Human Trafficking in Eastern Europe

By: Dr. Sam Vaknin

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Human trafficking is a sterile term, used to mask the grimmest of realities. Popular culture - from Peter Robinson's police procedural "Strange Affair" to the film "Taken" - captures the more sensationalist dimensions of this vile and pernicious phenomenon: the coercion or abduction or of young girls (some of them minors) and their forced conversion into prostitutes. But there is a lot more to it than that.

Enter Vladimir Danailov, who is currently running a law office in Skopje, Macedonia.

He served as a National Legal Officer in the International Organization for Migration - Mission in the Republic of Macedonia for six years ( from 2000-2006), and found himself involved in the counter trafficking capacity building projects for the local Police and Judiciary.

He spent years in analysing and researching the multifarious facets of human trafficking and his professional opinion is often sought. He is an author of books on human trafficking problems, among which is: "Handbook for Public Prosecutors regarding Prosecution of the Human Trafficking Crime” (2005), published within the training program for Public Prosecutors, Police officers, and Judges. The book actually summarizes the Case Management Training program and analysis he had performed and deals with methods for the eradication of the crime of organized human trafficking.

SV: What is human trafficking and what is the difference between it and other forms of slavery and prostitution?

VD: Human trafficking or Trafficking in Persons should be understood primarily as a serious violation of fundamental human rights and freedoms: the right not to be held in slavery or servitude, the right to liberty and security, the right to be free from cruel or inhumane treatment and the freedom of movement.

Inconsistent in the past, the description of the crime has expanded and evolved beyond its historical characterizations as the realities of the movement of, and trade in people changed. Consequently, under the term "trafficking in human beings" already used in early twentieth century treaties and conventions, a separate international legal regime has gradually emerged.

In this regard, the so called "Anti-Trafficking Protocol” as a supplementing protocol to the UN Convention Against Translational Organised Crime, (full title: UN Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children, opened to signature in December 2000), represents a major development in international law. It was the first time a consensus definition of trafficking in human beings has been achieved within a legally binding international instrument.

In this Protocol (Also known as the Palermo Protocol), trafficking is viewed as a contemporary form of slavery, which involves a variety of acts (recruitment, transportation, transfer, harbouring, receipt of person), actors (several intermediaries are often involved in the trafficking chain), coercive means (threat or use of force or other forms of coercion, abduction, fraud, deception, abuse of power or position of vulnerability, etc) and exploitative purposes (forced labour or services, slavery or slavery-like conditions, sexual exploitation, etc). These four elements, cumulatively, describe the essence of the human trafficking crime.

This means that each of these parts has to be completed and interrelated, or linked, in order for the crime of Trafficking in Human Beings (THB) to occur. Stated another way: the activity must be realized by one of the means and both must be linked/tied to achieving the exploitative purpose. If any one of the three categories is absent, then the crime of trafficking has not been committed (except where minors are involved when the coercive elements are not required).

The effective prosecution of the human trafficking crime in the region or beyond requires a unified understanding of this type of very serious crime with a recognition of its constitutive elements, including all the necessary governmental measures to be adopted for its proper and effective prosecution and suppression.

With this goal in mind, the Palermo Convention (UN Convention Against Transnational Organised Crime) and its two supplementary protocols (which deal with Human Counter-trafficking and Counter-smuggling), gave rise to the intensive process of legislative harmonisation in the region. Nowadays, 8 years after this instrument was opened to signature in 2000, we may say that we have significant efforts in place to unify and harmonise the criminal recognition of the phenomenon region-wide.

As a result of this, in the Macedonian Criminal Code in January 2002, a new article on human trafficking has been introduced (Article 418-a). In spite of the enormous importance of its adoption, the new Article has commonly been understood as constituting only a partial fulfilment of the country’s obligation to ensure the appropriate criminalization of THB as a separate and serious criminal offence.

A further legislative process of amending/revising Article 418-a on human trafficking tended to ensure its conformity and compliance with the existing UN definitions, providing for strengthened penalties for organising trafficking, as well as for invoking, encouraging and supporting the crime of THB, in accordance with the relevant international instruments (see footnote).

This process builds also upon previous amendments of the article, which encompassed other forms of exploitation (like forced marriages, exploitation for pornography, forced fertilization, and illegal adoption).

The last amendments of the national Criminal Code and Procedure were enacted in January 2008. A lot has been done by the Macedonian authorities and Macedonian law enforcement has at its disposal now a rather appropriate and well defined legislative tool for effectively fighting against human trafficking (and migrant smuggling) crimes.

