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2010
HUMAN TRAFFICKING IN THE REPUBLIC OF SERBIA - REPORT FOR THE PERIOD 2000-2010
HUMAN TRAFFICKING IN
THE REPUBLIC OF SERBIA
Report for the period 2000-2010
ASTRA – Anti Trafficking Action
Belgrade, 2011
European Union
HUMAN TRAFFICKING IN THE REPUBLIC OF SERBIA
Report for the period 2000-2010
Authors:
Marija Anđelković
Dr Violeta Beširević
Tamara Vukasović
Marijana Gligorić
Danijela Nikolić
Olivera Otašević
Ivana Radović
Marjan Wijers
Associates:
Nataša Bošković
Milena Maričić
Print run: 300
Design: Darko Kolesar
Print: Tuli, Vršac
Translated by:
Milan Marković
Ivana Radović
Publisher:
ASTRA – Anti Trafficking Action
Belgrade, Republic of Serbia
[email protected]
www.astra.rs
©ASTRA 2011
DISCLAIMER:
This Report has been produced with support of the Delegation of the European Union to
Serbia through EIDHR program within the project “Human Trafficking Watchdogs in the
Republic of Serbia”. The content of this publication is the sole responsibility of ASTRA and
can in no way be taken to reflect the views of the European Union.
All rights reserved. The content of this publication may be freely used and copied for
educational and other non-commercial purposes, provided that any such reproduction
identifies ASTRA – Anti Trafficking Action as the source.
For Biljana Kerčulj (1972-2002)
and Vesna Radovanović (1977-2002)
TABLE OF CONTENTS
LIST OF ABBREVIATIONS AND ACRONYMS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
PREFACE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
I. GENERAL SOCIO-ECONOMIC SITUATION IN SERBIA . . . . . . . . . . . . . . . . . . . . 14
I.1. General Information about Serbia . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
I.2. Political, Economic and Social Situation in Serbia . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
I.3.Human Rights in Serbia . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
I.4. Women in Serbia . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
I.5. Children in Serbia . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
I.6. Persons with Disabilities in Serbia . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
I.7. National Minorities in Serbia . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
I.8. Nongovernmental Organizations in Serbia . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
II. HUMAN TRAFFICKING . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
II.1. Trafficking in Human Beings as a Global Phenomenon. . . . . . . . . . . . . . . . . . . . . . . 50
II.2. Trafficking in Human Beings in Serbia . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
II.3. Anti-trafficking Activities and Mechanisms in Serbia . . . . . . . . . . . . . . . . . . . . . . . . 56
III. PROTOCOL TO PREVENT, SUPRESS AND PUNISH TRAFFICKING IN
PERSONS, ESPECIALLY WOMEN AND CHILDREN AND COUNCIL OF
EUROPE’S CONVENTION ON ACTION AGAINST TRAFFICKING IN
HUMAN BEINGS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
III.1 How to deal with trafficking: international and European obligations of States . 60
III.2. Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially
Women and Children, Articles 1 – 5 / CoE Convention on Action against
Trafficking in Human Beings, Articles 4, 18 – 26 and 30 - 31 . . . . . . . . . . . . . . . . . . 70
III.2.1 Legal Analysis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
III.2.1.1 Criminalization of Unlawful Acts in Criminal Legislation . . . . . . . . . . . . . . 76
III.2.1.1.1 Human Trafficking and Other Related Crimes in the Serbian
Legislation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
III.2.1.1.2. Criminalization of Human Trafficking in the Serbian Legislation . . . . 78
III.2.1.1.3. Criminalizing Attempted Offence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84
III.2.1.1.4 Accomplice Liability for Trafficking in Persons . . . . . . . . . . . . . . . . . . . . 85
III.2.1.1.5 Criminalization of Trafficking in Children for the Purpose
of Adoption . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86
III.2.1.2 Application of Mandatory Provisions of the UN Convention on the
Palermo Protocol and CoE Convention . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87
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TABLE OF CONTENTS
III.2.1.2.1 Criminalization of Money Laundering . . . . . . . . . . . . . . . . . . . . . . . . . . . 88
III.2.1.2.2 Punishable Acts of Abuse of Travel Documents . . . . . . . . . . . . . . . . . . 89
III.2.1.2.3 Responsibility of Legal Persons. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90
III.2.1.2.4 Acts must be Criminal Acts (except for legal entities) . . . . . . . . . . . . . 91
III.2.1.2.5 Sanctions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91
III.2.1.2.6 Previous Senteces . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93
III.2.1.2.7 Presence of Defendants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93
III.2.1.2.8 Statutes of Limitation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96
III.2.1.2.9 Asset Confiscation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 97
III.2.1.2.10 Jurisdiction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 98
III.2.1.2.11 Extradition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99
III.2.1.2.12 Mutual Legal Assistance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 100
III.2.1.2.13 Special Investigative Techniques . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102
III.2.1.2.14 Obstruction of Justice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103
III.2.1.2.15 Protection of Victims and Witnesses. . . . . . . . . . . . . . . . . . . . . . . . . . 104
III.2.1.2.16 Cooperation of Offenders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104
III.2.1.2.17 Law Enforcement Cooperation and Training
and Technical Assistance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105
III.2.1.3 Other General Demands for the Criminalization of Human
Trafficking in the National Legislations Prescribed by the UN
Convention and Palermo Protocol . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 106
III.2.1.3.1 Non-inclusion of Transnationality in Domestic Offences . . . . . . . . . 106
III.2.1.3.2 Non-inclusion of an Organized Criminal Group in
Domestic Offences . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 106
III.2.1.3.3 Criminalization May Use Legislative and Other Measures,
but Must Be Founded in Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 106
III.2.1.3.4 Only Intentional Conduct Need to Be Criminalized . . . . . . . . . . . . . . 106
III.2.1.4 Optional Criminalization . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 107
III.2.1.4.1 Criminalizing Offences Related to the Exploitation of Children
and Juveniles . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 107
III.2.2. Practice Analysis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 110
III.2.2.1. Human Trafficking in Serbia before the Criminalization . . . . . . . . . . . . . 110
III.2.2.2. Practice of the City Petty Offence Authority in Belgrade . . . . . . . . . . . . 113
III.2.2.3. Other Legislation Used to Criminalize Human Trafficking . . . . . . . . . . . 117
III.2.2.4. Prostitution. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 117
III.2.2.4.1. Explanation of Terms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 117
III.2.2.4.2. Depenalization of Sex Work . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 118
III.2.2.4.3. Association of Night Bar Owners’ Initiative to Legalize Sex Work . 120
HUMAN TRAFFICKING IN THE REPUBLIC OF SERBIA - Report for the period 2000-2010
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III.2.2.4.4. Users of Commercial Sex Services – Survey Findings . . . . . . . . . . . . 122
III.2.2.4.5. Escort Agencies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 123
III.2.2.5. How Human Trafficking Has Actually Been Criminalized in Serbia . . . . 129
III.2.2.6. Human Trafficking and Illegal Migrations . . . . . . . . . . . . . . . . . . . . . . . . . 130
III.2.2.7. Trafficking in Children . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 132
III.2.2.8. Money Laundering . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 133
III.2.2.9. Convictions for Human Trafficking . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 135
III.2.2.9.1. Mladen Dalmacija Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 139
III.2.2.9.2. Milivoje Zarubica Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 142
III.2.2.9.3. Trial In Absentia . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 150
III.2.2.10. Penalties Affecting the Property of the Perpetrator . . . . . . . . . . . . . . . . 151
III.2.2.10.1. Confiscation of Gain Acquired Through Criminal Activity . . . . . . . 152
III.2.2.11. Setting Up the Special Department of Belgrade District Court for
Organized Crime and Prosecutor’s Office for Organized Crime. . . . . . . . . . . 154
III.2.2.12. International Cooperation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 154
III.2.2.12.1. International Legal Aid . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 155
III.2.2.13. Judicial Treatment of Trafficking Victims . . . . . . . . . . . . . . . . . . . . . . . . . 156
III.2.2.13.1. Compensation Claims . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 157
III.2.2.13.2. New Investigative Techniques. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 158
III.2.2.14. Police Cooperation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 159
III.2.2.15. Abuse of Modern Technology for Human Trafficking
and Other Forms of Exploitation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 160
III.2.2.16. ”Missing Babies“ Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 164
Women and Children, Article 6 – Assistance to and protection of victims
of trafficking in persons / CoE Convention on Action against Trafficking in
Human Beings, Article 10 – Identification of the victims, Article 12 Assistance to victims, Article 13 - Recovery and reflection period, Article
15 – Compensation and legal redress and Article 27 - Ex parte and ex officio
applications . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 167
III.3.1. Legal Analysis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 170
III.3.1.1. Protection of Victim’s Identity and Privacy . . . . . . . . . . . . . . . . . . . . . . . . 171
III.3.1.2. Participation of Victims in Proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . 173
III.3.1.3. Assistance and Protection of Victims . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 175
III.3.1.3.1. Counseling and Information Regarding the Victim’s Legal Rights . . 175
III.3.1.3.2. Medical Assistance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 176
III.3.1.3.3. Employment, Educational and Training Opportunities . . . . . . . . . . . 179
III.3.1.4. Special Needs of Children . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 181
III.3.1.4.1. Special Needs of Children: Constitutionally Recognized Protection . .181
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III.3.1.4.2. Guardian Protection . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 183
III.3.1.4.3. Special Needs of Children in Judicial Proceedings . . . . . . . . . . . . . . . 183
III.3.1.4.4. Providing Shelters for Child Victims . . . . . . . . . . . . . . . . . . . . . . . . . . 184
III.3.1.4.5. Special Recruitment Practices and Training Programs . . . . . . . . . . . 185
III.3.1.4.6. Ensuring a Speedy and Safe Repatriation . . . . . . . . . . . . . . . . . . . . . . 186
III.3.1.5. Physical Safety of Victims . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 186
III.3.1.6. Possibility of Obtaining Compensation . . . . . . . . . . . . . . . . . . . . . . . . . . . 186
III.3.2.Practice Analysis. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 188
III.3.2.1. Protection of Victims’ Identity and/or Privacy . . . . . . . . . . . . . . . . . . . . . 188
III.3.2.2. Participation of Victims in Proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . 192
III.3.2.3. Victim’s Assistance and Protection . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 199
III. 3.2.3.1. Evolution of the Treatment of Trafficked Persons in Serbia. . . . . . .204
III.3.2.3.2. Direct Victim Assistance Providers in the Republic of Serbia . . . . . 207
III.3.2.3.3. Memorandums of Cooperation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 209
III.3.2.3.4. Victim Identification and Coordination of Direct Assistance . . . . . 210
III.3.2.3.5. Counseling and Information Regarding the Victim’s Legal Rights . 219
III.3.2.3.6. Medical Assistance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 223
III.3.2.3.7. (Re)integration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 229
III.3.2.4. Special Needs of Children . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .234
III.3.2.4.1. Guardian Protection . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .238
III.3.2.4.2. Special Needs of Children in Judicial Proceedings and Training of
Persons who work with Children Victims . . . . . . . . . . . . . . . . . . . . . . . . . . . 242
III.3.2.4.3. Providing Shelters for Child Victims . . . . . . . . . . . . . . . . . . . . . . . . . .245
III.3.2.4.4. Ensuring a Speedy and Safe Repatriation . . . . . . . . . . . . . . . . . . . . . . 248
III.3.2.4.5. Children Who Live and/or Work on the Streets . . . . . . . . . . . . . . . . . 251
III.3.2.5. Physical Safety of Victims. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 253
III.3.2.6. Possibility of Obtaining Compensation . . . . . . . . . . . . . . . . . . . . . . . . . . . 257
III.3.2.7. Financing Victim Assistance Programs . . . . . . . . . . . . . . . . . . . . . . . . . . . . 260
Women and Children, Article 7 – Status of victims of trafficking in persons
in receiving states /CoE Convention on Action against Trafficking in Human
Beings, Article 8 - Security and control of documents and Article, Article 14 –
Residence permit. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 262
Women and Children, Article 8 - Repatriation of victims of trafficking in
persons / CoE Convention on Action against Trafficking in Human Beings,
Article 16 - Repatriation and return of victims . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 270
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Women and Children, Article 9 – Prevention of trafficking in persons / CoE
Convention on Action against Trafficking in Human Beings, Article 8 Security and control of documents and Article, Article 5 – Prevention of
trafficking in human beings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 284
III.6.1.1.Startegy to Combat Trafficking in Human Beings in the Republic
of Serbia and National Plan of Action to Combat Trafficking in
Human Beings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 286
III.6.1.2.Preventive Activities Carried Out in Serbia . . . . . . . . . . . . . . . . . . . . . . . . . 290
III.6.1.3. Media Campaigns . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 294
III.6.1.4. Awareness Raising of Groups at Risk . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 297
III.6.1.5. Preventive Role of SOS Hotline . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .300
III.6.1.6. Long-Term Preventive Activities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 301
III.6.1.7. Analyses, Research and Reports . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 302
III.6.1.8. Cooperation with the Nongovernmental Sector . . . . . . . . . . . . . . . . . . .303
III.6.1.9. Mitigating Risk Factors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .304
III.6.1.10. Other Measures for Prevention of Human Trafficking . . . . . . . . . . . . . .309
Women and Children, Article 10 – Information exchange and training /CoE
Convention on Action against Trafficking in Human Beings, Article 29,
paragraph 3 - Specialised authorities and co-ordinating bodies, Article 32
- General principles and measures for international co-operation, Article33 Measures relating to endangered or missing persons, Article 34 - Information,
Article 35 – Cooperation with civil society . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 315
III.7.1. Cooperation, Information and Other Measures . . . . . . . . . . . . . . . . . . . . . . . . 317
III.7.2. Education of the Professionals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 328
III.7.2.1. Law Enforcement Training . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 328
III.7.2.2. Judicial Trainings. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 329
III.7.2.3. Trainings for Peacekeeping Officers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .330
III.7.2.4. Other Trainings. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 331
III.7.3. Cooperation with the Nongovernmental Organizations . . . . . . . . . . . . . . . . 332
Women and Children, Article 11 – Border measures / CoE Convention on
Action against Trafficking in Human Beings, Article 7 - Border measures . . . . . . 335
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TABLE OF CONTENTS
Women and Children, Article 12 – Security and control of documents and
Article 13 - Legitimacy and validity of documents /CoE Convention on Action
against Trafficking in Human Beings, Article 8 - Security and control of
documents and Article 9 - Legitimacy and validity of documents . . . . . . . . . . . . 347
III.9.1. Legal Analysis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .348
III.9.2. Practice Analysis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .349
Women and Children, Article 14 – Saving clause /CoE Convention on Action
against Trafficking in Human Beings, Article 3 – Non-discrimination principle
and Article 17 – Gender equality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 355
III.10.1. Legal Analysis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 355
III.10.2. Practice Analysis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 357
III.11. CoE Convention on Action against Trafficking in Human Beings,
Article 36 – Group of experts on action against trafficking in human beings
and Article 37 – Committee of the Parties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 362
III.11.1. The election of Serbia’s representative in GRETA . . . . . . . . . . . . . . . . . . . . . . 363
RECOMMENDATIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 364
ANNEXES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 370
Annex 1. ASTRA SOS Hotline and Direct Victim Assistance Program,
March 2002 – December 2010 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 370
Annex 2. Maps . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .405
I. Map of Places of Origin of Identified Trafficked Persons (ASTRA database) . . . .405
II. Map of Routes across Serbia and Montenegro (ASTRA database) . . . . . . . . . . . .406
III. Map of Routes across Europe (ASTRA database) . . . . . . . . . . . . . . . . . . . . . . . . . . 407
Annex 3. Perception and Understanding of the Problem of Human Trafficking
in Serbia – results of the public opinion survey . . . . . . . . . . . . . . . . . . . . . . . . . . . .408
Annex 4. The Case of Labor Exploitation of the Citizens of the Republic of Serbia, the
Republic of Bosnia and Herzegovina and the Republic of Macedonia in
the Republic of Azerbaijan - Country of Origin Report . . . . . . . . . . . . . . . . . . . . . . 416
Annex 5. Discovered Cases of Trafficking and Actions Taken by the Police
and SWCs in the Towns where the Member Organizations of the
ASTRA Network Operate. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .448
Annex 6. Active Anti-Trafficking Actors in the Republic of Serbia . . . . . . . . . . . . . . . .459
SELECTED REFERENCES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 475
9
LIST OF ABBREVIATIONS AND ACRONYMS
ABA CELLI - American Bar Association Central and Eastern Europe Law Initiative
ACTA - Anti-Corruption Anti-Trafficking Action
CEDAW - Convention for the Elimination of all forms of Discrimination against Women
CIDA - Canadian International Development Agency
CRC - Convention on the Rights of the Children
CCS - Criminal Code of Serbia
CL RS - Criminal Law of the Republic of Serbia
CoE - Council of Europe
CPA - Criminal Procedure Act
DFID - British Department for International Development
ECPAT - End Child Prostitution, Child Pornography and Trafficking of Children for Sexual
Purposes
EU/EC - European Union / European Commission
FA - Family Act
FCL - Fundamental Criminal law
FLARE - Freedom, Legality and Rights in Europe
FRY - Federal Republic of Yugoslavia
HCA - Health Care Act
ICITAP - International Criminal Investigative Training Assistance Programme
ICMC - International Catholic Migration Commission
ICMPD - International Centre for Migration Policy Development
IHRLG - International Human Rights Law Group
ILO - International Labor Organization
ILO-IPEC - ILO International Programme on the Elimination of Child Labour
INTERPOL - International Criminal Police Organization
IOM - International Organization for Migrations
IREX - International Research and Exchanges Board
ISS - International Social Services
LA - Labor Act
MERD - Ministry of Economy and Regional Development
MICS 3 - Multiple Indicator Cluster Surveys
MOI - Ministry of the Interior
NGO - Nongovernmental Organization
NAP/NPA - National Action Plan
NES - National Employment Service
NRM - National Referral Mechanism
10
LIST OF ABBREVIATIONS AND ACRONYMS
OECD - Organization for Economic Cooperation and Development
OMCT - The World Organization Against Torture
OPDAT - Office of the Overseas Prosecutorial Development Assistance and Training
OSCE - Organization for Security and Cooperation in Europe
OSCE/CPE - OSCE Crime Prevention Centre
OSCE/ODIHR - OSCE Office for Democratic Institutions and Human Rights
PRSP - Poverty Reduction Strategy Paper
PISA - Programme for International Student Assessment
PTSD - Post Traumatic Stress Disorder
RSD - Serbian currency dinar
RSO - Republican Statistical Office
SAP - Stabilization and Association Process
SCF - Save the Children Fund
SCG - Serbia and Montenegro
SDC - Swiss Agency for Development and Co-operation
SECI - South Eastern Co-operative Initiative
SFRY - Socialist Federal Republic of Yugoslavia
SIDA - Swedish International Development Agency
SME - Small and medium enterprises
SOP - Standard Operating Procedure
SWC - social welfare center
TIP - Trafficking in Persons
UDHR - The Universal Declaration on Human Rights
UNDP - United Nations Development Programme
UNHCR - United Nations the High Commissioner for Refugees
UNICEF - United Nations Children’s Fund
UNIFEM - United Nations Development Fund for Women
UNODC - United Nations Office on Drugs and Crime
USAID - United States Agency for International Development
WHO - World Health Organization
VAT - Value Added Tax
11
PREFACE
You have before you a Report on the implementation of the Council of Europe Convention
on Action against Trafficking in Human Beings (hereinafter: CoE Convention) and the
Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women
and Children (hereinafter: Palermo Protocol), which complements the United Nations
Convention Against Transnational Organized Crime. The Report is closely focused on the
problem of human trafficking in Serbia and concentrated on the analysis of Articles of the
Palermo Protocol and CoE Convention which directly refer to the protection of the rights
of victims of human trafficking.
The United Nations Convention against Transnational Organized Crime and its Protocols, i.e.
the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women
and Children and the Protocol against the Smuggling of Migrants By Land, Sea and Air,
were adopted in Palermo on 12-15 December 2000. The Convention and the Palermo
Protocol are clearly aimed at crime control. The Federal Republic of Yugoslavia1 ratified
the United Nations Convention against Transnational Organized Crime and its Protocols
at the sessions of the Chamber of Citizens and Chamber of the Republics of the Federal
Parliament which took place on 22 June 2001 2.
The Council of Europe Convention on Action against Trafficking in Human Beings was
adopted by the Committee of Ministers on 3 May 2005, at the 925th meeting of the
Ministers’ Deputy. This Convention is clearly aimed at protection of the rights of the
victims of human trafficking. The Republic of Serbia signed the Convention on 16 May
2005 and ratified it in 20093.
The Report you have before you displays the problem of human trafficking in the period
2000-2010 on the territory of the Republic of Serbia. The idea for writing this report
emerged in 2004 and the only thought that led us during its drafting was the improvement
of the human rights of the victims of human trafficking in the Republic of Serbia. All
recommendations are provided to this end.
1
2
3
After the breakup of the Socialist Federal Republic of Yugoslavia, and by the decision of the Federal Council of the SFRY, on 27 April 1992, the Republic of
Serbia and the Republic of Montenegro formed a common state under the name of Federal Republic of Yugoslavia. On 14 March 2002, the officials of the
FR Yugoslavia, Republic of Serbia and Republic of Montenegro, with the presence of the High Representative of the European Union, signed the Baselines
for Redefining the Relation between Serbia and Montenegro, according to which it was set forth that in the future, FR Yugoslavia is to be called Serbia
and Montenegro. After signing the Constitutional Charter, on 4 March 2003, the State Union of Serbia and Montenegro was formed (SCG). The State
Union existed until 21 May 2006, when Montenegro voted for independence in a referendum. That same year, on 3 June, the Parliament of Montenegro
declared independence. The next day, the National Assembly of the Republic of Serbia declared Serbia the successor of Serbia and Montenegro, thus
formally ending the existence of the State Union. Shortly thereafter, the Serbian government recognized the independence of Montenegro.
Law on Ratification of the United Nations Convention against Transnational Organized Crime and Protocols Thereto, the Official Journal of FRY –
International Treaties, no. 6/2001 3 Council of Europe Treaty Series No.197.
Law on Ratification of the Council of Europe Convention on Action against Trafficking in Human Beings (Official Gazette of RS – International
Treaties, no. 19/2009).
12
PREFACE
The Report is supported by examples from our everyday practice in dealing with victims
of human trafficking, their personal stories, as well as articles published in daily and
electronic newspapers. The source is given for each quote, while personal stories of the
victims of human trafficking are attached with their consent. In order to fully protect the
identity of our clients, their stories are marked by numbers from ASTRA’s database. For
the same reason, and in order to make certain examples clear to the reader, we did not
use real initials of the clients. In the Serbian version of the Report, the term “victim” or
“client” was used, because the translation of the English word “survivor” to Serbian is not
easy to use in all case forms.
Despite the desire to use in the Serbian version the male and female gender of nouns
equally, we apologize if this is sometimes not done because of the extensiveness of the
Report or the constructions and style of the sentence.
In the last ten years, ASTRA has actively worked in the Republic of Serbia on raising the
public awareness about the problem of human trafficking, direct assistance for the victims,
as well as building the mechanisms and capacities of institutions and non-governmental
organizations for suppression of this phenomenon. The continuous presence has given
us the possibility to witness the changes that happened both in relation to the trends
of human trafficking and to different responses of the state to this phenomenon, which
often depended on the political climate in the country and the personal advocating of the
individuals in institutions.
Ten years after adopting the UN Convention, the Republic of Serbia still has no budget
allocations for the suppression of human trafficking, no specialized shelters and programs
for children victims. The referral mechanism for victims of human trafficking has not been
improved ever since it was established and it currently consists of one employee in the
Agency for Coordination of Protection of Trafficking Victims, which is authorized for the
entire territory of Serbia. There are no developed indicators for identification, nor the
procedures for treating the victims. The provision of direct assistance depends exclusively
on two non-governmental organizations and ad hoc donations. There are no developed
(re)integration programs for victims of human trafficking at the level of the state. Until
today, none of the victims got a compensation for damages suffered during exploitation.
In the absence of an institute of the National Rapporteur for Human Trafficking in the
Republic of Serbia, this Report my serve as a chronological overview of the past activities,
but also for the evaluation of their efficiency.
13
GENERAL INFORMATION ABOUT SERBIA
I. GENERAL SOCIO-ECONOMIC SITUATION IN SERBIA
I.1. General Information about Serbia
§ 1. The Republic of Serbia is situated in Southeastern Europe, covering the central part
of Balkan Peninsula. Its total area is 88,361 km2 and land boundaries length 2,114.2 km.
It is bordered by Bulgaria to the east, Romania to the northeast, Hungary to the north,
Croatia and Bosnia and Herzegovina to the west, Montenegro to the southwest and
Albania and Macedonia to the south. Population of Serbia, without Kosovo and Metohija,
is 7,498,0014. The majority of population are Orthodox Christians; other relevant
communities are Roman Catholics and Muslims. Other religions are present, too. The
capital is Belgrade, the official language is Serbian and the local currency dinar (RSD).
Figure I.1.1. Map of Serbia
I.2. Political, Economic and Social Situation in Serbia
§ 2. After Slobodan Milošević was overthrown in October 2000, the citizens of Serbia
expected quick and painless transition and that they would be able to make up in a short
period of time everything they had lost during a decade of the Milošević regime. Initial
enthusiasm, when it seemed that the transition will be quick if it was not possible to
make it painless for all, and that Serbia would manage to learn from experience and avoid
mistakes made by the countries which had entered this process during the 1990s, was
followed by a period of stagnation and absence of systemic and structural reforms.
