Who may be considered a victim of trafficking
- Pursuant to the Combatting Trafficking in Human Beings Act, a “victim” shall be any person who has been the subject of trafficking in human beings.
In line with the National Mechanism for Referral and Support of Trafficked Persons in Bulgaria, victims of trafficking may be identified informally and formally.
- According to the Criminal Procedure Code, a “victim” shall be a person who has suffered pecuniary or non-pecuniary damage as a result of a crime (including the victim’s family members). For a person to be recognised as a victim, it is not necessary for the perpetrator to have been identified.
The status of a “victim” gives a person certain rights such as immediate access to social services or participation in criminal proceedings. For a person to benefit from the rights in criminal proceedings, the authority which initiated the criminal proceedings needs to serve the victim with a copy of the order for the initiation of pre-trial proceedings whereby it informs the person about the status of a “victim”.
What are the rights of victims of trafficking?
Victims of trafficking have general rights as all other victims of crime:
Victims of trafficking also have special rights. This is necessary in view of the specifics of the crime, the enormous benefits from it, the significant public danger, the grave forms of human rights violations and the high risk to public safety. The special rights are meant to protect the victims’ lives and to increase the effectiveness of criminal prosecution by facilitating their participation in it. Special rights include:
GENERAL RIGHTS OF THE VICTIMS OF TRAFFICKING
Right to protection and support
All victims of trafficking, regardless of whether they have been formally or informally identified, have the right to immediate and unconditional short-term support during the 30-day recovery and reflection period at specialised centres for victims of trafficking with the NCCTHB or another social service from the time they have been identified in the country of destination to their return in Bulgaria. Depending on their situation, victims may stay at a crisis centre for a period of up to 180 days, regardless of whether they cooperate with the authorities in the investigation of the criminal offence.
- Victims of trafficking who have been formally identified and participate in criminal proceedings have the right to a prolonged stay at NCCTHB specialised centres or another social service during the criminal proceedings.
Right to information about rights and protection measures
- Right to recovery and reflection period;
- Right to free psychological help and free legal advice during the recovery and reflection period;
- Right to special protection if one cooperates;
- Right to live in a shelter during the criminal proceedings if one cooperates with the authorities (testifying);
- Right to a lump-sum financial compensation for pecuniary damage from the State budget.
Access to legal aid
Victims of trafficking have the right to a lawyer who will defend their rights and interests, inform them about their role in the case and present their point of view during the criminal proceedings. Legal aid also includes civil or other proceedings to seek compensation for damage sustained.
See more at Legal aid for victims of trafficking.
Right to safety and protection of privacy
Right to compensation
Victims of trafficking have the right to compensation for pecuniary and non-pecuniary damage. The compensation may include payment for the costs of medical and/or psychological treatment; benefits foregone and remuneration due (the money the victim earned for the trafficker); legal costs; compensation for non-pecuniary damage as a result of the emotional stress, pain and suffering the victim has experienced as a result of the crime committed against them.
See more at Compensation for the victims of trafficking.
SPECIAL RIGHTS OF VICTIMS OF TRAFFICKING
Right to a recovery and reflection period
Special protection status
- A long-term residence permit for third-country nationals; and
- Extended shelter stay.
Temporary residence permit and permit issued on humanitarian grounds
If, after the end of the reflection period, a third-country national victim decides to cooperate with the authorities, even if the person does not have an ID or other relevant document, they are allowed temporary residence for the duration of the criminal or other proceedings. The victim is accorded special protection status under Article 25 of the CTHBA and is issued a long-term residence permit for the duration of the criminal proceedings.
If the victims’ return to their country of origin endangers their life and health, they are entitled to apply for asylum or for a residence permit on humanitarian grounds.
Right of the victims not to cooperate with law-enforcement authorities
A victim has the right no to report a crime against them to the authorities. Regardless of this, the Prosecutor’s Office may initiate an investigation and gather alternative evidence. The victim is not exempt from the obligation to appear for clarification/questioning before the police if summoned and risks a fine and forced escort if the victim fails to do it voluntarily. However, upon appearing, the victim has the right to state that they wish to exercise their right not to cooperate. A record of the questioning is not kept in the case file and the victim is not to be included on the list of witnesses.
Prohibition for detention of victims of trafficking
Prohibition for criminal prosecution and sentencing of victims of trafficking
Help for victims of trafficking in need of international protection
Victims of trafficking in human beings have the right to international protection. The international protection could be in the form of refugee status in line with the 1951 UN Convention on Refugees or subsidiary protection according to EU law.
Pursuant to the 1951 Geneva Convention relating to the Status of Refugees, a refugee is a person with respect to whom there is a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion who the authorities of their country are unable to or do not want to protect. Such people may ask for asylum in a safe country inasmuch as the authorities in their country tolerate the threats or do not want to or are unable to provide effective protection against them.
Subsidiary protection is a form of international protection provided to people who are unable to return to their country of origin because they would be facing a real of risk of suffering substantial damage. This could be the death penalty, torture or inhuman or degrading treatment or serious threats for one’s life in the case of general violence in situations of conflict.
Pursuant to the Geneva Convention, victims of trafficking have the right to ask for international protection – both those who were the subject of trafficking and those who are at risk of trafficking or exploitation in trafficking and this is the reason for their escape. In all these cases, if there is a risk of persecution, victims may apply for international protection.
Possible and specific forms of persecution of trafficked persons:
- Risk of re-trafficking;
- Repression by the exploiters if the victim has run away or has tried to or has cooperated in the punishment of the crimes related to the victim’s exploitation;
- Marginalisation, stigma and discrimination to which the victim will be exposed by their family or community in the country of origin due to their involvement in trafficking.
The Geneva Convention also contains an important humanitarian clause (Article 1-C, paragraph 5 and paragraph 6) about the convincing reasons arising from previous persecution. This clause allows for protection even when the persecution has ended and there is no longer a risk. It envisages the recognition of status when the persecution was very cruel and the person is still suffering from the consequences of the serious violations to an extent that a return would be unbearable in any case.
Non-refoulement (Prohibition for the return) of victims of trafficking
According to the principle of non-refoulement (prohibition for the return), those seeking international protection have the right not to be returned to places where there is a risk for their life and health. The European Court of Human Rights complements this principle setting out protection against return when the victim could, in the case of return, be subjected to torture and inhuman or degrading treatment or punishment or serious damage which would be in violation of Article 3 of the ECHR by the State (prohibition of torture and inhuman or degrading treatment or punishment). Such protection must be accorded even when it is alleged that the person committed a crime. The latter is of special importance to victims who were forced to commit crime as a result of the trafficking they experienced. The principle of non-refoulement is also applicable in cases of indirect removal to an intermediary country, for example return pursuant to the Dublin Regulation.
From a practical point of view, special attention should be paid when the applications for international protection are heard in expedited and/or fast-track procedures because, then, there is a risk of inappropriate review of the application of a victim of trafficking – the victim might not be identified as one which would result in a breach of the principle of non-refoulement or the victim might be exposed to re-trafficking. Due to this, the possibility for access to specialised legal protection is vital.