In terms of the difference between human trafficking and prostitution, it is worthwhile to mention that in the period before the formal signature of this instrument (2000), there was quite a misperception of the human trafficking crime and it was confused with the phenomenon of prostitution, where victims of THB were treated as foreign prostitutes with illegal stay, and were regularly fined and expelled. This was mainly owing to the fact that the most common manifestation (form of exploitation) of the crime of human trafficking in the region was for the purpose of sexual exploitation i.e. forced prostitution. The other forms of exploitation as foreseen by the Protocol, such as forced labour, slavery, servitude, and illegal removal of human organs were rarely or never encountered.

This is why, in Macedonia's case, the amendment of the Criminal Code with the introduction of the article on human trafficking, anticipated also other possible forms of labour-related exploitation, such as forced and illegal adoption, forced fertilisation, and marriage of convenience, in order to render them more easily recognised by the law enforcement.   

The main difference between the phenomenon of prostitution and the crime of human trafficking should be viewed through the status of the victim vs. that of the prostitute. The voluntarily act of giving one's body and the provision of sexual services for a certain material compensation is a significant characteristic in the determination of prostitution. This element can be recognized by the ability of the individual prostitute to terminate this activity more easily and at will.

In the human trafficking crime, this possibility simply does not exist for the trafficked women, i.e. victims. They have a system of dependence imposed over them, which, through threats and other coercive and physical enforcement methods and with the aid of additional artificially-created liabilities (debt bondage), make the victims incapable of freeing themselves from this devious circle of subordination, sexual exploitation and slavery. In this sense, there is a strong violation of elementary human rights and freedoms, which as such are inalienable, natural and inseparable, and are  subject to international protection. Unlike the prostitutes, the victims of human trafficking, i.e. the trafficked women, are not able to enjoy any of these guaranteed basic human rights and freedoms  

In addition, the legal treatment of prostitution is varied and ranges from complete legality, through different forms of milder criminalization, to total prohibition, i.e. a ban on prostitution. In legal terms, this means that prostitution is regarded somewhere as a crime, while elsewhere it is not a crime. In some places, its public performance is regarded as a criminal action, and, like in Macedonia, as an act against public morals and order .

It is precisely because of this need for precision that I once again emphasize that human trafficking entails the illicit engagement of the person, by kidnapping, by trafficking and moving, regardless whether it is within or out of the state boundaries. It occurs where the mediators, i.e. the human traffickers, have economic gains or other benefits through the different forms of exploitation established by using various techniques of coercion, intimidation, cheating and threats, and fostering dependence under conditions that break the basic fundamental rights and freedoms of the migrants (victims).

SV: The film "Taken" portrays Albanians as cruel human traffickers. Is the Balkans really a hub of human trafficking? Which countries and ethnicities are particularly and specifically implicated - or is it a multi-ethnic venture that knows no national boundaries?

VD: I saw the film “Taken” and I liked it very much. I consider it very  important for broader message outreach when famous actors like Liam Neeson are engaged in its promotion and thus foster public awareness. The film shows one of the modi operandi of traffickers: recruitment by kidnapping. It also shows forcible drug addiction as a method of making victims obey orders, while they remain silent, motionless and unable to escape. One part of the movie tackles the fact that drug-related crime and human traffickers use the same routs, which is very true as far as the Balkans go.  The victims' suffering is rather realistic and fully depicted, and I agree that these harrowing scenes can have a truly preventive effect on teen-audiences. 

In terms of the ethnicity implicated, the Republic of Macedonia has successfully overcome a really challenging period. During the armed conflict in Macedonia in 2000-2001 between the Macedonian  Police Forces and the Albanian rebels (later recognised as members of the so-called  ONA -Liberation Army of the Albanians), a very negative attitude has been engendered towards the Albanians, singling them out as the main organisers and perpetuators of the human trafficking crime.

The Macedonian  Police in that period was not in control of the whole territory of the country, especially the western part of Macedonia, which was predominantly Albanian. This lack of access of law enforcement allowed human trafficking to become a flourishing business in those parts, run mainly by ethnic Albanian bar-owners. In that period, there were a number of night bars, operating in the western part of the country, with an enormous number of girls kept in custody by the local bar-owners. Statistics presented by a respected local NGO “All for Fair Trials”, based on the outcomes of the cases initiated as human trafficking and prostitution offenses, show that almost all of the accused in that period were of Albanian ethnicity. Other ethnicities mainly appeared as accomplices. Such ethnic homogeneity prevailed and continued also during 2005, 2006 and 2007.

Throughout this period, a number of reports published by venerable international magazines, illustrated the expansion of the Albanian Mafia into continental Europe, gaining control over the prostitution business in Italy and with an increased control of the same in London. Czechoslovakia was mentioned on several occasions as a country where Albanians were in charge of the drug business and trafficking in stolen cars. Many of those reports describe Kosovo as drug cartel zone with all the logistics provided for drug, arm and human trafficking routs towards Europe. 