§ 3. Zorana Đinđić’s government, which was formed after 5 October 2000, managed to
consolidate economic situation, inflation was significantly reduced, the major portion of
4
2002 census
14
AN OVERVIEW OF GENERAL SOCIO-ECONOMIC SITUATION IN SERBIA
turnover was returned to legal flows, citizens’ living standards improved, salaries grew,
trust in the banking system was restored, foreign debt was halved and privatization
process started. Serbia’s international position improved, too, the country returned to
international institutions5 from which it was excluded after the disintegration of SFRY as
a result of UN sanctions, and foreign investors and companies started coming to Serbia.
§ 4. After ten years of deconstruction of all institutions, international isolation and
economic regress, it was not realistic to expect that Serbia would recover over night.
However, after tragic assassination of Prime Minister Đinđić on 12 March 2003, reforms in
Serbia have lost their momentum. All subsequent governments did not have strength to
explain clearly to the citizens of Serbia what transition meant and what its price was, for
which reason in the last several years institutional, political and economic reforms have
been going on at a very slow pace; the elites support them only declaratively, in fear that
they would lose voters’ support, whereby the losers of transition have not been spared,
but quite the opposite.
§ 5. Over the last decade, Serbia experienced two significant territorial changes.
Montenegro, the other federal unit of the Federal Republic of Yugoslavia and later of
the State Union of Serbia and Montenegro, declared its independence on 21 May 20066,
while on 5 June the National Assembly of Serbia declared Serbia a legal successor of the
State Union7. In this way, Serbia restored its status of an independent state, which was
accompanied by strong resistance of nationalist and right-wing politicians, it had given
up in support of the Yugoslav idea in 1918.
§ 6. Two years later, on 17 February 2008, the Kosovo Assembly unilaterally declared
the independence of this province, which was soon recognized by the majority of world
forces.8 Kosovo had been under the international protectorate since the end of the NATO
bombing of Serbia in 1999. Negotiations on its status lasted for several years, but without
success. The Republic of Serbia still treats Kosovo as its inseparable part and does not
recognize declared independence, putting enormous energy and resources in lobbying
worldwide in order to prevent further recognitions and to maintain parallel administrative
structure in the parts of Kosovo with larger concentration of Serbian population9. The
issue of legality of the declaration of independence of Kosovo was raised before the
International Court of Justice in The Hague. This Court issued its advisory opinion on
22 July 2010, in which it found the Declaration of Independence of Kosovo not to be in
contrast to international law.10
5
6
7
8
9
10
Inter alia, FRY was readmitted to the UN and IMF.
Official Gazette of the Republic of Montenegro, no. 36/2006 of 5 June 2006.
The Decision on the Obligation of State Authorities of the Republic of Serbia in Realization of Prerogatives of the Republic of Serbia as a Legal
Successor of the State Union of Serbia and Montenegro, Official Gazette of RS, no. 8/2006.
http://www.assembly-kosova.org/?cid=2,128,1635
http://www.kolikokostakosovo.info/
http://www.icj-cij.org/docket/files/141/15987.pdf
15
POLITICAL, ECONOMIC AND SOCIAL SITUATION IN SERBIA
§ 7. The problem of the status of Kosovo has been presented for a long time as the ultimate
state and national interest of Serbia, as the question of all questions, and it is still often
used as an excuse for the stagnation of reforms and for neglecting essential problems that
bother the citizens of Serbia, such as high unemployment rate, corruption11, inefficient
judiciary and the like.
§ 8. Although full cooperation with ICTY was mentioned several times as a main
condition for our country’s progress in the process of integration with the EU, by the
decision of the EU Council of Ministers of Justice and Internal Affairs, on 19 December
2009 EU liberalized visa regime with Serbia. In late 2010, the Prime Minister took from
the European Commission a questionnaire of 2483 questions12 which answering is a
prerequisite for acquiring the status of a candidate for EU membership, which Serbian
authorities expect to happen by the end of 2011. A Transitional Trade Agreement, as a
part of the Stabilization and Association Agreement which governs trade issues came into
force in January 2010. Previously, Serbia was implementing this agreement unilaterally13,
while on the part of the EU its implementation was frozen for the reason of unsatisfactory
cooperation with ICTY. The Republic of Serbia signed the SSA in April 2008, while the
process of its ratification in the parliaments of EU Member States is underway.
§ 9. It seems that Serbia lacks both political will and public support for resolving crimes from
the recent past. Hence, cooperation with the ICTY and trials for war crimes before domestic
courts are justified and interpreted in the context of an obligation to fulfill conditions for EU
accession or getting foreign grants, and not as a need to punish the guilty. This is true not only
for crimes “committed in the name of Serbian people”, but also, when victims are the citizens
of our country. This can be illustrated by the fact that the murders of the journalists Dada
Vujasinović, Slavko Ćuruvija and Milan Pantić have not been solved yet. Moreover, although
everybody believed that threats and murders of journalists are something left in the past,
in April 2007 a bomb was put in front of the flat of journalist Dejan Anastasijević who is
known for his investigative and analytical articles about organized crime and war crimes; he
also appeared as a prosecution witness in the Hague Tribunal, in process against Slobodan
Milošević. Although the police announced quick and thorough investigation, the perpetrators
have not been found yet. Over the last couple of years, there have been several cases of
physical attacks at journalists and media people in general, in which police investigation was
quick, but the perpetrators got only mild punishments, often after long trials.14
§ 10. Over the previous years, Serbia has been facing increased street violence and
vandalism, violent fascist and Nazi outbursts that have, if not open support, than at
least understanding of many political and clerical structures. This can be illustrated by
11
12
13
14
In 2010, Serbia ranked 78th on the list of the most corrupt countries in the world with the Corruption Perception Index of 3.5 – Transparency
International Corruption Perception Index.
Questions and answers available at the website of the EU Integration Office http://www.seio.gov.rs/
Since 1 February 2009
E.g. attack on Teofila Pančić, journalist of “Vreme” weekly, on B92 cameraman at the rally on the occasion of Radovan Kradžić’s arrest in July 2008,
etc.
16
two examples. The so-called “Rally for Kosovo”, to which the than governing coalition
invited all citizens to come and express their discontent with the declaration of Kosovo’s
independence ended with the demolition of downtown Belgrade, robberies and putting
foreign embassies on fire. The police did not react at all and one young man lost his life15.
In September 2009, a group of so-called football fans attacked and beat to death one
young man from France16 in downtown Belgrade. This happened during the preparations
for gay pride which was forbidden, i.e. canceled one day before its date, because the police
stated that they could not guarantee participants’ safety. At that time, there were several
violent incidents directed at foreigners. The death of Brice Taton raised the question of
banning hooligan and extreme right wing groups, but this has not happened yet nor have
any efficient measures been taken to prevent their actions.
§ 11. The organizers of the gay pride tried to ensure broader political support for the next
year so that the parade planned for the autumn of 2010 took place with enormous police
security. Although the participants – around one thousand – were safe, unrests raged on
several points in the city, caused by well-organized hooligans and “patriotic” groups. On
that occasion 124 policemen got hurt and 249 hooligans were arrested. On that day and
in the days to come, the entire leadership of extreme right-wing organization “Obraz”
and members of “Naši 1389” ended up in prison.17
§ 12. Nine years after the October 5 changes, Serbia is classified as “flawed democracy”
according to the Economist Intelligence Unit’s 2010 Index of Democracy18 published on
the website of British Economist magazine. For the past ten years a lot has been done,
but it is not sufficient in terms of the building of a functional economic and social system
and environment. It must be observed that enormous efforts which are being put in the
contesting of the status of Kosovo are often used as an excuse for the lack of action in
the field of institutional and economic development and for justifying some economic
political decisions. Another excuse for doing nothing is a global economic crisis.
§ 13. Gross domestic product in 2010 recorded an increase in real terms of 1.2% after the
fall that was present throughout 200919. Industrial production also saw slight recovery of
2.9% in 2010 after a dramatic fall one year earlier20. On the other hand, the average wage
paid out in January-December 2010 was nominally up by 7.6%, i.e. 0.7% in real terms
year-to-year. On the list of the most corrupt economies of the World Economic Forum,
Serbia ranked 96th in 201021 (93rd in 2009).
15
16
17
18
19
20
21
http://www.b92.net/info/vesti/index.php?yyyy=2008&mm=02&dd=22&nav_category=640&nav_id=285912
Human Rights in Serbia 2010 – Legal Provisions and Practice Compared to International Human Rights Standards, Belgrade Center for Human Rights,
Belgrade, 2011.
Democracy Index 2010: Democracy in retreat, A Report by Economist Intelligence Unit. The Economist Intelligence Unit Limited 2010.
Statistical Office of Serbia.
At an expert meeting in May 2011, Stojan Stamenković said that the Statistical Office of Serbia significantly corrected downwards GDP growth
rates for 2007, 2008 and 2009 compared to those presented in public. http://rs.seebiz.eu/skandalozna-greska-statisticara-pad-bdp-a-62umesto-31/ar-2812/
World Economic Forum, Global Competitiveness Report http://www3.weforum.org/docs/WEF_GlobalCompetitivenessReport_2010-11.pdf
17
HUMAN RIGHTS IN SERBIA
§ 14. Although certain progress had been recorded in the field of poverty reduction
until 2008, the number of poor citizens started growing again in 2009: according to the
Household Consumption Survey, 8.8% citizens lived below relative poverty threshold in
2010 (6.9% in 2009). Although the percentage of poverty has been changing, the profile
of the poor remains almost unchanged: the analysis of the profile of poverty in the
Republic of Serbia shows that citizens under the highest risk of poverty are those who had
primary or lower education, unemployed and economically inactive population, children,
households with higher number of members and households in rural settlements22.
§ 15. As far as labor market indicators are concerned, their worsening has continued.
According to the Labor Force Survey23, unemployment rate in October 2010 stood at
20.0%, which is up by 2.6 percentage points compared with the same period one year
earlier. According to the same source, employment in the informal sector constitutes
17.2%. Registered unemployment rate, according to the National Employment Service,
in 2010 was 26.89%, an increase of 0.87% relative to 200924. The unemployment rate of
young people aged 15-24 in October 2010 stood at 46.1%, which is up by 3.6 percentage
points year-to-year.25
§ 16. Compared with the 1990s, Serbia has certainly made a significant progress. Still,
it seems that after the assassination of Prime Minister Đinđić the course of reform,
and consequently the democratization of Serbia, has considerably slowed down if not
even taken a completely opposite direction, although elections are still won by calling
for European values and EU integration. This is confirmed by a general mood of citizens
who have little confidence in institutions and less and less feel that they can change
things in their lives and communities26. The results of a survey which TNS Medium Gallup
conducted in 2009 shows that the citizens of Serbia are most afraid of further poverty
(77%) and losing their jobs (69%), while the survey by the same agency within the
international study “Voice of the People – End of Year”, examining expectations from year
2011, shows that the citizens of Serbia are the most pessimistic in the world with regard
to their expectations from 2011 (an increase by 20% compared with the previous year),
i.e. they ranked 4th according to the most negative economic expectations, following
French, citizens of Iceland and Romanians 27.
22
23
24
25
26
27
The First National Report on Social Inclusion and Poverty Reduction in the Republic of Serbia, overview and state of social inclusion and poverty for the
period 2008 – 2010, including the priorities for the following period, The Team for Social Inclusion and Poverty Reduction with the Cabinet of the
Deputy Prime Minister for European Integration, March 2011.
National Employment Service.
Labor Force Survey, Statistical Office of Serbia
Građanske inicijative, Istraživanje percepcija i stavova javnosti o nevladinom sektoru u Srbiji 2009. godine, www.gradjanske.org/admin/download/
files/cms/attach?id=281
TNS Medium Gallup, Global Study Voice of the People – End of the Year, Expectations from the coming year 2011, Belgrade, 2010.
http://www.tns-bg.com/newsletters/Newsletter_TNSMediumGallup_Ocekivanja%20od%202011_Jan_11.pdf
18
I.3. Human Rights in Serbia
§ 17. Serbia became a member of the Council of Europe on March 3, 2003 and ratified the
European Convention on Human Rights on March 3, 2004. Since that day, everyone who
considers that some of his/her rights, guaranteed by the Convention or protocols thereto,
have been violated by the Republic of Serbia, is entitled, under conditions provided by
the Convention, to make a complaint to the European Court for Human Rights for the
protection of such right. Until the end of 2010, 6,922 applications were lodged against
the Republic of Serbia, whereby a total of 3,307 applications were declared inadmissible
or struck out28.
§ 18. The first judgment on the merits against Serbia was made in 2006. By the end
of December 2010, a total of 49 judgments were made, as well as 64 decisions based
on settlement, unilateral decision or struck out. In these 46 judgments it has been
established that the Republic of Serbia has violated rights guaranteed by the Convention.
In 14 cases, judgments concerned the violation of right to fair trial as prescribed in Article
6; in 18 cases violations referred to the length of the trial and in 14 cases to the right to
effective remedy (Article 13). Violation of rights provided in Article 1 of the Protocol to
the Convention (protection of property) was found in 11 applications and violation of
rights provided in Article 8 (right to respect for private and family life) in 9 applications.
The Republic of Serbia violated the right provided in Article 5 of the Convention (right
to liberty and security) in five cases and freedom of expression (Article 10) in four cases.
There was one case of violation of prohibition of torture (Article 3), prohibition of
discrimination (Article 14) and non-enforcement (Article 6).29
§ 19. Applications against the Republic of Serbia constitute 3% of the total number
of applications lodged to the Court30. Starting from 7 August 2008, constitutional
complaint is considered to be an effective legal remedy in terms of Article 35 Paragraph 1
of the European Convention on Human Rights. From that day on, previous application to
the Constitutional Court is a condition for lodging application to the European Court of
Human Rights. This has resulted in a considerable decrease in the number of applications
lodged against the Republic of Serbia compared with the period before August 2008. It
is generally expected that the number of applications to be considered by the European
Court will be considerably smaller because it will consider only those applications in
which the Constitutional Court has found no violations of human rights.
§ 20. The Ombudsman Law31 was passed in 2005 and amended and supplemented in June
2007. The Ombudsman himself was appointed at the end of July that year. Thus Serbia,
as one of the last countries in Europe, has finally got the institution of ombudsman. The
28
29
30
31
European Court of Human Rights, Annual Report 2010, Provisional Version.
Ibid.
Belgrade, 2011.
Official Gazette of RS, no. 79/2005 and 54/2007.
19
WOMEN IN SERBIA
institution of ombudsman is available to all: it is free of charge, it shall act preventively
and it should prevent conflicts. Ombudsman’s duty is to help the citizens of Serbia realize
their rights that are guaranteed by the Constitution, law and international instruments.
The ombudsman with his three deputies act in seven areas: human rights, rights of
national minorities, rights of the child, rights of persons with disabilities, rights of persons
deprived of liberty, gender equality and good governance. Every year ombudsman has
been making an increasing number of contacts with citizens. In 2010, 2656 complaints
were received, a 50% increase compared with one year earlier32.
§ 21. In late 2004, the Serbian Parliament appointed the first Commissioner for Information
of Public Importance and Personal Data Protection.
§ 22. The Law on the Prohibition of Discrimination33 was adopted after four years of
preparation and with great resistance of conservative circles, only thanks to the fact that
its adoption was a prerequisite for the liberalization of visa regime with the EU. Upon
insistence of the Serbian Orthodox Church and traditional religious communities, this
Law was urgently withdrawn from parliamentary procedure34 following a strong campaign
to change its provisions pertaining to discrimination based on sexual orientation and to
the prohibition of discrimination on religious grounds in order to allow the church to
practice discrimination which is in accordance with its tradition35. However, mechanisms
envisaged by both this law and other laws relevant for the prohibition of discrimination
are still rarely used in practice36.
§ 23. The Law on the Prohibition of Discrimination has introduced the institution of
Commissioner for the Protection of Equality as an independent state authority whose main
function is the fight against all forms of discrimination, the prevention of discrimination
and the enhancement of equality. The Commissioner shall act upon the complaints
in cases of discrimination against individuals or group of individuals connected by the
same personal characteristic. The Commissioner is competent to issue opinions and
recommendations in concrete cases of discrimination and to order measures established
by the law. The Commissioner for the Protection of Equality has one specific power that
is not held by other independent authorities: it can raise charges for the protection from
discrimination with consent of discriminated person37. How much citizens of Serbia lack
awareness and knowledge on what discrimination is all about can be illustrated with the
data that a considerable number of complaints which the Commissioner has received
32
33
34
35
36
37
Information about Ombudsman’s activities in 2010: http://www.ombudsman.rs/index.php/lang-sr/component/content/article/1305
Official Gazette of RS, no. 22/09.
Source: http://www.b92.net/info/vesti/index.php?yyyy=2009&mm=03&dd=04&nav_category=11&nav_id=348284
After the Law was withdrawn from the parliamentary procedure, Paragraph 2 was added to Article 18, stating that the activities of priests, i.e.
religious officers who act in accordance with the religious doctrines, convictions or goals of the churches and religious communities which are
entered into the register of religious communities in accordance with a special law governing the freedom of religion and status of churches and
religious communities shall not be considered discrimination”.
Belgrade, 2011.
Annual reports on the state of children in Serbia published by Child Rights Center.
20
so far has nothing to do with discrimination. As far as actual cases of discrimination are
concerned, the largest number of complaints pertains to discrimination in getting a job on
the grounds of nationality and political affiliation.38
I.4. Women in Serbia
§ 24. According to the 2002 census, women make up 51.4% of the population of
the Republic of Serbia39. In a ten-year intercensal period, the share of women in total
population increased, in particular in towns, resulting from difference in average life
expectancy and the impact of wars and migrations40.
§ 25. According to the 2006 Constitution of Serbia41, the state shall guarantee equality of
men and women and develop equal opportunities policy. Article 21 provides that all are
equal before the law and prohibits direct and indirect discrimination. However, until the
passage of the Law on Prohibition of Discrimination in 2009, neither the Constitution nor
other laws in Serbia contained explicit prohibition of discrimination against women, nor
they specified what discrimination should mean. The only exception is the Labor Act42,
which sets out the definition of indirect and direct discrimination, as well as of harassment
and sexual harassment43. The violation of equality, not only gender equality but in general,
shall be considered a crime and is punishable as such, but we have no knowledge of
examples in practice. Citizens rarely decide to take legal measures when they are exposed
to discrimination either because they cannot recognize discrimination or because they
have no trust in the capacity and will on the part of the system to protect them.
§ 26. It seems that gender equality is achieved most in the area of education, in particular
primary education, where there is almost no difference in the number of boys and girls who
complete primary school. What may be observed in younger population is that difference in
the level of education has been growing in favor of women from generation to generation44.
This trend, present in other parts of Europe, too, should be linked to the deteriorating
quality of education since early 1990s, large unemployment, in particular of young people,
as well as undervalued status of education and knowledge in the labor market.45
§ 27. On the other hand, women are more often illiterate than men. They constitute
84.9% of the total illiterate population. These are mostly women from older age groups,
which is a consequence of inherited differences in the education between men and
38
39
40
41
42
43
44
45
Belgrade, 2011.
DevInfo database.
Report on the Implementation of Millennium Development Goals in the Republic of Serbia, Government of Serbia, Belgrade, 2005.
Official Gazette of RS no. 98/06.
Official Gazette of RS no. 24/2005 and 61/2005.
Report to the CEDAW Committee, Voice of Difference, Autonomous Women’s Center, ASTRA, Incest Trauma Center, Women in Black, Belgrade,
March 2007.
Puzigaća M., Stanje i izazovi za rodnu ravnopravnost u Jugoslaviji, SCAN Novi Sad, 2002; citirano prema Blagojević M., Položaj žena u zemljama
Balkana – komparativni pregled, GEEP Gender jednakost i ravnopravnost u BiH, Gender centar Vlade RS i Gender centar Vlade FBIH, Bosna i
Hercegovina, 2004.
21
WOMEN IN SERBIA
women, although this difference is equal in all age groups to the detriment of women46.
§ 28. Women in former SFR Yugoslavia were encouraged to go to school and have a job,
but after having reached a certain level, they were faced with imposed and self-imposed
“glass ceiling” and often they failed to have successful careers47.
§ 29. Women in Serbia constitute the majority of unemployed, both according to the
National Employment Service and to the Labor Force Survey. Although this difference
decreased during 1990-2001, it is still very large. The October 2010 Labor Force Survey48
reports the unemployment rate of 20.4% for women and 18.3% for men, a decrease
compared with female unemployment rate of 22.9% reported in 2004. In December
2010, women made up 53.95% of all registered unemployed persons in Serbia49.
§ 30. Women are faced with discrimination, open or hidden, when finding employment
and at work50. Many job advertisements contain requirements regarding the age and
looks of a female candidate; further, they are exposed to sexual harassment, encounter
obstacles in promotion, less often hold top positions in companies, earn less then men51.
The results of econometrically estimated equation of wages show that women earn 17%
less then men per month on average, which may be explained only by different valuation
of the same characteristics, i.e. gender discrimination52.
§ 31. Gender segregation of occupations in the Serbian labor market is very strong
(segregation index 29.3)53; thus, women are more often employed in jobs with lower
pay. An increase in the concentration of women in certain occupations or their presence
in top positions often correlates with a fall in the salaries and social influence of such
occupations. According to the Statistical Office of Serbia, in 2002 only 44 women for every
100 men held the position of legislator, manager or senior official54, although there were
112 women for every 100 men who identified as professionals55. At the same time, women
have a relatively large share of the gray economy, where they are less protected from
sexual harassment and exploitation and where the gender gap in wages is even greater.
§ 32. Transition in Serbia has brought many negative consequences to women, including
the feminization of poverty, especially bearing in mind that women have primary
responsibility for taking care of children. In the process of privatization and restructuring,
women are the first to get fired, especially when better paid jobs are concerned; on the
other hand, an increasing number of women is getting a job in considerably less paid
46
47
48
49
50
51
52
53
54
55
Žene i muškarci u Srbiji, 2005, Statistical Office of Serbia and UNDP.
Blagojević M. (2004), op.cit.
Nezaposlenost i zapošljavanje u Republici Srbiji, Mesečni statistički bilten, br. 100, Nacionalna služba za zapošljavanje, Beograd, decembar 2010.
Blagojević M. (2004), op.cit.
Report on the Implementation of Millennium Development Goals in the Republic of Serbia, Government of Serbia, Belgrade, 2005. – Women have
slightly lower average wages (2003, 97.9% of men’s wage), but this difference is especially visible in some sectors (in 2003, women earned 83.0%
of men’s wage in financial mediation).
Položaj žena na tržištu rada u Srbiji, UNDP i Savet za ravnopravnost polova Republike Srbije, Beograd, 2006.
National Millennium Development Goals in the Republic of Serbia, Government of Serbia, Belgrade, 2006.
ISCO 88
22
economic sectors. Rural women, Roma women, single mother, home makers, elderly
women, women from minorities and women with disabilities are in the hardest position
and at the greatest risk of poverty56.
§ 33. Labor market is not the only space in which differences in economic position of
women and men may be observed. Very indicative in that respect are data on ownership.
Women in much smaller percentage appear as the owners of real estate, car and savings;
2.4% of women have a private company, 3.4% of them have some savings, 16.2% owns a
flat, 10.8% owns a house and 9.3% agricultural land57.
§ 34. For women in Serbia, transition means serious aggravation of social protection
and health care. Although new traditionalism and clericalization of society insist on
the sacredness of traditional family, accusing women in Serbia that they are mostly to
blame for drop in the birth rate, women are not effectively encouraged and supported to
have children, while the attempts to reduce to the detriment of women the standards
achieved after the Second World War are not that rare. An example for this is that the
absence from work for the purpose of maintaining pregnancy is treated and paid as any
other sick leave, i.e. a woman receives only 65% of her salary, while the employer has
the possibility to reduce it even more. Some municipalities and the City of Belgrade have
started to compensate for this difference. Further, the Autonomous Women’s’ Center,
after having conducted an analysis of the spending of budgetary resources intended for
nongovernmental organizations, found that the state allocates nearly 14 times more
resources from the state budget for financing the associations of veterans, including the
associations of veterans from the 1912-1913 Balkan wars, then for the compensation for
pregnant women on maternity leave58.
§ 35. Until the beginning of the 1990s, women had participated in political life, but
without real power. Before the first multiparty election, there had been 17% of women
in the Federal Parliament, but in the first makeup of the National Assembly of Serbia
following the multiparty parliamentary election, there were as few as 1.6% of them. In the
course of the 1990s, the share of women among MPs never exceeded 5.6%.
§ 36. At the same time, during this period women were very active in the opposition, in
particular in non-parliamentary movements and civil society. It is estimated that women
made up half of participants of the citizens’ and students’ protests in 1996-97, while one
woman was the opposition leader59.
§ 37. After dethroning the regime of Slobodana Milošević in the December 2000 election,
56
57
58
59
Dokmanović M., Ženska prava u zemljama Balkana – u raljama tržišne ekonomije, Ženski centar za demokratiju i ljudska prava, 2004, Subotica
www.globalizacija.com
Blagojević M., Rodni barometar – društveni položaj i kvalitet života žena i muškaraca Srbija 2006, AŽIN – Beograd, Altera MB – Budimpešta, 2006.
