Criminal proceedings

The Victims’ Directive (2012/29/EU) contains a number of provisions for the protection of victims of crimes (see in particular Article 24). Protection safeguards for children involved in criminal proceedings are also provided in the Directive on combating the sexual abuse and sexual exploitation of children (2011/92/EU). Both directives reflect standards set forth in the Council of Europe Guidelines on child-friendly justice (2010).

Trafficking in human beings is a serious criminal offence. Accordingly, the Anti-Trafficking Directive  (2011/36/EU) sets forth a series of beneficial provisions for the protection of victims before, during and after criminal proceedings. Child vic-tims of trafficking might be involved in criminal proceedings. The guardian must be prepared to support the child in this regard. The directive contains specific safe-guards for victims of trafficking in criminal

In 2010, the Council of Europe adopted Guidelines on child-friendly justice intended to enhance chil-dren’s access to and treatment in the justice sys-tem. The issues covered include information, rep-resentation and participation rights, protection of privacy, safety, a multidisciplinary approach and training, safeguards at all stages of proceedings and deprivation of liberty.

Council of Europe Guidelines on child friendly justice adopted by the Committee of Ministers of the Council of Europe on 17 November 2010, available at:

http://www.coe.int/t/dghl/standardsetting/childjustice/

(Article 15). Furthermore, Article 8 of the Anti-Trafficking Directive (2011/36/EU) sets out the principle of non-punishment of victims, whereby:

“Member States shall, in accordance with the basic principles of their legal systems, take the necessary measures to ensure that competent national authorities are entitled not to prosecute or impose penalties on victims of trafficking in human beings for their involvement in criminal activities which they have been compelled to commit as a direct consequence of being subjected to trafficking.”

Such provisions are particularly relevant for child victims trafficked for use in criminal activities.

Normally, the criminal justice system assigns the child victim a lawyer to provide him or her with legal advice and assistance. It is the guardian’s task to ensure that the child has access to legal assistance, in accordance with national legal provi-sions. If no lawyer is appointed, the guardian should ask the competent authorities to appoint one.

The guardian should, in close cooperation with the lawyer assigned to the child, argue for the child benefitting fully from the provisions set forth in the Anti-Trafficking Directive (2011/36/EU) and/or in domestic law and insist that the rights of the child as a victim, and as witness in criminal proceedings against the trafficker, be protected.

In criminal proceedings, the role of the guardian is mainly to support the child, as the lawyer will provide the core legal assistance.

Checklist: Possible actions by the guardian in relation to criminal proceedings

√ Ensure that the child has access to appropriate legal assistance: that a qualified lawyer is appointed without undue delay to provide legal advice and represent the child as required by national law.

√ Help the child take an informed decision regarding participation and cooperation in criminal proceedings: make sure that the child victim is informed of security and safety issues and the risks involved, and has a clear understanding of them, before deciding whether or not to participate and testify in criminal proceedings against the suspected traffickers.

√ Make sure that the child is fully aware of which entitlements to assistance and protection are conditional on his or her willingness to participate in criminal proceedings and which are not, and that he or she has the right to review cooperation with the justice system in the future.

√ Encourage the child victim to make full use of the reflection period before deciding on the matter, if this is in the best interests of the child.

√ Support the child to understand any communications received, including communications from the legal representative.

√ Accompany the child and attend all interviews and hearings with him or her.

√ Prepare the child emotionally and psychologically before interviews and hearings and make sure that he or she has a proper understanding of the proceedings and the outcome.

√ Discuss with the child the outcome of the proceedings and court decisions and explain its relevance to the child’s particular situation and the future options and steps available.

√ Ensure, in cooperation with the person providing legal assistance to the child, that the child is not prosecuted and/or penalties are not applied for criminal activities consequent upon the exploitation of the child, as stipulated in Article 8 of the Anti-Trafficking Directive (2011/36/EU).

Overall, the guardian should promote the best interests of the child as a primary consideration throughout the proceedings, and protect the child’s rights, to prevent secondary victimisa-tion. To this end, the guardian should collaborate with the legal represent-ative so that full use is made of all existing procedural safeguards.

“The guardian should have the right to refuse to give testimony about the child if he/she is called on to do so. Guardians should also be guided by the principle that they must ‘do no harm’ to the child for whom they are responsible, either by their actions or by any decisions they are involved in taking on the child’s behalf. It is important that police and prosecution services are aware of these stipulations and understand that they are not entitled to put a guardian under any pressure to take any action which the guardian considers to be against the best interest of the child”.

Source: UNICEF (2008), Reference guide on protecting the rights of the child victims of trafficking in Europe, Geneva, p. 54, available at: www.unicef.org/ceecis/

UNICEF_Child_Trafficking_low.pdf