These circumstances contributed to the creation of a prevailing attitude during and after the armed conflict in the country, depicting the Albanian ethnicity as especially affiliated with this type of crime in Macedonia and the human trafficking crime as something imported and the outcome of the Kosovo crises and the increased international presence in the region. It was really difficult to argue against such extreme ethnically-based figures and approaches towards the human trafficking crime which might have had a very negative effect upon the reconciliation efforts in that period and the confidence building process developed by the Ohrid Framework Agreement afterwards.

Fortunately, the latest legislative and structural reforms and the training of law enforcement agencies and institutions, as well as energetic anti-corruption measures applied countrywide, have increased the effectiveness of the overall suppression of organised crime, including human trafficking. They also exposed the involvement of other ethnicities, whether as accomplices or in the crimes of corruption, bribery, or abuse of one's official position and duty.

In this respect, the latest publications by IOM (International Organization of Migration) and the data shared by different NG (non-governmental) forums including the above mentioned and respected NGO - Coalition for Fair Trials - based on indictments and court cases analysed, confirmed a balanced and more multiethnic profile of the defendants involved in the offences related to human trafficking. For example: as far as the offences of trafficking in persons (article 418-a, Criminal Code (CC)), the smuggling of migrants (418-b, CC), organizing a criminal group (418-c, CC), and mediation in prostitution (191, CC), the ethnic structure of the defendants in the cases before the Macedonian Basic Courts is: 55% Albanian, 36% Macedonian, and 9% of the defendants belong to other ethnic groups.

In addition, most of the local clients of the sexual services of trafficked women in Macedonia are Macedonians (regardless of ethnicity) and analyses show that Macedonia has provided a sizable market for the “services” of trafficked victims even before the arrival of the international community. Consequently, it stands to reason that the regional organized criminal networks are rather multi ethnic.

This helped in regaining the desired (and recommended) attitude vis-a-vis the human trafficking crime: as a regional phenomenon and as a multi-ethnic venture that knows no national boundaries, and is merely concerned with money and profit. As mentioned in the reports from this period, trafficking to Macedonia can be traced back to the beginning of the eighties when numerous groups of "exotic dancers" from Bulgaria, the Ukraine and Russia already performed dances in the nightclubs in the national capital. These women were effectively victims of trafficking at that time as information obtained from various sources shows that they were already subject to the mechanisms that bind victims to criminal organizations, with the implementation of similar measures of coercion, intimidation, abuse and torture, typical of the criminal groups operating today.

While Macedonia has emerged as a transit and source country (and to a lesser extent, a destination country), this is rather confined to women and children trafficked for the purpose of sexual exploitation (US 2007 Trafficking in Persons Report). The problem of internal trafficking is nowadays becoming more visible. 

As mentioned, the recent reports by the Macedonian Ministry of Interior detected and confirmed two prevailing tendencies of the human trafficking crime in the country:

The first is related to the growing numbers of internally trafficked persons.

The second tendency is the increased number of minors among the victims rescued or detected. According to the Ministry of Interior's statistics from this year (January-November 2008), there were 21 cases of detected and suspected traffickers involving minors! Eleven of these were recognized as the victims of trafficking, of which 10 were minors. By comparison, during the same period last year there were three registered cases and 5 victims rescued, of which 3 were minors.

SV: What are the effects of the crime on its victims?

DV: The effects of the crime on the victims directly depend on the phase in which they have been rescued and processed and on the duration of the exploitation period.

Traffickers lure women and girls into their networks through false promises of decent working conditions at relatively good pay as nannies, maids, dancers, factory workers, restaurant workers, sales clerks, or models. They often transport victims from their home communities to unfamiliar destinations, including foreign countries away from family and friends, religious institutions, and other sources of protection and support, leaving the victims defenseless and vulnerable. With defective travel documents or with none, without proper visas and with an unlawful stay in a foreign country, the victims become submissive and obedient, thus creating an even greater dependence on the traffickers. Almost without exception they are forced to work to pay off their debts “created” by the organizers of the trafficking, ostensibly to cover the “very high amounts paid” for the illegal crossing of borders, for mediation services for job hunting, the issuance of papers, working permits etc. Almost all of them are coerced into “working off” these debts through forced prostitution or labor. The living conditions during “the trafficking journey” include complete isolation of the victims and their inability to communicate with the outside world, with friends, relatives, social or religious groups. The victims are often left  without elementary hygienic and technical conditions in the premises used to incarcerate them.

