should provide the victim with assistance in submitting(article 1) and forwarding the application from her och his country of resistance to the state where the violation occurred(article 6). In accordance with article 5 the assisting authority should also provide the victims with sufficient information. The assisting authority shall not impose the applicant neither the deciding authority with any reimbursements, article 10(2). Article 3(3) further requests that all other administrative formalities should be kept to a minimum. According to article 2 the state where the crime occurred is responsible to award the victim her och his compensation. The deciding authority in the state where the crime occurred is the
59 Council of Europe. European Convention on the Compensation of Victims of Violent Crimes Strasbourg, 24.
XI, 1983.
authority receiving and handling the application. Article 10 states that the final decision of compensation must be mediated from the deciding authority as soon as possible. The assisting authority must translate the application into the language of the state with the deciding authority, under article 11(1). To sum up all EU-member states are with through the entry of force of Directive 2004/80/EG obligated to establish an assisting and deciding authority including the former requirements. It is also required to set up a national scheme and a cooperative scheme between member states for the access to compensation in cross border cases.61
7.3.1 REQUIREMENTS FOR THE VICTIM TO BE ENTITLED WITH STATE
COMPENSATION
The above requirements obligate member states to establish these compensation authorities but for the obligations to be fulfilled the authorities must also ensure compliance. To measure if the states comply with the obligations the entitlement for victims must be addressed. If the offender remains unknown or cannot be prosecuted the assessing authority must decide whether the claimant has indeed been victimized. It must also be addressed that the asserted injury is directly caused by the criminal action. The victim is responsible to prove his or her victimization as well as the direct causality of the injury and the criminal action. The criminal act must additionally be categorized as a serious violent crime. The time limit permitted for the deciding authority is expressed in terms of ‘as soon as possible’ and the Directive solely recommend a generous time-limit for the victim to submit the application and that the time should preferably be counted from the date of the end of criminal proceedings. Time-limits must however permit exceptions. The victim must also submit a report to the police to be entitled with compensation.62
7.3.2 INJURIES ENTITLED FOR COMPENSATION
The commission states that material and immaterial damages can be compensated. ´pain and suffering´ further needs to be distinguished from psychological health care expenses and do not require compensation. Medical expenses are covered by the compensation and should also include mental health counselling and psychiatric therapy. Spite this the Commission asserts that possible coverings for pain and suffering should concern long-term mental
suffering, emotional distress, violation of the personal integrity, invalidity, loss of amenities and loss of expectation of life.63
7.3.3 THE AMOUNT OF COMPENSATION
The victim is entitled with fair and appropriate compensation, according to the directive. No further details on the amount is given and is therefore left to the determination of the states. There is in most member states a maximum amount awarded but no minimum, which the commission suggests.64
7.3.4 PROVOCATION OF CRIME
The convention states a reservation for compensation referring to the victim’s conduct in relation to the crime, particularly on his or her involvement in organised crime. It is confirmed that all member states have established reservations regarding the
guilt/involvement of the victim. A reason for this reservation is due to some member states legislation regarding provocation of crime. The relationship with the offender is in some states valid ground for refusal of payments.65
7.4 Directive 2012/29/EU
The communications in 2011 regarding the need of reinforcement rights for crime victims led to the establishing of Directive 2012/29/EU which expresses the minimum rights for victims of crimes.66 Directive 2012/29/EU is according to FRA the most central document relating to victims’ rights in the EU. It is worth to mention that the directive 2012/29/EU replace the Council Framework Decision 2001/220/JHA and not Directive 2004/80/EG which solely state victim of crimes’ rights to compensation.67 Article 4(e) states the victim’s right to receive information of what kind of compensation he or she is entitled to claim. This should
63 Ibid
64 Report from the Commission to the Council, The European parliament and the European economic and social
committee on the application of Council Directive 2004/80/EC relating to compensation to crime victims. 2009. COM(2009) 170 final:1
65 Directive 2004/80/EC.
66 Communication from the Commission to the European Parliament, the council, the Economic and Social
Committee and the Committee of the regions Strengthening victims' rights in the EU. COM/2011/0274 final.
