Human Trafficking Around the World (51 page)

Exercising legal rights goes beyond the hoped-for—and often desperately necessary—material compensation and also holds a great deal of symbolic importance for trafficked persons. This is a way for them to regain their sense of being independent subjects, often after having long experienced a total loss of self-determination over their own lives. Active advocacy for one’s own rights offers an opportunity to restore and increase awareness of one’s own self-worth. But the chances of success are minimal without advice and assistance along this arduous path. (Follmar-Otto & Rabe, 2009: p. 7)

The reality is that many victims who participate in criminal proceedings still do not receive compensation. One attorney interviewed by the DIMR stated that only 30 percent of the women she represented in court received compensation during criminal proceedings. Several counseling centers revealed that only a small minority of women who testified at criminal trials received compensation: 2 out of 34 at one counseling center, 2 out of 124 clients at another center, and 2 out of 22 at a third center (Follmar-Otto & Rabe, 2009: p. 68). The small number of victims who do receive compensation in criminal proceedings are primarily women who have been trafficked for sexual exploitation. The amount received is typically between $1,298.81 and $5,195.26, although a few victims have received higher amounts between $15,584.63 and $38,961.59. “What frequently occurs during criminal proceedings is that perpetrators, through their legal counsel, offer a full admission of guilt and payment of compensation that is generally between 1,000 and 4,000 euros [$1,299 and $5,196], far less than what the trafficked persons would have been entitled to,” Heike Rabe said. “Most compensation is paid as damages for pain and suffering.”
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Some women also received state compensation payments under the German Crime Victims’ Compensation Act (Opferentschädigungsgesetz), which does not include either damages for pain and suffering or compensation for damage to property or financial losses. Instead, the compensation is payment of a pension based on persistent effects of the injury and income-based payments to replace lost wages. The court’s findings establish the offense, the consequences, and the causality for approval of state compensation. The compensation typically involves a small pension of $168.88 to $389.63 per month (Follmar-Otto & Rabe, 2009: p. 76).

In response to the few claims made by victims for financial compensation, the DIMR on June 2, 2009, in cooperation with the Remembrance, Responsibility and the Future Foundation, launched “Forced Labour Today—Empowering Trafficked Persons.” Under the project, DIMR undertook to run a legal aid fund, offer advanced training and symposiums, and develop guidelines for an initial 3-year-period. The fund cooperates with NGOs, attorneys, and trade unions on a case-by-case basis. The fund represents victims of human trafficking or labor exploitation and helps them to apply for funding from the legal aid fund. One strong benefit of the program is that lack of legal status is not a hindrance. Additionally, the victim does not need to report the incident to the police, and the act of trafficking does not have to be proved by law enforcement. “The professional assessment of NGOs, lawyers, or trade unions is sufficient, as we want to separate victims’ rights from the willingness of trafficked persons to testify as witnesses in criminal proceedings,” Rabe said. In return for attorney costs and court expenses, victims must make their cases available to the fund so that they can be analyzed and published. Anonymity is guaranteed.

Labor victims are seldom identified and thus less commonly pursue claims against their trafficker(s). Figures and facts are limited, but NGO reports indicate that labor victims simply do not know about their rights. When victims do file claims against their traffickers, said Rabe, they do not commonly make compensation claims, despite their entitlement to do so:

Victims of labor trafficking who were physically or mentally abused and suffered damages are legally entitled to claim compensation. The German legal system does not understand the idea of punitive damages [damages meant to punish the wrongdoer in a civil suit], which means that victims can claim compensation “only” for damages for pain and suffering as well as for material damages. Therefore, damage claims cannot be compared to claims asserted in the United States, for example.

Since victims rarely pursue any sort of claim, the German judicial system has little to no experience with labor-trafficking cases, so there is a lack of precedent for prosecutors to utilize. This commonly deters victims from filing suit against their trafficker(s). Unlike proceedings in criminal courts, in civil and labor proceedings the plaintiff has to initiate the claim. Then the courts must rule on a decision based on the legal issues raised in the claim. “As long as courts do not receive complaints, the judicial system will not develop the necessary experience,” Rabe said. Some men and women have successfully filed wage claims. For instance, one victim through out-of-court negotiations was paid $29,241.29 for two years of back wages. But very few have received adequate compensation for work actually done or for illness attributed to the working conditions that they faced. Instead, the victims commonly received payment only for working hours that are typically performed in that specific sector where they faced forced labor (Follmar-Otto & Rabe, 2009: p. 73).

