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Analytical Study on the Investigation and Trial of Cases of Trafficking in Persons and Related Offences

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Analytical Study on the Investigation and Trial of Cases of Trafficking in Persons and Related Offences ANALYTICAL STUDY ON THE INVESTIGATION AND TRIAL OF CASES OF TRAFFICKING IN PERSONS AND RELATED OFFENCES Chisinau 2013 ANALYTICAL STUDY ON THE INVESTIGATION AND TRIAL OF CASES OF TRAFFICKING IN PERSONS AND RELATED OFFENCES International Organization for Migration (IOM) Chisinau, 2013 Publication: Analytical Study on the investigation and trial of cases of trafficking in persons and related offences Concept: Irina TODOROVA and Ion VIZDOGA Authors: Ion VIZDOGA (Team Leader), Dumitru ROMAN, Anatolie DONCIU, Diana IONITA, Vasile ROTARU (experts), Ina RUSU, Andrei LUTENCO (IOM) Adviser: Albert MOSKOWITZ (IOM) This Study was made possible through support provided by the United States Department of State, under the Terms of Award no. S-SGTIP-10-GR-0023 on the project “Preventing Corruption and Impunity in the Fight against Trafficking by Empowering the Media and Fostering Cooperation between Civil Society and Law Enforcement Agencies 2010-2013” implemented by the International Organization for Migration (IOM). The opinions expressed herein are those of the authors and do not necessarily reflect the views of the United States Department of State. The designations employed and the presentation of material throughout the Study do not imply the expression of any opinion whatsoever on the part of IOM or the United States Department of State concerning the legal status of any country, territory, city or area, or of its authorities, or concerning its frontiers or boundaries. IOM is committed to the principle that humane and orderly migration benefits migrants and society. As an intergovernmental organization, IOM acts with its partners in the international community to: assist in meeting the operational challenges of migration; advance understanding of migration issues; encourage social and economic development through migration; and uphold the human dignity and well-being of migrants. This Study was possible with the special support of the United States Department of State’s Office to Monitor and Combat Trafficking in Persons, the Supreme Court of Justice of the Republic of Moldova, the General Prosecutor’s Office of the Republic of Moldova and of the Embassy of the United States of America in Moldova. Publisher: International Organization for Migration (IOM) 36/1 Ciuflea Str. MD 2001 Chisinau Republic of Moldova Tel: +373.22.23.29.40 Fax: +373.22.23.28.62 E-mail: [email protected] Internet: http://www.iom.int, http://www.iom.md © 2013 International Organization for Migration (IOM) All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording, or otherwise without the prior written permission of the publisher (IOM). TABLE OF CONTENTS FOREWORD vii INTRODUCTION ix PART I: BACKGROUND, OBJECTIVES AND METHODS 1 PART II: SUMMARY OF FINDINGS 4 II.1 LEGAL CHARGING OF CRIMINAL ACTIONS 4 II.2 INVESTIGATION 5 II.3 TRIAL 7 II.4 VICTIM COMPENSATION 8 II.5 INTERNATIONAL COOPERATION 9 II.6 PREVENTION 9 II.7 CORRUPTION 9 PART III: RECOMMENDATIONS 11 III.1 AMENDMENT OF THE NATIONAL LEGISLATIVE FRAMEWORK 11 A. VICTIM COMPENSATION 11 B. THE IRREGULAR MIGRANT AND THE MIGRANT-VICTIM 11 C. JURISPRUDENCE 12 III.2 