67 European Union Agency For Fundamental Rights. Victims of crime in the EU: the extent and nature of
support for victims. Publications Office of the European Union, Belgium, 2014:14
under the same article be provided during the first contact with any authority. Article 17 in the same directive entitles cross border victims with the same legal right.68
7.5 The right to effective remedies
The serving of justice covers the right to an effective remedy which are explicit established in article 47 in the EU-charter.69 Under international human rights standards the right to an effective remedy includes the right to obtain reparation which may include the following forms: restitution, rehabilitation, compensation, satisfaction, and guarantees of non-repetition. 70 According to the council of Europe the domestic remedy should be effective, available and sufficient- in theory, practice and law, which in the case of compensation applies to both the criminal proceeding and the compensatory proceedings. The criminal proceeding must be effective in order to address and in best of cases prosecute the offender/s and in extent - enable victims claim for, and obtain to, offender compensation. Ineffective criminal proceedings will occasion obstacles for the access to offender compensation. As earlier mentioned the state compensation serve as a complementary measure to OC and the state is obligated to offer the victim to claim state compensation due to its failure to maintain the obligation of effective remedies and to prosecute the offender. When the state’s failure is observed the compensatory proceedings is actualized, which also requires effectiveness. The claim for compensation must for instance be heard within a reasonable time, the
compensation must be paid promptly within six months from the decision on compensation is made, the compensation procedure must be characterized by fairness - based on the definition of article 6 in ECHR -, legal costs must not place an excessive burden on the litigant and the amount of the compensation must be proportionally. Default interest on delayed payments is a potential solution to prevent that the compensations are handled effectively. Despite this the Council of Europe expresses that a wide margin of appreciation is applied on the demand for effective compensation schemes.71
68 Directive 2012/29/EU of the European parliament and of the Council of 25 October 2012 establishing
minimum standards on the rights, support and protection of victims of crime.
69 European Union, Charter of Fundamental Rights of the European Union, 26 October 2012, 2012/C 326/02. 70 General Assembly. Resolution: 60/147 of 16 December 2005. Basic Principles and Guidelines on the Right to
a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law:7-9
71 Council of Europe, Directorate General Human Rights and Rule of Law Council of Europe. Guide to good
practice in respect of domestic remedies. 18 September 2013:7-23
7.6 EU-law on compensation for trafficking in human beings.
Member States shall ensure that victims of trafficking in human beings have access to existing schemes of compensation to victims of violent crimes of intent.72
This article do not only expresses victims of THB´s right to compensation, it further defines THB as a violent crime, which enforces the inclusion of victims of THB in Directive
2004/80/EG, as Directive 2004/80/EG solely embraces victims of violent crimes. the Directive EU/2011/36 of the European Parliament and of the Council on preventing and combating trafficking in human beings and protecting the victims i the solely binding EU-legislation against THB. By reason of this study’s intention no other law than legally binding EU-act will be taken into consideration. Counselling and information as described in Art. 11(5) should, in accordance with article 11(5)be offered in a language and form the victim understands. In Article 12(2) it is stated that victims of THB have access, without delay, to legal counselling and representation, including for the purpose of claiming compensation. This legal assistance shall be free of charge if the victim does not have sufficient financial resources.73
The European Commission includes victims of THB as victims of violent crimes due to the frequent occurrence of shame, guilt, the close relationship with the offender and the repeated nature of the crime.74 The definition of THB as a violent crime regardless of the level of physical violence is crucial in my examination of the member states compliance of
compensation-acts though they normally implies victims for violent crimes. Trafficking of human beings can, somewhat simplified, be divided into two categories; trafficking for laboral purposes and trafficking for sexual purposes. Since these categories often merge into one in theoretical frameworks this study will not diverge between these two.
72 Directive 2011/36/EU 73 Ibid
8. THE PURPOSE WITH COMPENSATION
8.1 How should state compensation be conceived?
Resolution (77)27, which underlies the convention for compensation for victims of violent crimes, urged equality and social solidarity as being the basic principles of the establishment of state compensation. Since some citizens are more vulnerable, or unluckier, than others, they should be compensated by the community for the suffered injury.75 The parliament’s claim for equality can be interpreted as the preventative factor mentioned by COMBAT since it facilitate the reintegration of a life in dignity, which all human beings are entitled to as a measure of equality, and in accordance with the human rights. Further the expressed
solidarity can simply be interconnected with the restorative means in terms of the restoration of justice as a symbolic means. Hence, state compensation can be summarized as a practical and preventive tool in the fight against trafficking and the trafficked person’s reintegration into an autonom life as well as a symbolic means for solidarity and justice.