In cooperation with NGO Transparency Serbia and financial support of the Fund for Open Society and the Institute for Sustainable
Communities, the Center for Development of Non-Profit Sector is implementing the project “Line 481”, aimed at more
transparent allocation and spending of budgetary funds intended for NGOs, providing access to budgetary assets under equal
conditions for civil society organizations and building sustainable partnership of local governments, NGOs and the media. Source:
http://www.crnps.org.rs/2010/najvise-iz-budzeta-dobija-srpska-pravoslavna-crkva
Vesna Pešić, then president of the Civic Alliance of Serbia (Gradjanski savez Srbija) political party.
23
WOMEN IN SERBIA
women won around 11% seats in the National Assembly of Serbia (as little as 6.7% in
the Parliament of Vojvodina). During this period, a woman was a Chairperson of the
Parliament, and for some time, after two unsuccessful election cycles, Acting President of
the Republic, too. The next parliament was elected in the December 2003 election. At the
beginning, it had 33 female MPs (12.4%), but by 2006 this figure dropped to 27. In the
current parliament makeup, women constitute around 22% of the total number of MPs.
§ 38. With the 2004 amendments and supplements to the Law on the Election of
Members of Parliament60, a 30% quota for less represented gender was introduced;
however, this quota applies to the presence in electron lists, while in actual distribution
of seats, women are usually circumvented as much as the law allows61.
§ 39. In the government formed after the 2008 election, five women have been appointed
ministers, constituting 18.5%. Women also account for 22.7% of state secretaries and
42.6% of assistant ministers62.
§ 40. With regard to local governments, women constituted 21.21% of local deputies
after the election held in 200863, which is almost the same to the gender structure after
the 2004 local election. Also, of 159 mayors, i.e. presidents of municipalities, only six
are women64.
§ 41. Although women hold many distinguished positions in Serbian public life – the
judiciary, health, university, they are often exposed to more or less hidden discrimination,
open misogyny and stereotyping in the media. Any improvement in the position of
women is seriously confined by the lack of sensitivity to gender equality problems, even
among women themselves.65
§ 42. With regard to the defense system, it employs 46.8% of women, but at the same
time, women in uniform account for as little as 2.6% in the composition of the Serbian
Army. In the whole security sector, women are mostly hired to do administrative and
analytical jobs, while they are absent from managing and commanding positions. 66
§ 43. As far as gender equality mechanism in the Republic of Serbia is concerned, it exists
and moreover it seems developed, but the same as the legislative framework, it is not a
guarantee for effective gender equality in practice. Namely, the Government of Serbia
has passed a range of laws and strategies where the presence of women is of formal and
declarative nature, resulting more from “external pressure” then from governing gender
sensitive value system.67
60
61
62
63
64
65
66
67
Official Gazette of RS no. 35/2000, 18/2004, 101/2005 and 85/2005.
One third of seats is distributed according to the order of candidates in the election list, while the rest is up to the party to decide, whereby every
fourth of these “free“ mandates should belong to the less represented sex.
Regular Ombudsman Report for Year 2008, http://www.ombudsman.rs/index.php/lang-sr/izvestaji/godisnji-izvestaji/589--2008
Regular Ombudsman Report for Year 2008, http://www.ombudsman.rs/index.php/lang-sr/izvestaji/godisnji-izvestaji/589--2008
Belgrade, 2011.
Jovanović N. (et al.) Mapiranje praznine: nezavisni nadzor nad sprovođenjem Zaključnih komentara i preporuka UN Komiteta za eliminaciju
diskriminacije žena u Srbiji, Autonomni ženski centar, Beograd, 2009.
24
§ 44. At the national level, there is Parliamentary Committee for Gender Equality (2003),
Gender Equality Council as Government’s advisory body (2003, i.e. 2004), the Directorate
for Gender Equality (2008) and Deputy Ombudsman for gender equality and the rights
of persons with disabilities (2008). In Vojvodina, there is the Gender Equality Council
of the Vojvodina Executive Council, the Gender Equality Committee of the Vojvodina
Parliament (2003) and the Provincial Gender Equality Agency (2004). Moreover, Provincial
Ombudsman Office has a deputy in charge of gender equality (2006). Until 2005, focal
points for gender equality have been appointed at the level of 50 municipalities within a
project supported by OSCE. However, systematic data on their activities or effect of their
work do not exist nor whether they managed to survive the change of local government
in 200868.
§ 45. The Gender Equality Directorate was established within the Ministry of Labor and
Social Policy in 2008. At the website of the Directorate, it could be read that its priorities
are “drafting of the Gender Equality Law to regulate comprehensively issues and
aspects of gender equality as well as setting up of new and empowerment and capacity
building of the existing institutions responsible to achieve and provide gender equality;
develops national strategy for advancement of the position of women and promotion
of gender equality69 to establish, define comprehensive and overall coordinated
national policy focused to elimination of all forms of discrimination against women,
advancement of their status and mainstream gender equality as well as implement
recommendation of UN Committee on Elimination of Discrimination Against Women.”
One of the major shortcoming in the work of the Directorate is the attitude of some
of its officers that the fight for gender equality in Serbia started only when they were
established, ignoring the accomplishments and expertise of the women movement,
thus deconstructing what has been built for years and hiring experts whose expertise
does not include gender equality70.
§ 46. Serbia has the National Strategy for Advancement of the Position of Women and
Promotion of Gender Equality71, and the Action Plan for its implementation in the period
2010-201572. Many serious objections were made with regard to the Action Plan, while
commenting the process of its creation, women’s organization stressed that they were
marginalized by the Gender Equality Directorate and described this relation as “not
appreciating the years of work and expertise of women’s organizations regarding the
issues of the improvement of the position of women and gender equality, fictitiously
68
69
70
71
72
At the official website of the Gender Equality Directorate, there are archive data on the local focal points for gender equality with the name of
municipality, institutional mechanism which exists there and a person in charge.
(http://www.minrzs.gov.rs/cir/index.php?option=com_content&view=section&layout=blog&id=27&Itemid=233&lang=sr)
The text of the Strategy available at http://www.minrzs.gov.rs/cir/index.php?option=com_content&view=section&layout=blog&id=27&Item
id=233
E.g. the appointment of the Serbian delegate at the Council of Europe’s Ad Hoc Committee on Preventing and Combating Violence against
Women and Domestic Violence (CAHVIO).
Adopted by the Government of Serbia on 13 February 2009.
25
WOMEN IN SERBIA
participatory process without real possibility of influence, and depriving women’s
organizations of power in relation to state structures “73.
§ 47. Domestic violence is a topic that has been more openly and more frequently
discussed in the last ten years, above all thanks to the pressure of women’s NGOs and
change in the political climate after 2000. Since women today feel more supported to
report the perpetrator, it may seem that domestic violence, otherwise not typical for
traditional patriarchal Serbian family, has been brought to Serbia with transition. Thus,
according to the Statistical Office of Serbia, the number of reporting cases of family
violence in 2008 (3384) was three times as high as in 2004 (1009)74. With regard to
data for 2009, the perpetrator was male in 94.4% cases. Indictment was issued against
62.5% of the perpetrators and 1850 convictions were rendered (prison sentence – 20.1%,
fine – 9.2%, suspended sentence – 68.4%, work in public interest – 0.2%, admonition –
1.4% and corrective measures – 0.2%). These data do not provide satisfactory picture of
domestic violence as they are not gender sensitive. Moreover, domestic violence may be
hidden behind other criminal offences, i.e. crimes against life and limb, crimes against
freedoms and rights of man and citizen, sexual offences and the like.
§ 48. According to the survey conducted by the Autonomous Women’s Center, 24 women
were killed in domestic violence in 2008, while 80% of women do not report violence
they suffer75. Network “Women Against Violence” states in its report on femicide in Serbia
that in 2010 30 women were murdered by men, mostly partners, ex partners, husbands
and ex husbands, but also by sons and other relatives. Seven of 30 women had reported
the perpetrator to some institution before they were killed. In five out of 11 murders
committed by gun, the perpetrator had a license to possess it. Whenever woman suffered
violence for years, this fact was not mentioned in news articles, but the focus of reports
was on perpetrator and his “reasons” for murder or on weapon used for the murder.
§ 49. Data on family violence kept by NGOs, police, judiciary, social welfare centers do
not indicate to the real size of family violence, since the majority of cases still remain
unreported76. The results of the survey “Mapping Family Violence against Women in
Central Serbia”77 conducted in 2010 show that at that moment 38% of women suffered
some sort of family violence, while 54% women have some experience of family violence.
Women from all age categories, from all regions and types of settlements, all educational
categories and social strata and with different family status are exposed to violence. The
perpetrators are most often their current or ex husbands or partners, as well as fathers,
mothers, other relatives or their partners’ relatives. Men appear as the perpetrators
73
74
75
76
77
Jovanović N. et al (2009), op.cit.
Saopštenje broj 194, godina LX, 01.07.1010, Republika Srbija, Republički zavod za statistiku, according to:Babović M., Ginić K., Vuković O.,
Mapiranje porodičnog nasilja prema ženama u Centralnoj Srbiji, Projekat Borba protiv seksualnog i rodno zasnovanog nasilja, Uprava za rodnu
ravnopravnost, Ministarstvo rada i socijalne politike, Beograd, 2010.
Ibid.
Babović M., Ginić K., Vuković O. (2010), op.cit.
26
of violence against women in much larger number of cases than other women, with
husbands and partners being undoubtedly dominating among them.
§ 50. Until 2002, family violence was not treated as a separate problem, but in police
and court statistics it was “hidden behind general offences such as causing serious
bodily harm, endangering personal security, etc.”78 Family violence was for the first time
criminalized in 2003 (Article 118 of the Criminal Law of Serbia79). In currently valid Criminal
Code of Serbia80, penalty for family violence ranges from three months to 15 years of
imprisonment depending on qualification. The latest amendments and supplements
to the Criminal Code has brought stricter penalties for family violence. However, the
new definition of the “family member” represents a step backwards compared with the
previous legislative solution, since it excludes a great number of persons who used to
enjoy ex officio protection81.
§ 51. The position of women should also be improved through the Family Act82 that came
into force in July 2005. Solutions offered by this Law are aimed at providing better and
more comprehensive legal protection of family, whereby special emphasis is put on the
rights of the child. This Law introduces some new legal institutes that were not known
in former legislation, including the protection from family violence. One of the new
measures is protective measure against family violence, in particular the issuance of a
warrant for eviction from a family apartment/house regardless of the ownership of the
real estate in question (Article 198). Moreover, social workers are given greater powers.
While earlier they could initiate court proceedings only when a child was endangered in
the family, now they can provide protection to an adult who suffers violence, too.
§ 52. In this way, at least in legislative terms, the state has acknowledged that violence
against women as a social problem and not the private problem of a woman suffering it.
On the other hand, the implementation of these laws in practice is “blocked by ignorance,
institutional inertia and patriarchal stereotypes”, while institutional support to the victims
of violence and prevention measures are still far below the needs83. Social welfare centers
are still ruled by stereotypes; for this reason, courts impose more severe punishments on
violent mothers than on violent fathers, penal policy is light – the most frequent penalties
are fines and suspended sentences, protection measures are not applied in practice, while
the procedure itself is inefficient, which dramatically diminishes its meaning and increase
its costs84.
78
79
80
81
82
83
84
Aleksić I. and Lukić M. (2000). „Serbia – Country Report“ in: Women 2000: An Investigation on the Status of Women’s Rights in Central and South-East
Europe and the Newlz Independent States, New Helsinki Federation for Human Rights.
Official Gazette of SRS no. 26/77, 20/79, 24/84, 39/86, 51/87, 6/89, 42/89 and 21/90 and Official Gazette of RS no. 16/90, 9/92, 49/92, 51/92,
23/93, 67/93, 47/94, 17/95, 44/98, 10/2002, 39/2003 and 67/2003
Official Gazette of RS, no. 85/05, 88/05, 107/05 i 72/2009.
Jovanović N. et al (2009), op.cit.
Official Gazette of RS no.18/05.
Report to the CEDAW Committee, Voice of Difference, Autonomous Women’s Center, ASTRA, Incest Trauma Center, Women in Black, Belgrade,
March 2007.
27
CHILDREN IN SERBIA
§ 53. Although a lot has been done in the last couple of years in combating family violence,
Serbia still does not have a developed system of cooperation of competent agencies, and
the final solution of the problem is permanently being postponed. Responsibility is often
shifted from one institution to another. Because of incapability of state authorities to
efficiently tackle this problem within their competences, what almost happened in 2009
is that family violence become a crime prosecuted by a private plaintiff and not ex officio
like before. This was avoided only thanks to strong pressure from NGOs.
§ 54. The results of a poll conducted by youth organization Club OPA in 2010 among
Belgrade secondary school pupils show that many stereotypes about the role of men and
women in Serbian society are still present: the majority of respondents expect women to
be patriarchal, modest and quiet, churlish child is considered to be mother’s fault, while
it is a shame for woman to be divorced. What experts find especially worrying is that
girls themselves, by taking either neutral or affirmative position, accept in a way, or even
encourage, stereotypes that a woman is guilty if she becomes a victim of violence.85
§ 55. Although the Constitution of Serbia guarantees equality of women and men
and requires the state to have equal opportunity policy, this has not been the case in
practice yet. The existing legal solutions are still not completed. It was in the last days
of 2009 when Serbia got its Gender Equality Law86, while the Law on the Prohibition
of Discrimination87, which inter alia prohibits gender-based discrimination, has been
adopted with strong resistance of large segments of society, in particular Church.
Although this resistance referred to the prohibition of discrimination on the grounds of
sexual orientation, it nicely illustrates the attitude of Serbian society and the citizens of
Serbia towards freedom and equality.
I.5. Children in Serbia
§ 56. On January 26, 1990, the Socialist Federal Republic of Yugoslavia signed and in
December the same year ratified the Convention on the Rights of the Child88. Optional
Protocols on the Sale of Children, Child Prostitution and Child Pornography89 and on the
Involvement of Children in Armed Conflicts90 were ratified in 2002. Although Serbia, as
a member of SFRY, was among the first signatories of the Convention, the compliance of
the national legislation with the Convention on the Rights of the Child may be assessed
as incomplete91. The Initial Report on the Implementation of the Convention in Serbia
before the UN Committee for the Rights of the Child was presented to the Committee
of the Rights of the Child in Geneva in May 2008. Alternative Report “Implementation
85
86
87
88
89
90
91
„Žena sama kriva ako je žrtva nasilja”, Blic, 29 October 2010.
Official Gazette of RS, no. 104/2009 of 11 December 2009.
Official Journal of SFRY – International Treaties, no. 15/90 and Official Journal of SRY, no. 4/96 I 2/97.
Official Journal of SRY – International Treaties, no. 22/02.
Official Journal of SRY – International Treaties, no. 22/02.
For details, see Reports on the Rights of the Child in Serbia that are released annually by Child Rights Center.
28
of the Convention on the Rights of the Child in Serbia”, produced by a NGO coalition
was presented in the same years92. Initial state report and NGO shadow reports93 on the
compliance with the Optional Protocols on the Sale of Children, Child Prostitution and
Child Pornography and on the Involvement of Children in Armed Conflicts were presented
to the Committee in 2010. Council of Europe’s Convention on the Protection of Children
against Sexual Exploitation and Sexual Abuse94 was ratified in 2010. The legislation of
the Republic of Serbia does not have a law that would regulate children’s rights in a
comprehensive manner nor does it have a general definition of the child. This applies to
the Family Act, too, which is one of the essential legislative sources in this area. Although
the 2006 Constitution of Serbia contains a provision titled “Rights of the Child”, which
is for the first time in the history of Serbia, the opportunity to set out the best interest
of the child as a constitutional principle has been missed. The best interest of the child
is mentioned in the Constitution, but only in terms of court’s right to limit all or some
parent’s rights and duties towards their children if this is in the best interest of the child95.
§ 57. According to the 2002 census, there are 1,470,000 children (19.6% of the total
population) living in Serbia, of whom 342,000 children under five. The position of children
in Serbia should not be observed independently from the overall political, economic and
social situation of the country. What is notable is that the issue of children’s rights in
practice is always in the background of still predominant political questions.
§ 58. One of the hardest consequences of social stratification in the period of transition
is that children in Serbia are faced with pronounced poverty. According to the EU criteria,
one third of all children in Serbia live in poverty96. A large number of children in Serbia
are poor, without elementary health and social care. The Poverty Reduction Strategy
Paper (PRSP) recognizes children as one of the vulnerable groups in terms of poverty.
According to the 2002 and 2003 Living Standard Measurement Surveys, around 155,000
children in Serbia are poor, while another 155,000 children have insufficient material
resources. Particularly vulnerable are children of school age, children living in big families,
children living in rural areas, as well as Roma children and children with disabilities.
What is especially worrying is that children’s poverty has been decreasing too slowly97.
Although the number of those who lived under the poverty line reduced by half in 2007
compared with 2003, poverty has grown again due to global economic crisis and today
nearly every tenth citizen is poor, the most vulnerable being families with children.98
According to the Statistical Office of Serbia, 9.5% children in Serbia are in social need,
92
93
94
95
96
97
98
Stevanović I. (ed.), Implementation of the Convention on the Rights of the Child in Serbia, Child Rights Center, Belgrade, 2008.
Stevanović I. (ed.), Monitoring and Reporting on Rights of the Child in Serbia, Child Rights Center, Belgrade, 2010.
Official Gazette of RS - International Treaties, no. 1/10.
Petrović M., Vučković-Šahović N., Stevanović I., Prava deteta u Srbiji 2006. godine, Centar za prava deteta, Beograd, 2007.
Data from a press conference, where the findings of Belgrade-based Institute for Social Medicine on the position of children in Serbia were
presented; published in Danas daily on 21 November 2006.
The State of Children in Serbia 2006. Poor and Excluded Children, UNICEF, Belgrade, 2007.
Survey for the needs of the conference “Children and Poverty”, 19 November 2009 http://www.b92.net/info/vesti/index.
php?yyyy=2009&mm=11&dd=15&nav_category=206&nav_id=392756
29
CHILDREN IN SERBIA
whereby this figure does not include hundreds of legally invisible Roma children who live
in unhygienic settlements99.
§ 59. Poverty affects both whether a child would go to school and what results he/she
would have there. Around 6% of children who live below the poverty line do not go to
school due to poverty, while less then 9% of such children go to pre-school institutions.
Moreover, 19% of the poorest girls get married before the age of 18, while much larger
percentage of the poorest children, compared with general population, work before
attaining adult age100.
§ 60. According to the Constitution of Serbia, schooling is available to all under equal
conditions; primary education is mandatory and shall last eight years. Regular education
funded from public revenues is free of charge. Children from ethnic minorities have
right to attend school in their own language, as well as to set up private educational
institutions. Persons with disabilities and persons with extra talents are entitled to
education in accordance with their special needs.101 Although the new Law on the Basis of
the Education System has set out the basis for the development of inclusive education102,,
special schools will keep to exist, but only children with grave developmental challenges
and special needs who cannot go to regular schools will attend them.103
§ 61. According to Statistical Office’s data for 2005, 95.29% of children complete primary
school (95.89% boys and 94.71% girls)104. This percentage is lower for children who live
in rural areas (73.8%) and for Roma children (21-37%)105. According to the same source,
76.42% of children enroll in secondary school. It is difficult to calculate actual percentage
of children who complete primary school, because data are obtained based on the school
year and not by observing the generations of pupils. Further, data on primary school drop
out are not available, as well as data on the number of Roma children and children with
disabilities who remain outside the primary education system or drop out before the
end of primary education. For this reason, the percentage of primary school graduation is
assessed at 85-90%.
§ 62. Mechanism to prevent early dropout still does not exist. The implementation of the
Law on the Basics of the Education System, the Law on Preschool Education106 and the Law
on the Prohibition of Discrimination which promote inclusive education and prohibits any
form of discrimination against children should contribute to better inclusion and reduce
discrimination of traditionally marginalized and excluded groups of children and children
99
Belgrade, 2011.
MICS3
101
Petrović M., Vučković-Šahović N., Stevanović I. (2007), op. cit.
102
More about inclusive education in Section I.6.
103
L Human Rights in Serbia 2010 – Legal Provisions and Practice Compared to International Human Rights Standards, Belgrade Center for Human Rights,
Belgrade, 2011.
104
Millennium Development Goals in the Republic of Serbia, Monitoring Framework, Government of Serbia, Belgrade, 2006.
105
Ibid.
106
100
30
with a tendency to drop out early. This is a complex process and the responsibility for it
should not be left to teachers only, but it requires involvement of the whole of society
and strong political will for set goals to be realized in practice and not to remain a dead
letter in the service of declarative compliance with European standards.
§ 63. In order to improve inclusion and mitigate the effects of global economic crisis,
pupils of the first and second grade of primary school are given free school books provided
by the Ministry of Education; thanks to local self-government, free books are provided
also for the fifth grade pupils in the territory of Belgrade.
§ 64. Until the introduction of mandatory pre-school education in 2006, the coverage
of children with preschool education in Serbia was very low: 37.3% in 2004 and
39.2% in 2005107, resulting from both inadequate availability of preschool institutions
and lack of awareness of significance and need for this kind of education. Moreover,
criteria for the enrollment of children in public preschool institutions (with subsidized
price) are not equalized and often discriminate against some categories of parents, e.g.
children. Advantage is often given to children with both working parents, in which way
a large segment of children, whose parents moonlight or are unemployed, is excluded;
unemployed mothers, if they want to find a job, need to organize baby-sitting, and the
like. In some cases, advantage is given to children who have been in the waiting list for
a longer period of time, although family’s material position does not indicate a need for
state subsidy. Such situation is expected to change after the beginning of implementation
of the new Law on Preschool Education, which provides for equal right and access to all
forms of preschool education without discrimination on the grounds of gender, social,
cultural, ethnic, religious or any other affiliation, place of permanent or temporary
residence, material or health status, developmental challenges or impairment or on any
other grounds. Also, in the period 2004-2009, the number of preschool institutions grew
considerably, but capacities are still insufficient with significant regional differences. The
status of private preschool institutions is still not regulated and data on the number of
children who attend these institutions does not exist108.
§ 65. Particularly worrying is the quality of education our children acquire in school.
Although there is a principal agreement on the necessity of reform of the education
system, little progress has been made in that area in practice. In spite of traditional belief
that our education system, with all its shortcomings, at least provide pupils with excellent
general education, the reality seems to be quite different. Namely, according to OECD’s
PISA109 2006 results, Serbian secondary school pupils ranked 41st for the second year in a
row110. The PISA test shows the efficiency of an education system, because it assesses how
much 15-year-olds are able to practically apply knowledge they have acquired in primary
107
108
109
110
DevInfo.
Annual reports on the child rights situation in Serbia published by the Child Rights Center.
Program for International Student Assessment.
Vreme Weekly, issue 885, 20 December 2007.
31
CHILDREN IN SERBIA
school. Although the results of the most recent testing which took place in 2009 show
that pupils of the first grade of secondary school leg behind by a whole academic year in
comparison with their peers from the majority of European countries, an improvement
has been registered compared to 2006, especially in the area of reading, while small
progress was registered in the area of mathematics and science.111
§ 66. Although the mortality of infants and small children in Serbia has been permanently
declining in last fifteen years, it is still larger than in developed European countries.
Particularly worrying are departures registered in Roma population. According to MICS3,
infant and under-5 mortality rate of Roma children who live in Roma settlements is nearly
three times higher than in general population. Although the law provides that children
until the age of 18 are entitled to the highest possible standard of health and health care,
in practice, a great number of children do not have health insurance card, without which
they cannot enjoy this right112.
§ 67. In last couple of years, significant progress was made in the area of legislation
relevant for the improvement of the position of children. In 2006, three important laws
came into force: the Family Act, the Criminal Code and the Juvenile Offenders and
Juvenile Justice Act113.
§ 68. The Family Act “represents an important event in the field of children’s rights because
the concept of the right of the child has been introduced into domestic legislation for the
first time” 114. The Family Act provides that everyone is under obligation to act in the best
interest of the child in all activities related to the child, while court, in all disputes over
the protection of the right of the child and in disputes over the exercise or deprivation of
parental rights, shall always act in the best interest of the child. Proceedings regarding
family relations shall be adjudicated by specialized judges, i.e. specialized panels.
Professional judges shall pass special education in the area of the rights of the child, while
lay judges shall be selected from the rank of experts with experience in working with
children and youth. If a child who is able to form his/her own opinion appears as a party
in a dispute over the protection of the right of the child and in a dispute over the exercise
or deprivation of parental rights, the court shall take care that such a child duly receives
all necessary information; let the child express his/her opinion and give due attention
to such opinion in accordance to the age and maturity of the child; determine a child’s
opinion in a manner and in the place in accordance with his/her age and maturity unless
this would obviously be in contrast to the best interest of the child.
§ 69. The Family Act also introduces protection from family violence, while measures
that shall be pronounced in case of child neglect and child abuse are directed mainly
at the perpetrator and not at the child as they used to be. A tendency is to keep a child
111
112
113
114
Petrović M., Vučković-Šahović N., Stevanović I. (2007), op.cit.
Official Gezette of RS, no. 85/05.
Petrović M., Vučković-Šahović N., Stevanović I. Prava deteta u Srbiji 2005. godine, Centar za prava deteta, Beograd, 2005.
32
at home whenever it is possible in order to avoid his/her placement in an institution
and so that another parent could continue taking care of such child. Measures are
ordered by a court decision in a special urgent procedure. However, although significant
progress has been made, this Act failed to explicitly prohibit corporal punishment of
children. Beating children is still acceptable way of punishing children in Serbia and is not
considered harmful.
§ 70. The protection of children from neglect and abuse is provided by the Criminal Code
of Serbia; everyone, from institutions to common citizens, is obliged to report the cases
of child abuse and neglect.