INSTITUTIONAL/ORGANIZATIONAL MEASURES IN INVESTIGATING TRAFFICKING IN PERSONS AND RELATED CRIMES 12 A. ENHANCING CRIMINAL INVESTIGATION 12 B. SUPERVISION BY THE SUPERIOR PROSECUTOR 13 C. IMPROVING THE QUALITY OF JUSTICE 14 D. VICTIM PROTECTION 14 E. INTERNATIONAL COOPERATION 15 F. PREVENTION OF TRAFFICKING IN PERSONS AND RELATED OFFENCES 15 G. CORRUPTION 16 PART IV: SPECIFIC FINDINGS 17 IV.1 TRAFFICKING IN CHILDREN 17 1. BACKGROUND 17 2. PROFILE OF THE ACCUSED PERSON 19 3. MEANS AND PURPOSES 20 4. PROFILE OF THE VICTIM 22 5. REPORTING THE CRIME 24 6. PROCEDURAL ACTIONS 25 7. RIGHT OF DEFENCE AND REPRESENTATION 29 8. NATIONAL AND INTERNATIONAL COOPERATION 31 9. PROCEDURAL COERCIVE MEASURES 33 10. TIME FRAMES FOR CONDUCTING CRIMINAL PROCEEDINGS 34 11. COURT PROCEEDINGS 35 12. PARTICIPATION AND THE BEHAVIOUR OF PARTIES IN COURT HEARINGS 35 13. SENTENCING 36 IV.2 TRAFFICKING IN HUMAN BEINGS 41 1. BACKGROUND 41 2. PROFILE OF THE ACCUSED PERSON 42 3. MEANS AND PURPOSES 44 4. PROFILE OF THE VICTIM 45 5. REPORTING THE CRIME 49 iii 6. PROCEDURAL ACTIONS 50 7. RIGHT OF DEFENCE AND REPRESENTATION 56 8. NATIONAL AND INTERNATIONAL COOPERATION 60 9. PROCEDURAL COERCIVE MEASURES 62 10. TIME FRAMES FOR CONDUCTING CRIMINAL PROCEEDINGS 63 11. COURT PROCEEDINGS 63 12. PARTICIPATION AND THE BEHAVIOUR OF THE PARTIES TO COURT HEARINGS 64 13. SENTENCING 64 IV.3 PIMPING 72 1. BACKGROUND 72 2. THE PROFILE OF THE ACCUSED PERSON 72 3. PROFILE OF THE PERSON THAT ENGAGES IN PROSTITUTION 74 4. REPORTING THE CRIME 76 5. PROCEDURAL ACTIONS 77 6. RIGHT OF DEFENCE AND REPRESENTATION 80 7. NATIONAL AND INTERNATIONAL COOPERATION 83 8. TIME FRAMES FOR CONDUCTING CRIMINAL PROCEEDINGS 84 9. COURT HEARINGS 84 10. PARTICIPATION AND THE BEHAVIOUR OF THE PARTIES DURING COURT PROCEEDINGS 85 11. SENTENCING 85 IV.4 ILLEGAL CROSSING OF THE STATE BORDER 88 1. BACKGROUND 88 2. PROFILE OF THE ACCUSED PERSON 89 3. REPORTING THE CRIME 90 4. PROCEDURAL ACTIONS 90 5. RIGHT OF DEFENCE 91 6. NATIONAL AND INTERNATIONAL COOPERATION 93 7. TIME FRAMES FOR CONDUCTING CRIMINAL PROCEEDINGS 93 8. COURT PROCEEDINGS 94 9. PARTICIPATION AND BEHAVIOUR OF THE PARTIES IN COURT HEARINGS 94 10. SENTENCING 94 IV.5 ORGANIZATION OF IRREGULAR MIGRATION (MIGRANT SMUGGLING) 97 1. BACKGROUND 97 2. PROFILE OF THE ACCUSED PERSON 98 3. PROFILE OF THE VICTIM 99 4. REPORTING THE CRIME 101 5. PROCEDURAL ACTIONS 101 6. THE RIGHT TO DEFENCE AND REPRESENTATION 104 7. NATIONAL AND INTERNATIONAL COOPERATION 106 8. TIME FRAMES FOR CONDUCTING CRIMINAL PROCEEDINGS 107 9. COURT PROCEEDINGS 107 10. PARTICIPATION AND BEHAVIOUR OF PARTIES DURING COURT HEARINGS 107 11. SENTENCING 108 IV.6 FORCED LABOUR 110 1. BACKGROUND 110 2. PROFILE OF THE ACCUSED PERSON 111 3. PROFILE OF THE VICTIM 112 4. REPORTING THE CRIME 113 5. PROCEDURAL ACTS 113 6. RIGHT TO DEFENCE AND REPRESENTATION 114 iv 7. NATIONAL AND INTERNATIONAL COOPERATION 117 8. TIME FRAMES FOR CONDUCTING CRIMINAL PROCEEDINGS 117 9. COURT PROCEEDINGS 118 10. PARTICIPATION AND BEHAVIOUR OF THE PARTIES IN COURT HEARINGS 118 11. SENTENCING 118 IV.7 ILLEGAL TAKING OF CHILDREN OUT OF THE COUNTRY 120 1. BACKGROUND 120 2. PROFILE OF THE ACCUSED PERSON AND OF THE VICTIM 120 3. REPORTING THE CRIME AND OTHER PROCEDURAL ACTS 121 4. TIME FRAMES FOR CONDUCTING CRIMINAL PROCEEDINGS 122 5. COURT PROCEEDINGS 122 IV.8 INDICES OF CORRUPTION IN CASES OF TRAFFICKING IN PERSONS AND PIMPING 125 CONCLUSION 127 v FOREWORD A global phenomenon, trafficking in