WHAT HAPPENS TO TRAFFICKERS

The government primarily investigates, arrests, and convicts sex traffickers. In 2008, 785 persons were suspected of sex trafficking. German nationals made up 40 percent of these suspected traffickers, Bulgarians made up 11 percent, and Romanians and Turkish nationals each made up 8 percent. In 2009 German nationals made up 36 percent of the 777 trafficking suspects. Bulgarians made up 16 percent compared to Romanians (10.5 percent) and Turks (10.4 percent). In 2010 German suspects again made up the largest share, but less so at nearly 26 percent, followed by Bulgarian suspects at 20 percent and Romanian suspects at 13 percent. In 2011 Germans made up 28 percent of trafficking suspects compared to Romanian suspects (17) and Bulgarian suspects (14) (Bundeskriminalamt, 2009: p. 7, 2010: p. 10, 2011: p. 7, 2012: p. 8). Typically traffickers receive minimal sentencing. Seventy-one percent of the 579 traffickers convicted in West Germany and East Berlin between 2003 and 2006 received 1 to 5 years’ imprisonment. Twenty percent of the traffickers received less than one year’s detention (UNODC, 2009). In fact it is common practice for judges in Germany to suspend sentences of two years or less. Of 131 adults convicted of sex trafficking in 2008, 70 percent received suspended sentences or fines. Of the 9 adults found guilty of labor-trafficking offenses, 89 percent received a fine or a suspended sentence (U.S. Department of State, 2010). Of 135 sex traffickers convicted in 2009, 75.6 percent received nominal to no jail time. There were only 10 convictions of labor traffickers in 2009, and none of the offenders was sentenced to imprisonment (U.S. Department of State, 2011). In 2010 the vast majority (80 percent) of the 115 convicted traffickers did not have to face jail time. The remaining 23 convicted sex traffickers faced sentences ranging from 2 to 10 years in prison. Thirteen labor traffickers were convicted in 2010, but none was sentenced to imprisonment (U.S. Department of State, 2012). The suspended and negligible sentencing undermines the severity of the crime.

The German government works with law-enforcement officials in Southeast Asia to investigate German sex tourists, where they face trial either in the destination country or in Germany (U.S. Department of State, 2011). The previously mentioned 66-year-old HIV-infected sex tourist was prosecuted in Germany for sex tourism committed in Thailand. In March 2011 he was sentenced to nine years’ imprisonment (BNO News, 2011). The HIV-infected man who went to Cambodia to sexually abuse children was sentenced to six and a half years in 2008. When his sentence is complete he will serve a lifelong preventative detention, where prisoners are placed in distinct institutions or separate areas within prisons or jails (ECPAT, 2009; Saas, 2012).

While Germany is beginning to identify the significant issues of forced labor and severe labor exploitation, it still focuses primarily on sex trafficking. Male victims of human trafficking are particularly marginalized and do not have adequate access to services or shelter. It is also of concern that a high number of human traffickers received suspended or minimal sentences. And while traffickers face minimal consequences, unidentified victims without legal status commonly face detainment and deportation without a thorough investigation as to whether they are in fact trafficking victims.