§ 71. As far as sexual abuse of children is concerned, situation in Serbia is estimated
to be similar to other countries, i.e. that every third girl and every seventh boy have
suffered this form of violence. The number of reported cases is far smaller than actual
incidence of sexual abuse of children. According to available data, in the majority
of cases (89.75%), the abuse lasts for several years; in the remaining cases, it takes
several months. The perpetrators are usually people from child’s surroundings –
cousins, neighbors, teachers, coaches. Through legal amendments, sexual intercourse
with a child has been equalized with all similar acts. The sentence of up to three years
in prison is set for the lightest form of the offence, the so called “prohibited sexual
acts”, that is, 18 years in prison for the gravest forms which result in the death of
the child.
§ 72. Children in Serbia are victims of other forms of violence, too, but there is no
precise data on the size of the problem. Children themselves115 think that every child
has been the victim of violence at least once. The majority believes that 50% of
children suffer some type of abuse, i.e. that 10% of them go through serious types of
abuse. It is worrying that children still hesitate to approach their parents and service
providers because they are afraid that nobody will believe them. Moreover, children
think that the police, social welfare centers and schools are services that should protect
children from abuse, but expressed their concern that these services are not childrenand youth-friendly.
§ 73. The Family Act stipulates that the state shall provide a child without parental
care with protection in a family environment whenever possible. Also, one of the basic
goals of the social welfare system reform is deinstitutionalization and development of
alternative models of child care. The number of children who lived in institutions was
reduced by nearly one-quarter in last five years, while foster parenting has been on
the rise116. However, the structure and territorial distribution of foster families are not
appropriate117. The number of foster families trained to accept children with disabilities
115
116
117
Perceptions of and Opinions on Child Abuse. Qualitative research in 7 municipalities with 10-19 year-old children and young people, UNICEF,
Beograd, 2005.
Izveštaj o dečjoj zaštiti u Srbiji, UNICEF, Beograd, 2007.
33
PERSONS WITH DISABILITIES IN SERBIA
and children with behavior disorders is rather small. Intensive specialized trainings are
underway aimed at solving this problem118.
§ 74. The Juvenile Offenders and Juvenile Justice Act actually represents the implementation
of several international documents119 into national legislation. It envisages that juvenile
offenders shall be tried by special judges, i.e. juvenile panels that need to have special
knowledge in the field of children’s rights and juvenile criminality. Lawyers who defend
minors, i.e. persons representing minors who appear as victims or witnesses in proceedings,
prosecutors in charge of juveniles and law enforcement officers that act in such cases – all
of them also need to have special education and special certificates. These cases are ran
applying the principle of urgent procedure. As far as criminal penalties are concerned,
the duration of rehabilitation measures has been specified, as well as a mechanism for
the control of their implementation and effects. Only exceptionally a juvenile may be
sentenced to juvenile prison, but providing that he/she is not younger than 16. Before
this Act has been passed, the duration of rehabilitation measures executed in institutions
was relatively unspecified, as well as the control of measure implementation. Children
younger than 14 may not be defendants in criminal proceedings nor criminal penalties or
measures may be ordered against them. Enforcement of this Act has significantly affected
the improvement of criminal justice position of minors.
§ 75. The Child Rights Council has been operating since 2002 as an intersectoral advisory
body of the Government of Serbia for issues concerning children’s protection and the
rights of the child. This Council comprises of the representatives of relevant institutions
and NGOs. The Council has an increasingly important role in the coordination of activities
aimed at the improvement of the rights of the child, but it still does not have budget
or appropriate administrative service that would support the work of its members. The
authority of the Council is still based on the authority of its members.
§ 76. Within the Parliamentary Committee for Gender Equality, there used to be a SubCommittee for the Rights of the Child. In March 2009, the Poverty Reduction Committee
set up a Working Group for the Rights of the Child, whose task was to enhance and
develop of the protection system, rights and position of children. In mid-2010, this
Working Group was transformed into the Committee for the Rights of the Child, with
special emphasis being aimed at enhancing its supervisory role in terms of identification
of key adopted laws and strategies which directly address the issues of the protection of
the rights of the child and sending requests to relevant ministries to submit reports on
the implementation and effects of these laws on children and their families120.
§ 77. Intersectoral cooperation mechanisms are weak, as well as coordination of relevant
118
119
120
„U Srbiji više hranitelja nego dece bez roditeljskog staranja“, Blic, 26. septembar 2010.
The Convention on the Rights of the Child, European Convention for the Protection of Human Rights and Fundamental Freedoms, UN Standard
Minimum Rules for the Administration of Juvenile Justice, UN Guidelines for the Prevention of Juvenile Delinquency, UN Rules for the Protection
of Juveniles Deprived of Liberty, UN Standard Minimum Rules for Non-Custodial Measures, European Rules on Community Sanctions and
Measures, and some Council of Europe’s documents.
34
subsystems (education, social welfare, judiciary, finance, health, home affairs)121. Also,
coordination between state authorities and local governments is unsatisfactory.
§ 78. Serbia still does not have Ombudsman for children, although a legislative initiative
to set up this institute entered parliamentary procedure in 2008. On the other hand,
in the structure of the Ombudsman office, one Deputy Ombudsman is in charge of
the rights of the child. In 2010, Ombudsman launched a separate website intended for
children122, where children, among other things, can learn more about their rights and file
a complaint in cases of violation of these rights. An officer in charge of representing the
rights of the child work has been active for several years within the office of the Provincial
Ombudsman, while several municipalities have established the offices of children’s
ombudsman at a local level.
§ 79. The Child Rights Council has drafted the National Action Plan for children for the
period until 2015. NAP contains guidelines necessary for advancing the rights of the
child and builds on four core principles of the Convention on the Rights of the Child:
right to life, survival and development, best interest of the child, non-discrimination and
participation. The following have been defined as priority areas in the policy for children:
the reduction of children’s poverty, quality education for all children, better health for
all children, advancement of the position and rights of children with developmental
difficulties, protection of children without parental care, protection of children from
abuse, neglect, exploitation and violence, and strengthening state capacities for solving
the problems of children123.
§ 80. To improve the reporting and registering of all forms of abuse and neglect of children,
General Protocol for the protection of children from abuse and neglect has been adopted,
as well as special protocols on acting in the protection of minors from abuse and neglect
for the police, the judiciary and the systems of education, health care and social welfare
§ 81. In December 2008, the Government of Serbia adopted the National Strategy for
Prevention and Protection of Children from Violence. The Strategy has two basic goals: to
develop a safe environment for children and to establish a national system of prevention
and protection of children from all forms of abuse, neglect and exploitation. The Action
Plan for the implementation of this Strategy for the period 2010-2012 was passed in
March 2010.
I.6. Persons with Disabilities in Serbia
§ 82. According to the results of a survey conducted by Handicap International and the
Center for Policy Studies in 2001, persons with disabilities constituted 6.5% of Serbian
population, i.e. there are around half a million persons with disabilities who live in
121
122
123
Ibid.
www.pravadeteta.rs
UNICEF (2007), op.cit. p. 10.
35
Serbia124. The most comprehensive definition125 of a person with disability is the one given
in the 2006 Law on the Prevention of Discrimination against Persons with Disabilities126.
Regulations that govern benefits and allowances contain narrower definitions aimed at
the assessment of damages, with emphasis being put on disability, and based on medical
model of disability127.
§ 83. In the Socialist Federal Republic of Yugoslavia, the state used to provide persons
with disabilities with social welfare benefits, health care and allowances that in many cases
allowed them to have relatively comfortable existence, but not inclusion. The categorization
of persons with disabilities has always been done based on impairment and not based on
individual needs128. During the 1990s, the social welfare and health care system collapsed
and persons with disabilities remained marginalized, living on the verge of poverty or below
the poverty line, and facing social exclusion and open and hidden discrimination129.
§ 84. A lot of effort has been put in recent years in building a legal framework which
would enable the improvement of status of persons with disabilities. Besides mentioned
Law on the Prevention of Discrimination against Persons with Disabilities, which,
inter alia, imposes the obligation on state authorities to make all public buildings and
services accessible to persons with disabilities, prohibits their discrimination in the field
of industrial relations, health and education and requests state and self-government
authorities to undertake measures that would stimulate their equality, of importance for
this issue is also the adoption of the Law on the Prohibition of Discrimination130 and the
Law on Professional Rehabilitation and Employment of Persons with Disabilities131.
§ 85. Still, the position of persons with disabilities in Serbia today is characterized by low
employment rate (13% according to the World Bank), the absence of equal opportunities
for access to education, physical environment and communications and adequate
support services132. This applies to the position of children with disabilities, too. Namely,
although the new Constitution of Serbia proclaims special protection for “mentally or
physically handicapped children”, the existing legislation, and especially low level of social
awareness of particularities linked to persons with disabilities do not provide conditions
for the satisfaction of their needs and for enjoying the rights.133
124
Leerentveld H.(et al) Feasibility Study on Employment and Professional Rehabilitation of People with Disabilities in Serbia, Final Report, HTSPE Limited
UK (The European Union’s Programme for Serbia), 2006.
“Persons with physical, sensory, intellectual or emotional impairment, acquired at birth or subsequently, who, due to social and other barriers,
are denied or have restricted opportunities for participation in social activities on the basis of equality with others, regardless whether they can
perform the above-mentioned activities with use of aids and/or support services”.
126
127
Tatić D., Report on Situation of Persons with Disabilities in Serbia – Analysis of Legislation and Practice, Center for Independent Living of Serbia,
Belgrade, 2007.
128
Ibid.
129
Leerentveld H. et all, op.cit.
130
131
132
Leerentveld H. et all, op.cit.
133
125
36
§ 86. Depending on the extent of disability, persons with disabilities may attend regular
or special schools. Because of the lack of equal opportunities for access to education, their
education level is as a rule worse then of general population. Later this affects their position
in the labor market and, consequently, other aspects of their life. According to PRSP, 50%
of persons with disabilities only have primary school or less, 10% have completed special
needs schools and 7% have higher education134. Namely, since these persons are traditionally
referred to special schools, while in the majority of municipalities and towns such school do
not exist, and for many parents it is unacceptable or impossible to part from their children to
send them to school to another town, they interrupt or never enroll their children in schools.
§ 87. The implementation of the new Law on the Basis of the Education System135 should
contribute to systematic and institutional organization of inclusive education in Serbia.
This does not mean only the inclusion in the regular education system of persons with
disabilities or with developmental challenges, but also to the inclusion and elimination
of discrimination of Roma children as marginalized group of children and children from
rural areas who finish primary school in a lesser percentage. The Law on the Basis of the
Education System sets forth that developmentally challenged persons and persons with
disabilities are entitled to education which takes into account their educational and
upbringing needs in the regular education system, with individual or group additional
support, or in a special pre-school group or school. One form of additional support to
children is the introduction of the institute of an assistant pedagogue whose task is to
help teachers and teaching staff in school extra curricular activities.136
§ 88. The change which this Law has brought refers in particular to the attempt to include
as much as possible developmentally challenged children and children with disabilities
into regular education system, i.e. to make sure that children are referred to special schools
only when there is not other solution. Full implementation of the new inclusive education
measures into the Serbian education system will require numerous and essential changes,
time and involvement of all the employed in the education system, as well as support of
professional community, professional associations, children and parents. This is all the
more so having in mind the results of a focus group137 which showed that teachers and
other children’s parents show strong resistance to the idea of inclusion of persons with
intellectual disability into regular schools and pre-school institutions. Around 16% of
parents are against inclusive pre-school education.
§ 89. The unemployment rate of persons with disabilities is very high – 74.5%138,
although only 20,402 of such persons are registered as unemployed with the National
Employment Service139.
134
135
136
137
138
139
2003 Poverty Reduction Strategy Paper of the Republic of Serbia, http://www.prsp.gov.rs/dokumenta.jsp
Ministry of Education of the Republic of Serbia, http://www.mp.gov.rs/page.php?page=142
Leerentveld H. et all (2006) op.cit.
Izveštaj o radu Nacionalne službe za zapošljavanje za 2010. godinu, Belgrade, February 2011.
37
§ 90. The 2005 Labor Act explicitly prohibits discrimination based on disability (Article
18), including discrimination during search for employment and related to work
conditions, vocational training, promotion at work and termination. The employment of
persons with disabilities who cannot find a job in the open labor market is governed by
the Law on Professional Rehabilitation and Employment of Persons with Disabilities140
which was adopted in May 2009. The most important novelty introduced by this Law
is an obligation of employers to hire a certain number of persons with disabilities;
otherwise, they will have to pay a fine in the value of three minimum wages calculated
in accordance with the labor regulations for every person with disability they failed to
employ. However, the enforcement of these provisions has been postponed for one year
and it is therefore still not possible to monitor their effects. Persons with disabilities may
apply for a self-employment subsidy to the National Employment Service. Also, employer
who hires a person with disability may be granted specific funds for adjusting work place
to the needs of the employee. However, not many persons with disabilities make use of
these opportunities.
§ 91. In the Report on the Position of Persons with Disabilities in Serbia for 2006, it is said
that anti-discrimination provisions in the area of industrial relations are good, but they
are insufficiently applied in practice. There are no official statistics on the number of court
proceedings, while NGOs report that none of scarce attempts to get court protection for
the victims of discrimination has been finished in plaintiff’s favor141.
§ 92. Low education level, high unemployment rate and general lack of equal opportunities
result in a low income position. According to the survey quoted in PRSP, 70% of persons
with disabilities have very low income and may be considered poor142.
§ 93. Many persons with disabilities are disability pensioners, but compensatory rights
which the state is obliged to provide are insufficient for living. An additional obstacle
for the realization of rights and potentials of persons with disabilities is the fact that the
system of personal assistants is not developed in Serbia143. Other services that persons
with disabilities may use in order to live in community are essentially designed for the
elderly and are insufficient for the needs of persons with disabilities.
§ 94. There are 20 institutions in Serbia that provide residential care for persons with
disabilities, above all for persons with intellectual disabilities; 5,365 persons currently live
in residential institutions144. Parents often leave mentally challenged children right after
their birth, without even seeing them – they are often advised to do so by the doctor, so
that such children spend their entire life in the institution145. These institutions are often
140
Službeni glasnik RS, br. 36/09.
Tatić D. (2007), op.cit.
142
2003 Poverty Reduction Strategy Paper of the Republic of Serbia, http://www.prsp.sr.gov.yu/dokumenta.jsp
143
Pilot project of personal assistance service in five towns in Serbia – Center for Independent Living of Serbia with support of foreign donors and
sector ministries of the Government of Serbia.
144
Tatić D. (2007), op.cit.
145
141
38
in poor shape and understaffed. Hence, besides medicamentous therapy, residents have
only a few other contents at disposal that would positively affect their progress. Mental
Disability Rights International’s report “Torment not Treatment – Serbia’s Segregation
and Abuse of Children and Adults with Disabilities”146, released in late 2006, sparked
enormous resentment of the government and shocked the public. Namely, in addition to
compliments to government’s commitment to improve the position and social inclusion of
persons with disabilities, accusations have been made, accompanied by adequate photos,
claiming that persons living in homes for mentally challenged persons are exposed to the
treatment that is not far away from torture. Further, a legal framework is lacking which
would prevent the practice of depriving persons with disability of their legal capacity
and putting them under guardianship. Serbia still does not have developed alternative
programs for non-institutional care for mentally challenged persons, while special foster
care is still in its early stage. Families with children with disabilities often have little or no
support to provide care to their children, both in financial terms (because some types of
disabilities require permanent presence of a parent who for that reason cannot have a job)
and in terms of availability of experts who are specialized in certain conditions.147
§ 95. In December 2006, the Government of Serbia adopted the National Strategy for
the Advancement of Position of Persons with Disabilities for 2007-2015, but action plans
for its implementation have not been made yet. Since 2000, there were two advisory
bodies within the Government of Serbia in charge of disabilities issues – the 2002 Council
for Persons with Disabilities, which made the draft of the said Strategy and the 2004
Council or Disabilities Issues, which comprises the representatives of government and
organizations of persons with disabilities. However, this advisory body meets really
seldom and it may be said that it exists only formally. In 2009, the Republic of Serbia
ratified the UN Convention on the Rights of Persons with Disabilities from 2006148.
§ 96. In the last couple of years a strong movement of persons with disabilities emerged
in Serbia, advocating for the social model and approach to disability, starting from
presumption that disability is a social and not a health phenomenon, while persons
with disabilities are put in the position of disadvantage and inequality thanks to social,
physical149 and communicational and attitudinal barriers. These organizations share
the same problems with the rest of the civil society in Serbia. Our country has a strong
tradition of associations of persons with disabilities, which have government’s support.
The main objection concerns the fact that the state recognizes only those organizations
that are based on membership and benefits and that gather persons with disabilities with
the same diagnosis, but not those fighting for the rights of persons with disabilities.
Belgrade, 2011.
http://www.mdri.org/PDFs/reports/Serbia-rep-english.pdf
Ibid.
148
Official Gazette of RS – International Treaties no. 42/09, http://www.un.org/disabilities/countries.asp?navid=17&pid=166
149
Physical barriers are present with regard to access to health, not to mention access to education, entertainment, sport and the like.
146
147
39
NATIONAL MINORITIES IN SERBIA
I.7. National Minorities in Serbia
§ 97. According to the 2002 census, national minorities that live in Serbia without
Kosovo and Metohija are Hungarians (293,299), Bosniaks (136,087), Roma (108,193),
Montenegrins (69,049), Croats (70,602), Albanians (61,647), Yugoslavs (80,721),
Macedonians (25,847) and Slovenians (5,104). Other relevant ethnic communities are
Slovaks, Bulgarians, Romanians, Ruthenium, Jews, Germans, Russians, Czechs, Turks,
Tzintzars, Chinese, Egyptians, and Askalia.
§ 98. According to the 2006 Constitution150, the state shall protect the rights of national
minorities and guarantee them special protection for the purpose of exercising full
equality and preserving their identity. The constitution prohibits discrimination against
national minorities, guarantees them equality in administering public affairs and the
right to preservation of specificity. The prohibition of forced assimilation includes the
prohibition of undertaking measures which would cause artificial changes in ethnic
structure of population in areas where members of national minorities live traditionally
and in large numbers. FR Yugoslavia, whose legal successor the Republic of Serbia is,
signed in 2002 the Council of Europe’s Framework Convention for the Protection of
National Minorities. In the same year, the Law on the Protection of Freedoms and Rights
of National Minorities151, was adopted at the level of the then federal state. This law is
still in force. Questions of importance for the position of national minorities are regulated
by numerous other laws152. Serbia has ratified the most important universal and regional
international treaties for the protection of human rights, including the rights of national
minorities, such as the European Charter for Regional or Minority Languages153.
§ 99. The Constitutions enables persons belonging to national minorities to elect their
national councils in order to exercise the right to self-governance in the field of culture,
education, information and official use of their language and script. The work of the
national councils is regulated by the Law on National Councils of National Minorities154
§ 100. The national minority councils155 are elected based on the voters register that
is kept for every minority separately based on the voluntary registration. The election
may be organized via an electorate assembly or directly, when the percentage of citizens
who declared themselves as belonging to that minority at the last census exceeded
40%. The first elections for national councils were held in June 2010, after which 18
out of 19 national councils were constituted. The Ombudsman, the Commissioner
for the Protection of Information of Public Importance and Personal Data, NGOs and
citizens reported numerous irregularities during the election process, for some of which
150
151
152
153
154
155
Official Journal of FRY, no. 11/2002 and Official Journal of SCG, no. 1/2003 – Constitution Charter.
E.g.. the Law on the Prohibition of Discrimination, the Law on Political Parties, etc.
Reports on human rights in Serbia 1998-2007 of the Belgrade Center for Human Rights.
Data on the election of national councils presented based on Human Rights in Serbia 2010 – Legal Provisions and Practice Compared to International
Human Rights Standards, Belgrade Center for Human Rights, Belgrade, 2011.
40
criminal reports were filed. This above all refers to voluntary registration in the voters
register. Namely, the Instructions on the Separate National Minority Voter Register
Entry Procedure156 which regulated this issue enabled the application for registration
to be submitted by a third party, not necessarily the voter not requiring any additional
documentation from that party, not even a photocopy of the ID of the person to be
entered in the voter register. Since the Ministry failed to put rights this shortcoming in
spite of being informed about the situation, many citizens were registered in the voter
register based on forged signatures, i.e. against their will.
§ 101. National councils were constituted based on the Rules of Procedure adopted by
the Ministry for Human and Minority Rights. For constituting the council, the session had
to be attended by the absolute majority of the elected members, except for the Bosniak
National Council, where the two-thirds of the elected members were required, whereas
this requirement was laid down on the eve of the constituent session. Since the session
was boycotted by more than a third of the elected members, the Council remained
unconstituted. In response to the Ombudsman’s reaction, the Ministry for Human and
Minority Rights said that the Rules of Procedure had to be amended because of the need
to protect the electoral will of the voters and not with the intention to discriminate
against Bosniak minority on national grounds. Still, it seemed that this was about the
fact that the Government of Serbia was not satisfied with the elected majority over which
it had no control.
§ 102. Since Roma are the largest and yet the most marginalized ethnic minority that
lives in Serbia, in this article, we will focus on the position of Roma community in Serbia.
§ 103. Although according to the last census, there are 108,000 Roma living in Serbia,
their actual number is estimated at around 450,000 - 500,000157. The Government of
Serbia has signed the Declaration of the Decade of Roma Inclusion and at the beginning
of 2005 adopted an Action Plan for the Advancement of Roma Education. Still, the
position of Roma in our country is very hard. Roma people are exposed to permanent
discrimination and ethnically motivated attacks, they often live in horrible conditions,
faced with the problem of not having identity documents and other obstacles for the
realization of their civil and human rights.
§ 104. Roma community in Serbia, particularly Roma who live in Roma settlements,
often live in enormous poverty, which result in social exclusion. 67% of Roma children
from Roma settlements are poor, while 62% of Roma families with children are below
the poverty line158. Life in poverty and social exclusion fully shape further life of Roma
children, including poor inclusion into the education system, inadequate access to health
156
157
158
Instruction on the Separate National Minority Voter Register Entry Procedure, Ministry for Human and Minority Rights of the Republic of Serbia
no. 290–111–00–00009/2009–05.
Breaking the Cycle of Exclusion. Roma Children in South East Europe, UNICEF, Belgrade, 2007.
41
NATIONAL MINORITIES IN SERBIA
care, early marriages159, lack of skills and knowledge demanded in the labor market and
continuation of the circle of poverty.
§ 105. According to the 2002 census, 20% Roma are fully illiterate and 78.7% do not have
primary school. 76% of Roma children attend primary school but as little as 13% complete
it160; this percentage ranges between 21-37% according to some other sources.161. Poor
inclusion of Roma children into the education system is mainly due to poverty: on one
side, parents cannot provide clothes and books for school to their children, while children
themselves often have to work in order to provide a living162. Although one-year preschool education has been mandatory since 2006, as little as 4% of Roma children163
are included in the program designed to prepare children for school. In addition to the
fact that many children talk with their parents and relatives only in Roma language, this
contributes to unsatisfactory results Roma children have at tests that are done before
primary school. For this reason, Roma children are often put in classes for mentally
challenged children, and when they are placed in regular schools, they have problems to
adjust164. The overrepresentation of Roma children in special schools is shown, inter alia,
in the fact that in nearly two-thirds of special schools there is more than one child from
the same Roma family enrolled. In the survey conducted by the Open Society Institute165,
it is further said that parents and pupils themselves often chose such schools because
they feel safer there. More than a half of Roma pupils who attend special schools stared
their education enrolled in mainstream schools, but have been transferred to special
schools for poor achievement, class repetition and aggressive behavior as reaction to
discrimination. Both school peers and teachers do not accept Roma children well166.
§ 106. Some children who drop out from primary school later continue education in
schools for adults. The share of Roma is falling at higher education levels. As little as 7% of
Roma children enroll in secondary school and 0.3% graduate from college or university167.
In 2010, the number of Roma children who enrolled in the first grade of primary school
was up by 9.87% compared with the last academic year. This is a result of measures
aimed at increasing the enrollment and reducing the dropout of Roma children that have
been implemented within the Uniform Action Plan for Roma Education.
§ 107. The Office for Roma Inclusion, established by the Executive Council of Vojvodina for
the purpose of joining the projects of the Decade of Roma Inclusion, has been operational
159
MICS3 Preliminary results – over 40% of Roma girls aged 15-19 are married or live in a union, while as much as 12% of Roma girls aged 15 are
married or in informal partnership, quoted from The State of Children in Serbia 2006. Poor and Excluded Children, UNICEF, Belgrade, 2007.
160
Petrović M., Vučković-Šahović N., Stevanović I., Prava deteta u Srbiji 2006. godine, Centar za prava deteta, Beograd. 2007.
161
Roma Education Fund, according to: Millennium Development Goals in the Republic of Serbia,, Monitoring Framework, Government of Serbia,
Belgrade, 2006.
162
163
MICS3 Preliminary results quoted from The State of Children in Serbia 2006. Poor and Excluded Children, UNICEF, Belgrade, 2007.
164
Ibid
165
Roma Children in “Special Education” in Serbia – Overrepresentation, Underachievement and Impact on Life, Research on schools and classes for
children with developmental difficulties, Open Society Institute, New York – London – Budapest, 2010.
166
167
Ibid
42
since May 2007. In cooperation with other organizations, the Office carries out a program
for scholarships for Roma secondary school pupils in Vojvodina. During the first 100 days,
156 Roma secondary school pupils and 27 Roma students who attended schools in the
territory of Vojvodina were given scholarships168. Support to education of Roma pupils has
been successfully continued over the following years.