Almost without exception, victims are reported to have been beaten, maltreated, with completely reduced mobility and communication, blackmailed, terrified, forced to engage in sex acts or slave-like labour. Such enforcement usually includes rape and other forms of sexual abuse, torture, starvation, imprisonment, forcible drug addiction, threats, psychological abuse, and coercion. Sometimes they are told that physical harm may occur to them or to others should the victim escape or attempt to escape. It is a fact that in most cases victims in trafficking are exposed to the most brutal violations of basic human rights and freedoms. Frequently, they are treated as animals and objects for trade, exposed to the highest degree of disrespect and lack of dignity and to very serious health risks including HIV and AIDS, completely devoid of any access to medical care.

As the subjects of enormous and brutal psychological and physical abuse, all the rescued victims are in desperate need of professional psychological and medical attention and treatment. Almost without exception during the recovery phase, victim suffer from repulsive affect and behavior, having been exposed for a long time to a system of firm subordination established by the traffickers. That is why the psycho-social therapy has to be individually tailored in order to be persuasive enough in countering the physical abuse suffered, and the strong and frequent flashbacks of rape, torture, maltreatment and threats with firearms, experienced. It is a fiendishly difficult job.

SV: Why do some victims, having been rescued and repatriated, allow themselves to be trafficked yet again?

DV: This issue should be analysed on two levels. One is the fact that direct assistance, protection and repatriation programs implemented in the transit countries and the final destinations have always attracted funding and preferred by the donor community. There is a variety of protection programs and schemes that have been successfully implemented in the region, assisting governments in transition to meet the required standards in these areas as part of their EU harmonisation priorities and stabilization and association programs.  

The IOM program of protection and assistance and the voluntary repatriation of victims rescued in the Republic of Macedonia has been one of the more successful in the region. The capacity building components of many projects implemented here have contributed to a rather speedy, adaptive and organised institutional response by the Macedonian authorities in preventing, combating and suppressing the human trafficking crime on its territory.

Other NGOs active in this region have also regularly reported similar stories of success. But all of these projects and  technical assistance programs, funds and assets spent, have been lopsided, empahsizing the countries of final destination or the transit countries, which means that all of them were (and still are) predominantly tailored to cure the negative consequences of THB. The amounts allocated by the international community through different programs reflect a rather imbalanced approach from the very conception and did not sufficiently address the roots of the human trafficking crime, i.e. the recruitment zones, the countries of origin, where trafficking journeys usually start. 

Not enough attention has been given to the amelioration of the repercussions of the so called push-pull factors within the countries of origin and their environments: mainly, the all-pervasive poverty and the very limited and undeveloped absorption capacities of the local economy, resulting in scarce employment opportunities, especially for women; gender issues and equality in those societies (women's restricted access to the labour markets);  restrictive visa regimes; and so on.

Addressing these root causes in the countries of origin would have had a significant preventive effect and would have made it more difficult to recruit new victims in the trafficking chain. It would have allowed those who have been repatriated to get steady jobs or perspectives preventing them from new dangerous adventures. One should not forget that the lingering debts of trafficked victims who have returned home, combined with their continuing need to support their family members, make it more likely for them to migrate again with hopes of earning easy money. Regretfully, many of them end up being re-trafficked.

The other level of analysis is the imbalance between the existing assistance and protection programs for VoT and the voluntary repatriation programs which take place in the final destination or transition countries. The post-repatriation components of most of the protection and assistance programs are still vague and have yet to be developed to be sustainably continued in certain countries of origin. Limited in funding, the post-repatriation and re-socialisation project components are usually designed strictly on a voluntary basis and rely upon the victims' will to attend or be a part of them. This pertains also to the reintegration assistance or vocational training courses organised within the victims' environment. Additionally, those societies are still stigmatising women visiting such rehabilitation and reintegration programs, which indicates their prior status as prostitutes.

Yet, the countries of origin chronically suffer form budgetary constrains and lack of sustainable funding for any local reintegration measures to be feasible. The NGO sector in these countries is not well developed, nor is it qualified and skilled in fundraising issues making it dependent of funding from abroad mainly as a component of programs or projects implemented elsewhere. Although the picture as far as funding is concerned is now slowly changing, the aforementioned observations still remain valid. The intensified process of bilateral readmission state-level arrangements (especially between countries of origin and of destination such as the one signed between Macedonia and Moldova) might make the repatriation process less expensive but cannot resolve the problem of the increased need for proper reintegration and re-socialisation of the repatriated victims. 

Bearing in mind all that, it is a really challenging for the victim to find her way after the process of repatriation. Suffering from many frequent and unpleasant flashbacks and a variety of psychological disorders, and left without proper assistance by professionals, many of them cannot get reintegrated successfully and are rejected by the local community. Thus, they easily get recruited back into the trafficking chain by the local tentacles of organised crime.

SV: What is the profile of the typical human trafficking victim? Are there children and Westerners among the victims?

DV: Generally, traffickers primarily target women and girls, who are disproportionately affected by poverty, the lack of access to education, chronic unemployment, gender discrimination, and the lack of economic opportunities in the countries of origin. Most of the victims rescued and assisted originate from the countries of Eastern Europe and especially from Moldova.

