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Protection of minor victims in criminal procedures

Protection of minor victims in criminal procedures. the right to be heard, Access to information, and legal assistance. Iara de Witte | 13 May 2014. Introduction: about our organization. 1990, 1995 74 countries 1979, 1984 47 sections

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Protection of minor victims in criminal procedures

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  1. Protection of minor victims in criminal procedures the right to be heard, Access to information, and legal assistance Iara de Witte | 13 May 2014

  2. Introduction: about our organization • 1990, 1995 74 countries • 1979, 1984 • 47 sections • 2003: In the Netherlands Defence for Children and ECPAT form one organization

  3. Our activities • Defence for Children has divided its activities in four main fields: • Youth care • Juvenile justice • Migration law • Exploitation of children (ECPAT)

  4. Helpdesk “eyes and ears of the organization” Helpdesk trafficking cases a. Victims of domestic trafficking (e.g. loverboys) b. Victims of cross-border trafficking

  5. Content • Emancipatory developments re position of victims • Right to be heard, truth finding and the child’s interests • Non-punishment principle • Intertwining of criminal and migration law

  6. 1. Position of the victim • Law on strengthening the position of the victim in criminal procedures (2011): victim as independent participant • recognizing what has been done to the victim • to do justice to the victim • compensation for damage • proper treatment during the procedure • right to information • right to add pieces to file • right to know pieces from the file

  7. Position of the victim • Right to information (art. 17 UNCRC) • Right to speak (art. 12 UNCRC) • Victim lawyers • Compensation for damage

  8. 1. RIGHT TO INFORMATION • Legal proceedings (start, continuation, dismissal, date and time of hearing) • Judgment • Eventual release • Interview before the hearing • Before start or dismissal prosecution • Compensation for damage

  9. Sara (18) from the Netherlands. Forced into prostitution by a Loverboy. Also used for telephone subscriptions: • “I was not informed by the court, the police or my lawyer about the proceedings. I had to read in the newspaper that my pimp was released after one month in prison. The lawyer said that she could not inform me because I am under curatorship. However, curatorship does not imply that I should not be informed.”

  10. Maia (17) from the Netherlands. Forced into prostitution by a Loverboy. Suspected of being a Lovergirl: • “During the interrogations, suddenly I was identified as accomplice instead of victim. They said I worked for my Loverboy to make other girls work in prostitution. Later, my mother received a letter that I was not a suspect anymore. They did not inform me about that. I do not have much contact with my mother.”

  11. Else (16) from the Netherlands. Forced into prostitution by her mother and her mother’s boyfriend: • “I was not informed by the police that they interrogated people in my envirnoment. Suddenly I heard that my friends had been interrogated. I also heard from my mother that the police interrogated her. Via others I heard that my mother and her boyfriend turned themselves to the police.”

  12. 2. RIGHT TO SPEAK 2011: legislative proposal2012: into effect; children can be represented by parents 2005: personal right for the victim, no representative 2010/2011: Robert M. (“Amsterdam sex crime case”)

  13. 3. VICTIM LAWYERS No lawyer needed -> victim is not a party But: assistance through the process, makes victim’s interest taken into account Proposal February 2014: special basic education for victim lawyers per July on e.g. • Right to speak • Liability • Compensation claim • Psychological problems

  14. Fatima (18) from Lebanon. Brought at the age of 9 to the family of her uncle and aunt in the Netherlands. Exploited as a domestic servant: • “I have a lawyer but I have spoken to her only twice. She did not accompany me to the interrogations of the examining magistrate. I have asked her why she is actually my lawyer. She explained that she can only do a few things for me. Now I learned that the victim has only a limited role in the proceedings. Still I would like that she could do more for me”

  15. 4. COMPENSATION FOR DAMAGE • It is possible to claim a portion of the damage. The damage that has not been claimed in the trial may still be applied for in a civil procedure. (e.g. no end state of damage, complexity of damage) • Payment of compensation by the Government: The state pays the (remaining) amount to the victim when the offender has not (fully) met its payment obligation. • Injuries Fund Violent Crimes: compensation for damage without filing a complaint or a conviction.

  16. 2. Right to be heard, truth finding • Certified investigators (not specialized in minors) • Minor victim and suspect do not have to meet • Interrogations in child friendly rooms (audio visual recording) • Interrogation by examining magistrate (lawyer, suspect) • Permission for presence of parent, guardian, lawyer - Request can be refused • Limit the number of interrogations vs. practice >4 • Filing a complaint, the procedure and interrogations: High psychological pressure

  17. Fatima (18) from Lebanon. Brought at the age of 9 to the family of her uncle and aunt in the Netherlands. Exploited as a domestic servant: • “I have been heard by the police for about 9 times. I am happy it was by the same police officers every time. The interrogations by the examining magistrate were difficult, truth finding was confronting. Lawyers of the suspect repeatedly asked mean questions. They did not believe me. My mentor stood up for me, which changed the attitude of the magistrate. My mentor is very important to me”

  18. 3. Non-punishment / non-prosecution • CoE Convention on Action against THB: art. 26 • EU Anti-trafficking Directive: art. 8 • National law: • Judicial pardon, opportunity principle, grounds for excluding criminal responsibility

  19. MEHAK CASE • Indian girl, Santosh, exploited by the Sharma family as a domestic servant in NL from 13 – 19 yrs (1999 – 2006) • In 2004, family members joined, among which the toddler Mehak • Renu Sharma believed Mehak to be bewitched. Devil had to be beaten out of Mehak. She died in 2006 • Sharma family convicted for exploitation. Santosh proven victim • Santosh also convicted for role in Mehak’s death: 6 yrs prison. “Unwanted”: to be expelled from the country.

  20. 4. Intertwining of migration and criminal law • Directive 2011/36/EU “versus”2004/81/EC • Care and assistance ≠ criminal procedure • Durable solution • Temporary residence permit during criminal procedure: “B8” • Care and assistance =criminal procedure • Subsequent permit (continued stay) open to: ‘proven victims’, > 3 yrs B8, ‘reasonable story’

  21. Fatima (18) from Lebanon. Brought at the age of 9 to the family of her uncle and aunt in the Netherlands. Exploited as a domestic servant: • “My residence permit depends on the conclusion of the criminal procedure. Until the end of the trial, I can not live a peaceful life. I find that very difficult."

  22. BBB8: BETTER PROTECTED IN THE B8 Criminal procedure: B8 is ex officio granted Filing a complaint is often not in the interest of the child Existing special category of people for whom filing a complaint is not possible: include children Thus: minor identified as potential victim -> ex officio B8 without the precondition of cooperation in criminal procedures

  23. BBB8: BETTER PROTECTED IN THE B8 Durable solution: • First (reasonable grounds) identification: 3 months reflection period • Real indications and return not possible -> B8 for one year without cooperation in the criminal procedure • Guardian together with child make plan of action: durable solution, either in NL or country of origin • After one year, formulate future perspective, realize return or apply for continued stay in NL

  24. Questions?

  25. Thankyouforyourattention Iara de Witte i.dewitte@defenceforchildren.nl

  26. Facts and numbers 1437 registered potential victims of trafficking in 2013 260 minors, 228 girls and 32 boys Top 5 of nationalities of minors: Netherlands 165 Guinea 23 Sierra Leone 13 Mongolia 6 China, Bulgaria 4

  27. Facts and numbers 228 girls: 106 sexual exploitation 3 criminal activities, drugs 1 domestic labour 78 intervention before the exploitation could start 4 other 37 unknown 32 boys: 5 sexual exploitation 3 criminal activities 1 domestic labour 4 intervention before the exploitation could start 20 unknown

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