persons did not by-pass Moldova. As a new democracy that emerged after the collapse of the Soviet Union, the country had to confront a whole range of social and economic problems during its transition period. Trafficking fed on these problems pushing thousands of women, men and children into exploitation in various countries of the world and procuring traffickers and exploiters huge profits. A problem of this magnitude required a proportionate response - consistent efforts to prevent and prosecute the crime, as well as to protect and assist those who became its victims or risk falling into exploitation. The International Organization for Migration (IOM) has been part of these efforts in Moldova since 2000 when it opened its office in the country. The work you have in front of you is building on this experience but also on an understanding of the huge work still to be done. Over the years IOM, established strong links with government agencies working to prevent and fight trafficking, including the Ministry of Interior’s Centre for Combating Trafficking in Persons (CCTiP) and the Ministry of Labour, Social Protection and Family (MLSPF). IOM showed commitment to preventing trafficking by being a key player in providing protection, assistance, repatriation and rehabilitation to victims of trafficking in Moldova and a lead agency in developing the National Referral System (NRS) for assistance and protection of victims and potential victims of trafficking. Since the beginning of its programme in Moldova, the IOM helped in the assistance and protection of over 3,000 victims of trafficking and over 6,000 potential victims of trafficking – vulnerable persons who are exposed to a real risk of being trafficked. Our efforts, however, showed that the focus on the protection of victims can often lead to only partial success, where victims have insufficient access to justice, where the justice system mistreats victims or where investigation, prosecution and conviction of perpetrators are inappropriately carried out and there is a risk of impunity. IOM understood that ensuring accountability of those guilty of trafficking, while guaranteeing the access of victims to legal remedies are among the underlying principles of government’s response. This is why preventing impunity of criminals and, even more so, complicity of government agents in such crimes should be a priority. This understanding led to the idea of the project “Preventing Corruption and Impunity in the Fight against Trafficking through Empowering the Media and Fostering Cooperation between Civil Society and Law Enforcement Agencies”, the overall purpose of which was to prevent impunity in trafficking in persons cases by increasing transparency in investigation, prosecution and trial processes through detailed analyses of judicial processes of trafficking cases, capacity building initiatives and increased cooperation between stakeholders, including the media and civil society. The present Study was designed as a crucial part of the overall project. It was conceptualized by Ms Irina Todorova, the IOM Moldova Prevention and Protection Program Coordinator, who was also coordinator to this project, together with Mr Ion Vizdoga a leading lawyer and legal expert on trafficking in persons cases, to whom I am very grateful for their meticulous work in designing and advocating the concept of this work.
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