Victim Temporary Protection

Victim Temporary protection and the Refugee Issues

As published by the UNHCR in relation to Victim Temporary protection: One of the primary issues posed by temporary visa schemes in affording protection to victims of trafficking is the obligation to cooperate with law enforcement. The Trafficking Protocol and the United States TVPA indicate that one of the primary purposes of the legal framework is to provide protection to victims of trafficking.194 Regarding the suggestive nature of the provisions addressing victim protection contained in the Trafficking Protocol195 and the connection between protection measures and the willingness to assist law enforcement outlined in the TVPA,196 it appears that protection for victims is secondary to the prosecution of traffickers.197 Many victims face a very real threat of reprisals from traffickers, both individually and against family members, making it difficult to assist law enforcement.198 Moreover, having experienced the trauma of exploitation, victims may not be able to provide the necessary information to assist law enforcement efforts. While there are sometimes exceptions to the requirement for cooperation for medical or psychological necessity, as seen in the both the Australian and United States systems, it may be difficult for a victim to obtain the necessary documentation for these exceptions.

Reducing fear of reprisals against family members is a very serious weakness in temporary protection systems, particularly in the context of requirements for cooperation with law enforcement. If a victim is in serious fear for the safety of her family, it will potentially affect her decision to assist in the investigation and prosecution of her traffickers.199 Even in the United States and Australian systems, where victims are permitted to apply for protection for certain members of their families, the inability to accord protection in a timely and efficient manner may negate the effects of this option. For example, if an average visa application takes four to twelve months to process in the United States, imminent harms faced by family members will not be addressed by this system.200

The use of witness protection programs may alleviate several issues involved in threats against victims and their family members. The UN TOC Convention requires a Member State to “take appropriate measures within its means to provide effective protection from potential retaliation or intimidation for witnesses in criminal proceedings … and, as appropriate, for their relatives and other persons close to them.”201 The measures considered within the Convention include measures to “ensure physical protection,” possibly including relocation, as well as methods of testifying that aid in protection of victims, for example through the use of video testimony.202

The UNODC provides guidance on good practices regarding the protection of witnesses.203 First, it emphasises the importance of distinguishing between witness assistance and witness protection. Witness assistance is primarily focused on obtaining “efficient prosecution and avoid[ing] secondary victimization or revictimization of the witness,” while witness protection is focused on those situations where “the threat against the witness is so serious that protection and support cannot be ensured by other means.”204 In situations involving prosecution of small-scale traffickers, where there is little perceived threat to the victim in testifying, it may be sufficient to provide the victim with psychological and practical assistance, police protection and/or testimonial protection surrounding the trial.205 Increased measures may be necessary in certain situations where the perceived threat is greater, such as temporary relocation or increased police protection and other security measures.206 Cases involving extensive criminal networks may require admission to a witness protection program and a change of identity and location for the victim and members of her family.

The UNODC indicates that this type of protection can result in extreme consequences for the victim and her family in the form of “severe restrictions in their fundamental personal freedoms and individual rights in terms of movement, communication and work.”207 When international relocation is necessary, because an individual cannot be relocated safely within the prosecuting country, she may face additional barriers with respect to language, society and culture.208 While this may be the only option for adequate protection for some victims of trafficking and their family members, the severity of the restrictions associated with witness protection programs may result in the revictimization of an individual who has already been subject to grave violations of her human rights and dignity and should be considered carefully.

Another issue within the United States and Australian context, and jurisdictions which employ similar methods, is the discretionary nature of certifying that a victim is indeed a victim of trafficking who is entitled to assistance. Every official maintains their own idea of the characteristics of a trafficking victim and determinations may be made, based on those assumptions, while a victim is still suffering from the effects of their experience and may not be extremely coherent or able to express the full extent of their exploitation.209

Giving such a vast amount of discretion to law enforcement and immigration officials with respect to victim assistance undermines the system of protection. Furthermore, even in the Italian context, where temporary protection is not solely conditioned on willingness to assist law enforcement, there are arguments that victims are in fact sometimes refused protection if they do not prove cooperative with law enforcement.210

Finally, criminal convictions, for example, prostitution related offences may impact the victim's right to remain and also her ability to obtain permanent residence.211 The UN High Commissioner for Human Rights has issued guidelines calling for the non-criminalization of victims of trafficking for offences committed as a direct result of being trafficked.212 The United States the TVPA provides that “[V]ictims of severe forms of trafficking should not be inappropriately incarcerated, fined, or otherwise penalized solely for unlawful acts committed as a direct result of being trafficked, such as using false documents, entering the country without documentation, or working without documentation.”213

The TVPA suggests that a conviction for prostitution related offences as a result of being trafficked should not affect the immigration options of the victim; however, legal practitioners in the United States indicate that there is no guarantee that a conviction will not later result in a denial of permanent residence or even a refusal of permission to remain.214 In New York, the state legislature has addressed this concern by approving a bill that will erase prostitution convictions resulting from trafficking for sexual exploitation.215 This is an important development and hopefully other jurisdictions will heed the suggestions of UNHCHR and follow New York's lead.