VICTIMS OF HUMAN TRAFFICKING INVISIBLE TO THE JUDICIARY: SENTENCES ARE RARE AND BELOW A MANDATORY MINIMUM

Only two out of 22 final decisions for trafficking refer to begging and arranged marriage

Maja BORIČIĆ

The crime was committed ruthlessly, especially since the perpetrator is the parent of the injured party. He was convicted before - for violence against his wife and children, selling the youngest child in exchange for a motor vehicle, sexual exploitation of his wife, forcing his and other children to beg...

This is the essence of the first final verdict for human trafficking related to forced begging. The judgment was only passed in 2020. The convict forced his minor children to beg for years. If they refused, he would abuse them and their mother. He would take all the money they beg for himself.

In the last 19 years since human trafficking has been included in the Montenegrin Criminal Code (CC), only two out of 22 final convictions for trafficking refer to begging and arrange marriage. Both verdicts were below the legal minimum, the Center for Investigative Journalism of Montenegro (CIN-CG) found out by analyzing court practice in that area.

In the Criminal Code (CC), among other things, it is written that anyone who "recruits, transports, transfers, surrenders, sells, buys, mediates in the sale, conceals or keeps another person for his/her exploitation, a commission of criminal activity, sexual exploitation, begging, use for pornographic purposes, entering into an illegal marriage..." commits the criminal offense of human trafficking. Penalties range from one to 15 years in prison, depending on the type of crime committed, and the most severe penalties are prescribed when the victims are minors.

Although there are few legally binding court verdicts, we are witnesses that there are many more cases of the criminal offense of human trafficking in Montenegro and that the perpetrators and the victims are often Roma.

Roma children beg on the streets every day. This represents the most widespread form of economic exploitation of children. In addition, arranged marriages are treated as part of Roma tradition, even though they are a form of human trafficking. Such cases generally pass "under the radar" of judicial institutions.

"For more than a decade, we have been pointing out unequal access to justice for victims of child arranged marriage and begging. These are two social problems that require a strong legal response from the state in their control and prevention", Fana Delija, director of the Center for Roma Initiatives (CRI), told CIN-CG.

She emphasizes that the most common response of the judicial authorities is that there is no evidence and assesses that it is a case of poor pre-trial hearings and negligence during the investigative actions of the police and the prosecution.

"When evidence is not collected, or they are collected with a delay in its collection and execution during the process, it is expected that there will be a small number of proceedings because the perpetrator is expected to confess to the crime, to say that they took or gave money, that is, that they deliberately exploited the child," the director of CRI emphasizes.

That is why, Delija adds, the legal system must focus on other evidence, such as secret surveillance, undercover investigators, and more severe monitoring of information received from the civil sector.

"It should not be taken lightly that it is just 'what Roma people do.' It is something that society must deal with, and every child is important", Delija says.

Both times, the courts reduced the punishment for the "returnees"

The Criminal Code (CC) provides for at least ten years in prison for forced begging, for which the father of four minor children from the beginning of the article was accused. He was sentenced to ten years by the judgment of the High Court, but the Court of Appeal changed the sentence to eight.

The judicial panel of the Appellate Court, which included Zoran Smolović, Milenka Žižić, and Dragiša Rakočević, reduced the prison sentence by two years, justifying the decision by saying that the court that ruled for ten years did not give due importance to the established mitigating circumstances, i.e., family circumstances. Among other things, the number of family members abused by the convicted person was one of the reasons for the Appellate court to reduce the sentence below the legal limit.

Before this verdict, the accused was convicted five times for the criminal acts of domestic violence, rape, intermediation in prostitution, neglect, and abuse of minors...

The courts determined him low prison sentences in almost all of these cases. In one of the earlier verdicts, he was convicted because he sold his newborn child in exchange for a car. For that, he got only ten months in prison! And the offense was not treated as human trafficking but as the criminal offense of changing family status.

He received a sentence of 76 days in prison earlier also for abusing and forcing his children to beg and for violence and forcing his wife into prostitution. For the Montenegrin prosecutor's office, this was not human trafficking but neglect and abuse of minors, domestic violence, and mediation in prostitution.

"When she refused to have sexual intercourse with the person he brought, he hit her on the back with a wooden broomstick," it is stated in the verdict.

The second final verdict for human trafficking, which refers to forced marriage, ended with a sentence of two years in prison. However, according to the Criminal Code, this type of criminal offense is punishable by at least three years.

This decision became final in 2021.

The defendant abused his twelve-year-old daughter and forced her into marriage in exchange for 5,000 euros.

The judicial panel, which included Vesna Kovačević, Vesna Jovetić, and Srđa Vujović, concluded that unemployment and poor financial condition should be taken into account as mitigating circumstances for the convicted person, so they reduced his sentence below the minimum sentence established by the law.

The convicted person is also an "old lag," The court imposed him a light penalty several times before. He was sentenced to 14 months for aggravated theft and illegally possessing weapons and explosive materials. A year later, he received a lesser sentence for a repeated criminal offense - one year in prison.

Apart from these punishments for acts of begging and arranged marriage, in the last four years, Montenegrin courts have ruled only twice for human trafficking. One verdict of one year and two months in prison was brought as a settlement for the offense of human trafficking and mediation in prostitution. For years, the convicted woman forced several people into prostitution and took money from them. In another verdict, the mother and stepfather of the minor girl were sentenced to 15 and 17 years in prison for repeatedly raping the girl and forcing her into prostitution.

No convictions for forced marriages and begging until 2020

In the Analysis of court decisions from 2004 to 2019 in cases of human trafficking in Montenegro by the Supreme Court (SC), it was pointed out that sexual exploitation is the most dominant form of exploitation of victims. Other types of exploitation, such as organ removal, forced begging, and forced marriage, were not registered.

