European Network Against Trafficking in Human Beings

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Material Justice. Seeking Compensation in Trafficking Cases

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Material Justice. Seeking Compensation in Trafficking Cases
Global Alliance Against Traffic in Women (GAATW)
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Alliance News, Issue 27, July 2007, Nepal, Nigeria, Thailand, OSCE, Yoko Yoshida, Rachel Idelevich, Kav LaOved
This issue of the Alliance News is our second in a two-part series that looks more closely at the rights of trafficked persons to access the justice system. This theme was chosen because of the dearth of research in this area and the strong interest of our members and others in exploring legal options for their clients. The first part, the December 2006 issue, focused on the way criminal justice systems are dealing with trafficking cases and trafficked persons' experiences of being a prosecution witness. In this second part, we look at an essential aspect of justice in cases of human rights violations - the right to compensation. As victims of serious violations of their human rights and a serious crime, trafficked persons are entitled to be compensated for the losses they have suffered. Almost certainly, the compensation should cover material losses sustained by the person - including unpaid wages, overtime, health and medical costs and the cost of bringing the case to trial. Ideally, compensation should also be awarded for non-material loss, such as pain and suffering, although this will depend on the particular justice system. Compensation has symbolic value - both at a societal level, in recognising trafficking as a crime, and at a personal level, in acknowledging that a wrong has indeed been committed and that justice has been done. But it also has a great practical value, as it helps trafficked persons rebuild their lives once they have been returned to their home countries. Finally, compensation, if paid by the perpetrators, can be another form of condemnation and punishment and a message to deter other traffickers. One preliminary finding of GAATW's ongoing research into access to justice is that while the prosecution of traffickers is increasingly common, the award of compensation to trafficked persons is still a very rare practice worldwide and, for many NGOs and legal practitioners, the recognition that trafficked persons should also be compensated for their losses is relatively new. The articles in this issue provide an overview of different mechanisms for seeking compensation in countries of both origin and destination and analyses of the main challenges being faced. It is clear that many possibilities exist within different legal frameworks - criminal, civil including claims for damages and claims under labour laws, and administrative systems such as state compensation schemes. The commonalities between different countries is striking and clearly lessons can be shared. But more research is also needed on, for example, the significance and practical value of compensation for trafficked persons and the material benefits that specific anti-trafficking legislation has brought to trafficked persons. INCLUDES an article by by Marieke van Doorninck & Suzanne Hoff entitled ‘Compensation - An Instrument For Empowerment of Trafficked Persons’, concluding that At the practical level, compensation and remuneration should be an integrated part of the whole scheme of anti-trafficking measures. It is very likely that in the majority of countries, it will not be necessary to pass new legislation but to implement the already existing legislative measures. NGOs, lawyers, prosecutors, judges, and other actors involved in trafficking cases should be much more aware of the instrument of compensation and use it more frequently.
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