§ 108. The citizens of Serbia lack the awareness of the problem of Roma exclusion and
think that Roma children are not sufficiently included in the education system because
of poverty (30%) and tasks imposed by their parents (34%), while Roma parents are
not willing to cooperate with educational institutions regarding their children (33%);
40% of respondents think that only a few Roma are willing to fully cooperate, while
20% believe that such cooperation is reduced to the initiative by educational and other
state institutions169.
§ 109. In Roma community, the most vulnerable and the most excluded are those who
live in Roma settlements and displaced persons from Kosovo and Metohija. Additional
problem for these people and considerable obstacle for the realization of their rights
is the fact that they are often not entered into birth registries or citizenship registries,
for which reason they cannot obtain personal documents. Other members of Roma
community too suffer systemic discrimination in the realization of their basic human
rights (to social welfare, employment and education), since these rights may be enjoyed
only by persons with registered permanent residence, which they cannot obtain because
of living in illegal settlements.170 In 2009 and 2010, Roma people were exposed to
forced evictions, most often from the so-called “unhygienic” settlements in Belgrade,
which were organized in a very inhumane way, often without giving the residents the
possibility to collect their movables first and without working out solutions for the next
steps. To make the city prettier for tourists and athletes who were coming to the 2009
Summer Universiade, city authorities knocked down Roma settlements in the vicinity
of the University village before safe, appropriate and sustainable accommodation had
been found for the residents. In the end, they had to move away because they had no
choice; it could be read later in the media that they complain that the City failed to fulfill
what had been agreed when they agreed to move out, and that the location of their
new settlements is inappropriate for their work (they mostly collect waste), so that now
they are not capable of supporting their families. How non-Roma inhabitants of Belgrade
perceive their Roma neighbors could be illustrated by the protests that regularly occur in
the Belgrade suburbs where the authorities announce the building of Roma settlements.
Moreover, these forced evictions constituted violation of the right to free movement and
settlement, since persons who did not have registered residence in Belgrade had to move
168
169
170
www.b92.net, 24 September 2007.
Survey carried out by “Prosvetni pregled” and information agency “Ipres”, Vreme no. 876, 18 October 2007.
Minority Rights Center http://www.mrc.org.yu/?id_tekst=11&sta=saopstenja
43
NONGOVERNMENTAL ORGANIZATIONS IN SERBIA
to the municipality of their last registered residence, although they did not have jobs or a
place to live in these municipalities and although it was against their will171.
§ 110. Roma people were discriminated in Belgrade also on the occasion of disposal of
apartments built within the 1100 Apartments in Belgrade Construction Project. Namely,
criteria for getting the apartment comprise the length of service and the relevance of the
applicants’ jobs, putting at a disadvantage the unemployed, people who are working but
are not registered as employed and people with a low education level172.
§ 111. The 2005 Health Care Act173 for the first time introduced special treatment for
Roma people who, due to traditional lifestyle, do not have permanent residence in Serbia.
They are entitled to subsidized health insurance when they are not ensured on some other
grounds. Although such solution is praise-worthy, there is a concern over data on the
health status of Roma children: infant mortality rate is very high and they are much
more often malnourished or underdeveloped compared with general population174. These
problems are shared by non-Roma population that lives under the poverty line, too.
§ 112. Moreover, according to the Regulation on Manner and Procedure for Realizing
the Rights from Mandatory Health Insurance175, Roma citizens are enabled to submit a
personal statement on the place of temporary residence instead of proof of residence
when applying for health card. This has made it possible for Roma people who live in
informal settlements and other “legally invisible” Roma to have access to health insurance.
This Regulation represents a significant progress towards better access to health care for
the members of Roma community, which is confirmed in the report on the activities of
governments involved in the Decade of Roma Inclusion 2005-2015, published by “Decade
Watch”, international initiative of activists for Roma rights176.
§ 113. With regard to violence, Roma people are attacked both by neo-Nazi and rightwing groups, and by other citizens. According to the Roma Party, Roma people and Roma
settlements are attacked once a day on average177. These attacks sometimes result in
death: in 1997, in downtown Belgrade, a group of skinheads beat to death thirteen-year
old Roma boy Dušan Jovanović. In 2001, Belgrade actor Dragan Maksimović was killed by
a group of skinheads and football hooligans who thought that he was Roma. The Roma
Party activists stress that the number of attacks against Roma people is permanent, but
ethnically-based incidents are more frequently reported today because Roma people
have more trust in the state. However, while in some communities the police respond
171
172
173
174
175
176
177
Briefing to the UN Committee on the Elimination of Racial Discrimination 78th Session: Serbia, 31 December 2010, according to: Human Rights in
Serbia 2010 – Legal Provisions and Practice Compared to International Human Rights Standards, Belgrade Center for Human Rights, Belgrade, 2011.
Belgrade, 2011.
Belgrade, 2011.
Momir Turudić, “Romi na udaru: Do kraja nasilja“, Vreme no. 868, 23 August 2007.
44
professionally and properly to the cases of violence against Roma, it still happens that
police officers themselves show racism when working with Roma178.
§ 114. Several Roma political parties are registered in Serbia. At the 2008 parliamentary
election, only Democratic Roma Left managed to win one seat in the National Assembly.
115. In October 2009, with the exhibition of Roma written culture under the title “Alav
e romengo”, the first Museum of Roma Culture179 was opened in Belgrade as the first
museum of this kind in Europe. The Museum has been established by “Roma Community
Center 8 April” with support of the Assembly of the City of Belgrade because of the need
to collect, systematize and present the artifacts of Roma culture. Since the space in which
the museum was located became insufficient one year later, one part of materials was
presented as a virtual museum.
§ 116. The Strategy for Improvement of the Status of Roma in the Republic of Serbia was
adopted in 2009, as well as the Roma Health Action Plan for the period 2009-2015.
§ 117. Roma community in Serbia is rather large but Roma people are talked about only in
the context of poverty, unhygienic settlements, begging and forced marriages, while very
little is known about Roma culture, history and tradition. Although having lived here for
centuries, Roma people in Serbia are treated as newcomers who do not belong here, but
while they are here at least they should know their place.
I.8. Nongovernmental Organizations in Serbia
§ 118. Modern societies are characterized by a developed civil society sector which is
an important agent of social control. Nongovernmental organizations in Serbia emerged
during the 1990s. These organizations have arisen out of a need to bridge the gaps that
existed within the communist system or emerged after its collapse and, more importantly,
to initiate changes and draw attention to various irregularities and shortcomings in the
building of a new social system. Because of insisting on questions that were not desirable
or prioritized for official politics, such as human rights, war crimes, responsibility, violence
and the like, they were under permanent pressure of the Milošević regime. Their prominent
activists were subjected to fierce media campaign, being marked as “traitors”, “spies”,
“non-patriots” and “foreign mercenaries”. Public opinion was made to see NGOs as a
group of people that worked following “instructions from abroad”, thus making enormous
profits. It is still difficult to deconstruct some of the stereotypes built at that time.
§ 119. Although it was expected that change of the climate in society in 2000 would
bring changes in the perception and actual status of NGOs, it did not happen. At first
new democratic administration was more benevolent towards civil society activists.
Government and NGOs started working in partnership, but it soon became obvious that,
with a few exceptions, communication and cooperation often resulted from the pressure
178
179
Ibid.
http://www.romamuseum.rs
45
of international donors and not real awareness of both the role and significance, and
expertise and capacities of NGOs.
§ 120. NGO activists are still often exposed to insults, threats and attacks180. Organizations
focused on the issue of war crimes and facing the past are in particularly difficult position.
Still, The Survey into Perceptions and Attitudes of Public Opinion regarding the NGO
sector in Serbia181 conducted in 2009 shows that, although the first associations to the
word “NGO” have not changed compared with 2006, there is significantly less negative
associations today (27%) than three years ago (35%). The number of people who see
NGOs as spies and enemies who work against the interest of their own people is down,
with increasing number of those who have positive associations to NGOs.
§ 121. Government’s attitude towards NGOs is clearly illustrated by the dynamics of
passage of the Law on NGOs. All governments formed after 2000 had the passage of this
Law among their priorities, but until 2009, the work of NGOs in Serbia was regulated by
the Law on the Association of Citizens into Associations, Social and Political Organizations
Established in the Territory of the Socialist Federal Republic of Yugoslavia182,, the Law on
Social Organizations and Citizens Association of the Socialist Republic of Serbia183 and the
Law on Memorials, Foundations and Funds of the Republic of Serbia.184 The new Law on
Associations was adopted in July 2009185. It is stressed in the professional community186
that although the law itself is not bad, it allows political parties and self-governance
institutions to found an association. This possibility is used to simulate cooperation
between state institutions and NGOs which is often a prerequisite for applying for
international donations. Moreover, the passage of the new Law on Association was not
accompanied by bylaws that would regulate in more precise and more appropriate way
financial operations and taxation of NGOs.
§ 122. In April 2010, the Government of Serbia established an Office for Cooperation
with Civil Society that should work on permanent dialogue between government and civil
society on issues of general and common interest187.
§ 123. In previous years, different ministries have been in charge of registering citizens’
associations: Ministry of the Interior, Federal Ministry of Justice, Ministry for Human
and Minority Rights of Serbia and Montenegro and, finally, Serbian Ministry for Public
Administration and Local Self Government. According to the new Law on Associations,
authority responsible for the registration of NGOs is the Serbian Business Registers
180
E.g. the then Director of the Serbian Security Intelligence Agency publicly said that the Agency watched the work of certain NGO. Source: www.
b92.net of 1 November 2007.
Građanske inicijative, Istraživanje percepcija i stavova javnosti o nevladinom sektoru u Srbiji 2009. godine, www.gradjanske.org/admin/download/
files/cms/attach?id=281
182
Official Journal of SFRY, no. 42/90 etc.
183
Official Gazette of SR Serbia, no. 24/82, 39/83, 17/84, 50/84, 45/84 and 12/89.
184
Official Gazette of SR Serbia, no. 50/89.
185
Official Gazette of SR Serbia, no. 51/09.
186
Roundtable “Law on Associations – One Yea Later”, held in Belgrade on 26 November 2010 within the project the “Civil Society Advocacy
Initiative” implemented by the Institute for Sustainable Communities.
187
http://www.crnps.org.rs/tag/kancelarija-za-saradnju-sa-civilnim-drustvom
181
46
Agency. Registration is voluntary, but it is a condition for obtaining a status of legal entity.
Since the deadline for registration is 22 April 2011, the existing data on the number of
registered associations at the Serbian Business Registers Agency is not relevant188. Until
the expiry of this date, we may talk about the number of NGOs in Serbia only based on the
data of the Statistical Office of Serbia, according to which there were 27680 registered
NGOs as of 31 December 2009189. According to the NGO Directory, run by the Center for
Development of Non-Profit Sector (CRNPS), there were 2247 active nongovernmental
organizations in Serbia as of 31 January 2011190.
§ 124. Tax regulations of relevance for work of NGOs in Serbia are inconsistent and in
some segments restrictive. Tax legislation is rather uneven in terms of tax relieves for
NGOs, too. With regard to tax and contribution rates on paid fees, NGOs are treated
like enterprises, i.e. for-profit legal entities and are in no way tax empted or relieved. The
long-waited Law on Volunteering191 came into force six months after its passage in the
mid-2010. However, NGOs estimate this Law as over-regulated, stressing that some of
its provisions make the hiring of volunteers and the work of civil society in Serbia much
more difficult.192.
§ 125. A particular problem refers to different and contradictory interpretation of laws
that govern financial operations. Namely, since the autumn of 2006, local tax authorities
in certain Serbian municipalities, in particular Stari Grad municipality in Belgrade and
some municipalities in Serbia, have started the examination of financial operations of
NGOs, especially areas regulated by the Property Tax Law, Article 14, Paragraph 2193.
Namely, competent tax authorities interpreted this Article as an obligation of NGOs to
pay additional property tax on all donations, that are in this case observed as gifts194.
It need not be said that this new interpretation of an old regulation have put those
NGOs to which the tax authority issued an Order to pay the gift tax, retrospectively
for 2005 and 2006, in a very unfavorable position. Thus, in November 2006, Belgradebased NGO AWIN (Association for Women’s Initiative) was faced with request by the
Stari Grad municipality financial inspection to pay tax on all donations received 2005 and
2006, retrospectively, within the period of 15 days. This request was reportedly made
based on the Law on Property Tax, i.e. gift tax. Although donations which NGOs receive
are not gifts, but grants made on the basis of a bilateral agreement stipulating what
activities should be carried out with the donation received, AWIN was forced to pay this
188
Only 4800 organizations were registered in the first year, roundtable “Law on Associations – One Yea Later”.
Republički zavod za statistiku, Saopštenje broj 209 – god LX, 15. 07.2010, Pravna - lica u Srbiji stanje 30.06.2010.
Center for Development of Non-Profit Sector (CRNPS), upon voluntary registration of NGOs http://www.crnps.org.rs/
191
192
Presentation of the new Law on Volunteering in Novi Sad on 27 September 2010 organized by Civil Initiatives in cooperation with Provincial
Secretariat for Labor, Employment and Gender Equality of AP Vojvodina, Vojvodina Fund for Development of NON Profit Sector, Novi Sad
Humanitarian Center and European Center for Non Profit Law (Budapest).
193
Official Gazette of RS, no. 26/2001, Official Journal of FRY no. 42/2002 and Official Gazette of RS, no. 80/2002, 135/2004 and 61/2007.
194
In Article 21, Paragraph 1, Item 5 thereof, it is said that gift tax and inheritance tax shall not be payable by “a fund or a foundation on inherited
property or property received as gift that is used for purposes for which the fund or the foundation has been established”.
189
190
47
tax because otherwise their accounts would have been blocked and their entire work
made impossible.
§ 126. In February 2007, several NGOs met to discuss this problem and agree on future
action195. After the meeting, a letter was sent to the Council for Relations with Civil
Society of the President of Serbia, with request to propose specific measures in order to
overcome this situation. Then the Council put the “initiating the passage of the new Law
on Associations, which would regulate the status, operation and financing of associations
and nongovernmental organizations” among its priorities. In November 2007, FENS
Network sent196 a letter of initiative to the Finance Ministry of Serbia, requesting this
Ministry to reexamine the interpretation of Article 21 of the Property Tax Law “that
governs the exemption of gift tax” and proposing “that the Finance Ministry issue an
opinion that citizens’ associations shall not be subject to gift tax for monetary and other
assets received from individuals and legal entities for the implementation of their projects
and institutional development, envisaged in Article 21 of the Property Tax Law”. Finally,
on 29 December 2010, the Serbian Parliament adopted the amendments to the Property
Tax Law and revoked the 2.5% tax on gift and inheritance received by NGOs which value
exceeds RSD 6,000197.
§ 127. The Value Added Tax Law198 also does not provide any exemptions for local NGOs.
Namely, pursuant to Article 8 of the VAT Law, a taxpayer is a person who independently
and in the course of his/her activity performs a supply of goods or services. The activity
referred to in Paragraph 1 of this Article shall be any permanent activity of a manufacturer,
salesman or service provider for the purpose of gaining income. In terms of the VAT Law,
NGOs are not considered to be taxpayers, since they perform activities that are not for
the purpose of gaining income (Article 25 of the Law). NGOs raise resources for their
work from donations, gifts, etc, and purchase goods and services with VAT included in
suppliers’ invoices, thus bearing the costs of VAT.
§ 128. NGO Center for Development of Non Profit Sector (CRNPS)199 has been conducting
for several years the analysis of distribution of resources allocated in the Serbian budget
within budget line 481 - “donations to nongovernmental organizations”200 In 2009,
RSD 8,737,664,007 were spent for that purpose201. Data on spending these resources
were collected based on the request for access to information of public interest sent to
the addresses of 166 municipalities and towns, although 28 of them failed to respond
195
Our opinion is that AWIN received minimum support from other NGOs regarding this matter. This example of absence of solidarity among NGOs
might be due to the fear of similar “visitations and decisions by the tax administration”.
E-mail communication at “Women’s Affairs” mailing list, 2 November 2007.
197
Law amending and supplementing the Property Tax Law, Official Gazette of RS, no101/10.
198
Official Gazette of RS, no. 84/2004, 86/2004 – rev., 61/2005 and 61/2007.
199
In cooperation with NGO Transparency Serbia and financial support of the Fund for Open Society and the Institute for Sustainable Communities,
the Center for Development of Non-Profit Sector is implementing the project “Line 481”, aimed at more transparent allocation and spending
of budgetary funds intended for NGOs, providing access to budgetary assets under equal conditions for civil society organizations and building
sustainable partnership of local governments, NGOs and the media. Source http://www.crnps.org.yu/forum_new/index.asp
200
Source http://www.crnps.org.yu/forum_new/index.asp
201
Around 93 million EUR.
196
48
within the timeframe envisaged by the law. A detailed look at the structure of entities
that received the money from the budget line 481, which is titled “donations to
nongovernmental organizations” shows that, besides NGOs, it is used for financing sport
and youth organizations, religious communities, political parties, cultural organizations,
professional associations, historical archives, and the like. The largest individual beneficiary
from budget line 481 is the Serbian Orthodox Church, followed by the Red Cross, which
received half of that amount. Since four large groups that are financed from line 481 are
presented together in the budget proposal which is every year adopted by the Parliament,
it is not possible to see exactly how much the Government of Serbia allocated for each
group. This could be found out only at the end of fiscal year through information on the
execution of the budget. Believing that the distinction of these groups of beneficiaries in
separate budget lines would provide better transparency of the budgetary process and
better insight into the spending of tax payers’ money, CRNPS submitted such initiative
to the Ministry of Finance twice –in 2007, when no response was received, and in 2010,
when the initiative, supported with the signatures of 188 NGOs, was forwarded to the
members of the Finance Committee of the National Assembly of Serbia, too. It is not
possible to determine from the answer of the Ministry of Finance whether the initiative
could be accepted or not, while no member of the Finance Committee expressed any
opinion on this matter.
§ 129. The Republic of Serbia aspires to become a member of the European Union. It may
be said that we are at the beginning of this path and many areas of life in our country need
to undergo reform and to change in order to become a modern and strong democracy
which fully respects human rights of its citizens, which treats its citizens equally and
inclusively, which invests in its children, which admits and bears the consequences of
its mistakes from the past. The role of civil society is to help in this process, inter alia by
pressuring the state when it observes any departures. But before everything else, civil
society in Serbia need to fight for its formal status and recognition of its role, and above
all for its independence.
49
HUMAN TRAFFICKING AS A GLOBAL PHENOMENON
II. HUMAN TRAFFICKING
II.1.Trafficking in Human Beings as a Global Phenomenon
§ 130. Human trafficking is a global phenomenon that hits all countries in the world:
countries in political and economic transition, underdeveloped and developing countries,
countries in war and post-conflict countries that appear as the countries of origin and
transit of trafficking victims, and economically developed countries that appear as the
countries of destination. Terms “the country of origin/source country”, “transit country”
and “destination country” are not absolute categories – one country may be any of these
in specific cases. Also, economic development and the wealth of destination country
cannot be observed independently from the situation in the country of origin.
§ 131. There are not reliable and comprehensive data on the size of the problem of human
trafficking, but estimations made by international organizations and some national
agencies may serve as a good indicator. According to the UN, 700,000 children, women
and men fall victim to trafficking every year202. US State Department estimates this
figure at 900,000, of whom 20,000 persons are exploited in the US territory203. In its
2005 Report, International Labor Organization states that 2.45 million people every year
become victims of labor exploitation204. According to UNICEF, 1.2 million children become
trafficking victims every year205. Although it is still the dominant belief that only women
and children may fall victim to trafficking, the truth is that anyone can be the victim.
§ 132. Human trafficking is considered to be one of the three most profitable criminal
activities, alongside drug trafficking and illegal arms trafficking. It is often referred to
as “highly profitable and low-risk activity” because, on one side, it is estimated that
traffickers’ profits range from a couple of billions to as much as 60 and even 500 billion
USD206 a year, while, statistically, only a small number of traffickers end up in court and
are sentenced to long prison sentences.
§ 133. The goal of human trafficking is the generation of profits through exploitation,
either sexual exploitation, forced labor, forced begging, coercion into crime, illegal
adoption, force marriage, organ trafficking or some other form. One of the common
stereotypes is that traffickers subject their victims to sexual exploitation only and that
only women and girls are at risk, neglecting other, equally present and important forms of
exploitation, such as labor exploitation, which victims are most often men.
§ 134. Human trafficking works on the supply-demand principle. On one side,
unemployment, poverty, social exclusion, deprivation, wars, political instability, family
202
http://www.endhumantraffickingnow.com/public/structure/1_1.html
http://www.state.gov/g/tip/rls/rpt/23495.htm
204
A global alliance agaist forced labor: Global Report under the Follow-up to the ILO Declaration of Fundamental Principles and Rights at Work (Report
of the Director General) International Labour Conference, 93rd Session 2005.
http://www.ilo.org/wcmsp5/groups/public/@ed_norm/@declaration/documents/publication/wcms_081882.pdf
205
http://www.unicef.org/media/media_23970.html
206
http://www.endhumantraffickingnow.com/public/structure/1_1.html
203
50
HUMAN TRAFFICKING
violence, discrimination make people, in search of a better life or pure survival, look for
jobs, education and other opportunities in some other town or country. On the other
hand, in the globalization era, more developed and wealthier countries207 generate
growing demand for cheap products, cheap labor and cheap services. It is not irrelevant
that the 20th century was the century of numerous armed conflicts and international
peace operations, which correlates with great demand for sexual services wherever the
troops are located, as well as with the absence of institutions and the collapse of the
system in countries in which the conflict occurs. All of these factors create favorable
conditions for the growth of all kinds of crime, including human trafficking. Organized
criminal groups have found their interest and possibility for enormous profits through
matching such supply and demand. Besides socio-economic circumstances that generate
the development of human trafficking, there are other reasons that may also make one
country or region favorable for the recruitment of trafficking victims, such as natural
catastrophes and too strict visa and immigration regulations of developed countries.
§ 135. Trafficking victims are most often recruited through job offers – formal, marketed
by employment agencies, or informal, made by relatives, friends, acquaintances or
strangers; forced marriages; lover boy strategy; sale by parent/guardian or abduction.
They come to the country of (temporary) destination either legally, with their own or
fortified documents, or through smuggling channels. Most often only when they come to
the destination country, trafficking victims realize what they are expected to do, although
exploitation sometimes starts already in the transit phase. Traffickers control the victims
by taking away their personal documents, keeping them isolated, their movement is
strictly under surveillance, they are exposed to violence, blackmails and intimidation,
while threats are not aimed at the victim only, but at the members of his/her family, too.
Traffickers also encourage victims to become drug or alcohol addicted in order to break
their resistance and ensure their full obedience. Moreover, victims are kept in permanent
fear of possible repercussions if they attempt to run away and report to the police; they
are made to believe that they are the actual perpetrators and that the police is corrupted
and in collusion with traffickers. Debt bondage is sometimes used to pursue control.
Namely, the victim is presented with the costs the trafficker incurred in order for her/
him to come to destination country, increased by the cost of interest and living costs,
while she/he is kept in belief that as soon as she/he manages to pay out that money she/
he would be free. Victims are forced to work all day long, the major portion or sometimes
even the whole earnings are taken away from them, they have no right to complain about
working conditions; depending on the kind of exploitation, the victim has a “quota” that
must be filled or otherwise she/he is deprived of food or punished.
§ 126. The amount of money which the victim gets from the trafficker for her/his work
207
The level of development of the destination country should not be observed as such, but in the light of underdevelopment, poverty or instability
of the country of origin.
51
TRAFFICKING IN HUMAN BEINGS IN SERBIA
is of no relevance for defining certain situation as human trafficking as long as the other
elements that indicate to exploitation are present. It is important to have this in mind, as
it has been observed in recent years that human trafficking in Serbia involves less violence
than before and better “working” conditions, so that, in case of discovery, the traffickers
could claim voluntary engagement of the victims.
§ 137. Victims most often find their way out of the trafficking chain thanks to police
raids, the help of a client or a third person or, less frequently, successful runaway attempt.
Sometimes traffickers let their victims go, when they are not able to make profit any
longer, but, being mentally and physically ruined, do not represent any threat. However,
the largest percentage of victims never leaves the trafficking chain or, if they do, remain
outside the system of assistance.
§ 138. Human trafficking is a complex problem and different actors fight its different
aspects. Although not every single act of human trafficking is linked to organized crime, but
may appear as a crime of an individual, or even a crime of opportunity, organized criminal
groups are those that run and control the largest portion of this “business”. In public-law
and strategic context, a serious state must not allow the growth of organized crime in
its territory, as it brings economic destabilization due to increased money laundering,
corruption rise in the public sector, political corruption, the loss of control over border
management and similar, resulting in the purchase of political power and the creation of
a criminal state. However, not less important aspect which civil society insists upon and
state authorities are often prone to neglect is the fact that human trafficking is a form
of the gravest violation of victims’ human rights. In addition to human rights violation
which victims suffer while they are exploited, their situation changes only slightly even
when they manage to find a way out. Although the process of recovery and reintegration
is hard, long and uncertain in itself, on the top of it victims are forced to fight prejudice
and the lack of understanding on the part of their surroundings and institutions, and are
often exposed to secondary victimization by those who are supposed to provide them
with assistance and support.
§ 139. Although it may sometimes look as if this is a new problem which has arisen only
recently, human trafficking is actually a phenomenon that has been present and tolerated
in different forms throughout history. At the end of the 20th century, it flourished in
Europe thanks to extensive socio-political changes that took place in Eastern Europe.
