Trafficked persons have the right to decide for themselves whether they want to cooperate with the police and prosecution to detect the crimes committed against them. If the trafficked person decides to cooperate, they become a participant in the criminal proceedings.
The participation of trafficked persons in judicial proceedings must be carried out taking into account all factors related to:
- Ensuring the safety of the trafficked person and their family;
- Avoiding re-traumatisation (re-victimisation) during the pre-trial proceedings and the trial by using sparing methods of testifying and interrogation in a different room avoiding contact with the traffickers;
- Protectiong the rights of the trafficked person (providing translation, not letting any media or outside people in the court room, etc.).
Step 1. Informed consent of the trafficked person to participate in criminal proceedings
The decision to take part in criminal proceedings is voluntary and informed, and the victim reaches it after expiry of the reflection period. During this time, the trafficked person regains their emotional balance, frees themselves from the dependency on the trafficker and receives sufficient information about the nature of the criminal proceedings and their role in them, including the emotional consequences. (See Measure 2.2. Step 2)
In order to express their consent to participate in the proceedings, the trafficker person needs to submit a signal to the MoI authorities or the Prosecutor’s Office. It is recommended that the signal is drawn up in writing with the assistance of a social worker or a lawyer. It should contain as detailed information as possible about the crime experienced. It may contain requests to gather specific evidence, including names and telephones of witnesses. The submission of a well prepared and detailed signal could later reduce the number of questionings of the victim to a single one. As a protection measure, the signal could specify not the address of the victim but of the NGO providing care, a judicial address or a P.O. box. (Indicating an address in the country is required for the trafficked person to be constituted as a party to the criminal proceedings.) A lawyer from the National Legal Aid Bureau may help draw up the signal.
When the trafficked person has decided to take part in criminal proceedings and giver their informed consent, the pre-trial authorities notify the person about their rights in criminal proceedings, including the right to free legal counselling and procedural representation.
Step 2. Providing a procedural representative
If the trafficked person decides to take part in the criminal proceedings, the person has the right to choose a procedural representative who will represent them during the investigation and the judicial proceedings. A procedural representative is assigned when the person is constituted as a private prosecutor or civil plaintiff. If the victim meets the requirements for free legal aid, they may turn to the National Legal Aid Bureau and be appointed a procedural representative.
Victims of trafficking have the right to procedural representation not only criminal proceedings but also in civil proceedings if, for example, they wish to file a claim against the trafficker for pecuniary and non-pecuniary damage in a civil procedure. In criminal and civil cases, a free procedural representative is appointed when, based on evidence, the court establishes that the victim is unable to pay lawyers’ fees.
The application form for requesting a procedural representative to be appointed is available on the website of the National Legal Aid Bureau.
Another possibility for free legal aid is via non-governmental organisations which have programmes and projects for legal aid. It is provided by lawyers working at the respective organisations.
Step 3. Gathering of evidence by the competent authorities with the help of the trafficked person
While working with the trafficked person, the counsellor does not collect information which can be used in the pre-trial proceedings and the trial. If the trafficked person decides to testify, an interrogation is held by an investigative authority which has been informed in advance about the trafficked person’s state and has been prepared to treat them with tolerance and understanding. To avoid re-victimisation, the interrogations need to be brought down to a minimum.
If there is risk for the trafficked person to leave the shelter where they are accommodated or if their health or emotional state does not allow it, the meeting with the investigator takes place in the shelter/centre. The conversation with the investigator is strictly confidential and there must be no additional people present, even the person’s counsellor.
The counsellor should be available during the interrogation and can be summoned if the victim’s emotional condition worsens. In such cases, it is necessary to take a break until the victim calms down and can continue the interrogation with the investigator.
It is recommendable for the victim to be accompanied by a lawyer at all times during investigative activities because the lawyer:
- Provides the investigative authorities with their judicial address so that the victim’s address can remain a secret;
- Helps the victim prepare a detailed report about the crime;
- Accompanies the victim during the interrogation and makes sure that the victim’s procedural rights are observed, to prevent possible degrading treatment by the authorities;
- In accordance with the victim’s emotional state, asks that the victim be questioned in a “blue room”, before a judge and in the presence of the person charged and their defence counsel;
- Requests freezing of (a part of) the trafficker’s property to secure the future civil claim;
- Accompanies the victim to submit the materials in the investigation and states that the victim will participate as a private prosecutor and/or civil plaintiff.
Step 4. Support of the victim who is a witness/participant in the trial before, during, and after the trial. Preventing re-victimisation
The trafficked person receives emotional support before, during and after the trial by an individual counsellor (psychologist, social worker).
The counsellor accompanies the victim of trafficking during the proceedings and:
- Provides emotional support;
- Prepares the victim for the emotional consequences of their participation in the different stages of the proceedings;
- Helps the victim to better understand and plan the actions taken with the legal advisor;
- Accompanies the victim to the court room, where necessary (Article 264, para 1 of the Criminal Procedure Code: with the approval of the judge);
- Helps the victim cope with the psychological reactions as a result of testifying or appearing in a court room;
The counsellor works together with the other specialists involved in the legal case by:
- Sharing information related to the risk assessment for the trafficked person and their family;
- Prepares the procedural representative, investigators and detectives about the trafficked person’s emotional state and provides recommendations on how to communicate with them;
- If appointed by the competent authorities, provides expert opinion about the trafficked person’s ability to participate in the proceedings based on the assessment of the victim’s mental state;
- If appointed by the competent authorities, provides expert opinion about the risks of re-traumatisation and other negative consequences on the trafficked person’s mental state as a result of their participation in the proceedings.
The procedural representative works in cooperation with the individual counsellor to avoid further trauma for the victim related to the victim’s participation in the criminal proceedings. To this end, the following should be avoided:
- Unnecessary repeated questioning;
- Visual contact between the victims and persons charged, including in the course of testifying, for example during an interrogation or a cross-examination, through appropriate means, including the use of appropriate communication technology;
- Testifying in an open court hearing;
- Unnecessary questions about the victim’s personal life.