VICTIM COMPENSATION: WINNING A CASE
Presentation by Loretta Bondi
Be Free Social Cooperative – Italy
HRC 23 Event: Femicide–The Strategic Role of NGO’s in Making States Responsible for Implementation of Due Diligence Obligations
Geneva, June 5, 2013
I wish to thank the organizers for inviting me to this important discussion. It’s literally vital that violence against women, one of the most pressing human rights challenges all over the world, figures prominently on the radar of human rights advocates everywhere and the international community as a whole.
I am speaking on behalf of Be Free, a Rome-based social cooperative and a member of the CEDAW platform. Violence against women and the fight against human trafficking are at the core of Be Free’s mandate and actions. Among its activities, Be Free has developed a five-year experience in psycho-social and legal counseling through a help-desk at the migrant-related detention center of Ponte Galeria (Rome, Italy). Be Free also facilitates access to justice for the victims. This background allowed Be Free to spearhead a case in 2010 involving Nigerian women who were trafficked to central Italy and two years later, win compensation for 17 of the victims in a criminal court. To the best of our knowledge, this is unprecedented in Italy. I will explain why in a moment.
For those of you who work to combat trafficking in human beings, the story of the victims at the center of Be Free’s case is tragically familiar. It’s a story of intimidation, confiscation of documents, financial exploitation, ill-treatment, torture, rape, forced prostitution, forced abortion, and conditions of slavery. In our case, most of the women were trafficked from Benin City in southern Nigeria by a prostitution ring of Nigerian criminals with bases of operations in the village of Martinsicuro near the cities of Teramo and L’Aquila in central Italy. Once in Italy, the women were made to work every day of the week with very little time for rest, were often denied adequate food as well as access to medical treatment. They were routinely assaulted if they failed to meet their exploiters’ expectations while their families in Nigeria were threatened by local operators of the racket. The women were placed as virtual detainees in apartments owned by the ring, shuttled by trusted taxi drivers to their places of work, that is, to main roads outside populated centers, and submitted to a strict regime of surveillance and abuse by iron-fisted “mamans” and their accomplishes. It was a very profitable operation which went on for years.
A breach in this daily inferno occurred in 2007 when a Carabinieri patrol intercepted one of the women who showed clear marks of physical abuse. This set in motion an investigation and finally a raid on the ring as well as, crucially, a series of protection measures for the trafficked women. A network of support was offered by “On the Road,” a non-governmental organization, and ultimately by Be Free. Through their courage, and their determination, bolstered by NGO services, the victims were empowered to overcome their fears, fight back, and have their day in court.
When the case against the trafficking racket was heard before the Criminal Court of L’Aquila, all defendants were found guilty of conspiracy for the purpose of trafficking, slavery, and illegal immigration. Their assets were confiscated and the ring was dismantled. Yet the victims and their rights, including their right to compensation, remained in the background. Be Free and On the Road were not satisfied. We had argued that any repressive measure against human trafficking would fail in its primary obligation of protection if the victims and their rights were not placed squarely at the center of State action and due compensation for their suffering granted.
On our side of the argument we had international law, including European Council Directive 2004/80/EC of 29 April 2004 relating to compensation to crime victims. This Directive sets up a system of cooperation to facilitate access to compensation to victims of crimes in cross-border situations. Article 12 states that: “All Member States shall ensure that their national rules provide for the existence of a scheme on compensation to victims of violent intentional crimes committed in their respective territories, which guarantees fair and appropriate compensation to victims.” These principles were reaffirmed in European Union Directive 36/2011 on preventing and combating trafficking in human beings and protecting its victims which in article 17 specifically holds that: “Member States shall ensure that victims of trafficking in human beings have access to existing schemes of compensation”.
However, these directives had not been translated into Italian law. Further, the focus of criminal courts in Italy has traditionally been on the perpetrator rather than the victim. Thus, when the assets of a perpetrator are seized, this confiscation accrues to the State, not the victim. The victim is left to find recourse and compensation through expensive and lengthy civil court procedures.
As Carla Quinto, Be Free’s lead-lawyer, would say: “When I meet obstacles, I also get good ideas.” Carla found a legal ground to pursue an appeal on behalf of the Nigerian women and to seek compensation contextually with the judgment of the Appeal Court. That ground was offered by the dormant article 600, paragraph 7 of the Italian Penal Code which stipulates that goods can be seized by the State only if they are not needed by the victims. Clearly, the victims supported by Be Free were in dire need of compensation for the physical, psychological and financial abuse they had suffered.
Be Free and On the Road made sure that this argument resonated when the case was appealed both by the two NGOs in a class action, and by the defendants. On April 25, 2012, the Court of Assize of L’Aquila (the appellate court) revoked the confiscation order delivered in the original trial. Instead, it granted each of the 17 victim 350,000 Euros in damages, with 50,000 Euros to be paid immediately. As participants in a class action, Be Free and On the Road received 10,000 Euros each. Fourteen defendants were sentenced to prison terms ranging from 5 to eighteen years.
Subsequently, the perpetrators have lodged an appeal with the Corte di Cassazione—the last port of call in the Italian judicial system. This high Court rules only on procedural issues and errors, rather than the substance of the matter at hand. Thus, we are confident that the judgment of the Court of Assize of Aquila will be upheld in higher jurisdiction.
L’Aquila case set a very important precedent that can and must be replicated. But frankly, propitious circumstances also played their part. To begin with, the victims were able to come forward and seek redress under a protective shield. This is not always the case since all too many endure abuse in total isolation and fear. Further, the racketeers had identifiable assets that could be seized, including real estate and the taxis that shuttled the victims to work. Such conditions do not always obtain, as criminal rings are often also well versed in hiding their wealth.
In this process, we have learned many lessons, but two are of critical importance. First, in criminal proceedings involving victims of grave human rights violations, such as trafficking in human beings and gender-based violence, it is imperative to sensitize the courts to the needs and rights of victims, including their entitlement to immediate compensation. The neglect of courts to tackle such issues is regrettably systemic rather than occasional. Let’s not forget that when victims are forced to pursue exclusively the track of civil courts to obtain compensation, not only are their entitlements deferred and their needs put on hold, but the expansion of the temporal horizon to obtain justice also exposes them to higher risks of re-victimization.
Second, States must heed international law and ensure that dedicated funds are created and devoted to compensation of victims of transnational crime. They are often the most vulnerable to abuse and the least likely to be protected.
Both these lessons are and will continue to be main points of advocacy for Be Free and our colleagues. We will keep working to ensure that L’Aquila case will not stand in “splendid isolation.”