Protecting and assisting victims who have been through the horrific experience of THB for labour exploitation is of the greatest importance. What are the rights of victims? How can organisations protect and empower victims?
Provide support that empowers the victim
Keep the victim in charge, which includes fully informing the victim of their rights:
- by making sure that organisations get prior informed consent of the victim for any steps to be taken
- by making sure the relevant staff have a clear understanding of which services can be provided to a victim, and on which conditions, to be able to manage the expectations of the victim
- by making sure that a victim has a full understanding of what they are entitled to when it comes to protection and assistance, and that a victim gives genuine and ongoing consent to their engagement with the anti-trafficking system
- by making sure a victim understands the conditions for protection and assistance after the reflection period, and the options for exceptions to conditional support.
EU legislation has quite detailed provisions on the rights of victims of THB. For example, directive 2011/36/EU on preventing and combating trafficking in human beings and protecting its victims determines that member states have to make sure that victims receive assistance before, during and for an appropriate period of time after criminal proceedings are finished.
This assistance should include at least standards of living that can ensure the victims’ livelihood through providing: accommodation and material assistance, medical treatment including psychological assistance, counselling and information, and translation and interpretation services where appropriate. Victims also have the right to police protection and to legal assistance, including to enable them to claim compensation.
The directive also provides for special measures for child victims, such as the appointment of a guardian or a representative, if necessary, and access to education.
In addition to the rights provided to victims in the anti-trafficking directive, EU Directive 2004/81 grants victims of trafficking who are third-country nationals a ‘reflection period’. This period allows victims to make a well-informed decision on whether to cooperate with the authorities on the prosecution of the perpetrators. The length of the reflection period is left to the individual EU member states. However, the anti-trafficking Convention of the Council of Europe, which has been ratified by almost all EU member states, provides for a reflection period of at least 30 days.
EU Directive 2004/81 also specifies that if the possible victim is willing to cooperate, victims who stay in the country illegally are granted a residence permit of at least six months. This permit may be withdrawn at any time if the conditions for the issue of the permit are no longer met. Victims are also entitled to have access to the labour market and, depending on the duration of the stay, the right to pursue vocational training and education. This assistance should allow victims to recover and escape the influence of the perpetrators of the offences.
Provide specialised legal advice to victims
Cases of THB for labour exploitation often involve criminal, migration, labour and civil law. Therefore, specialisation is needed to be able to provide tailor-made legal advice to victims. In order to be able to assist a victim during legal procedures, lawyers, trade unions and NGOs could:
- keep lists of specialised lawyers
- have legal staff and volunteers of NGOs and trade unions do the preparatory work of cases. NGOs and trade unions could build up legal expertise through their case load
- cooperate with universities to train prospective lawyers, prosecutors and judges. Next to relevant questions of law (for example on non-punishment, means of coercion and consent), this cooperation could also include discussions on cultural differences, prejudice and the victim’s perspective and how these issues influence each other.
For example, in Greece an NGO provides legal advice during the criminal case. A team of qualified and experienced lawyers, trained in a victim-centred approach, assists the victim free of charge.
Assist victims to claim compensation
Migrant workers who become a victim of THB for labour exploitation have often travelled to the destination country in the hope of finding work that is better paid than the available jobs (if any) at home. They may therefore find it very important to recover the money they lost through the exploitation.
Different organisations could assist victims to obtain a remedy (compensation) by providing information on the victims’ rights and the procedures to follow, and by providing access to legal aid.
An effective remedy consists of:
- payment of the appropriate wages according to either the minimum statutory wages or those of the collective labour agreement where applicable
- payment of overtime or holiday pay
- a proper settlement for housing and travel costs and
- compensation for emotional damage and injury.
The EU anti-trafficking directive determines that victims of THB should be given access to ‘existing schemes of compensation to victims of violent crimes of intent’. Depending on national legislation, victims may be provided with compensation for THB for labour exploitation in a number of ways:
- In some countries, victims are able to file a request to join the case of the prosecution with a claim for compensation.
- Prosecutors can claim compensation as part of the criminal case.
- Victims can pursue a civil claim for compensation against the trafficker(s).
- Victims may be able to claim compensation from a fund for victims of (violent) crime or a dedicated fund for victims of THB.
The workers should be able to pursue their effective legal remedy from a sheltered position. If they are not able to stay in the country, the legal position should remain guaranteed, for instance by transferring the litigation rights to a legal representative. The organisations involved in the case could consider sharing the information necessary to obtain the remedy, such as the registration of the wages and working time records.
Ensure victims receive the compensation granted
When the victim succeeds in claiming compensation from the perpetrator, the perpetrator does not always pay the (full amount of the) compensation they owe the victim immediately. Governments could consider developing methods to assist victims in receiving their compensation:
- by setting up a state compensation fund (see the FRA report)
- by setting up a system for advance payment of compensation.
The Netherlands, for example, has a system of advance payment to victims. Since 2011, the Dutch Criminal Code includes a provision for a system of advance payment to victims, including victims of THB for labour exploitation. If the person convicted has not yet paid the full amount of compensation due under the compensation order eight months after the judgement has become final and conclusive, the government will pay the amount outstanding to the victim. The government will then recover that amount from the perpetrator.