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The Non-Punishment Provision: a Legitimate Method of Protection of Victims of Human Trafficking or a Get-out-of-jail-free Card?
Fri, September 5, 3:30 to 4:45pm, Deree | Arts Center Building, Arts Center Deree 001Abstract
The Council of Europe Convention on Action against Trafficking in Human Beings and the EU Directive 2011/36/EU contain a clause that safeguards victims of human trafficking from being prosecuted or punished for their involvement in criminal activities which they were compelled to commit: the non-punishment provision. Its primary purpose is to prevent re-victimization and ensure victims’ access to necessary support. It would be unjust to punish victims who were compelled to commit crimes on behalf of traffickers. Nevertheless, the provision is likewise beneficial for law enforcement efforts. By providing impunity to victims, they are more likely to report trafficking offences and participate as witnesses in criminal proceedings against traffickers. The non-punishment clause is thus integral in combating human trafficking. However, concerns exist that its overly broad exercise may undermine the general safety function of criminal law.
States retain a wide margin of discretion concerning its use. This paper critically addresses different approaches for implementation and use of the non-punishment provision: be it within existing criminal law provisions, by guidelines ("soft law"), or as an explicit legal provision ("hard law") as emphasised by GRETA. It is important to define its scope – should it be a general substantive law provision that excludes criminal liability altogether, should it pertain merely to the remission of sentence or ought it to be a procedural rule that prevents prosecution? Further consideration is whether the rule should exempt victims solely regarding offences they were directly forced to commit or also for offences of which commission is indirectly linked to their circumstances of victimisation. This leads to the question whether this provision should be limited to only certain or less serious types of offences. Lastly, assessing the application of this rule in the light of rights of those harmed by the offenses in question should not be neglected.