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Q+A-Providing trafficking victims greater access to justice

Source: Thomson Reuters Foundation - Fri, 26 Oct 2012 22:08 GMT
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 MADRID (TrustLaw) – Human trafficking needs to be seen not only as a criminal offence but also as a human rights issue, according to Omer Fisher, deputy head of the human rights department of the Organisation for Security and Co-operation in Europe.

In an interview with TrustLaw Fisher said that a ‘shift in paradigms’ is needed, especially at the national level, in order for the law to focus on the victim as well as on the culprit in trafficking cases, and give trafficked persons better access to justice.

 The United Nations Office on Drugs and Crime (UNODC) defines human trafficking as a crime against humanity that “involves an act of recruiting, transporting, transfering, harbouring or receiving a person through a use of force, coercion or other means, for the purpose of exploiting them.”

 It is often identified with sex trafficking but trafficking in domestic labour also represents a significant part of the human trafficking problem.

Recent International Labour Organisation(ILO) estimates – cited during a panel discussion on trafficking that took place at this year’s European Pro Bono Forum in Madrid - put the number of victims of forced labour at 21 million worldwide.

Fisher spoke with TrustLaw about his work, and how lawyers working on a pro bono basis can help providing greater access to justice for victims of human trafficking.

 What are the main areas of focus of your work at the Organisation for Security and Co-operation in Europe (OSCE)?

 “…We work on the fight against trafficking. Generally speaking, what our office does is to monitor the implementation of human rights commitments and to assist our participating states in implementing [them].”

 Do you see human trafficking as a growing concern?

 “Well it is certainly an issue that is on the agenda, not just at the OSCE…I think at the policy level there is a growing understanding of (the need) of framing human trafficking as a human rights issue, so to move from a criminal justice (emphasis) to the human rights one.

This is happening at the international level. What we may want to see more is perhaps for this approach to be used also at the national level.”

 What are the major challenges in tackling human trafficking?

“…One of the key areas we focus on is access to justice for the victims and the victims of trafficking are very often very vulnerable, marginalized. They may have come from places where they are discriminated…they are often relatively powerless. I think this is what really makes it (difficult) for them to claim their rights – which is their right to have justice and have access, for instance, to compensation.

 Compensation is also not an immediate concern of the authorities – even when they are dealing with a trafficking case the priorities is to deal with criminals. But really we have to think about trafficking as a victim-centred human rights problem to ensure they have their rights respected and (they) have access to justice (and) remedy for all the violations they have experienced.”

 What are the challenges to overcome at the legal level?

 “…Sometimes there isn’t even a clear definition of (human) trafficking as a criminal offence and a case of trafficking might fall under other categories – kidnapping and other crimes.

 There is also the problem of the role of the victims and the access to legal aid…If you’re looking at civil proceedings when a trafficked person is claiming compensation…legal assistance in making such a claim is often not available, so these are some of the challenges.”

 How can pro bono support anti-trafficking efforts and victims of human trafficking?

 “There may be criminal proceedings but also civil proceedings where the victims may be using the court to claim their rights,” he said.  He noted that there can be significant gaps in the ability of trafficking victims to access legal assistance…and that is where pro bono lawyers can play an important role in filling these gaps.

 Does OSCE work with pro bono lawyers?

 “What we have done is to promote discussions among lawyers who provide legal assistance (to trafficked persons) – many of them are doing it on a pro bono basis.

 We’ve been promoting the discussion between them to see what can be a way to transfer and share the practice between lawyers working on trafficking in a range of countries. There has been this suggestion – which has come from the lawyers themselves – to establish a network of lawyers working on trafficking. This is something we can’t do on behalf of the lawyers but we can try to facilitate the discussion.”

 Are legal aid systems in place at the country level helpful in tackling trafficking?

 “There are certain gaps (in legal aid systems) and I think pro bono could help fill these gaps. I think…the starting point is always that the state has the primary responsibility of ensuring that victims of trafficking have access to justice but…we still have to live with the reality of gaps.”

 Is there an effective international legislation granting protection to trafficked persons?

 “We have our own commitments…we have our own legal framework. We also have a range of international instruments that deal with trafficking. I think that at that level…the framework could be made even more human rights-friendly and we could see progress.”

 (Editing by Lisa Anderson)

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