The economic collapse that accompanied the transition from socialism into capitalism
and parliamentary democracy, together with false impression of a good and worry-free
life on the other side of the former “iron curtain” which they knew nothing about, made
many people, especially women and girls, to go to Western Europe. Wars in the territory
of former Yugoslavia only contributed to the establishment of a safe transit route, which
was often a place for temporary exploitation of trafficking victims, too.
52
HUMAN TRAFFICKING
§ 140. Already at the beginning of the 20th century, international community sensed a
need to internationally ban such practices208. Article 4 of the Universal Declaration of
Human Rights, which UN General Assembly adopted in 1949, strictly prohibits any form
of slavery and slave trade. Soon followed other international treaties and convention that
prohibited practices that might be associated with trafficking in human beings. Finally, in
2000, Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women
and Children209 was adopted, supplementing the UN Convention against Transnational
Organized Crime, as the first document addressing the problem of human trafficking in
a modern way and, with all its deficiencies, giving a comprehensive definition of this
phenomenon. The shortcomings of this instrument in terms of the protection of trafficking
victims have been made up by the 2005 Council of Europe’s Convention on Action against
Trafficking in Human Beings which the Republic of Serbia ratified in May 2009210.
II.2. Trafficking in Human Beings in Serbia
§ 141. Trafficking in human beings first appeared in the region of Western Balkans in the
late 1980s and was present throughout the 1990s, although an organized anti-trafficking
effort and national referral mechanism in the Republic of Serbia have been built only in
the last ten years. Namely, the Socialist Federal Republic of Yugoslavia, including Serbia
as one of its parts, stood out among other former communist countries in the region
thanks to its better standards of living and its openness to the West. For this reason,
during the 1980s SFRY was very attractive for women from East European countries. In
this period, Serbia was to the greatest extent the country of final destination of trafficked
persons. However, in early 1990s situation changed dramatically. The disintegration of the
country, economic collapse, armed conflicts, the presence of foreign military troops etc.
affected increase in the number of trafficking victims, whereby Serbia became primarily
a transit country. Due to its geographical position, the territory of Serbia was convenient
for the transit of trafficked women from Bulgaria, Moldova, Russia and Ukraine on their
way to Bosnia and further on to Italy, Spain, France and Central and North Europe, or to
Kosovo and Macedonia, and further on to Greece and the Near and Far East.
§ 142. There is no doubt that during this period Serbia has also become to a great
extent the country of origin of trafficking victims. Bad economic conditions, reflected in
unemployment rise and the pauperization of the population, and changed social relations
which resulted in more intensive marginalization of women, growth of violence in general
and particularly family violence, and the feminization of poverty, became significant
drivers of migration, especially of female population. In search for work in foreign
208
International Agreement for the Suppression of the White Slave Traffic – 1904, Convention for the Suppression of the Traffic in Women and
Children – 1921, Convention for the Suppression of the Trafficking in Women of Full Age – 1933.
Law on the ratification of the United Nation’s Convention against Transnational Organized Crime and Protocols Thereto (Official Journal of FRY –
International Treaties, no. 6/2001)
210
Law on the ratification of the Council of Europe’s Convention on Action against Trafficking in Human Beings, Official Gazette of RS – International
Treaties no.
209
53
TRAFFICKING IN HUMAN BEINGS IN SERBIA
countries, women have been accepting job offers from people from their surroundings
(friends, acquaintances, neighbors, relatives…) or responding to job advertisements
offering them the jobs of waitresses, dancers, baby-sitters, nurses etc. Contrary to their
expectations, many of them ended up in the countries of the region or Western Europe,
forced into sex industry. In recent years, victims have often been recruited through the
use of modern technologies.
§ 143. The US State Department, in its 2001 Trafficking in Persons Report (TIP Report)
classified the Republic of Serbia into Tier 3, assessing that it did not fulfill minimum
standards in combating human trafficking. One year later, Serbia passed into Tier 2,
but already in the 2004 TIP Report, it was put in Tier 2 Watch List. As it was explained
in the Report: “The Tier 2 Watch List designation is based on the weighted aggregate
of their efforts, which showed a lack of significant progress, especially in the case of
Montenegro211”. Since the 2005 TIP Report until today, the Republic of Serbia has been
classified as Tier 2 country.
§ 144. As far as the size of the problem of human trafficking in Serbia is concerned, it is
very difficult to find precise data on the total number of identified or assisted victims,
not only because of well-known problem of grey figure. Namely, NGOs which provide
direct assistance keep the records on their beneficiaries, the Agency for Coordination
of Protection of Trafficking Victims (hereinafter: the Agency) keeps the records of the
persons to whom the status of the victim was recognized, while the police keep data on
the number of criminal reports filed and consequently on the number of perpetrators and
injured parties. It is not surprising that the number of victims does not match, because, if
we put aside the fact that there are no uniform criteria for recognizing a person as a victim
of trafficking212, data do not refer to the same period of time. Actors that keep records,
given their field of work, do not always come in contact with the same trafficking survivors.
On the other hand, many victims were assisted by several organizations and institutions,
being separately registered by each of them. Since the comparison of individual files has
never been done, this multiple registration of the same persons could be substantial.
§ 145. The following data are most often quoted as relevant indicators of the situation
in Serbia:
• In the period March 2004 – December 2010, the Agency for Coordination of Protection
of Trafficking Victims provided assistance to 484 trafficked persons213;
• In the period March 2002 – December 2010, 351 trafficked persons were identified
and/or assisted through ASTRA SOS Hotline;
• Since June 2004, Temporary Home ran by NGO Atina assisted 123 trafficked persons
within its three programs214.;
211
212
213
214
Here they refer to the case of trafficking in a Moldovan national known in public and in the media as “S.C” case.
For example, ASTRA does not insist on the identification by the Agency as a condition for providing direct victim assistance.
Data obtained from the Agency fro Coordination of Protection of Trafficking Victims for the needs of ASTRA E Newsletter.
Galonja A., Jovanović S., Zaštita žrtava i prevencija trgovine ljudima u Republici Srbiji, (Zajednički program UNHCR, UNODC i IOM za borbu protiv
54
HUMAN TRAFFICKING
• In the period January 2002 – October 2010, NGO Counseling Center against Family
Violence215 provided care to 270 trafficked persons in their Shelter for Trafficking
Victims and Safe Houses for Domestic Violence216.
§ 146. Analyzing available data on human trafficking, the following conclusions may be
drawn regarding the situation in Serbia217:
§ 147. Serbia is the country of origin, transit and destination of trafficking victims,
registering an increase in internal trafficking218 which contributed to the visibility of
domestic citizens among identified victims, i.e. of the fact that Serbia is the country of
origin of trafficking victims, too. Since 2008, internal trafficking, i.e. trafficking which
takes place in the territory of Serbia without crossing international borders, constitutes
around one half of all trafficking cases registered in the country.
§ 148. Domestic nationals dominate among identified victims in Serbia. Of all victims
identified by ASTRA, 262, i.e. 75% were the citizens of Serbia. Until 2004, most of the
victims were foreign citizens, but this situation changed in 2006-2007 when domestic
victims took the lead (73.9%). Both according ASTRA’s and the Agency’s data, foreign
nationals accounted for 12-15% of victims identified in 2008 and 2009, in 2010 domestic
national constituted as much as 95%. All children whom ASTRA identified and/or assisted
since 2007 were the citizens of Serbia.
§ 149. Since 2004, an increase in the number of children in the trafficking chain has also
observed. While in 2002-2003, children constituted 10% of identified victims, their share
reached 46.51% in 2004-2005, 44.93% in the next two-year period and 40.38% in
2008-2009. Observed at the level of the whole period under consideration (2002-2010),
children made up as much as 38% of the total number of identified trafficking victims.
Still, Serbia does not have specialized programs and procedures for children – victims of
trafficking. Children receive the same assistance as adult victims, they share the shelter
and undergo the same treatment.
§ 150. Human trafficking is certainly a gender issue. Women and girl exposed to sexual
exploitation are most frequent victims of trafficking in Serbia (88.6% according to
both ASTRA and the Agency). However, the number of male victims has been on the
rise. ASTRA identified the first male victim in 2004. Adult men are trafficked for labor
exploitation, mostly in construction sites in foreign countries. Due to cultural and
patriarchal reasons (men are not prone to recognize themselves as victims), the way of
exploitation (exploitation in construction industry which often involve an enormous
number of victims) and unclear procedures for identification, it often happens that a
215
216
217
218
trgovine ljudima), Beograd, 2010.
This NGO used to run one shelter for trafficking survivors and three shelters for the victims of family violence.
Data obtained from the organization for the needs of annual ASTRA E Newsletters; this figure includes children who accompanied their mothers
in the Shelter.
Unless stated otherwise, all facts and figures about victims and trends are based on ASTRA SOS Hotline statistics. For detailed analysis, please see
the statistics of ASTRASOS Hotline in Annex 1.
Form of human trafficking where victims are recruited and exploited in the same country.
55
ANTI-TRAFFICKING ACTIVITIES AND MECHANISMS IN SERBIA
significantly smaller number of victims is identified compared with the actual number
of persons comprised by a specific case. Thanks to only one labor exploitation case from
2009, among the victims whom ASTRA assisted in 2009 and 2010, men accounted for
26.3% and 37.8% respectively,
§ 151. Besides sexual and labor exploitation, other forms of exploitation are present, too,
although to a much lesser extent – forced begging, forced marriage, coercion into petty
crime, illegal adoption.
§ 152. It is undeniable that institutions in Serbia today recognize the fact that human
trafficking is not a phenomenon which hits exclusively foreign citizens, but a form
of organized crime and just anyone may fall victim regardless to their gender, age,
citizenship or nationality. On the other hand, traffickers, faced with stronger response
from governmental, nongovernmental and international actors, adjust and change
the way they work. Thus, human trafficking is “moving” from diners and night bars to
private apartments and membership-only clubs. Similar trend has been observed in other
countries in the region, too. In addition to increase in internal trafficking, trafficking in
children and trafficking in persons with psychologically altered behavior219, which have
proven to be mush less risky for traffickers, many of them have also changed the way of
disciplining girls: instead of strict control of movement and physical violence, they use
more threats and blackmails, so that it would be much more difficult to prove coercion in
case of prosecution.
II.3. Anti-trafficking Activities and Mechanisms in Serbia
§ 153. State authorities in Serbia and Montenegro placed the problem of trafficking in
human beings on the political agenda after the change of political climate in 2000. This
was contributed by support and pressure from high-level international bodies220. The UN
Convention against Transnational Organized Crime and Protocols Thereto were signed and
ratified in 2001 221. In the same year, the first national coordinator fro combating human
trafficking was appointed within the Ministry of the Interior (Deputy Chief of the Border
Police Directorate). Soon after, the National Team for Combating Human Trafficking222
was established as a forum for cooperation between governmental, nongovernmental
and international actors223. Although the National Team is often mentioned in Serbia as an
example of good practice of intersectoral cooperation, formal documents that would regulate
the mandate of the Team or the rights and responsibilities of its members still do not exist.
219
28.6% in 2004 according to Regional Clearing Point, Second Annual Report on Victims of Trafficking in South Eastern Europe 2004.
E.g. the Stability Pact Task Force, the Council of Europe, OSCE, UN.
The Law ratifying the UN Convention against Transnational Organized Crime and Protocols Thereto, Official Journal FRY – International Treaties,
no. 6/2001.
222
Yugoslav Team for Combating Human Trafficking was established first, but because of the uncertain status of the Federation, anti-trafficking
activities were transferred from the federal level to the level of the Republics. The first (founding) meeting of the National Team for Combating
Trafficking in Human Beings was held on May 30, 2002. Working program of the National Team was adopted on October 17, 2002
223
The National Team gathers nine government institutions, seven non-governmental organizations and five international organizations.
220
221
56
HUMAN TRAFFICKING
§ 154. Human trafficking was criminalized for the first time in the Criminal Law of Serbia
– Article 111b – in April 2003224.
§ 155. The Anti Trafficking Council was established by the decision of the Government
of Serbia in mid-December 2004225. Members of the Council are Interior Minister as its
president, Minister of Labor, Employment and Social Policy, Justice Minister, Health
Minister, Minister for Education and Sport, and Deputy Finance Minister. The task of the
Council is to coordinate national and regional activities in combating human trafficking,
discuss reports of relevant international bodies, take positions and propose measures for
the implementation of recommendations made by international bodies.
§ 156. Central operating point of the National Referral Mechanism is the Agency for
Coordination of Protection of Trafficking Victim. The Agency was set up in March 2004
within the Institute for the Upbringing of Children and Youth in Belgrade as a result of a
joint project of the Ministry of Social Policy and OSCE Mission to Serbia and Montenegro.
The main task of the Agency is to act as a coordination center in the organization
of assistance and protection of trafficked victims in Serbia, but it does not provide
direct assistance itself nor could it alone identify a trafficking victim. It should provide
information on available victim assistance services in the country and abroad. For some
time, the Agency had a Mobile Team which main task was to make the first assessment
of a potential victim and his/her needs. Mobile Team members were the Ministry for
Social Affairs, NGOs ASTRA and Counseling Center against Family Violence. The Mobile
Team concept was abandoned in November 2004, while the Agency for Coordination
of Protection of Trafficking Victims has continued to operate. The Agency has only two
staff members who are supposed to cover the whole territory of Serbia. Since its role and
mandate are not clearly defined, sometimes – and especially when it has financial means
– the Agency acts as a direct victim assistance provider.
§ 157. In December 2006, the Government of Serbia, with support of OSCE Mission to
Serbia, adopted the National Anti Trafficking Strategy226, setting strategic goals that
should be realized through various activities of state institutions, NGOs and international
organizations227. The National Plan of Action to Combat Trafficking in Human Beings for
the period 2009-2011 was adopted in May 2009. Although there were several attempts to
that end in previous year, the NPA was finally designed and passed in an urgent procedure
at the moment when its existence was necessary for the liberalization of visa regime with
the European Union. This is the reason why such an important document was adopted
without regard to the budgetary dynamics and hence all the activities planned for 2009
are those that could be carried out without any additional resources. In the mid 2010, a
Joint project of IOM, UNHCR and UNODC was launched with the idea to support the
224
Official Gazette RS, no. 39/2003 and 67/2003.
Government’s decision to set up the Anti Trafficking Council no 02-6783/2004-1, 14 October 2004.
The Strategy was published in the Official Gazette of RS, no. 111/2006 of 12 December 2006.
227
More about the Strategy in the analysis of Article 9 of the Protocol.
225
226
57
ANTI-TRAFFICKING ACTIVITIES AND MECHANISMS IN SERBIA
implementation of NPA, with support of the Ministry of the Interior and the Ministry
of Justice, in particular with regard to financial resources which the state has continued
failing to allocate. The Council of Europe’s Convention on Action against Trafficking in
Human Beings was also ratified as a document necessary for visa liberalization.
§ 158. In November 2009, the Agreement on Cooperation in the field of combating
human trafficking was signed between the Ministry of the Interior, the Ministry of
Finance, the Ministry of Health, the Ministry of Education and the Ministry of Labor and
Social Policy. This document contains the Guidelines for Standard Operating Procedures
in the Treatment of Trafficking Victims as its integral part228. Although these guidelines
are supposed to ensure safe referral and protection of the victims of both internal and
international trafficking and although they should be used by all relevant actors in the
process of identification, assistance and protection, the adaptation process was nontransparent and non-participatory and the actors which should use the guidelines are not
fully informed how the entire process should work.
§ 159. Specialized direct assistance to trafficking victims is provided by two NGOs whose
work is for the most part financed by foreign donors. Social welfare centers are not
specialized for victim assistance, but their involvement is mandatory whenever children
appear as trafficking victims.
§ 160. The Republic of Serbia does not have a protocol for dealing with victims of human
trafficking; the procedure is unclear, while too many people from institutions are not
familiar with the work of the Agency and its competences. In practice, the identification
of trafficking victims is still in the majority of cases done by the police, while the Agency
mostly confirms this primary identification without direct contact with the person
in question. On more than one occasion, trafficking victims have been exposed to
direct or indirect pressure to testify in court, reflection period is not fully respected in
practice, while risk assessment is done quite rarely. Also, it is very important to do the
evaluation and assessment of the quality of assistance provided to trafficking victims,
both by governmental, and nongovernmental and international actors. In future, it will be
necessary to work not only on increasing the quantity of services provided to survivors,
but also on improving the quality of existing ones.
§ 161. The Agency possesses a database which contains data on all the victims the Agency
has ever been in contact with. However, data protection methods are not clear, as well as
criteria for access/deny of access to public, researchers and victims themselves229.
§ 162. With a few exceptions, penal policy regarding the criminal offence of human
trafficking is rather light. The links between the corruption of state authorities and human
trafficking has never been examined in specific cases. The proving of this crime still to the
greatest extent depends on victims/witnesses and their testimonies. Another problem is
228
229
Made on the basis of ICMPD Guidelines for Transnational Referral Mechanism in SEE.
Law on Personal Data Protection, Official Journal of FRY, no. 24/98 and 26/98.
58
HUMAN TRAFFICKING
the slowness of civil proceedings for the compensation of damages. Namely, as criminal
courts are reluctant to decide on victim/witness’s compensation claim (although the law
allows them to), but refer them to litigation, which is, as a rule, lengthy, costly (court fees,
representative’s fees…) and requires plaintiff’s presence, representing another form of
secondary victimization and preventing the victim from leaving the past behind and from
starting rebuilding their lives.230
§ 163. Sustainable (re)integration and social inclusion programs for trafficking victims
still do not exist. After they got out of the trafficking chain, victims may join ad hoc
programs which existence depends on available financial respires; moreover, what is
offered to them often does not correspond to their needs and pace of their recovery
and (re)integration.
§ 164. For successful fight against this specific form of violence, government must take
a determined and systemic effort to eradicate poverty. Also, we must be aware that
human trafficking would not be so sizable unless there were corruption. For these reasons,
fighting root causes that contribute to trafficking, which are, above all, poverty, lack of
opportunities, deprivation in general, discrimination, gender inequality and gender-based
violence, corruption and organized crime, stands out as a priority when we talk about
combating trafficking in human beings.
§ 165. What ASTRA as a nongovernmental organization is certainly concerned about
is the fact that human trafficking is still not primarily observed as the gravest form of
human rights violation. In practice, victims’ human rights are violated even after they
escape from the trafficking chain. Here, we have in mind governmental nongovernmental
and international organizations alike. Therefore, general education of all anti-trafficking
actors in Serbia on human rights guaranteed under international conventions is crucial
for quality work.
§ 166. It is definite that anti-trafficking NGOs in Serbia are passing through some sort of
crisis, and they should be supported and empowered to persist in their independence and
to objectively and critically observe the situation. This is vital because NGOs are the actor
that will have responsibility to monitor human rights situation and work on permanent
improvement thereof once Serbia becomes a state that fully complies with international
standards. Without strong and developed civil sector, we cannot talk about democratic
state as a guarantor of human rights.
230
The problem is even more evident when it involves foreign nationals, who, having testified in criminal procedures in Serbia, were repatriated to
their countries of origin. If they want to appear in court, they need to bear extra travel and accommodation costs, as well as to seriously risk their
safety.
59
HOW TO DEAL WITH TRAFFICKING: INTERNATIONAL AND EUROPEAN OBLIGATIONS OF STATES
III. PROTOCOL TO PREVENT, SUPRESS AND PUNISH
TRAFFICKING IN PERSONS, ESPECIALLY WOMEN AND
CHILDREN AND
COUNCIL OF EUROPE’S CONVENTION ON ACTION
AGAINST TRAFFICKING IN HUMAN BEINGS
III.1 How to deal with trafficking: international and European obligations of
States
Marjan Wijers,
independent researcher, trainer and consultant on human rights and human trafficking
§ 167. Until 11 years ago one of the main obstacles to address trafficking was the lack of
international consensus on a definition. This problem was solved, at least partly, by the
adoption in November 2000 of the UN Trafficking Protocol (also known as the Palermo
Protocol). Although this was a major step forwards, there are still many problems attached
to the definition. Moreover, despite intensive NGO lobbying, the Protocol failed to
establish strong protections for trafficked persons. A convention which builds on the UN
Protocol, but has more to offer to trafficked persons is the Council of Europe Convention
on Action Against Trafficking. This article first discusses the UN Protocol, focusing on the
definition, followed by a discussion of the European Trafficking Convention, in particular
the provisions that are relevant for trafficked persons.
III.1.1. UN Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially
Women and Children
§ 168. The Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially
Women and Children, as its full name reads, is the first global instrument to contain an
internationally agreed-upon, legally binding definition of trafficking in persons. It was
the result of negotiations between more than 100 countries and is one of the three
protocols supplementing the UN Convention against Transnational Organized Crime.231
Significantly, this consensus was not achieved in a human rights instrument, but in the
context of crime and border control. The Protocol and Convention are primarily law
enforcement instruments intended to promote cross-border cooperation by governments
and to ensure that all countries have adequate laws to address these crimes. However,
art. 2 of the Protocol states as its purpose:
231
The other two are the Protocol against Smuggling of Migrants by Land, Sea and Air and the Protocol against the Illicit Manufacturing of and Trafficking
in Firearms, their Parts and Components and Ammunition. The parent convention came into force 29 September 2003; the Trafficking Protocol came
into force 25 December 2003. The Firearms Protocol was adopted in 2001 and came into force 3 June 2005.
60
PROTOCOL TO PREVENT, SUPRESS AND PUNISH TRAFFICKING IN PERSONS, ESPECIALLY WOMEN AND CHILDREN
“to prevent and combat trafficking in persons, paying particular attention to women
and children; to protect and assist the victims of such trafficking, with full respect
for their human rights; and to promote cooperation among States parties in order to
meet the above objectives”.
§ 169. The UN Trafficking Protocol consists of three instruments: the Protocol itself,
relevant sections of the parent Convention, and the Interpretative Notes (Travaux
Preparatoires), which are explanations of some of the provisions of the Protocol.232
It contains provisions on the criminalization of trafficking in persons and cross-border
cooperation, as well as on prevention and the protection of victims.
§ 170. An important milestone is that the Protocol for the first time links trafficking with
the human rights treaties on forced labor, slavery, slavery-like practices and servitude,
rather than treating these as separate and distinct categories of human rights abuses.
The result is a wider understanding of trafficking and the opening up of an array of
already existing human rights and labor instruments to deal with the forced labour and
slavery-like outcomes of trafficking. However, contrary to the forced labour and slavery
conventions, the UN Protocol puts the emphasis on the way by which people arrive in a
situation of exploitation, i.e. through trafficking, rather than on the exploitation itself.
§ 171. As noted by the European Experts Group on Trafficking in Human Beings in its 2004
report233, from a human rights perspective, the primary concern is to stop the exploitation
of human beings under forced labor or slavery-like conditions, no matter how people
arrive in that situation. There is no reason to distinguish between a victim of trafficking,
a smuggled person, an illegal migrant, or a lawful resident held in forced labor or slaverylike conditions. This is in accordance with the major human rights treaties which clearly
prohibit these abuses. In practice this distinction often leads to discriminatory measures
which deprive some categories of people from exercising their freedom of movement
and their right to a livelihood because they might get trafficked (e.g. bans on migration
for young women), while excluding others who have actually been subjected to forced
labor or slavery-like practices from any protection or support because they do not fit the
definition of trafficking.
§ 172. Recently the European Court of Human Rights confirmed this view in its judgment
on Rantsev v. Cyprus and Russia.234 According to the Court trafficking falls within the scope
of art. 4 of the European Convention on Human Rights, which prohibits slavery, servitude
and forced labor, without the need to determine which of the three types of prohibited
conduct it concerns. In its judgment it states:
232
See for the full text and the Travaux Preparatoires: http://www.unodc.org/unodc/en/treaties/CTOC/index.html.
Report of the Expert Group on Trafficking in Human Beings, 22 December 2004, Brussels: European Commission, Directorate-General Justice,
Freedom and Security 2004. See: http://ec.europa.eu/home-affairs/doc_centre/crime/crime_human_trafficking_en.htm.
234
ECrtHR, Rantsev v. Cyprus and Russia, application no. 25965/04, 7 January 2010, see: www.interights.org/rantsev.
233
61
“like slavery, trafficking in human beings, by its very nature and aim of exploitation, is
based on the exercise of powers attaching to the right of ownership. It treats human
beings as commodities to be bought and sold and put to forced labour, often for
little or no payment, usually in the sex industry but also elsewhere. It implies close
surveillance of the activities of victims, whose movements were often circumscribed.
It involves the use of violence and threats against victims, who live and work under
poor conditions”.
§ 173. Accordingly the Court held that trafficking itself was prohibited by art. 4 of
the Convention.
§ 174. A second point of critique on the Protocol, e.g. by the Global Alliance Against
Trafficking (GAATW)235, is the weakness of its human rights protections for victims. While
all law enforcement provisions contain mandatory language, the provisions on protection
and assistance of trafficked persons are much weaker and contain language such as “in
appropriate cases” and “to the extent possible” (see Protocol art. 6 & 7 and Convention
art. 24 & 25).
§ 175. However, the Protocol does include a saving clause (art. 14), stating that nothing
in the Protocol shall affect “the rights, obligations and responsibilities of States and
individuals under international human rights law”. The same article includes a nondiscrimination clause, holding that the measures the Protocol sets forth shall be interpreted
and applied in a way that is “consistent with internationally recognised principles of nondiscrimination”, and that is “not discriminatory to persons on the grounds that they are
victims of trafficking”.
