Human trafficking in the Netherlands: specialised judges on human trafficking cases
Getting traffickers convicted is the final step in a successful fight against trafficking in human beings. Traffickers should receive sentences commensurate with the seriousness of the crime. This is the message of the Trafficking in Persons (TIP) report 2013, released today. The TIP report commends the Netherlands: “The Dutch government continued to demonstrate anti-trafficking leadership by transparently reporting and publishing self-critical, public reports on its anti-trafficking efforts. The National Rapporteur’s office published six reports on human trafficking in 2012.” In one of these reports, the National Rapporteur on Trafficking in Human Beings and Sexual Violence against Children, Corinne Dettmeijer advised for the specialisation of judges. Today she publishes the English version of her study on recent case law in the Netherlands relating to human trafficking cases. She studied over 400 judgments on human trafficking in the sex industry and other forms of exploitation.
Case law on trafficking in human beings
The conclusion of the report of the National Rapporteur is that specialisation and training are needed to ensure that human trafficking cases are 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. When determining sentences, there are major disparities. The report shows that there is a lack of uniformity in the application of factors that can influence sentencing, such as aggravating circumstances. There is also considerable discrepancy in awarding compensation for victims. No consistent link seems to be made in human trafficking cases in the Netherlands between confiscation and compensation.
The key message of the report is reflected in the recommendations:
- Arrange specialisation and provide training in human trafficking cases
- Develop orientation points
- 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 un¬able to avoid the pitfalls. The study shows that in 2010 more than three-quarters (77%) of the judges concerned dealt with just a single hu¬man trafficking investigation. 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.
Development of orientation points in the interests of consistent sentencing
This study shows that the sentencing in human trafficking cases varies. The judgments do not reflect a clear framework of assess¬ment. Aggravating circumstances frequently do not play a role in sentencing. These 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 threatening the life of another person, and human trafficking that results in death. Orientation points are not binding, but are intended to lay the ground 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.
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 of trafficking filed an aggrieved party claim in criminal trials in 2010. 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 de¬clared 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. 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 suffered.
The report of the Dutch Rapporteur and the TIP report can be accessed via the links below.
Journalists and media officers can contact Verena Elders: + 31 6 52 877 375.