Policy

Once a presumed victim of trafficking is identified, protection measures taken at this stage are essential for establishing a relationship of trust and cooperation between the victim of trafficking and service providers. The provision of protection that is safe and adequate for the needs of victims of trafficking should not be dependent on their willingness to cooperate with authorities.

Effective and sustainable protection solutions can help victims regain their autonomy and reintegrate into society by becoming self-sufficient participants in the economic and social life of their communities. Victims should have access to compensation through criminal or civil procedures as an important factor in successful recovery and reintegration. Following a reflection period or upon conclusion of any court proceedings, options of integration, voluntary return or reintegration should be provided. Each of those elements of sustainable protection are discussed below.

Victims must not be compelled to participate in the criminal justice process, but be empowered to choose whether or not they wish to. For those victims who are willing and able to contribute to the investigation and prosecution of traffickers, particular protection considerations apply. Prosecutions for human trafficking and related crimes often rely on witness testimony in the absence of corroborating evidence, meaning they are unlikely to succeed without the participation of victims. If a victim is unable to give reliable evidence, or is reluctant to give evidence at all, this may adversely affect the possibility of prosecution or the outcome of a trial, and jeopardize the State’s prospects of securing a conviction. A State’s capacity to provide victims with access to an effective remedy may be compromised where victims are not supported to achieve satisfaction through legal processes. Ensuring victims are provided with appropriate support and protection throughout each stage of the criminal justice process is not only key to protecting their rights as victims of crime, but is also necessary for their safe, effective and valuable contribution towards the prosecution of traffickers. Below are the three stages of protection during the criminal proceedings.

Coordination is a key component of comprehensive protection. Given the complex protection needs of individual victims of trafficking, the most tailored and effective measures will include a variety of experts and interventions. The obligation to protect victims of trafficking primarily lies with States, but other actors may play a significant role in supporting this function. Civil society actors are well placed to build trust between victims of trafficking and authorities, and have particular expertise that is necessary to provide effective protection services to them.

Identification of human trafficking cases is the first step in the process of moving trafficking cases forward to prosecution. Well-conducted investigations will secure successful prosecution and conviction of offenders. Identification of human trafficking cases can be done through proactive or reactive investigation. Either type of investigation should always be conducted with victims in mind to ensure their safety and protection of their rights. International legal cooperation among relevant agencies and involvement of specialized units are essential in successful investigations.

In order to effectively combat trafficking in persons, States need to ensure that the penalties are proportionate to the severity of the offence, as noted in Article 11 of the Organized Crime Convention.

States need effective international crime cooperation tools to fight trafficking in persons. Effective mutual legal assistance and extradition laws and agreements or arrangements allow for smooth and timely cooperation with foreign jurisdictions. In prosecuting transnational crimes, States need effective extradition laws to bring the offender to their jurisdiction for prosecution. States also need strong mutual legal assistance laws so that they can obtain evidence from other countries, such as bank records, phone records and witness statements. Other forms of international cooperation include transfer of sentenced prisoners, cooperation for asset confiscation, cooperation using special investigative techniques, and joint investigations.

International cooperation on combating crime can be both formal and informal. Formal cooperation in criminal investigations and prosecutions includes requests for mutual legal assistance. Informal assistance between police forces or other agencies can be used to obtain information from foreign countries prior to making a mutual legal assistance request. Both forms of international cooperation can be hampered by problems such as diversity of legal systems and law enforcement structures, inadequacy in established methods of communication of basic information and criminal intelligence, cultural and linguistic challenges, and lack of trust. States can use the Organized Crime Convention, which the Trafficking in Persons Protocol supplements, as well as national legislation as the legal basis for international cooperation to execute extradition requests and to seek mutual legal assistance.

Victim protection is a cornerstone of an effective criminal justice response to crime; unless victims of trafficking are appropriately protected, they will not be empowered to support criminal justice action against traffickers.

In upholding obligations to victims of trafficking, States should adopt a victim-centred approach that takes into account the individual needs of victims of trafficking and tailors protection responses accordingly. The protection of victims should not be conditional on, nor compromised by, their participation in the criminal justice system. State authorities are supported in their work where they understand protection challenges, and are trained to effectively address them in accordance with the relevant legal framework and international best practice.

In their domestic legal systems, States should provide for compensation in recognition of the injury, loss or harm experienced by the victim of trafficking. Compensation may include unpaid wages, legal fees, medical expenses, lost opportunities and compensation for pain and suffering. Compensation schemes for victims of trafficking may be sourced from assets of traffickers, or from State-funded schemes administered through judicial processes or administrative actions. In many jurisdictions, a civil claim for damages is associated with filing a criminal action and monetary awards are included in court decisions, or compensation payments to victims are made a part of the penalty. It is also possible to allow recovery of damages through civil action, independent of the criminal prosecution. Claims through labour courts for unpaid wages and other contractual benefits, especially in cases of trafficking for exploitation, are another possibility for compensation.

Some countries in the Asia-Pacific region have established funds out of State resources to provide material support to victims as they recover from their trafficking experiences. Trust funds for victims of trafficking have also been created with finances sourced from monetary fines and penalties as a result of criminal conviction. Others have allowed victims of trafficking to access existing general assistance funds such as those established for victims of serious crimes or violence.

Criminalizing corruption is a key complementary Organized Crime Convention obligation that may assist in preventing acts or offences related to trafficking in persons, such as crimes related to forgery of travel documents by way of bribing border officials, or collusion in trafficking crimes. The Organized Crime Convention provides the necessary legal framework for international cooperation to combat corruption. Article 8 requires States to criminalize corruption.

Money laundering involves concealing the identity, source, or destination of, or possessing or using, illegally gained money. In other words, money laundering is dealing with the proceeds of crime. The Organized Crime Convention requires States to criminalize the laundering of the proceeds of crime, as stipulated in Article 6(1)(a) and (b). The main requirements are to criminalize the conversion or transfer of property, the concealment or disguise of the true nature, and the acquisition, possession or use of property, knowing that such property is the proceeds of crime.

Using a multi-agency task force can be an efficient strategy to coordinate implementation of counter trafficking activities in line with a State’s policy. Such multi-agency task forces can exercise power and perform functions necessary to reach the goals of existing policy framework in line with domestic legislation. They also can develop rules and regulations as may be necessary for the effective implementation of counter-trafficking activities; coordinate programs and projects of the various member agencies; coordinate information-sharing and awareness campaigns regarding current laws and various issues and problems attendant to trafficking, through local government units (LGUs), concerned agencies, and NGOs. A multi-agency task force can also be a focal point for all counter-trafficking operations beyond the domestic borders. Multi-agency task forces can include representatives of all relevant agencies, including but not limited to: Ministry/ Department of Justice, Social Welfare and Development, Foreign Affairs, Labour/Employment, National Police, Immigration and civil society groups (if applicable).