Case Law on Trafficking in Human Beings 2009-2012. An analysis

The key message of this study is that human trafficking cases should be handled in a manner befitting the seriousness of the offence and the concern about human trafficking at national and international level. In that respect, it is also important to pursue consistency in sentencing. The report shows that the sentencing in human trafficking cases. Legal issues are not always assessed uniformly and that the factors that are taken into account in the sentence demanded, the sentence imposed and in awarding compensation are also not applied consistently.

Recommendations

The key message of the report is reflected in the recommendations:

1.       Arrange specialisation and training in human trafficking cases for judges and prosecutors
2.       Develop orientation points in the interest of sentencing
3.       Give effect to the right of a victim to compensation for damages suffered

Specialisation of judges

Human trafficking cases are complex. Without specialisation and proper training in this field, there is a significant risk that judges will be un­able to avoid the pitfalls. The study shows that more than three-quarters (77%) of the judges concerned dealt with just a single hu­man trafficking investigation in 2010. The present case law study has led the National Consultative Body for Presidents of Criminal Sectors of Courts (LOVS) to adopt­ a number of measures relating to specialisation and training for judges hearing human trafficking cases. As of 2013, the Netherlands is the first country in the world to make human trafficking a specialisation for the judiciary. The Public Prosecution Service appointed regional public prosecutors for human trafficking cases in 2009.

Development of orientation points in the interest of sentencing

This study has shown that the sentencing in human trafficking cases varies. The judgments do not reflect a clear framework of assess­ment. Aggravating circumstances frequently do not play a role in sentencing. Aggravating circumstances include human trafficking committed by two or more persons acting in concert, human trafficking committed against a victim younger than 16 years, human trafficking resulting in serious physical injury or that threatens the life of another person, and human trafficking that results in death. Orientation points are not binding, but are intended to lay the groundwork for providing the judiciary with a point of departure for determining sentences in individual criminal cases.
In 2010 and 2012, the Public Prosecution Service formulated Instructions on the sentences to be demanded in human trafficking cases, for both sexual exploitation and other forms of exploitation. While the discussion on this subject within the judiciary is currently stalled over the question of whether it is actually possible to develop such guidelines or orientation points, the PPS has already answered that question with the help of numerous external experts. For consistency in sentencing in human trafficking cases, it is important for the judiciary not to wait any longer and to proceed with the formulation of orientation points.

The right of a victim to compensation for damages suffered

Human trafficking is an offence where the offender enjoys often substantial economic benefit at the expense of another person. By definition, the victim suffers damages, material or emotional. Victims have a right to compensation for damages suffered, but only few (30%) victims file an aggrieved party claim. About half of those were wholly or partially awarded by the court. The methods employed to calculate damages vary greatly, which is undesirable from the perspective of legal equality and certainty, which should be the main principles in formulating points of departure. The right to compensation for victims in general, and hence also victims of human trafficking, is evolving in the Netherlands. The new criterion for admissibility of claims by an aggrieved party should lead to more claims being de­clared admissible in practice. Another noteworthy aspect is that the courts make little or no use of the possibility to make an order to pay compensation ex officio, although it would sometimes be reasonable to do so. Human trafficking is an offence where the offender enjoys often substantial economic benefit at the expense of another person. By definition, the victim suffers damages, material or emotional. For the PPS, this should mean that money that is confiscated, quite apart from the question of whether a claim by an aggrieved party is awarded, should go to the victim if that money comprised earnings that had been confiscated or withheld.

The absence of an adequate basis, statutory or otherwise, for claiming confiscated money, even if a claim is not awarded, means that victims depend for compensation on the personal views of magistrates, which is contrary to the idea that victims have a right to compensation for damages they have suffered.