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.
The main difference in this period, comparing to any other period of time since our organization started operating, is the virus that has spread all across the planet changing everyday lives of people everywhere. The COVID-19 virus took the whole planet by surprise. Global crisis emerged, countries imposed new laws and tried to balance between limiting people’s movement and trying to maintain a stable economy.
The last year has been challenging for all of us. Due to the Covid-19 virus pandemic and restrictions it caused, in already unequal conditions, many people experienced severe consequences and erosion of their basic rights and needs. Many of our citizens lost their jobs, with no perspective to find it soon.
The COVID-19 virus affected the lives of people, held captive in trafficking chains tremendously. Since the pandemic started to spread quickly, the government ordered for the majority of the resources to be directed to “fight” against the fast growing pandemic. This affected the lives of people in trafficking chains as well as the organizations trying to find them and help them. Traffickers are now able to work “in the shadows” since the majority of the resources are redirected to assist in the fight against the virus. The media space is also occupied with information about the Corona virus, which makes it almost impossible for organizations battling against human trafficking, or any other problem for that matter, to let their voices be heard.
According to statistics, 25,5% of the Serbian population is at the risk of poverty, while almost 1,37 million people live in a state of material deprivation. Almost 65% of Serbia’s population perceives themselves as poor. According to the European Quality of Life Survey, 69% of citizens of Serbia say they don’t know how they will survive until the end of the month with the income they have. The youth unemployment rate is at 29.7%.
Victims of trafficking in Serbia are mostly recruited through job offers made by people they know or by employment agencies. The presence of the Covid-19 pandemic has made human trafficking less visible, due to the fact that the activity of human traffickers takes place on the Internet and social networks. Victims are most often recruited through false job advertisement (for example on Facebook, Instagram, or even some false sites offering high payed jobs).
Since Serbian citizens are receiving the vaccine, individuals seem to have calmed down completely, and for that reason, on daily basis, we receive calls from our citizen who want to go abroad for work, because they cannot find a job here and/or the job is better paid abroad. They find jobs through Facebook, Instagram and on the Internet on individual sites.
A couple of days ago, we receive a call from a citizen who quit his job in Serbia so he can go aboard and work for a bigger salary. They told him he will get work contract there, and accommodation with food. He needed to pay them 50 euros for transportation. When he arrived, nothing was agreed. They told him that he would work illegally and that he would not get an employment contract. He changed two accommodations in one week. When he decided to return to Serbia on his own, he didn’t got the salary for that one week.
We receive calls from citizens every day for similar or same job offers. We provide them with preventive information, check the contracts they receive (if they get one), send letters to the Ministries, and contact the Embassies to get information on whether it is possible to enter a certain country at all, and we are doing our best every day to help our citizen.
This year it will be twenty years of the adoption of Palermo Protocol and twenty years of ASTRA’s presence in the anti-trafficking field. Over the past two decades, ASTRA has supported over 540 victims of trafficking and received over 45,000 calls via the SOS hotline for supporting victims of trafficking.
The National Referral Mechanism for protection of victims of trafficking in human beings did not originate in Serbia, but Serbia is one of the first countries to embrace the idea of this mechanism. We felt it was important to consider how this mechanism works in practice today and how it can be improved for the benefit of the trafficked persons. For this reason, ASTRA released a new publication “Assessment of the national referral mechanism for victims of trafficking in the Republic of Serbia”, available in English language: https://drive.google.com/file/d/1AUc5FOsGsObuEcOJjHl2ZUT1M5RKIonM/view .
Since the beginning of this year, ASTRA SOS hotline recorded an increased number of calls and in the previous period, from July until today, this trend is still present. For clients who call the ASTRA SOS Hotline, it is both a source of information and support for various challenges that have intensified and expanded due to the situation caused by the Covid-19 pandemics. However, even in this difficult time, there is a space for solidarity and good deeds. Clients with whom we have been in contact before, who have recovered from the trauma and experience of human trafficking, from different sides and from different meridians, called asking about the situation, sympathizing, looking for a way to help, in concrete means, sending things and necessities for children of ASTRA’s other clients. They, empowered and in full control over their lives, recognize it is a difficult moment for those who are now even more marginalized and unable to find a foothold in today’s world, for those that need additional encouragement and strength to keep standing straight and not to give up.
Very poor health conditions of victims, identified this year, required professional medical assistance and treatment. Men, victims of labor exploitation, due to isolation experienced, lack of documents and fear, have not been examined for years. The conditions they lived in (poor nutrition, housing conditions beneath any human dignity) combined with hard physical work and psychological conditions (threats, beating) contributed to severe health issues they are struggling with, physical but also those connected to mental health (PTSD, depression, anxiety and others). ASTRA Victim Support Unit helped them while being in contact with institutions in order to receive all necessary medical support. For one client, there was a need to organize a very complicated surgery, which, after an exhaustive analysis, review and preparation, was successfully performed.
Migrants from India, victims of labor exploitation to whom we provided assistance during this summer, recently informed us about activities of new Serbian agencies which recruits Indian workers for engagement in construction sites in Serbia and for other occupation. Feedback we receive from them, now that they are safe in their country, show us that the trust that is built in contact with them is really a great value and strong base for proactive approaches and preventive measures. On the other hand, community-driven groups and strong workers’ initiatives that share information and resources building social cohesion and healthy, protective core, even in such challenging time like this is.