Traffickers lure women and girls into their networks through false promises of decent working conditions at a relatively good pay as nannies, maids, dancers, factory workers, restaurant workers, sales clerks, or models.

Traffickers also buy children from poor families and sell them into prostitution or into various types of forced or bonded labor.

The figures and profile of the assisted victims of trafficking rescued on the territory of Macedonia by the local IOM Mission (August 2000- Dec 2007):

Nationality of the victim’s assisted according to the same source

Gender and age profile of the victims assisted according to the same source (IOM)

Educational Level of the victims assisted according to the same source

Economic Status- of the victims assisted in the country of origin

SV: To what extent do victims enjoy institutional protection in Macedonia?

DV: The legislative harmonization initiated by the currently binding Palermo protocols and the Palermo Convention in general,  made a significant positive impact towards a more effective and proper prosecution of the human trafficking crime on the national level. The institutional response in this regard has become more organized and consolidated, along with the fulfilment of all the requirements as proclaimed in binding or related instruments.

The crucial step with regards to proper housing and assistance provided to the victims was taken when the former ministry of interior asylum shelter has been reconstructed and reassigned by the authorities to serve as a shelter transit centre for  foreign nationals, victims of trafficking  rescued on the  territory of the country. This Transit Centre was formally opened on April 4, 2001. Since its establishment, the immediate deportation and banning of the rescued victims from the territory of Macedonia has been prevented as a mandatory processing of all identified victims was implemented through the Transit Centre (TC), granting them (by the new Law on Foreigners) an extended decriminalised status and lawful stay until they are voluntarily repatriated to their country of origin.

Within the centre and in coordination with the authorities (the Ministry of Interior and the Ministry of Labour and Social Policy), victims have now started being provided with an adequate post-traumatic, socially re-integrative and psycho-social therapy by experts including counselling services by specialized and trained NGOs, which fully corresponds with the standards and requirements proclaimed in the Palermo Protocol and other relevant and related instruments (see footnote).

Once accommodated in these sheltering premises, victims receive appropriate legal advice on their legal status, their rights and obligations in accordance with the existing legislation and, in case they are involved in court hearings or pre-investigative activities, they are provided with free legal counselling, assistance and representation by the team of NGO women lawyers assigned to this centre.

A big step ahead  was also the establishment of the specialised team of senior police inspectors qualified for the timely detection and prosecution of human trafficking operations within the anti organised crime sector in the Ministry of Interior. Continuing education and training of the police officers of those units, including the new Border Police structures, have been ensured through the specialised training curricula at the Police Academy and the Centre for Education of the Police Forces, supported by the CARDS funding mechanisms or by various project funding actions of various donors.

On the inter-ministerial level a special National Commission for Combating Trafficking in Persons and Irregular Migration has been formed on the 27^th of  February 2001, comprising representatives from different ministries ensuring a multidisciplinary approach to the suppression of the THB crime and its prevention on the national level.  The work of the Commission has been facilitated by the establishment of the Secretariat as an executive body of the Commission, in 2003.

On 16th January 2002, urged by the Stability Pact, a special  sub-group for the prevention of the trafficking in children started operating within the National Commisison.

Drafted by this Commisison, the  Government of the Republic of Macedonia  has formally adopted on  March 23rd,  2006 a National Action Plan and a comprehensive National Strategy to Combat Trafficking in Persons.

In May 2005, a Law on Witness Protection has been adopted provididng for posibilities for additional protection of victims who serve as witnesses.

The Ministry of Labour and Social Policy established in September 2005 the National Referral Mechanism for Victims of Trafficking with the core objective of improving and ensuring that proper victim identification, referral and assistance are systematically carried out. The system, theoretically in place for both international and national victims of trafficking, is for the time being mainly focused on the national caseload. This referral mechanism  is also involved in the procedure of appointing guardians for minors who are victims of trafficking, incorporating specially trained teams of the local Centers for Social Care in charge, operating within the Ministry of Labor and Social Policy and the national NGO sector active in this field.

With the support and collaboration of the international donor community, there were a number of campaigns to raise public awareness and of a preventive nature as well as initiatives supported by the national authorities regarding the human trafficking phenomenon, launched and implemented countrywide. Some of them were specially tailored to reach out to particularly vulnerable categories of population, which are exposed to risk.

The Academy for the Continuing Education of Judiciary Officials (judges and public prosecutors) requires an official exam at the end to qualify for election and reelection processes. The Academy's curriculum also includes instruments and best practices in the prosecution of the human trafficking crime.

SV: Are the courts knowledgeable and efficient in processing human trafficking cases?