This Analysis stated that there were 18 human trafficking cases in which Montenegrin courts issued final decisions. Human trafficking trials in all courts lasted, on average, two years, four months, and two days.

The longest prison sentence was 17 and 15 years, while the shortest was six months.

The study concludes that men usually perpetrate human trafficking. Specifically, men accounted for 42 and women for six of the 48 defendants.

The highest percentage of victims of human trafficking are women: "Out of the 39 victims identified in the judgments, 26 were female, and 13 were male," it was pointed out in the Analysis.

That document states that of the 48 defendants against whom criminal proceedings were conducted, 40 were sentenced to prison terms, and seven were acquitted. The charges against one were dismissed due to the prosecutor's withdrawal from criminal prosecution.

The Analysis shows that convictions accounted for most of the court decisions – 40 out of 48 defendants were found guilty and sentenced to imprisonment. Seven defendants were acquitted, and the case against one defendant was dismissed because the prosecutor abandoned the prosecution.

Montenegrin nationals accounted for most (31 out of 48) of the individuals tried for human trafficking. Next came Serbia (8) and Kosovo (7) citizens. One defendant was a Ukrainian national, and one was stateless.

Most human trafficking victims were Montenegrin nationals, and eight of the 39 victims of human trafficking were underage.

"Although most human trafficking victims were Montenegrin nationals, the analysis shows that most of the cases had a cross-border dimension," the Analysis states.

It is added that Victim Support Services are not fulfilling their role in practice, presumably due to a lack of awareness of their existence among the general public and the victims.

A more robust judicial response to human trafficking needed

In the latest Report of the US State Department on human trafficking from 2022, it is pointed out that Montenegro did not fully meet the minimum standards in several key areas.

It highlights that fewer cases have been investigated and fewer suspects prosecuted than in previous years. The government decreased victim protection efforts, including allocating fewer resources to the shelter, identifying fewer victims, and lacking efforts to proactively identify victims among asylum-seekers, irregular migrants, and seasonal workers.

It is also noted that children, especially Roma, are exploited in forced begging.

"Romani girls from Montenegro reportedly have been sold into marriages and forced into domestic servitude in Romani communities in Montenegro and, to a lesser extent, in Albania, Germany, and Kosovo," the report states.

The Report also criticizes the Basic State Prosecutor's Office's (BSPO) work, with the assessment that the Higher State Prosecutor's Office  (HSPO)  should initially review all trafficking-related cases and refer cases not deemed as trafficking to BSPO.

"In previous years, Basic State Prosecutor's Offices (BSPO) stopped some potential trafficking investigations when they secured enough evidence to prosecute under Article 210 (brokering in prostitution) and did not investigate for more subtle forms of coercion or seek additional evidence through specialized investigative techniques," the report states. 

US State Department observers continued to report that the government assigned lawyers with little or no experience to victims, including lawyers with expertise in only civil proceedings, not criminal proceedings. 

It is also emphasized that there are no Romani language interpreters on the official list of court interpreters.

"Judges did not issue restitution in criminal cases or seize assets and property from traffickers towards restitution and/or compensation. Similarly, courts have not awarded victims compensation in civil proceedings, partly due to civil proceedings lasting two to five years, discouraging victims from seeking compensation", the Report concludes.

The latest Report of the European Commission (EC) points out that people in the Roma community, particularly women and children, remain at high risk of trafficking in human beings.

"Montenegro still needs to improve its capacity to prevent trafficking in human beings," the EC report emphasizes.

It is clarified that a more robust criminal justice response to trafficking in human beings needs to be provided, with shorter legal proceedings, more deterrent sentences, and systematic confiscation of the proceeds of crime. 

"Montenegro still needs to improve support to victims in trafficking-related trials," the document added.

In the absence of specialized lawyers and appropriate legal advice, it is pointed out that many victims do not seek the free legal aid to which they are entitled.

It is emphasized that in the absence of specialized lawyers and proper legal advice, many victims do not request the free legal aid they are entitled to.

"In the context of the ongoing Russian war of aggression on Ukraine and the arrival of Ukrainian refugees in Montenegro, additional efforts by the Montenegrin authorities are needed to prevent the risks of trafficking in human beings," the Report concludes. 

According to the last census from 2011, 8,305 members of the Roma and Egyptian population live in Montenegro, and half are women.

Research conducted by the Center for Roma Initiatives (CRI) back in 2014 showed that in Montenegro, as many as 72.4 percent of the Roma and Egyptian population get married between 12 and 18. Those under the age of 16 are forbidden to marry under the CC, and parental consent is required until they reach adulthood.

Although this research was conducted in 2014, interlocutors from the Roma community say that not much has changed, partly because punishments for these crimes are rare, and the victims from the community are mainly invisible to the Montenegrin judiciary.

Supreme Court: Avoid penalty mitigations

The Supreme Court (Supreme Court) pointed out in its Analysis that the Courts have also been applying the penalty mitigation institute frequently in seven cases (concerning 17 defendants, which "should be avoided given the gravity of the crime of human trafficking and comparative law practice."

The Analysis showed that the courts considered the following extenuating circumstances during sentencing: the defendants' circumstances, including their family circumstances/marital status, parenthood), health, age, unemployment, and poor financial standing). The Analysis adds that although the defendants' circumstances are essential, courts tend to provide general and insufficiently reasoned explanations for their decisions.

"It seems that Montenegrin courts appear to automatically refer to such circumstances not only when they sentence human traffickers but other criminal offenders as well," the Analysis of the Supreme Court concludes.