§ 176. Finally, the definition in the Protocol is quite complicated and difficult to read.
Moreover, some of its terms are not defined in international law, like ‘exploitation of the
prostitution of another’ and ‘sexual exploitation’. This is because it was the result of long
and complicated negotiations between governments with different interests and views.
In practice this means that the adoption of the definition in national law often leads to
misinterpretations or misapplications. One source of confusion is the distinction between
trafficking and sex work. In this context, it is important to note that the Protocol only
addresses the exploitation of prostitution when coercion, deceit or abuse of authority
is used. This confusion between trafficking and sex work is reinforced by the distinction
the Protocol draws between trafficking for sexual exploitation on the one hand, and
trafficking for forced labour or services on the other. However, this does not mean that
forced labour cannot occur in the sex industry: the International Labour Organisation
(ILO) has regularly dealt with forced prostitution and sexual exploitation under the forced
labour conventions.
235
See: www.gaatw.org.
62
III.1.1.1 Understanding the definition of trafficking
§ 177. The Protocol contains a broad definition, covering trafficking into all economic
sectors and industries, including agricultural or construction work, garment or other
factory work, sex work, domestic work, etc., whether within a country or across borders.
The central element is the use of coercion, deception, abuse of authority or any other form
of abuse. The definition in art. 3 consists of three distinct, but interconnected elements:
• A set of actions: the recruitment, transportation, transfer, harboring or receipt of persons
• The means by which those actions are carried out: by means of the threat or use of
force or other forms of coercion, of abduction, of fraud, of deception, of the abuse
of power or of a position of vulnerability or of the giving or receiving payments or
benefits to achieve the consent of a person having control over another person
• The purpose for which people are recruited or moved: for the purpose of exploitation.
• § 178. Exploitation shall include, at a minimum, the exploitation of the prostitution
of others or other forms of sexual exploitation, forced labor or services, slavery or
practices similar to slavery, servitude or the removal of organs.
§ 179. In the case of adults all three elements must be fulfilled to be considered trafficking.
However, in the case of children and adolescents (that is, persons under 18), the use
of any of the coercive or deceptive means listed in the Protocol is not required, as the
legal status of minors is different from adults. Any recruitment, transportation, transfer,
harboring or receipt of a child for the purpose of exploitation is considered ‘trafficking’
(art. 3, sub c).
III.1.1.1.1 The means
§ 180. The inclusion of fraud, deception and the abuse of power or of a position of
vulnerability recognizes that trafficking can occur without any use of overt (physical)
force. According to the interpretative notes to the Protocol, ‘abuse of a position of
vulnerability’ refers to
“any situation in which the person involved has no real and acceptable alternative
but to submit to the abuse involved”.
§ 181. This can include situations where the victim does not speak the local language,
has her/his identity papers taken away, is prohibited from having contacts with friends,
family or the outside world, or is threatened with reprisals against her/himself, children
or other family members.
§ 182. Deception or fraud can refer to the nature of the work or services (e.g. if the person
is promised a job as domestic worker but is forced to work in prostitution), as well as to the
conditions under which the person is forced to perform the work or services (e.g. he or she is
63
promised a residence or work permit, proper payment and regular working conditions, but
is in reality not being paid any or all of the promised payment, is forced to work extremely
long hours, is deprived from her/his identity papers, has no freedom of movement and is
threatened with reprisals when trying to escape). The common element of all means listed
in the UN Protocol is the distortion of the free will of the person. Thereby it should be kept
in mind that the initial recruitment can be voluntary and that the coercive mechanisms
to bring or keep a person in an exploitative situation only come into play at a later stage.
Thus, a person can consent to migrate, to carry false papers, to work as a domestic worker,
a construction laborer or a prostitute or to work illegally abroad, but this does not imply
that the person consents to work in conditions of forced labor, slavery or servitude and
therefore does not exclude the person being a victim of trafficking.
III.1.1.1.2 The Purpose of Exploitation
§ 183. The Protocol lists the forms of exploitation that at a minimum should be included,
but does not give a definition of ‘exploitation’. However, for most of the purposes
mentioned, like forced labor, one can go back to other international treaties to understand
their meaning. This is not the case for the concepts of ‘exploitation of prostitution of
others’ and ‘sexual exploitation’. Both are not defined in international law and give rise
to divergent interpretations, which may pose a problem when translating the Protocol’s
definition into domestic criminal law.
a) Forced labor or services, slavery or practices similar to slavery and servitude
§ 184. These are not defined in the Trafficking Protocol, but are elaborated in other
international treaties and conventions. ILO Convention No. 29 Concerning Forced Labour
(1930) and No. 105 on the Abolition of Forced Labour (1957) define forced labor as:
“All work or service which is exacted from any person under the menace of any
penalty and for which the said person has not offered himself voluntarily.”
§ 185. Conditions of forced labor include the use of physical or sexual violence, threats
of violence, debt bondage, withholding of wages or no payment at all, restriction
of movement, the retention of passport and identity documents and the threat of
denunciation to the authorities.236 Since the coming into force of Convention No. 29, the
ILO Committee of Experts has treated trafficking for the purpose of forced sexual services
as one form of forced labor, also when prostitution is illegal under national law.
§ 186. “Practices similar to slavery” include servile marriage and debt bondage.237 Debt
236
237
Human Trafficking and Forced Labour Exploitation, Guidance for Legislation and Law Enforcement, ILO Special Action Programme to Combat Forced
Labour, 2005.
1956 UN Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery.
64
bondage occurs when, for example, the trafficked person is required to pay back a large
sum for travel expenses, whereas the debt keeps growing because of exorbitant interest
rates and endless and ever increasing expenses for housing, transportation, clothing, food
et cetera, making it effectively impossible to pay off the debt.
§ 187. “Servitude” refers to conditions of work or service, which the individual cannot
change or from which he or she cannot escape. According to the European Court of
Human Rights servitude can be defined as “an obligation to provide one’s services that is
imposed by the use of coercion, and is linked to the concept of slavery”.238
b) Exploitation of the prostitution of others or other forms of sexual exploitation
§ 188. Neither “exploitation” nor “sexual exploitation” is defined in the Protocol or
elsewhere in international law. The only international convention in which “exploitation
of prostitution” is defined is the 1949 Convention for the Suppression of the Traffic in
Persons and the Exploitation of the Prostitution of Others. Here, the term refers to all third
persons profiting from the income of the prostitution of another person, regardless of the
consent of that person. However, this convention is generally considered obsolete as it
makes no distinction between trafficking and prostitution and is only ratified by 74 out of
the 192 UN Member States.239
§ 189. By contrast, the UN Protocol makes a clear distinction between trafficking and
prostitution. During the negotiations parties intentionally left the terms undefined in
order to allow all States, independent of their domestic policies on prostitution, to ratify
the Protocol. As stated in the Interpretative Notes:
“the Protocol addresses the exploitation of prostitution of others and other forms
of sexual exploitation only in the context of trafficking in persons. The terms
‘exploitation of the prostitution of others’ and ‘sexual exploitation’ are not defined
in the Protocol, which is therefore without prejudice to how States Parties address
prostitution in their respective domestic law”.
§ 190. The Protocol thus only deals with prostitution or the exploitation of prostitution
when coercion or deceit is used and when there is an element of recruitment, etc. It does
not impose an obligation to criminalize prostitution. Different legal systems, whether
decriminalizing, legalizing or regulating prostitution, can all be in full compliance with
the Protocol.
§ 191. It is not relevant whether or not a person was previously engaged in prostitution
(or domestic work or any other kind of work) or knew she or he would be so, once all the
238
239
ECrtHR, Siliadin v. France, no. 73316/01, 26 July 2005. See: www.echr.coe.int/Eng/Press/2005/July/ChamberJudgmentSiliadinvFrance260705.htm
See for a list of States that ratified the 1949 Convention: http://treaties.un.org/Pages/ViewDetails.aspx?src=IND&mtdsg_no=VII-11a&chapter=7&lang=en
65
elements of the definition are fulfilled, notably: the presence of one of the actions, the
use of one of the coercive or deceptive means and the purpose of exploitation.
III.1.1.1.3 The issue of consent
§ 192. According to the Protocol, the consent of the trafficked person to the intended
exploitation is irrelevant once any of the coercive or deceptive means listed in the
definition has been used (art. 3b). A person can thus consent to migrate, to work as a
domestic worker or a prostitute or to work illegally abroad, but this does not imply that
he or she consents to work in forced labor or slavery-like conditions, and therefore does
not exclude the person being a victim of trafficking. This is in line with international legal
norms. Real consent is only possible and legally recognizable, when all relevant facts
are known and a person is free to consent or not. Once the use of any of the coercive
or deceptive means is proven, any defense that the trafficked person ‘consented’ is
irrelevant. The basis of the crime is not prostitution or any other work or services, but the
infringement of a person’s rights and freedoms.
III.1.1.2 Removal of organs and illegal adoption
§ 193. Also with regard to the removal of organs it is the coercive conditions that give
rise to its falling under the definition of trafficking. Since for children the use of coercion
or deception is no requirement, the removal of organs from children with the consent
of a parent or guardian for legitimate or therapeutic reasons should not be considered
exploitation.240 Illegal adoption falls under the Protocol where it amounts to a practice
similar to slavery as defined in the Supplementary Convention on the Abolition of Slavery,
the Slave Trade, and Institutions and Practices Similar to Slavery.241
III.1.1.3 Exploitation of children
§ 194. In regard to children, the UN Convention on the Rights of the Child and the ILO
Convention on the Worst Forms of Child Labor (1999) give guidance to the interpretation
of the concept of exploitation. The engagement of children under 14 (15 in developed
countries) in any form of full-time work, and of children under 18 in hazardous work such
as mining, seafaring or sex work, is always exploitation: “Children are not considered to
be capable of making a voluntary decision to engage in such work”.242
III.1.1.4 The crossing of borders and the involvement of organized crime
§ 195. The definition of the Protocol does not require the crossing of borders as part of
the crime. According to the parent convention on organized crime domestic law must
240
241
242
See Travaux Preparatoires.
See Travaux Preparatoires.
ILO, Human Trafficking and Forced Labour Exploitation 2005, p. 25.
66
establish trafficking as an offence “independently of the transnational nature or the
involvement of an organized criminal group” (art. 34.2). This is in line with the Council
of Europe Convention on Action Against Trafficking in Human Beings, which obliges
State Parties to criminalize all forms of trafficking in human beings, whether national or
transnational, whether or not connected with organized crime.
III.1.1.5 Relation between trafficking and smuggling
§ 196. The Protocol makes a clear distinction between human trafficking and human
smuggling. Smuggling is a violation of domestic laws that protect the State by regulating
who can cross its border and how, whereas trafficking primarily concerns the protection of
human beings against human rights abuses and can happen with or without crossing borders.
III. 1.2 Council of Europe Convention on Action Against Trafficking in Human Beings
§ 197. The most recent European instrument is the Convention on Action against Trafficking
in Human Beings, adopted by the Council of Europe in 2005. In its Preamble the convention
explicitly addresses trafficking in human beings as a violation of human rights and stresses
the need for a comprehensive international legal instrument focusing on the human rights
of victims of trafficking. The purposes of the convention are threefold: (a) to prevent and
combat trafficking, (b) to protect the human rights of victims of trafficking as well as to
ensure effective investigation and prosecution and (c) to promote international cooperation
on action against trafficking (art. 1). In order to ensure the effective implementation of the
convention and its provisions it sets up a specific monitoring instrument, GRETA243 (Chapter
VII). The convention follows the definition of trafficking in human beings as contained in the
UN Protocol (art. 4). It explicitly applies to all forms of trafficking in human beings, whether
national or international, and whether or not connected with organized crime (art. 2). As of
2011 it is ratified by 34 Council of Europe member states, including Serbia.
§ 198. Compared to the UN Protocol the Convention contains an extensive list of victim
provisions relating to the identification of victims (art. 10), the protection of private life
(art. 11), assistance measures (art. 12), recovery and reflection period (art. 13), residence
permit (art. 14), compensation and legal redress (art. 15), and repatriation and return of the
victim (art. 16). A basic provision is the exemption of criminal liability of victims for acts
they committed as a consequence of being trafficked (art. 26). In addition, the convention
contains a number of general principles, such as the principle of non-discrimination (art. 3)
and gender equality (art. 17), promotes the use of a human rights-based approach, gender
mainstreaming and a child sensitive approach in the development of prevention policies
(art. 5), and explicitly encourages the involvement of NGOs and cooperation between
state authorities, NGOs and civil society (art. 5, 10, 16 and others). These provisions will
be discussed more in detail below.
243
See: www.coe.int/t/dghl/monitoring/trafficking/default_en.asp
67
III.1.2.1 Non-discrimination clause (art. 3)
§ 199. In line with other international instruments, the convention explicitly obliges to
implement its provisions to all victims of trafficking without discrimination. This includes
discrimination on ‘other status’, for example that of being a prostitute or an illegal
migrant.
III.1.2.2 Non-punishment clause (art. 26)
§ 200. As one of the barriers for victims to seek help is the fear to be punished themselves,
for example for illegal border crossing or prostitution, a crucial provision is the so-called
non-punishment clause. Art. 26 states that each State Party “shall (...) provide for the
possibility of not imposing penalties on victims for their involvement in unlawful activities,
to the extent that they have been compelled to do so”.
III.1.2.3 Identification of victims (art. 10)
§ 201. State Parties are obliged to adopt measures to properly identify victims, to provide
for officials who are trained and qualified in identifying and helping victims (including
children), and to ensure adequate collaboration between the different authorities and
between the authorities and NGOs. In the case of foreign victims, they must ensure that,
if there are reasonable grounds to believe that a person is victim of trafficking, that person
will not be evicted until the identification process is completed and that he or she will
receive the assistance provided for in art. 12. Art. 10 further contains a number of specific
provisions with regard to children.
III.1.2.4 Protection of private life (art. 11)
§ 202. State Parties are obliged to protect the private life and identity of victims. Personal
data of victims should be stored in accordance with the Convention for the Protection of
Individuals with regard to Automatic Processing of Personal Data (ETS No. 108). Special
care should be taken to ensure that the identity of child victims does not become publicly
known. In addition, measures should be considered to encourage the media to protect the
private life and identity of victims.
III.1.2.5 Assistance to victims (art. 12)
§ 203. The convention establishes a set of minimum standards of assistance which
State Parties are obliged to provide to victims, in cooperation with NGOs, and regardless
of the willingness of the victim to act as witness. Any assistance should be provided on
a consensual and informed basis and should include at least appropriate and secure
accommodation, psychological and material assistance, access to emergency medical
treatment, translation and interpretation services, counseling and information with regard
68
to their legal rights and the services available to them, assistance to defend their rights
and interests during criminal proceedings and, in the case of children, access to education.
§ 204. Moreover, State Parties must take due account of the victim’s safety and protection
needs. In addition, they are obliged to provide victims who are lawfully resident on their
territory with the necessary medical and other assistance if they need such help and do
not have adequate resources and with access to the labor market, vocational training
and education.
§ 205. Special attention is paid to cooperation with NGOs and other relevant civil society
actors engaged in assistance to victims.
III.1.2.6 Recovery, reflection period and residence permit (art. 14)
§ 206. In order to enable foreign victims to recover and take an informed decision on
cooperating with the authorities, State Parties are obliged to provide for a recovery
and reflection period of at least 30 days in their domestic laws. During this period the
victim should be entitled to lawfully stay in the country concerned and have access to
assistance. If the (prolonged) stay of the victim is deemed necessary because of her/his
personal circumstances or for the purpose of the investigation or the criminal proceedings,
the victim should be issued a renewable residence permit. The granting of a temporary
residence permit must be without prejudice to her/his right to seek and enjoy asylum.
III.1.2.7 Compensation and legal redress (art. 15)
§ 207. Victims should be informed as from their first contact with the authorities on the
relevant judicial and administrative proceedings in a language they understand. Moreover,
it should be ensured that they have the right to legal assistance and to free legal aid,
and to compensation from the perpetrators. Moreover, State Parties should take the
necessary measures to guarantee compensation for victims, for example by establishing
a victim fund or by assistance programs which could be funded by the confiscation of the
criminal proceeds of trafficking.
III.1.2.8 Repatriation and return (art. 16)
§ 208. Both the country of destination and the country of origin are obliged to facilitate
the, preferably voluntary, return of the victim with due respect for her/his rights, safety
and dignity, including the issuing of travel and other documents if needed. Moreover, State
Parties should take the necessary measures to establish repatriation and reintegration
programs in cooperation with (inter)national institutions and NGOs and avoiding
re-victimization, and to inform victims about organizations which can assist them on
their return.
69
ARTICLES 1-5
Women and Children, Articles 1 – 5
CoE Convention on Action against Trafficking in Human Beings, Articles 4,
18 – 26 and 30 - 31
Palermo Protocol
Article 1
Relation with the United Nations Convention against Transnational
Organized Crime
1. This Protocol supplements the United Nations Convention against Transnational Organized
Crime. It shall be interpreted together with the Convention.
2. The provisions of the Convention shall apply, mutatis mutandis, to this Protocol unless
otherwise provided herein.
3. The offences established in accordance with article 5 of this Protocol shall be regarded as
offences established in accordance with the Convention.
Article 2
Statement of purpose
The purposes of this Protocol are:
a. To prevent and combat trafficking in persons, paying particular attention to women and
children;
b. To protect and assist the victims of such trafficking, with full respect for their human rights;
and
c. To promote cooperation among States Parties in order to meet those objectives.
Palermo Protocol
Article 3
Use of terms
For the purposes of this Protocol:
a. ”Trafficking in persons” shall mean the recruitment, transportation, transfer, harbouring
or receipt of persons, by means of the threat or use of force or other forms of coercion, of
abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability
or of the giving or receiving of payments or benefits to achieve the consent of a person
having control over another person, for the purpose of exploitation. Exploitation shall
include, at a minimum, the exploitation of the prostitution of others or other forms of
sexual exploitation, forced labour or services, slavery or practices similar to slavery,
servitude or the removal of organs;
70
b. The consent of a victim of trafficking in persons to the intended exploitation set forth
in subparagraph (a) of this article shall be irrelevant where any of the means set forth in
subparagraph (a) have been used;
c. The recruitment, transportation, transfer, harbouring or receipt of a child for the purpose
of exploitation shall be considered ”trafficking in persons” even if this does not involve any
of the means set forth in subparagraph (a) of this article;
d. ”Child” shall mean any person under eighteen years of age.
CoE
Article 4
Definitions
For the purposes of this Convention:
a. “Trafficking in human beings” shall mean the recruitment, transportation, transfer,
harbouring or receipt of persons, by means of the threat or use of force or other forms of
coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of
vulnerability or of the giving or receiving of payments or benefits to achieve the consent of
a person having control over another person, for the purpose of exploitation. Exploitation
shall include, at a minimum, the exploitation of the prostitution of others or other forms
of sexual exploitation, forced labour or services, slavery or practices similar to slavery,
servitude or the removal of organs;
b. The consent of a victim of “trafficking in human beings” to the intended exploitation set
forth in subparagraph (a) of this article shall be irrelevant where any of the means set forth
in subparagraph (a) have been used;
c. c) The recruitment, transportation, transfer, harbouring or receipt of a child for the
purpose of exploitation shall be considered “trafficking in human beings” even if this does
not involve any of the means set forth in subparagraph (a) of this article;
d. “Child” shall mean any person under eighteen years of age;
e. “Victim” shall mean any natural person who is subject to trafficking in human beings as
defined in this article.
Palermo Protocol
Article 4
Scope of application
This Protocol shall apply, except as otherwise stated herein, to the prevention, investigation
and prosecution of the offences established in accordance with article 5 of this Protocol,
where those offences are transnational in nature and involve an organized criminal group, as
well as to the protection of victims of such offences.
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ARTICLES 1-5
Article 5
Criminalization
1. Each State Party shall adopt such legislative and other measures as may be necessary
to establish as criminal offences the conduct set forth in article 3 of this Protocol, when
committed intentionally.
2. Each State Party shall also adopt such legislative and other measures as may be necessary
to establish as criminal offences:
a. Subject to the basic concepts of its legal system, attempting to commit an offence
established in accordance with paragraph 1 of this article;
b. Participating as an accomplice in an offence established in accordance with paragraph
1 of this article; and
c. Organizing or directing other persons to commit an offence established in accordance
with paragraph 1 of this article.
CoE
Article 18
Criminalisation of trafficking in human beings
Each Party shall adopt such legislative and other measures as may be necessary to
establish as criminal offences the conduct contained in article 4 of this Convention, when
committed intentionally.
Article 19
Criminalisation of the use of services of a victim
Each Party shall consider adopting such legislative and other measures as may be necessary
to establish as criminal offences under its internal law, the use of services which are the
object of exploitation as referred to in Article 4 paragraph a of this Convention, with the
knowledge that the person is a victim of trafficking in human beings.
Article 20
Criminalisation of acts relating to travel or identity documents
Each Party shall adopt such legislative and other measures as may be necessary to establish
as criminal offences the following conducts, when committed intentionally and for the
purpose of enabling the trafficking in human beings:
a. forging a travel or identity document;
b. procuring or providing such a document;
c. retaining, removing, concealing, damaging or destroying a travel or identity document of
another person.
72
Article 21
Attempt and aiding or abetting
1. Each Party shall adopt such legislative and other measures as may be necessary to establish
as criminal offences when committed intentionally, aiding or abetting the commission
of any of the offences established in accordance with Articles 18 and 20 of the present
Convention.
as criminal offences when committed intentionally, an attempt to commit the offences
established in accordance with Articles 18 and 20, paragraph a, of this Convention.
Article 22
Corporate liability
1. Each Party shall adopt such legislative and other measures as may be necessary to ensure
that a legal person can be held liable for a criminal offence established in accordance with
this Convention, committed for its benefit by any natural person, acting either individually
or as part of an organ of the legal person, who has a leading position within the legal
person, based on:
a. a power of representation of the legal person;
b. an authority to take decisions on behalf of the legal person;
c. an authority to exercise control within the legal person.
2. Apart from the cases already provided for in paragraph 1, each Party shall take the measures
necessary to ensure that a legal person can be held liable where the lack of supervision or
control by a natural person referred to in paragraph 1 has made possible the commission
of a criminal offence established in accordance with this Convention for the benefit of that
legal person by a natural person acting under its authority.
3. Subject to the legal principles of the Party, the liability of a legal person may be criminal,
civil or administrative.
4. Such liability shall be without prejudice to the criminal liability of the natural persons who
have committed the offence.
Article 23
Sanctions and measures
1. Each Party shall adopt such legislative and other measures as may be necessary to ensure
that the criminal offences established in accordance with Articles 18 to 21 are punishable
by effective, proportionate and dissuasive sanctions. These sanctions shall include, for
criminal offences established in accordance with Article 18 when committed by natural
persons, penalties involving deprivation of liberty which can give rise to extradition.
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ARTICLES 1-5
2. Each Party shall ensure that legal persons held liable in accordance with Article 22 shall
be subject to effective, proportionate and dissuasive criminal or non-criminal sanctions or
measures, including monetary sanctions.
3. Each Party shall adopt such legislative and other measures as may be necessary to enable it
to confiscate or otherwise deprive the instrumentalities and proceeds of criminal offences
established in accordance with Articles 18 and 20, paragraph a, of this Convention, or
property the value of which corresponds to such proceeds.
4. Each Party shall adopt such legislative or other measures as may be necessary to enable
the temporary or permanent closure of any establishment which was used to carry out
trafficking in human beings, without prejudice to the rights of bona fide third parties or to
deny the perpetrator, temporary or permanently, the exercise of the activity in the course
of which this offence was committed.
Article 24
Aggravating circumstances
Each Party shall ensure that the following circumstances are regarded as aggravating
circumstances in the determination of the penalty for offences established in accordance
with Article 18 of this Convention:
a. the offence deliberately or by gross negligence endangered the life of the victim;
b. the offence was committed against a child;
c. the offence was committed by a public official in the performance of her/his duties;
d. the offence was committed within the framework of a criminal organisation.
Article 25
Previous convictions
Each Party shall adopt such legislative and other measures providing for the possibility to
take into account final sentences passed by another Party in relation to offences established
in accordance with this Convention when determining the penalty.
Article 26
Non-punishment provision
Each Party shall, in accordance with the basic principles of its legal system, provide for the
possibility of not imposing penalties on victims for their involvement in unlawful activities, to
the extent that they have been compelled to do so
Article 27
Ex parte and ex officio applications
1. Each Party shall ensure that investigations into or prosecution of offences established in
74
accordance with this Convention shall not be dependent upon the report or accusation
made by a victim, at least when the offence was committed in whole or in part on its territory.
2. Each Party shall ensure that victims of an offence in the territory of a Party other than the
one where they reside may make a complaint before the competent authorities of their
State of residence. The competent authority to which the complaint is made, insofar as
it does not itself have competence in this respect, shall transmit it without delay to the
competent authority of the Party in the territory in which the offence was committed. The
complaint shall be dealt with in accordance with the internal law of the Party in which the
offence was committed.
3. Each Party shall ensure, by means of legislative or other measures, in accordance with
the conditions provided for by its internal law, to any group, foundation, association or
non-governmental organisations which aims at fighting trafficking in human beings or
protection of human rights, the possibility to assist and/or support the victim with his or
her consent during criminal proceedings concerning the offence established in accordance
with Article 18 of this Convention.