DV: The  intensive EU association process compelled the signature and ratification by the Macedonian authorities of a  number of new treaties and international conventions, which made them applicable and a part of the national legal system. In order to render national legislation in conformity with all of those instruments, the national laws has been subjected to a process of intensive harmonisation, introducing a number of changes, new articles, and modifications.

Because laws are continually being revised and amended, the process of the continuing education of judges and prosecutors is crucial to the proper functioning of the rule of law in the country.

The involvement of the judiciary, especially trial judges, in educational and training courses for police officers was mainly done on ad hoc basis which caused them to be somewhat inferior as far as the timely acknowledgement of the new treaty requirements regarding human trafficking caseloads. From 2002- 2004, there were court verdicts related to human trafficking offences that have been regarded as rather inappropriate from the punishment point of view. Although 2004 is a turning point in terms of more severe punishment for traffickers, the need for continued education of judges and prosecutors emerged as a priority.

In March 2006, a new Academy for the Training of Judges and Prosecutors was opened in the capital city (Skopje), marking the institutionalisation of an erstwhile ad hoc educational approach previously carried out by the domestic Association of Judges. The establishment of this Academy was an important step in the process of the ongoing overall judicial reform, ensuring the effectiveness and professionalism of the judiciary officials during the application and interpretation of laws and other legal provisions. .

The main purpose of the Academy is to ensure the competent, professional, independent, impartial and efficient performance of judicial and prosecution functions through the selection, organisation, and implementation of initial training for candidates for judges and prosecutors as well as the continuous professional training of judges and prosecutors.

The Academy's training curricula also includes relevant ratified instruments and conventions related to the human trafficking crime. The Academy's educational program for the new candidates and the ongoing refresher courses organized for their active colleagues is allowing the national judiciary to be knowledgeable and aware of all the relevant aspects while processing human trafficking caseloads, among others.

SV: What are the most efficacious deterrents and punishments for human traffickers: monetary fines, confiscation of property, or imprisonment?

DV: Imprisonment is being regularly imposed as the main punishment for convicted traffickers. To effectively combat this crime it is necessary to combine imprisonment with monetary fines and the confiscation of property, thus depleting the resources of organised crime. Regretfully, the last two remedies have been rather poorly applied in practise and do not fully meet expectations. Namely, the monetary fine as envisaged by the Law on Criminal Procedure has been exercised as sporadic punishment next to imprisonment. Additionally, even when imposed, it was usually in an amount that does not reflect the gravity of the crime and could not compensate the victim’s claims for psychosocial damage suffered. The confiscation of property, or forfeiture of profits generated by the crime usually amount to the seizure of movable property, money, and vehicles used for the transportation of the victims at the crime scene. Although the law now foresees the confiscation of real estate, none of these remedies have been applied in human trafficking cases, yet.

In general, as observed by some local NGOs, in the period from 2002 until 2004, almost half of prison sentences in the Republic of Macedonia for human trafficking crimes were below the legal minimum (4 years). This evidences the gap between the court practice in that period and the concept of the penal policy of the country to sanction and underline the severity of the crime.

The picture has changed in 2004 when the penal policy has been made more rigorous, but still with a judicial tendency to hover around the minimum imprisonment prescribed.

SV: Victims sometimes serve as witnesses against human traffickers. Having testified, they are usually repatriated. Can you discuss these two complex problems: witness protection and repatriation? How does one make sure that the victims won't fall prey again to human trafficking or be "penalized" by the perpetrators for their testimony?

DV: Since the Article on Human Trafficking in the Criminal Code of Republic of Macedonia  has been introduced and applied, the practise confirmed the fact that victims' statements were the most solid and crucial pieces of evidence that effectively led to the locking up of traffickers. Therefore, law enforcement in that period was focused on obtaining and upholding quality victim statements and charges against traffickers until the end of the criminal procedure and the court proceedings initiated. Law enforcement practise has demonstrated that once the victims are rescued and have properly recuperated while sheltered in the transit centre, it was not difficult to sustain such charges and statements, mainly due to sufficient security measures and protection afforded the intimidated witnesses as granted by the national Law on Criminal procedure.

The problems started if the initiated procedures got extended and lasted a long time, during which period  the victims-witnesses got repatriated (returned to their countries of origin) even as appeals were not yet  consummated and final verdicts not handed down. The principles of “directness” and “contradiction” (the ability to directly confront the witness and question her under oath) in the Macedonian Criminal Procedure constitute a legitimate right of the defendant (trafficker). They allow him to oppose, challenge, deny and argue the evidence against him brought to the court and to question and oppose witnesses. The need for the repeated and permanent presence of the victims during the whole procedure was a real problem for proper prosecution in that period especially because most of the victims, once repatriated, became part of special social reintegration programs, which regularly prevented them from anything that might lead to re-victimisation or harm the process of their of psycho-social reintegration. In the absence of a crucial testimony, the indictment against the trafficker was difficult to uphold.

