“Am I entitled to some compensation”? Asked “Jan” a victim of human trafficking for the purposes of forced labour. “Yes” I answered, but immediately became worried about the mind field that lay ahead.
Research from the EU funded human trafficking project TRACE (Trafficking as a criminal enterprise) has shown that it remains difficult for victims to receive compensation either during criminal procedures or in separate private legal actions. Procedures are complicated and often take a long time and furthermore, in the case of private actions, are expensive. Moreover, judges find it hard to estimate the height of the damages, even material damages thus resulting in a lack of uniformity.
Yet, it feels like it should be the most natural thing; victims who experience the heinous crime should be swiftly recompensed for their trauma. Certainly, human rights law governs the issue through the right to an effective remedy, which should necessitate compensation and free legal aid.
Article 15 (3) – (4) of the Council of Europe Trafficking Convention is very specific and is a basis for state responsibility to allow victims to seek compensations. The provision reads:
3 Each Party shall provide, in its internal law, for the right of victims to compensation from the perpetrators.
4 Each Party shall adopt such legislative or other measures as may be necessary to guarantee compensation for victims in accordance with the conditions under its internal law, for instance through the establishment of a fund for victim compensation or measures or programmes aimed at social assistance and social integration of victims, which could be funded by the assets resulting from the application of measures provided in Article 23.
Regrettably, the obligations contained in Article 15 are riddled with weaknesses and ambiguities. Art. 15(3) requires that compensation is linked to the establishment of the perpetrator’s criminal responsibility. Yet prosecutions are few and far between. Conversely, Art. 15(4) provides for wider scope, and encompasses situations where trafficked persons can pursue compensation from other sources, e.g. as a civil procedure or via a state compensation fund.
Yet as found by the TRACE project, no European State appears to have developed a fund specifically for victims of human trafficking. In addition, the flexibility to adopt measures in accordance with the conditions under state internal law means that compensation is regulated differently across countries. Consequently, some victims may find it easier to gain compensation than others.
Turning to the UK, and the options that Jan had afore him. Firstly, and in line with the afore mentioned Convention, compensation could have been sought during criminal proceedings:
- Through prosecutors requesting a compensation order upon conviction in appropriate cases under sections 130 -132 of the Powers of the Criminal Courts (Sentencing) Act 2000, which provides for compensation orders against defendants.
- Through confiscation and compensation under section 13(2) of the Proceeds of Crime Act 2002. Here, the court must determine any application for confiscation before considering a compensation order, however, the court has a discretion under section 13(5) and (6) POCA 2002 to make both a compensation order and a confiscation order against the same person in the same proceedings if it believes that the defendant will have sufficient means to satisfy both orders in full.
However prosecutors can apply for these only post-conviction; Jan’s perpetrator had not been identified, prosecuted or convicted.
Jan could have sued the offender in the civil courts. Civil litigation enables the victim to hold a defendant personally accountable for his actions, though funding for legal representation to pursue a civil compensation claim is often a bar to this course of action. However, as before he was unsure as to the whereabouts of his offender.
As such Jan’s only other option was through the Criminal Injuries Compensation Authority (CICA). This scheme compensates for personal injuries awards to victims of crime and fatal injury awards to immediate family members of a victim who has died as a result of a violent crime. To claim, the victim must have sustained physical or mental injuries as a result of a violent crime. A victim claiming mental injury without physical injury must demonstrate they were put in considerable fear of immediate physical harm.
On learning about the CICA Jan asked if a lawyer would help him. Although in the UK under S.47 of the Modern Slavery Act 2015 and the Legal Aid, Sentencing and Punishment of Offenders Act 2012, victims of trafficking can have to access legal aid to seek compensation in civil courts and Employment Tribunals, the same is not available for CICA claims.
In the end Jan decided the whole matter was too complicated and said he would not pursue it. Fortunately, most recently the government has agreed to conduct an urgent review of legal aid provision for people bringing compensation claims against their traffickers, after a judicial review brought by Garden Court Chambers on behalf of legal charity, the Anti-Trafficking and Labour Exploitation Unit (ATLEU).
The detention, coercion, threats and abuse, which trafficked persons, are confronted with, results in both physical and psychological harm. The crime is committed against these persons in such a systematic matter that is incomparable to theft or battery. This evokes an argument that in order to restore their feeling of dignity and security States ought to create national plans for legal aid and compensation to all victims of human trafficking, whether they are irregular or regular migrants.
Author: Julia Muraszkiewicz, member of the TRACE research team and member of STOP THE TRAFFIK Manchester.