8.2 Obstacles for victims of THB to award state compensation
8.2.1 DEFINITIONS OF ELIGIBLE CRIME VICTIMS
The Maltese Ministry of Justice suggests that the cycle of violence is highly relevant when dealing with victims of crime. This cycle refers to the prevalence of involvement in criminal activities among victims of crime in terms of that being abused increases the risk for being arrested.76 The cycle of violence correlates with the problem for victims of THB not to be identificated as victims but rather criminals or perpetrators. This can take the form of these victims being illegally resident in a state or them participating in criminal activities such as prostitution or drug- use and trafficking.77 A victim of THB that is not identified as such will not be capable of claiming nor awarding compensation. The non-identification of trafficking victims derives, inter alia, from a lack of priority of human trafficking cases among legal practitioners, but also narrow legislation concerning definitions of crime victims. A common factor is additionally the lack of self-identification among victims themselves, since they tend to profile themselves in conformity with the portray frequently occurring in the judiciary, as
75 Explanatory Report – ETS 116 – Compensation of Victims of Violent Crimes. European Treaty Series - No.
116. Strasbourg, 24.XI.1983:2-3
76 DR. Mark Said. Crime Victims first - promoting and protecting victims rights. Victims of crime - a short
presentation prepared by the directorate general at the justice department of Valletta, Malta.
<https://mail.google.com/mail/u/0/?tab=wm#search/mark.said%40gov.mt/15a4b71d8f4b7ea8?projector=1>
77 Thompson, K., & Jernow, A. Compensation for Trafficked and Exploited Persons in the OSCE Region.
criminals rather than victims.78 Thompson & Jernow asserts that victims for labour exploitation generally get more frequently excluded from the denomination as a victim of violent crime since it rarely involves direct physical violence.79
8.2.2 INFORMATION
Negative attitudes, partly due to the circle of violence, towards victims of THB among law enforcement agencies also has a major impact on their chances to award compensation. Lack of information is a well known issue for victims of THB to receive compensation, which is true even for legal practitioners. Barriers to receive this statutory information and assistance is often lack of knowledge of the local language or distrust of law enforcement and legal institutes. Furthermore, without understanding or being aware of the right to compensation in the first place, victims will not receive it.80
8.2.3 THE RELATION TO THE OFFENDER
Victims of THBs’ fear is consistently mentioned in the literature to be a reason to not submit a claim for compensation nor testify during criminal proceedings. The fear is expressed both as a fear for the trafficker, in terms of past and potential violence caused by the trafficker, but also the fear and low trust for authorities and the judicial system- which often have been inculcated into the trafficked victim by the offender.81
8.2.4 EXCLUSION OF ENTITLEMENT
Identified obstacles with state compensation are that various eligibility criterias may prevent victims for THBs’ access to compensation. State compensation funds that only recognize victims of physical violence and injury might for instance exclude trafficked persons whom at times solely suffers with emotional or psychological traumas. Some state funds are made inaccessible to victims who have been engaging in illegal and immoral behaviour, such as when contributing to or provoking the criminal action. Additionally some states does not identify trafficked persons as victims of trafficking, but rather as enrolled in organized criminality, which eliminates their entitlements to certain rights as crime victims.82
78 COMPACT:40-43
79 Thompson & Jernow, 2008:37 80 COMPACT, 2012:42-43 81 Ibid:40
8.2.5 LACK OF FINANCIAL RESOURCES
State compensation proceedings can further be costly and victims of THB are much often lacking financial resources, since lack of finances normally is what initiated their
involvement in THB in the very first place.83
8.2.6 TIME-LIMITS FOR SUBMITTING THE APPLICATION
The period after the exposition is normally confusing and stressful for a victim of sexual trafficking and a claim for compensation is clearly not in priority, contradictory to victims of trafficking in forced labour, who claim compensation far more often. This often results in a long period of time passing before the victim report the crime. This combined with slow legal processes makes the average number of months between offence and trial around 32, which causes several complications: the victim may not remember the facts as well, other evidence may not be evident anymore, and the victim may have left the country.84
8.3 Identified obstacles for cross border victims to award
state compensation
Information was in 2001 suggested to be the main obstacle for all kinds of cross borders victims’ access to compensation.85 In 2009 the obstacles were summed up as; language barriers, lack of information and legal advice. An interesting finding is that authorities is significantly more positive to the national compensation proceedings than applicants are. Reasons for applicants’ negative attitudes is complicated and time-consuming processes together with informative obstacles, primarily language barriers.86
83 Ibid:44-45 84 Ibid:41-42
85 COM(2001) 536 final:31