On the other hand it was not always easy for Macedonian law enforcement authorities to secure the presence of the victim with the same quality of  statements or testimony during the initial and other phases or instances of the trial, especially in terms of the victim's consent (to be exploited by the trafficker) which was seen and regularly interpreted as a radically mitigating circumstance for the accused. This reversal of testimony was mainly due to the fact that that the victim (regardless whether repatriated or still sheltered in the country of destination) may have received threats and got seriously intimidated (even through their families) by the tentacles of organised crime, or by the traffickers' relatives.

A positive step in overcoming the problem regarding the victim's presence was the installation of an audio-visual link between the court and the office of the prosecution in Macedonia on the one side and the corresponding institutions (or via the Embassy) in the victim’s country of origin. This was made possible with a donation through a US Embassy supported project in Macedonia.

A positive legislative development with regards to witness protection on the national level was the enactment of the Law on Witness Protection which foresees also possibilities for the victims of trafficking to enter the program if they meet certain criteria and conditions. But, up to now, there hasn't been a victim of trafficking that has entered the national program of witness protection.   

Perhaps the most valuable amendment to the Article on Human Trafficking in the Criminal Code was the last one, introduced in January this year (2008). It finally defined the victim's consent as irrelevant for the crime of human trafficking. This actually reinforced the principle highlighted in the Palermo Protocol and the Council Framework Decision that an investigation or prosecution of offences of trafficking in human beings will not depend on reports or accusations made by the persons subjected to the offence (see footnote).

Taken practically, this is expected to alleviate the burden of proof, currently always borne by the victim and her statements. Now law enforcement and investigations focus only on the statements of victim-witnesses as a means to verifying the existing conditions where, additionally, the victim’s abuses are photo-documented and material evidence is gathered carefully and secured independently from the victim’s statement. Furthermore, the relevance of the victim's statements is considered to be merely one instrument among others in support of the prosecution of the traffickers. Such a solution is expected to further ameliorate the pressure and intimidation of victims-witnesses, exerted by organised crime networks and the relatives of the traffickers accused.

Apart from this amendment to the law, it is worthwhile to mention the international cooperation that has developed among law enforcement agencies in the region within the SECI Initiative and its Regional Centre in Bucharest during 2002- 2004. The purpose of the SECI Initiative and the Centre was to improve regional law enforcement cooperation, through the joint activities of police and customs administrations of the different countries involved. This was accomplished by facilitating investigations, sharing experiences, establishing common operations, and continually evaluating and analyzing the crime situation in the region (Operation Mirage ). The system of protection of victims as witnesses was also one of the common activities coordinated.

SV: What is the role of NGOs (non-government organizations) in victim rehabilitation and victim interface with law enforcement authorities?

DV: The role of the NGO sector in Macedonia in effectively countering and suppressing the human trafficking crime has been underestimated in the past, when the victim identification process was a solemn right of the Macedonian Ministry of Interior (i.e., the Unit in charge of Human Trafficking, within the Organised Crime sector).

That period was characterise by major cases of rescued victims being treated as foreign nationals and an official attitude of the authorities who denied the existence of any domestic human trafficking caseload. In that period, the national police was rather sceptic and distrustful towards any attempt at joint action or cooperation with NGOs. A few cases of criminal infiltration and illicit intimidation of victims sheltered in the Transit Centre, justified for a while this kind of suspicious and protective police approach.

A deeper, trust-based cooperation and coordination has been achieved within the Transit Centre between the Police and the NGOs involved in the victims’ assistance and rehabilitation programs. Under the auspices of the Ministry of Interior, National Commissions, and Secretariat a few specialised and trained NGOs have been entrusted and security-cleared to access the Transit Centre on a daily basis in order to provide regular psycho-social, medical and legal aid to the victims sheltered (in accordance with the requirements set in the Article 5 of the Palermo Protocol).

This form of coordination and cooperation has been further formalised through the internal endorsement and application of the so-called special Standard Operation Procedures (SOP), developed with aim of regulating all the procedures and internal and external duties and responsibilities of each of the players (state organs, ministries, and NGOs) involved in the referral system developed (see footnote).

The experience gleaned from this period underlined that multiple possible referral sources had no access to the victims prior to their entry into the Transit Centre. Everyone had to solely rely upon the judgment of the police, thus casting in doubt also the eligibility of persons brought to the Transit Centre.

From this perspective, local NGOs, acting on a decentralized level, as well as social centres were suggested and considered as safer and more dignified venues. The Transit Centre also became accessible to other state institutions such as Local Social Care centres who were able to provide appropriate care and social assistance to victims, especially minors in need of appointment of special  guardians.

