Jun 30, 2021

The decision that raises hope

On March 4, 2021, the Constitutional Court of the Republic of Serbia accepted the constitutional complaint of ASTRA’s client, a victim of human trafficking who was a minor at the time of the crime, and ruled that her right to the prohibition of human trafficking, granted by Article 26, paragraph 2 of the Constitution of the Republic of Serbia, as well as the right to a trial within a reasonable time, granted by Article 32 of the Constitution of the Republic of Serbia, were violated.

This decision of the Constitutional Court is extremely important from the point of view of the entire legal system of the Republic of Serbia. By determining the violation of the constitutional prohibition of human trafficking, it has been indicated that trafficking in human beings cannot be reduced only to the criminal aspect but that it has its constitutional character with the main goal of protecting trafficking victims.

The Constitutional Court considered the prohibition of human trafficking in relation to three groups of positive obligations of the state: 1) the obligation to establish a legislative and administrative framework for the prevention and punishment of trafficking in human beings; 2) the obligation to protect victims of trafficking by providing measures of prevention, registration and assistance to such persons; 3) the obligation to conduct an investigation and court proceedings when there is a reasonable suspicion that a criminal offence of human trafficking has been committed.

The Constitutional Court, in its deliberation, started from the conclusion that human trafficking is a modern form of slavery, and as such is contrary to the principle of humanity, that it insults human dignity and the fundamental values on which a civilized democratic society is based.

In making its decision, the Constitutional Court considered the provisions of the Constitution and the regulations of the Republic of Serbia, international treaties, positions and case law of the European Court of Human Rights, as well as the opinions of international monitoring bodies, such as the Group of Experts on Action against Trafficking in Human Beings (GRETA), which had been expressed in the first and second evaluation rounds of the implementation of the Council of Europe Convention on Action against Trafficking in Human Beings in relation to Serbia.

The Constitutional Court found that there was a violation of the positive obligation of the state in relation to the victim of trafficking in human beings by non-compliance with the preventive measures, protection and assistance to such persons granted by Article 26 para. 2 of the Constitution, as the court did not provide any measures of protection and assistance to the victim, who at the time of the crime was a child according to international treaties, or a juvenile according to the Criminal Code; that it did not adjust the conduct of the proceedings to the finding of the court expert, in which the state of traumatization of the victim had been established; that it did not respond to the request for granting the status of a particularly sensitive witness, as well as the request regarding the method of examining the injured person as a witness, which led to the secondary victimization of the injured.

The Constitutional Court found that the principle of opportunity, which deviates from the principle of legality of official prosecution, was based on the need to avoid lengthy, costly criminal proceedings and that it applied to less serious criminal offences in cases in which summary proceedings are conducted. Given the above, the Constitutional Court reiterates that the principle of opportunity, in this case, was applied after five years and six months of proceedings, which violated the essential ratio of this procedural mechanism.

Because the principle of opportunity was applied, based on a reclassification of the criminal offence from a serious offence of human trafficking into a minor offence of aiding and abetting the perpetrator, where the victim was a child, by misapplication of procedural rules, the Constitutional Court has concluded that, for the crime of human trafficking, proceedings should include thorough consideration of all the constituent elements and available evidence until a court decision is made.

The Constitutional Court considers that in this concrete case, the competent state bodies – the Higher Public Prosecutor’s Office in Belgrade and the Higher Court in Belgrade have not fulfilled their positive obligations in the procedural aspect in relation to the prohibition of all forms of trafficking granted by Article 26 para. 2 of the Constitution, i.e. obligations to conduct an effective and fair procedure, which would result in delivery of a relevant court decision.

The Constitutional Court pointed out that in the present case, no amount of money could compensate for the human rights violations suffered by the complainant, but it still determined the compensation for non-material damage in the total amount of EUR 5,800, at the expense of the Ministry of Justice.

The decision was published in the “Official Gazette of the Republic of Serbia”.

Bearing in mind that for many years ASTRA has been pointing out (in the legal analysis of court decisions for the crime of Human Trafficking under Article 388 of the CC of RS) to the omissions in the treatment of trafficking victims, as well as the trend of reclassification of this crime into minor offences, after which a plea agreement is concluded with the defendant − this decision of the Constitutional Court gives hope to trafficking victims in better treatment and protection of their rights.

