Compensation for Trafficked and Exploited Persons in the OSCE Region ǁ Compensation for Traffi cked and Exploited Persons in the OSCE Region Published by the OSCE Offi ce for Democratic Institutions and Human Rights (ODIHR) Al. Ujazdowskie 19 00-557 Warsaw Poland www.osce.org/odihr © OSCE/ODIHR 2008 All rights reserved. Th e contents of this publication may be freely used and copied for educational and other non-commercial purposes, provided that any such reproduction is accompanied by an acknowledgement of the OSCE/ODIHR as the source. Cover photo: Rocco De Benedictis, Today photo agency, Italy. Th e photo was part of Fabrizio Gatti’s award-winning reportage “I was a slave in Puglia” published on 7 October 2006 in the Italian weekly L’Espresso. Written after Gatti’s week-long experience as a tomato picker in the province of Foggia in southern Italy, it depicts the exploitative working conditions foreign migrants are subjected to in an industrialized country. Th e reportage won the European Union’s “For Diversity. Against Discrimination” journalism award in 2006. ISBN 978-83-60190-62-3 Cover designed by Agnieszka Rembowska Designed by Homework, Warsaw, Poland Printed in Poland by Agencja Karo Table of contents Acknowledgements . 5 List of abbreviations and acronyms . 7 Executive summary . 9 1. Introduction . 13 1.1. Introduction and background . 13 1.2. Methodology . 14 1.3. Terminology . 15 2. Th e right to compensation in international law — an overview . 19 2.1. Overview of the right . 19 2.2. Conclusion . 20 3. Compensation — national frameworks . 23 3.1. Compensation mechanisms . 23 3.2. Specifi c factors to consider in traffi cking cases . 34 3.3. Types of loss and injury . 37 3.4. Enforcement and asset seizure . 40 3.5. Challenges of transnational claims and jurisdiction issues . 42 3.6. Rule of law . 44 3.7. Conclusion . 45 4. Th e role of NGOs and civil society in victim support and advocacy . 47 4.1. Advocacy for compensation . 47 4.2. NGO victim support. 50 4.3. Conclusion . 51 4 5. Country Profi les . 53 5.1. Albania . 53 5.2. France . 61 5.3. Moldova . 74 5.4. Romania . 83 5.5. Russian Federation. 90 5.6. Ukraine . 98 5.7. United Kingdom . 108 5.8. United States of America . 128 6. Conclusions and recommendations . 163 Annexes: International standards and obligations . 173 I. International legally binding documents . 173 II. International politically binding documents . 179 III. Regional legally binding documents (for states parties) . 182 IV. Regional politically binding documents . 187 V. Tables of signatures & ratifi cations of relevant international standards . 189 Bibliography . 193 Acknowledgements Th is publication was researched and written for the OSCE/ODIHR Anti-traffi cking Pro- gramme by Katy Th ompson and Allison Jernow. Th e researchers could not have carried out this work without the assistance of: the OSCE Presence in Albania in particular Juliana Rexha (National Anti-Traffi cking Offi cer); OSCE Offi ce in Ukraine in particular Begona Pineiro and Hlib Yasnytsky; OSCE Mission in Moldova in particular Antonia Demeo and Otilia Bologan-Vieru; ADPARE in Romania in particular Alexandra Surcel; Center for Legal Civic Initiatives in Albania in particular Besa Saraci and Aurela Bozo; Asociatia Femeia Pentru Societate, Moldova in particular Veroni- ca Lupu; Poppy Project, UK in particular Sarah Stephens-Smith; Solicitor’s Human Rights Group (UK) in particular Bronwyn Byrnes; Elena Tyuryukanova (Russian Federation); Geor- gina Vaz Cabral (France); Benedict Bourjois (France); Robert Moossy, Director, and Lorna Grenadier, Victim/Witness Coordinator, of the Human Traffi cking Prosecution Unit, Civil Rights Division, U.S. Department of Justice, and experienced civil practitioners Dan Wern- er, Kathleen Kim and Kent Felty (United States). Th anks also for useful dialogue, materials and assistance to: Beate Andrees, Gao Yun and Al- exander Iafaev of ILO; Richard Danziger of IOM; Jyothi Kanics of the Irish Refugee Council; Michele Levoy of PICUM; Jens Matthes of UNICEF; Andrew Painter of UNHCR; Gabriele Reiter; Liliana Sorrentino and Anelise Gomes de Araujo of the OSCE Offi ce of the Special Representative and Co-ordinator for combating traffi cking in human beings; Don Flynn of PICUM; Mike Dottridge; Rhodri Williams; and Marieke van Doorninck of La Strada International. Th is report was tabled as the background paper for an ODIHR workshop on compensat- ing traffi cked and exploited persons, held in Barcelona on 10-12 December 2007. Th anks also to all participants at the workshop for their active contribution in further develop- ing this report: Omer Ahmed, Transport and General Workers Union (UK); Nataliya Akhtyrska, Academy of Judges (Ukraine); Professor Aurela Anastasi, Centre for Legal Civ- ic Initiatives (Albania); Alovsat Aliyev, Centre of Legal Assistance to Migrants (Azerbaijan); Funda Bacinoglu, Ankara Bar Legal Aid Services (Turkey); Julie Barton, Poppy Project (UK); Dr Machteld Boot-Matthijssen, Bureau of the Dutch Rapporteur on Traffi cking, (the Neth- 6 erlands); Benedicte Bourgeois, Comite Contre L’esclavage moderne (France); Reyes Castillo, PICUM and ACCEM (Spain); Tatiana Catana, Association of Women in Legal Careers (Moldova); Anton Chazov, IOM (Russian Federation); Iulia Diaconu, Prosecutor (Roma- nia); Marieke Van Doorninck, La Strada International (the Netherlands); Yun Gao, ILO, (Geneva); Marta Gonzalez, Proyecto Esperanza (Spain); Lorna Grenadier, Victim Witness Coordinator (US); Robin Harms, Offi ce of the OSCE Special Representative and Co-ordina- tor for Combating Traffi cking in Human Beings, (Vienna); Natalia Ieseanu, Tampep (Italy); Mary Japaridze, Article 42 of the Constitution (Georgia); Ulas Karan, Istanbul Bilgi Univer- sity (Turkey); Carl Kelvin, Crown Prosecution Service (UK); Ketevan Khutsishvili, Offi ce of Prosecutor General (Georgia); Janice Lam, Anti-Slavery International (UK); Veronica Lupu, Association of Women in Legal Careers (Moldova); Dominique Mallassagne, Victims As- sistance Offi ce of the Access to Law and Justice Department (France); Vladimir Misev, Institute for Democracy “Societas Civilis”, (former Yugoslav Republic of Macedonia); Ma- rina Meskhi, State Fund for Protection and Assistance of Victims of Traffi cking (Georgia); Veronica Pavel, Lawyer (Romania); Yuri Poliakov, Lawyer (Russian Federation); Juliana Rex- ha, OSCE Presence in Albania, Tetyana Rudenko, Offi ce of the OSCE Project Co-ordinator in Ukraine, Elena Volochai, Lawyer (Ukraine) and Daniel Werner, Workers Rights Law Cen- tre of New York (US). Note: Th e initial research for this report was completed by April 2007. It has since been updat- ed with relevant developments, but this is not necessarily a comprehensive updating. Th is does not aff ect the conclusions and recommendations. List of abbreviations and acronyms CCP Criminal Procedure Code ECCVVC European Convention on the Compensation of Victims of Violent Crime EU European Union IGO Inter-governmental organization ILO International Labour Organization IOM International Organization for Migration NGO Non-governmental organization OSCE Organization for Security and Co-operation in Europe OSCE PCU OSCE Project Co-ordinator in Ukraine ODIHR OSCE’s Offi ce for Democratic Institutions and Human Rights UNTOC UN Convention against Transnational Organized Crime Executive summary Strengthening access to justice for victims of traffi cking in human beings is one of the main programmatic objectives of the OSCE’s Offi ce for Democratic Institutions and Hu- man Rights (ODIHR) and the right to compensation is an important aspect of this work. Th e aim of this assessment is to analyse this right and how it is implemented in eight diff er- ent OSCE states. It also develops recommendations to improve the ability of compensation mechanisms to deliver compensation awards to a greater number of traffi cked persons and promotes a broad rights culture to support that objective. Th e assessment is based on desk research and questionnaires with interlocutors from non-governmental organizations (NGOs), inter-governmental organizations (IGOs) and governments in: Albania, France, Moldova, Romania, the Russian Federation, Ukraine, United Kingdom, and the United States of America. It was also presented and discussed as the background paper for an ODI- HR workshop on compensating traffi cked persons held in Barcelona in December 2007. Th e assessment analyses the right to compensation for traffi cked persons in internation- al law through the lens of a wide range of international standards that relate to combating traffi cking, the rights of crime victims, the rights of migrants, labour rights and the rights of victims of gender-based violence. It concludes that the right to compensation mainly con- sists of a right to claim compensation from the traffi cker/exploiter and, in cases of violent crime, a right to compensation from state funds. Th ese standards have also developed the principle that the profi ts made by traffi ckers through their exploitative activities should be used to benefi t traffi cked persons either individually or collectively. Although there have been some successful claims against traffi ckers/exploiters, they have been limited to cases where the traffi cker or exploiter has been prosecuted and convicted (in a criminal claim) or had been located and sued in a civil action. Civil claims can be pursued within the criminal procedure in all of the countries analysed, except the UK. Th e amount of damages awarded through such claims is assessed in diff erent ways in each country. Civil claims can also be pursued independently from a criminal case, for example where a crimi- nal procedure is not instituted. Th e US is the only country where a compensation claim for the victim (known in the US as “restitution”) is automatically part of the criminal proceed- ings in traffi cking cases. Th ere have been a signifi cant number of cases in the US, Ukraine, and Moldova where compensation has been granted to traffi cked persons using civil claims 10 within criminal proceedings. In the UK a compensation order can be imposed by a court within criminal proceedings as part of the penalties imposed on a convicted criminal.