In the meantime, local NGOs reported the existence of a caseload of internal trafficking, persistently denied by the authorities.

Time was getting ripe for more comprehensive action to be undertaken on the national level by expanding the referral mechanisms to cover internal caseloads, too.

As mentioned before, in September 2005, the Ministry of Labour and Social Policy, in coordination with the NGO sector and supported by various donors, established the National Referral Mechanism for Victims of Trafficking for processing victims of trafficking in Macedonia. It is characterized by an improved and multifarious victim identification process, based on secured and systematic victims referrals and assistance schemes countrywide. Although initially focused on the national caseload, this system is now operational for both international and national victims rescued.

The presentation made by the coordinative office of the National Referral System in 2008 confirmed that it is run by a permanent staff of three, together with 58 social workers from 27 social centers countrywide who are available 24 hours a day, for the purpose of timely information, detection, coordination, and direct assistance to the victims who are detected or referred by the local NGOs. This yielded an improvement in the prescreening identification system and provided the potential victims with the most appropriate referrals, sheltering and assistance. .

As was reported, from 2005 to 2008, the National Referral Mechanism succeeded to train about 525 different profiles: members of social centers expert teams, 10 representatives of different gender commissions and bodies, police  counter-trafficking and border police inspectors. Twenty-one training seminars were organized for local NGOs countrywide and for 58 social workers of 27 local Centers for Social Care across the nation. The offices of 19 Centers are specifically equipped to work with victims of trafficking who are minors. They provide this class of victims with applicable reintegration and re-socialization programs. Apart from many awareness campaigns and public pool surveys conducted by the Coordinative Office of the National Referral System in conjunction with local NGOs the following figures demonstrate the practical impact of the referral activities:

From September 2005 to December 2006, there were 23 potential victims registered throughout this referral mechanism, out of which 16 were minors.

From December 2006 to December 2007, there were 30 domestic victims of trafficking identified, out of whom 5 were foreign nationals and 28 were minors. From 2005 until December 2008 there were 13 individuals that have been referred through the National Referral Mechanisms to the sheltering premises of the NGO Open Gate. Four of them underwent risk and family assessments, requisite for their safe return home.  Four girls have received direct assistance and included in reconciliation and reintegration programs run by IOM (International Organization of Migration). A temporary social guardian has been appointed for seven minors within the current Transit Centre.

Generally speaking, the role of the NGO sector in the effective suppression of human trafficking is becoming crucial. It is irreplaceable due to its outreach: the best and farthest compared to other preventive and awareness messages launched. NGOs also expand the usually limited local capacities and the reintegration opportunities for victims.

On the other hand, the NGO sector should be used as a valuable and helpful resource at the disposal of the authorities in their quest to attain desired standards and practical solutions. NGOs maintain flexible international networking, cooperation, knowledge flow and transfer and the sharing of best practices in a manner accessible to all. Something that can be rather formal and time consuming as far as the state organs go, the NGO sector can easily expedite by making use of experience encountered worldwide. 

In these contexts, trafficking-related issues and strategies should be anticipated and implemented within the human rights framework consistent with international conventions and instruments, especially with those that have already been subject to ratification. As mentioned in the Palermo Protocol, the signatory-country assumes the responsibility to review the possible measures for the appropriate psychological, psychophysical and sociological treatments for the healing and recovery of the victims, material help, as well as legal advice regarding their rights in a language they understand.

Legal aid is an exceptionally important precondition and a guarantee for the realization and appropriate protection of victims' rights and freedoms set forth in the Constitution and in all internationally-ratified conventions. Presenting the facts this way and with properly addressed and timed campaigns, NGOs must enlarge their preventive and educational impact on the vulnerable parts of the population: women, i.e. girls and children, alerting them to new and nefarious forms of recruitment. As part of its gender mainstreaming, the NGO Sector is actually expected to further incorporate anti-trafficking measures into its ongoing human rights and institution-building programs.

In this regard, it is worth mentioning the positive impact of the Council of Europe Convention on Action against Trafficking in Human Beings of 2005 which calls upon the treaty signatories to further adopt measures for victim protection regardless of their collaboration in the criminal prosecution of traffickers, preventing them from being repatriated in the meantime. This Convention openly prompts the authorities to extend their cooperation with the NGO sector and with professional organizations that deal with these issues. The treaty also prevents victims from being repatriated before all legal proceedings are completed. The other progressive feature offered in this instrument is that the problem of human trafficking has been finally decoupled from what used to be the prevalent focus on illegal migration patterns. Whereas the Palermo Protocol has now been signed by almost all European countries, only several out of 47 members of the Council of Europe have ratified the more binding Convention on Action against Trafficking in Human Beings. The Republic of Macedonia still has to finally ratify this Convention which was formally signed on 17.11.2005.

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