Jun 30, 2021

20 years of International Missing Children's Day

Home runaways, the disappearance of unaccompanied children in global migrations, parental and criminal abductions are the most common causes of the disappearance of children. NGO ASTRA provides professional assistance and support in connection with all reported cases.  Last nine years, ASTRA is managing a unique EUROPEAN NUMBER FOR MISSING CHILDREN 116000 in Serbia: the only accredited SOS telephone of its kind in Serbia, obtained in cooperation with Missing Children Europe's international organization. Urgent reporting of children's disappearances is crucial for quick and adequate reactions. Therefore, upon receiving a call reporting a child's disappearance, ASTRA provides immediate action, which includes assistance to the police in the search and support to the family whose child went missing. The ASTRA SOS European Telephone for Missing Children is available 24 hours a day, seven days a week and calls from all Serbian networks are free.

It is estimated that 200,000 children go missing in Europe every year. In 2020, European Lines for Missing Children 116 000 recorded 42,662 calls, which were related to 8,857 cases of missing children (17% more than last year). A large part of the call referred to children who ran away from home, 53%, followed by parental abductions, and only 3.6% of calls were related to children missing in migration. From its establishment in March 2012 until the end of 2020, ASTRA's European number for missing children received 3350 calls. Those calls were related to 120 missing children cases (71 girls and 49 boys). During the last year, there were 382 calls, and 8 cases of missing children were registered – six girls and two boys. Five of these children have been found, and the search for others continues.

The only official European report about missing children is outdated and dates back almost ten years. Due to the lack of official statistics on missing children, since 2014, Missing Children Europe has been collecting and analyzing 116 000 SOS missing child data lines reports. Missing Children Europe (MCE) publishes these annual reports on May 25 each year. Using this opportunity, MCE encourages EU institutions, Member States and the general public to raise awareness of 116 000 SOS lines in each country individually. The MCE report for 2020 will be available at this link after May 25 https://missingchildreneurope.eu/annual-reports/.

On International Day of Missing Children 2020, ASTRA appeals and points out that it is urgently necessary to:

Develop official consolidated statistics, a database or register of missing children at the state level, which would, where possible, provide insight into the development and status of the investigation.

Provide financial support from state funds to SOS lines licensed by the state, including ASTRA's 116 000 SOS line, which has been operating voluntarily since its launch in 2012.

Introduce technological innovations to speed up the response to the disappearance of children and increase the possibility of finding them, e.g. introduction of the Child Alert System. Such systems enable early alerting of the public and thus the more successful finding of a missing child. The introduction of this system is a demanding and expensive endeavour cause the design should cover the entire country and be linked to similar foreign systems. However, the information collected in this way is crucial to the investigation conducted by the Ministry of the Interior. 

Improve cross-sectoral cooperation, using the knowledge and resources of the NGO sector, which has years of experience in this area and is linked to international organizations dealing with this problem. Also, it is necessary to establish precise rules of interoperability.

Mar 3, 2021

Lack of timely reaction of institutions

There has been almost no progress since last year as far as 116 000 Missing children hotline is concerned. Citizens are still calling Missing children European number regarding this problem.

State institutions who are competent, and are supposed to be in charge of this matter, have not been as nearly involved as they should be, and as time passed, consequences of their negligence were beginning to show.

One of the problems was that, during the first two waves of the COVID 19 virus, no relevant indicators were set so people could monitor them and spot extreme values or a rise in some indicators.

A couple of months ago, we received a call via 116 000 Missing children hotline from a mother who no longer knew whom to turn to. She felt and still feels rejected by the competent institutions.

Namely, she called about her minor daughter, who ran away from home on several occasions.

Her daughter began to change her behavior significantly when she was exposed to messages and photos she received through various social networks. However, she is starting to spend more and more time with adults from a criminal environment, which her mother is unable to influence or fight for, even though she seeks the support of competent services. The mother reported her disappearance to the police and the Center for Social Work on several occasions, but in order for the police to find her, the girl would run away again very quickly.

She is afraid that some of the adults her daughter hangs out with may take advantage of her or/and exploit her, especially because they were previously known to the police for the various crimes they committed. Also, she lost her confidence in the competent institutions because no one gives her full feedback about her situation.

We are in daily communication with her, and we encouraged her to contact us whenever she needs our support.

During this period, we contacted the Police, Prosecution Office, and the Center for Social Work. We sent them a letter regarding this case and that they should urgently take steps within their competence so that the girl can be found, adequately cared for as soon as possible and so that she can be provided with further support for healthy and functional development in a safe environment.

 
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