The previous period of operation of the ASTRA SOS Hotline coincided with the period of the global health crisis caused by the Covid-19 pandemics, and it was characterized by an increase in the number of calls by 71%.
Clients, as well as the whole society, were under great stress during the pandemic, and went through different phases of adaptation to the situation, different reactions and emotions, from surprise and disbelief, to anger, fear, concern and depression.
In the beginning, a high degree of anxiety and frustration prevailed about how to adapt and how to find or regain sense of some balance and stability. Due to different obligations and rolls, but also restrictions due to the emergency situation, they felt discouraged, under great pressure to organize their family life in a different way, while being functional and efficient at work. In the whole situation, some faced job loss, others faced job reorganization and a very precarious situation as to whether they might lose their jobs, and thus their livelihoods. With limited resources, combined with the feeling they are losing the ground under they feet, clients called to share with us their worries and fears.
It suddenly seemed as if the space devoted to work towards their recovery and reintegration had shrunk and become concentrated around the most basic things and issues:
Whatever they planned, clients felt limited to take any concrete steps.
Informing beneficiaries in a crisis situation, encouraging them, reacting to their immediate needs and working directly with them has once again proven to be an essential way to provide support to our clients as well as some sort of relief in a rather worrying situation. The increased number of field actions and provision of direct assistance to victims of trafficking reflects a greater need of clients for support during the pandemic, as well as the collapse of the system, which could not cope immediately with a problem of such a magnitude.
Due to the uncertainty of the current situation, for some clients, the way to overcome anxiety and discomfort was to find someone they could talk to, to seek the help they need, to recognize and accept their own emotions, as well as to assess the situation and find the appropriate way to cope with it.
In these strange and challenging times, practically nothing would be possible without cooperation, so, despite the mentioned blockade of the system, there were still some bright examples of people who were always available and extremely sensitive. Even then, our clients and us could rely on associates from different professions (doctors, lawyers, prosecutors, among others) as well as activists from other CSOs. It should be noted that doctors, regardless of the problem they faced most directly, because they were on the front line in the fight against the virus, in every situation when they had direct contact with survivors of human trafficking, had professional and victims centered approach.
In May, it seemed to everyone that the epidemic was behind us, that it ended as well as it could, given the circumstances, and that all the work, patience and following of the safety measures paid off. However, the events of these last days and weeks confute us, because the state of emergency has been re-introduced due to the spread of Covid-19. And in the new circumstances, support to the survivors and fight against human trafficking are continuing.
Anybody can be a victim of human trafficking. Anyone can be a trafficker. In our practice we have seen all kinds of organized crime. We’ve witnessed a whole family being involved in recruitment and exploitation, or to a trafficker being a well-educated man, with two university degrees (one of which was from the faculty of orthodox theology), or being a manager in some bar.
One thing that most of the cases we work on have in common is the fact that 70% of victims had experienced domestic or partnership violence in the past.
Our client Ana was from poor family in which she faced domestic violence from parents, who then sold her to a man living abroad named Ivan. He was brutally abusing her, and his wife Djina. Primarily Ana was sexually exploited, but often she was forced to beg and do criminal activities, while Djina was forced to do housekeeping without possibility to choose when, what, for how long and how much she will do that day. Both Ana and Djina had only one meal per day, and Ivan was forcing them to have sexual relations with him regularly. One day Ana took the risk and managed to escape by pure luck. She grabbed her documents while Ivan was sleeping, took some money, hitchhiked to the nearest bus station and bought one-way ticket. She was barely 18.
She found the number of ASTRA SOS hotline on the Internet. She was too scared to press charges against the trafficker or to do anything that might expose her and let Ivan or her family know where she was. ASTRA helped her to obtain personal documents, referred her to the local social welfare center, and arranged for her medical exams. It took time and dedicated work, but in a few years she became a strong young woman ready for a next chapter in her life. ASTRA consultants maintained regular contact with her, and on one occasion she shared with us that she found a boyfriend and that they were planning to go to Germany for work. We gave her all the relevant, preventive, information and wished her all the luck.
Ana and her husband had a child. They worked in Germany and built a house in Serbia. One day, 4 years later, she called us and asked for help as well as to be taken a safe house because, her partner beat her up. Nina, her little girl, was in the other room.
In communication with the police, partner organizations, and local welfare center we managed to help her. Later on, when we met with her to make a safety plan, she told us that it was not the first time her partner was abusing her. She told us that she had to put up with that because he was providing for her, he was building a house for her and because he was a man, and she was a woman.
In that moment we realized just how much her belief system was shaped by the patriarchy as well as by all the experiences of violence, firstly in her primary family, later with Ivan, and finally with her second partner.
We had to add to our recovery plan one more thing, maybe the most important one - she needed to know how strong and capable she was, that she is an example to her daughter, and to all the women out there, who are suffering in situations of domestic and partner violence, but manage to survive, to call for help, to find a way out.
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