PART X

Transparent Borders

Unmonitored or undermonitored borders are a chronic challenge to the deterrence of human trafficking. They provide ideal opportunities to smugglers and traffickers. In most cases this lack of coverage is a result of a nation’s inability to manage its borders effectively; but in some cases nations create transparent borders that result in similar problems
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This is the case in Poland, which was once primarily a source nation but is now also a transit and destination country for trafficking. Poland joined the European Union (EU) in May 2004 and became a signatory to the Schengen Agreement in 2007. Experts believe that the scale of trafficking in Poland has increased as a result. The 25 member nations of the Schengen Area enjoy enhanced police and judicial cooperation, which increases the efficiency of extraditions and transfers of jurisdiction in criminal judgments. Members also benefit from the Schengen Information System, a database that allows national border-control and judicial authorities to obtain information on persons or objects. Member nations function as a single country for purposes of travel: all internal borders are eliminated, and one single external border creates a vast visa-free area allowing the free movement of people, goods, and capital. It is the lack of border checks that contributes to the increase of human trafficking within the Schengen Area, including Poland, which sits on this region’s easternmost border. Poland’s location on the border not only makes it vulnerable to trafficking within the region, but also makes it vulnerable to trafficking into the Schengen Area because it is an entry point into the region
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Some experts argue that anti-trafficking cooperation among nations in the Schengen Area is not as strong as that among other EU nations. The EU provides a framework of cooperation between member nations and legal obligations on preventing and combatting trafficking in human beings. In 2010 Poland took steps to bring its domestic laws into conformance with EU and other international law by adopting its own comprehensive definition of trafficking. But despite the amendment of its Penal Code, in practice some forms of trafficking remain mostly ignored
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CHAPTER 21

Poland

There is a stereotype that trafficked persons are victims [of] their own wish.

—STANA BUCHOWSKA, LA STRADA INTERNATIONAL

The magnitude of human trafficking in Poland has grown since the nation joined the European Union in May 2004 and became a signatory member of the Schengen Agreement in 2007 (OHCHR, 2009a, 2009b). Poland is part of the easternmost border of the Schengen Area and, consequently, is an entry point into the area for illicit activities, including human trafficking. The 25 member nations of the Schengen Area enjoy enhanced police and judicial cooperation, which promotes more efficient extradition and transfer of jurisdiction in criminal prosecutions. Signatories also benefit from the Schengen Information System, a governmental database—intended to improve law enforcement and national security—that allows national border-control and judicial authorities to obtain information on persons or objects (European Union, 2009).

Another feature of the Schengen Agreement has brought both benefits and disadvantages, at least in relation to human trafficking. The member nations of the Schengen Area function as a single country for purposes of travel. In essence, all internal borders are eliminated, and instead the nations use one single external border (European Union, 2009). Citizens of member nations are not checked at the borders of other signatories. The predictable result is an increase in human trafficking among member nations. According to Joy Ngozi Ezeilo, the United Nations special rapporteur on trafficking in persons, the lack of border checks has contributed to Poland’s becoming a transit and destination nation for human trafficking in addition to its preexisting status as a source nation: “The scale of trafficking in persons is not only serious in Poland but has been somewhat aggravated … by virtue of Poland joining the European Union and also acceding to the Schengen zone. These developments unarguably helped to transform Poland from being mainly a source country to clearly becoming a transit and a destination country combined” (OHCHR, 2009a, 2009b). The Polish government does sometimes implement border checks. For instance, during the monthlong Euro 2012 soccer tournament, Poland reestablished random border checks with Germany and other EU countries (Seattle Times, 2012). In order to further protect Poland’s border from human trafficking during the tournament, 130 European border officers from 23 European countries were deployed to back up Polish border guards at the eastern border and at major airports (Human Trafficking Foundation, 2012).

Poland has ratified multiple international human rights treaties, including the Council of Europe Convention on Action Against Trafficking in Human Beings (2005) and the 2000 Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children (the Palermo Protocol), supplementing the UN Convention Against Transnational Organized Crime. Yet Poland did not have a comprehensive domestic anti-trafficking definition or law until May 2010. Before that, sex traffickers were prosecuted under Articles 203 and 204 of Poland’s Penal Code, and forced labor was prosecuted under Article 253 and organized-crime statutes. Since there were no specific provisions in domestic law that defined or addressed labor trafficking, prosecutors relied heavily on trafficking definitions in the Palermo Protocol when pursuing cases against traffickers (U.S. Department of State, 2009; UNODC, 2009a). In her preliminary findings and recommendations at the end of her official visit to Poland in 2009, Ezeilo stated: “Domestic application of international law appears to require some form of transformation despite the constitutional provision that encourage[s] direct application of international law. … the Palermo Protocol … is not self-executing and would therefore require an additional act of the legislature to be fully implemented in Poland” (OHCHR, 2009b).