Article 30
Court proceedings
In accordance with the Convention for the Protection of Human Rights and Fundamental
Freedoms, in particular Article 6, each Party shall adopt such legislative or other measures as
may be necessary to ensure in the course of judicial proceedings:
a. the protection of victims’ private life and, where appropriate, identity;
b. victims’ safety and protection from intimidation,
in accordance with the conditions under its internal law and, in the case of child victims, by
taking special care of children’s needs and ensuring their right to special protection measures.
Article 31
Jurisdiction
jurisdiction over any offence established in accordance with this Convention, when the
offence is committed:
a. in its territory; or
b. on board a ship flying the flag of that Party; or
c. on board an aircraft registered under the laws of that Party; or
d. by one of its nationals or by a stateless person who has his or her habitual residence in
its territory, if the offence is punishable under criminal law where it was committed or if
the offence is committed outside the territorial jurisdiction of any State;
e. against one of its nationals.
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ARTICLES 1-5
2. Each Party may, at the time of signature or when depositing its instrument of ratification,
acceptance, approval or accession, by a declaration addressed to the Secretary General
of the Council of Europe, declare that it reserves the right not to apply or to apply only in
specific cases or conditions the jurisdiction rules laid down in paragraphs 1 (d) and (e) of
this article or any part thereof.
3. Each Party shall adopt such measures as may be necessary to establish jurisdiction over the
offences referred to in this Convention, in cases where an alleged offender is present in its
territory and it does not extradite him/her to another Party, solely on the basis of his/her
nationality, after a request for extradition.
4. When more than one Party claims jurisdiction over an alleged offence established in
accordance with this Convention, the Parties involved shall, where appropriate, consult
with a view to determining the most appropriate jurisdiction for prosecution.
5. Without prejudice to the general norms of international law, this Convention does not
exclude any criminal jurisdiction exercised by a Party in accordance with internal law.
III.2.1 Legal Analysis
III.2.1.1 Criminalization of Unlawful Acts in Criminal Legislation
§ 209. The Palermo Protocol to Prevent, Suppress and Punish Trafficking in Persons,
Especially Women and Children, which supplements the United Nations Convention against
Transnational Organized Crime (hereinafter referred to as: the UN Convention), places States
Parties under the obligation to criminalize the offence – trafficking in human beings – as well
as its related modalities (attempt, accomplice, organizing and directing other persons to
commit a criminal act of trafficking in persons). As the Protocol must be read in the context
of the Convention, State Parties must also criminalize the laundering of the proceeds of a
comprehensive range of trafficking offences in accordance with Article 6 of the Convention.
In addition to criminalizing the chief offence of trafficking, national legislatures are invited
to criminalize other forms of exploitations of persons, especially of woman and children.
§ 210. Within the legislative framework of the protection of victims of human trafficking,
the European Convention on Action against Trafficking in Human Beings (hereinafter
referred to as the CoE Convention) prescribes obligations similar to those taken on by
States Parties of the Palermo Protocol, primarily the criminalization of intentionally
committed criminal offences, all forms of conduct and ways of committing trafficking
in human beings envisaged by the Article 4 of the CoE Convention, as well as the
criminalization of the use of services of trafficking victims as objects of exploitation
within the scope of meaning of the same Article. In addition, State Parties are also obliged
to criminalize various forms of misuse of travel documents and other identification
documents belonging to trafficking victims, including the forgery of, taking away and
withholding, hiding, damaging or destroying such documents. As with the Palermo
76
Protocol, the criminalization requirements encompass not only the main and related
offences, but extend to other modalities as well – attempt and all forms of accomplice –
aiding and abetting, instigation and association with or conspiracy to commit an offence.
§ 211. In addition, it is requested by the CoE Convention and the Palermo Protocol that the
aggravating circumstances should be stipulated if the offence is, for instance, committed
by a state official, or within a criminal organization; if it puts the victim’s life in jeopardy
or is committed against a child.
§ 212. In the following text, we shall scrutinize to what extent substantive criminal
legislation of the Republic of Serbia has complied with the criminalization requirements
stipulated by the Protocol, the UN Convention and the European Convention on Action
against Trafficking in Human Beings.
III.2.1.1.1 Human trafficking and Other Related Crimes in the Serbian Legislation
§ 213. The Criminal Code of the Republic of Serbia (hereinafter referred to as CCS)
envisages the following criminal offences related to trafficking in human beings or similar
practices, to the protection of the rights of the victims and to the offences committed
against women and juveniles244:
• Criminal offences related to the obligation of the criminalization of human trafficking:
trafficking in human beings and trafficking in children for adoption.
• Other relevant criminal offences related to human trafficking: the establishment of
slavery and transportation of enslaved persons; illegal crossing of state border and
smuggling of human beings.
• Criminal offences against freedom and bodily integrity: abduction; coercion; unlawful
deprivation of freedom; violation of free movement and residence; force and threat,
ill-treatment and torture; abandonment of a helpless person; exposition of another
person to a danger; endangering safety.
• Criminal offences against sexual freedom: rape; sexual intercourse with a helpless
person; sexual intercourse through abuse of position; illicit sexual acts; mediation in
practicing prostitution.
• Criminal offences against juveniles: sexual intercourse with a child; pimping and
facilitating sexual intercourse; forcing a minor to witness sexual intercourse;
introducing pornography to children and the exploitation of children in pornography;
abduction of a juvenile; use of computer network or any other technical means of
communication for the purpose of committing criminal offences against minor’s
sexual freedom; change in family status; neglect and maltreatment of a juvenile; nonmarital cohabitation with a juvenile; domestic violence.
• Criminal offences against the authenticity of documents: forgery of official and other
documents; inducing to certify false content.
244
Official Gazette of RS, no. 85/05, 88/05, 107/05, 72/09 and 111/09.
77
ARTICLES 1-5
• Criminal offences related to the prohibition of discrimination: violation of equality;
incitement of national, racial and religious hatred and intolerance; racial or other
discrimination; ruining the reputation of the members of a racial, religious, national or
some other group.
• Criminal offences related to the violation of the right to privacy: unauthorized
collection of personal data; unauthorized photographing; violation of the privacy of
letter and other mail; infringement of the inviolability of home.
• Criminal offences related to the violation of other rights of the victim: violation of the
right to legal remedy; violation of the right to work, social security and other labor
related rights.
• Criminal offences against public order: criminal associating; conspiracy to commit
criminal offence; participating in a group committing a criminal offence.
• Economic criminal offences: money laundering.
§ 214. For the purposes of this Report, we shall analyze the main offence of trafficking
in human beings and its related categories, the criminal offence of money laundering,
criminal offences connected with the abuse of travel documents, as well as the relevant
criminal offences against minors, as they fall within the criminalization requirements
established by the international documents that represent the legal basis of this Report.
III.2.1.1.2. Criminalization of Human Trafficking in the Serbian Legislation
§ 215. The chief trafficking criminalization requirement relates to defining the intentionally
committed criminal offences set forth in Article 3 of the Protocol and Article 4 of the CoE
Convention. As a response to its obligations under these documents, Serbia has envisaged
trafficking in persons as a criminal offence in the Criminal Code of RS. Article 388 of CCS
envisages the following:
Human trafficking
Article 388
1. Whoever, by force or threat, deceiving or keeping in deception, by abusing authority,
confidence, dependency, another’s difficult conditions, or by withholding identity
documents or giving or receiving payments or other benefit, recruits, transports, transfers,
delivers, sells, purchases, mediates in the purchase, harbours or holds another person, for
the purpose of exploitation of their labour, forced labour, pursuing a criminal activity,
prostitution or other form of sexual exploitation, vagrancy, using for pornographic
purposes, placing in slavery or in similar status, of for the removal of organs or body parts
or using in armed conflicts, shall be punished by imprisonment for three to twelve years.
2. If the criminal offence referred to in paragraph 1 of this Article is committed against
a juvenile, the perpetrator shall be punished by the punishment envisaged for this
78
offence even if no force, threat or any other envisaged act for perpetrating this
criminal offence has been used.
3. If the criminal offence referred to in paragraph 1 of this Article is committed against a
juvenile, the perpetrator shall be punished by imprisonment for not less than five years.
4. If the perpetration of criminal offence referred to in paragraph 1 and 3 of this Article,
resulted in a serious bodily injury of a person, the perpetrator shall be punished by
imprisonment for five to fifteen years.
5. If the perpetration of criminal offence referred to in paragraph 1 and 3 of this Article,
resulted in death of one or more persons, the perpetrator shall be punished by
imprisonment for not less than ten years.
6. Whoever engages in committing criminal offence referred to in paragraph 1 to 3 of
this Article or if the offence is committed by an organized group, the perpetrator shall
be punished by imprisonment for not less than five years.
7. If the criminal offence referred to in paragraph 1 to 3 of this Articles committed by an
organized criminal group, the perpetrator shall be punished by imprisonment for not
less than ten years.
8. Whoever knows or could have known that a person is a victim of human trafficking
and abuses the person’s position or enables another person to abuse such a position
for the purposes of exploitation envisaged by paragraph 1 of this Article, shall be
punished by imprisonment for six months to five years.
9. If the criminal offence referred to in paragraph 8 of this Article is committed against
a person whom the perpetrator knew or could have known to be juvenile, the
perpetrator shall be punished by imprisonment for one to eight years.
10. A person’s acceptance to being exploited or placed in slavery or in similar status
referred to in paragraph 1 of this Article bears no significance to the existence of
criminal offence envisaged by paragraphs 1, 2 and 6 of this Article.
§ 216. Such a comprehensive provision that largely complies with the international standards
we have discussed has been introduced into CCS by the amendments and supplements
of 2005. This criminalization encompasses the principal forms of human trafficking and
exploitation of victims, as well as their related forms determined by the qualities of the
victim and perpetrator and the consequences that ensued. As opposed to the previously valid
regulation, the new CCS explicitly emphasizes that the victim’s acceptance to exploitation or
establishment of slavery or similar relationship is irrelevant to criminalizing the basic form of
the criminal offence.245 Since the basic criminal offence is of international character, it can be
stated that the requests for criminalization envisaged by the international documents have
been fulfilled. Finally, according to CCS, the term “juvenile” refers to any person below the
age of 18 {Article 112 (10) of CCS} which is also compliant with the international standards.
245
See Art. 388 (10).
79
ARTICLES 1-5
§ 217. It is significant to point out that criminalization as referred to in Article 388
encompasses nearly all forms of conduct mentioned in the definitions provided by the
international standards, as well as all the necessary indicators of criminal offence – force,
threat, fraud; abuse of position, confidence, dependency, other person’s unfavorable
situation; or giving and/or receiving money or other benefits.
§ 218. Considerable advance on the previous statutory solutions is certainly seen in the
increase in the severity of punishment – minimum punishment by imprisonment for the
basic form has been increased from two to three years, and maximum punishment from
ten to twelve years.
§ 219. When it comes to the qualifying circumstances envisaged in accordance with
the victim’s characteristics, two circumstances need be pointed out: firstly, pursuant to
international regulations, it has been stipulated that the indicators envisaged by Article
388 (1) do not present a necessity in making the offence punishable if the act was
committed against a person below the age of 18 {Article 388 (2) CCS}; secondly, if the
victim exposed to the basic form of trafficking in human beings is a juvenile, the duration
of punishment by imprisonment cannot be less than five years {Article 388 (3) CCS},
which means that the maximum sentence of twenty years can also be pronounced.
§ 220. The above-described criminalization also encompasses two sets of aggravating
circumstances. The one established in Paragraph 4 refers to serious bodily injuries,
whereas Paragraph 5 defines death of one or more persons as aggravating circumstance.
The legislation describes these aggravating circumstances using terms such as “of a
person” and “of one or more persons”. However, in order to punish the perpetrator for the
aggravating circumstances of human trafficking, it is necessary that the bodily injury or
death was suffered by a passive subject, i.e. a victim of human trafficking, and not just any
person. In addition, it is necessary that death or serious injury have occurred because the
perpetrator acted negligently with regard to such consequences. The new amendments
provide for a more severe minimum punishment by imprisonment (it has been raised from
three to five years) which may be inflicted in cases of severe bodily injuries, while the
maximum has remained fifteen years, as envisaged by the previously applied law. In case
of the victim’s death, the punishment by imprisonment is envisaged for not less than ten
years, which means that the maximum sentence of twenty years can also be pronounced.
§ 221. In accordance with international standards, CCS envisages the aggravating circumstances
of human trafficking in cases when the perpetrator has repeatedly been committing the same
offence (multiple offences) or when the offence has been committed in organized manner by
several persons or by an organized criminal group. The envisaged punishments are severe and
they correspond to the gravity of the offence: the multiple offender as well as the members
of a group are to be punished by imprisonment for not less than five years {Article 388 (6)
of CCS}, whereas the minimum punishment for the members of an organized criminal group
80
is ten years of imprisonment {Article 388 (7) of CCS}. In both cases, it is also possible to
pronounce the maximum punishment of twenty years of imprisonment.
§ 222. In accordance with the CoE Convention, the 2009 amendments to the CCS also
introduce the so-called client’s responsibility for the abuse of a human trafficking victim.
The statute envisages punishment by imprisonment for six months to five years for anyone
who abuses the position of a trafficking victim or enables another person to abuse such
a position for the purposes of punishable exploitation, if the offender knows or could
have known that the abused person is a victim of human trafficking.246 The punishment
is more severe if the offence has been committed against a juvenile and it amounts to
one to eight years of imprisonment.247 We should particularly point out that legislation
explicitly envisages punishment not only for an intentional offence, but for the “client’s”
negligence as well – in cases when the “client” could have known the victim was a juvenile,
and nevertheless abused such a person for the purposes of punishable exploitation or
made the abuse possible for another person. However, what remains unclear is why the
legislature failed to emphasize that the victim’s acceptance to exploitation is irrelevant
to criminalizing the offence aggravated by client’s responsibility, as is clearly stated about
other forms of the offence (in case of the basic form envisaged by par. 1, or when the
offence has been committed against a juvenile, by a person who is involved in human
trafficking or by a group of several persons or organized criminal group).
§ 223. Notwithstanding the fact that the essence of criminalized human trafficking is largely
harmonized with the provisions of the Palermo Protocol and the CoE Convention, several
important elements are missing from the criminalization provided by Article 388. Firstly, an
element that has not been included by the latest amendments either, though it is defined
by the Protocol and the CoE Convention, refers to establishing abduction and fraud as
means of committing the offence. Secondly, the legislature has failed to define aggravating
circumstances in case the offence of human trafficking has been committed by a state official
performing official duties, or when the victim’s life has been exposed to danger deliberately
or by gross negligence during the act.248 In this respect CCS is not in accordance with the
demands set forth by Article 24 of the CoE Convention, which requires from States Parties to
criminalize the mentioned facts as aggravating circumstances. Thirdly, the criminalization of
the offences committed in an extremely brutal or degrading manner is also missing, though
it used to be defined as aggravating circumstance by one of the formerly valid statutes.249
If such a possibility were envisaged by Article 388, the offence might be considered as
“endangering the life”, and the demand set forth by the CoE Convention regarding the
definition of endangering the victim’s life deliberately or by negligence might be met.
246
Art. 388 (8) of the CCS.
Art. 388 (9) of the CCS.
The previous Criminal Code of the Republic of Serbia used to define such circumstances as aggravating. (See Art. 111b (2) of the CCS valid until the
new Criminal Code of the Republic of Serbia came into force in 2005).
249
Ibid.
247
248
81
ARTICLES 1-5
ACTION
Palermo Protocol
recruitment, transportation, transfer, harboring or receipt of persons
Article 111b of the Criminal Law
of Serbia (first criminalization)
recruitment, transportation, transfer, delivering, selling, purchasing,
mediating in delivery or sale, harboring or holding another person
Article 388 of the Criminal
Code of Serbia – January 2006
Code of Serbia – August 2009
If the criminal offense is committed against a juvenile, the perpetrator
shall be punished even if no force, threat or any other envisaged act for
perpetrating this criminal offense has been used.
Article 111b of the CL RS stipulates the following additional types of action:
delivering, selling, purchasing, mediating in delivery or sale, or holding
another person
Article 111b of the CL RS omits:
receipt of persons
Differences
Article 388 of the CCS stipulates the following additional types of action:
delivering, selling, purchasing, mediating in delivery or sale, or holding
another person
Article 388 of the CCS omits:
receipt of persons
82
MEANS
Palermo Protocol
the threat or use of force or other forms of coercion, abduction, fraud,
deception, the abuse of power or of a position of vulnerability, the giving
or receiving of payments or benefits to achieve the consent of a person
having control over another person
force or threat, misleading or keeping in delusion, the abuse of authority,
confidence, dependence relation or difficult conditions of another person
If the act from Paragraph 1 of this Article is perpetrated against several
persons, by abduction, in the course of performing an official duty, within
a criminal organization, in especially cruel or in a specially humiliating way
or if a severe bodily injury has occurred.
force or threat, deceiving or keeping in deception, the abuse of authority,
confidence, dependency, another’s difficult conditions, withholding
identity documents, the giving or receiving of payments or other benefit
force or threat, deceiving or keeping in deception, the abuse of authority,
confidence, dependency, another’s difficult conditions, withholding
identity documents, the giving or receiving of payments or other benefit
Article 111b of the CL RS stipulates the following additional types of action:
misleading or keeping in delusion, the abuse of authority, confidence,
dependence relation or difficult conditions of another person;
in Paragraph 2 - in the course of performing an official duty, within a
criminal organization, in a specially cruel or in a specially humiliating way
(abduction is mentioned in Paragraph 2)
Differences
Article 111b of the CL RS omits:
other forms of coercion, of fraud, of deception, of the abuse of power or
of a position of vulnerability or of the giving or receiving of payments or
benefits to achieve the consent of a person having control over another
person
Article 388 of the CCS stipulates the following additional types of action:
Deception, the abuse of authority, confidence, dependency, withholding
identity documents
Article 388 of the CCS omits:
other forms of coercion, of fraud, of deception, of the abuse of power or of
a position of vulnerability;
fails to refer to abduction and fraud
83
ARTICLES 1-5
PURPOSE
Palermo Protocol
for the purpose of exploitation
for the purpose of acquiring some benefit, exploitation of his/her
labor, pursuing a criminal activity, prostitution or begging, of using for
pornographic purposes, depriving of a bodily part for the purpose of
transplantation, or using in armed conflicts
for the purpose of exploitation of their labor, forced labor, pursuing a
criminal activity, prostitution or other form of sexual exploitation, begging,
using for pornographic purposes, placing in slavery or in similar status, or
for the removal of organs or body parts or using in armed conflicts
for the purpose of exploitation of their labor, forced labor, pursuing a
criminal activity, prostitution or other form of sexual exploitation, begging,
using for pornographic purposes, placing in slavery or in similar status, or
for the removal of organs or body parts or using in armed conflicts
Article 111b of the CL RS stipulates the following additional types of
purpose:
acquiring some benefit, exploitation of his/her labor, pursuing a criminal
activity, prostitution or begging, of using for pornographic purposes,
depriving of a bodily part for the purpose of transplantation, or using in
armed conflicts
Differences
Article 111b of the CL RS does not omit any part of the definition
Article 388 of the CCS stipulates the following additional types of purpose:
labor, forced labor, pursuing a criminal activity, prostitution or other form
of sexual exploitation, vagrancy, using for pornographic purposes, placing
in slavery or in similar status, of for the removal of organs or body parts or
using in armed conflicts
III.2.1.1.3. Criminalizing Attempted Offence
§ 224. The Protocol and the CoE Convention recommend States Parties, which, under
certain circumstances, recognize punishments for the limited concept of attempt, to
supplement the basic trafficking offence with additional offence of attempting to commit
trafficking in persons. The next paragraphs of this study discuss such possibility in the
Serbian legal system.
§ 225. In principle, CCS recognizes the limited concept of punishable attempt: whoever
intentionally commences to execute a criminal offence, but does not consummate it,
shall be punished for the attempt only of a criminal offence for which a punishment of five
years of imprisonment or a more serious penalty may be imposed according to the law
{Article 30 (1) of CCS}. To punish the perpetrator for the attempt, it is of no importance
whether the imprisonment of five years represents minimum or maximum penalty that
84
can be imposed for the given criminal offence, or it is within its statutory limits. The
attempt of other criminal offences is punishable only if the law explicitly provides for the
punishment for an attempt at committing the offence {Article 30 (1) CCS}.
§ 226. CCS does not expressly provide punishment for one who attempts to commit trafficking
in human beings. Nevertheless, because of the statutory solutions mentioned in Article 30 (1)
of the CCS, it is possible to punish for the attempt of the basic form of this criminal offence,
since the punishment that can be imposed on the perpetrator may amount to five years of
imprisonment or more. In such a case, the perpetrator may be punished by the punishment
prescribed for trafficking in human beings. On the other hand, whether the attempt of
trafficking accompanied with aggravating circumstances is going to be punished depends on
the circumstances of each particular case. It is on the court to decide on this issue.
III.2.1.1.4 Accomplice Liability for Trafficking in Persons
§ 227. In addition to the request regarding punishable attempt to commit trafficking in
persons, the Protocol and the Convention also require from States Parties to recognize
accomplice liability, that is, the instigation of trafficking in human beings.
§ 228. Regarding the above-mentioned, it should be considered that, strictly speaking,
there are two categories of accomplice liability: instigation, and aiding and abetting.
§ 229. In the Serbian legal system, the instigation of any criminal offence is punishable
pursuant to Article 34 of CCS: Whoever with intent incites another to commit a criminal
offence, shall be punished as prescribed by law for such offence. Accordingly, the
instigation of trafficking in human beings is punishable.
§ 230. The same is valid for aiding or abetting. The law provides that whoever intentionally
aids or abets another in the perpetration of a criminal offence shall be punished by the
punishment prescribed for such a criminal offence. The following conducts shall be
deemed as acts of aiding or abetting:
• Giving advice or instructions on how to commit a criminal offence;
• Providing the perpetrator with the means for the perpetration of a criminal offence;
• Providing conditions or removing the obstacles for the perpetration of a
criminal offence;
• Giving an advance promise to conceal the criminal offence, the perpetrator, or the
means by which the criminal offence was committed;
• Concealing the traces of a criminal offence or the objects procured by the criminal
offence {Article 35 (2) CCS}.
§ 231. The above-cited provisions of the Criminal Code are equally applicable to the
criminal offence of trafficking in human beings. To conclude, the instigation of, and aiding
or abetting in committing the offence of human trafficking are punishable conducts
according to the Criminal Code of the Republic of Serbia.
85
ARTICLES 1-5
III.2.1.1.5 The Criminalization of Trafficking in Children for the Purpose of Adoption
§ 232. Having in mind that the basic trafficking offence does not embrace trafficking
in children for the purpose of adoption, the Serbian legislature found appropriate to
incriminate a separate offence of trafficking in children for the purpose of adoption.
Consider now the contents of Article 389:
Trafficking in juveniles for the purpose of adoption
Article 389
1. Whoever takes a person who has not turned 16 away for the purpose of adoption contrary
to valid regulations or whoever adopts such a person or mediates in such an adoption, or
whoever for that purpose purchases, sells or delivers another person who has not turned
16, or transports, provides accommodation or harbours such a person,
shall be punished by imprisonment for one to five years.
2. Whoever engages in acts referred to in paragraph 1 of this Article or if the offence has been
committed in an organized manner by several persons,
shall be punished by imprisonment for not less than three years.
3. If the offence referred to in paragraph 1 of this Article has been committed by an organized
criminal group, the perpetrator shall be punished by imprisonment for not less than
five years.
§ 233. The basic form of this offence envisages punishment for whoever takes a person
who has not turned sixteen away for the purpose of adoption contrary to valid regulations,
or whoever adopts such a person or mediates in such an adoption. The offence is also
criminalized if anyone should for the purpose of adoption purchase, sell or deliver another
person who has not turned 16, or transports, provides accommodation or harbors such
a person. It should be noted that the latter criminalization does not necessarily refer to
an abducted child, since selling children for the purpose of adoption can also be done by
parents. In short, the punishment for trafficking in juveniles for adoption is inflicted upon
whoever abducts a juvenile for the purpose of adoption, mediates in such an adoption or
commits any other offence against a juvenile for the purpose of adoption, as well as upon
whoever adopts such a juvenile. The duration of the envisaged punishment is one to five
years of imprisonment.
§ 234. In addition to the main offence, two graver forms of the offence are also criminalized
by the CCS. The first occurs when trafficking in juveniles for the purpose of adoption
has been committed, or when the basic form of the offence has been committed in an
organized manner by several persons. If this is the case, the envisaged punishment by
imprisonment is not less than three years. The second graver form of the main offence
is also related to the perpetrator – if the offence has been committed by an organized
86
criminal group, the envisaged punishment by imprisonment is not less than five years.
§ 235. The first thing that might be noticed is the doubt as to who is in fact given protection
by such a definition of the criminal offence. The title indicates a juvenile. Pursuant to par.
10 of the Art. 112 of CCS, juvenile is any person below the age of eighteen. Had this
been included in the essence of the criminal offence definition, the Serbian legislation
would finally have accepted a very clear international standard which defines a “child”
as a person who is below the age of 18.250 Incidentally, the passive subject of trafficking
in juveniles for adoption is defined as a person below the age of sixteen, which has
practically excluded from legal protection a group of persons provided with the protection
from illegal adoption by the international regulations, namely, all the persons who turned
16 but are still below the age of 18.251 Although the victims of human trafficking for the
purposes of illegal adoption are usually persons below the age of 14, there are also cases
of abductions of older children for such purposes. The law should provide protection for
them as well.252
§ 236. The second inconsistency refers to the provision that the criminalized offence
is committed “contrary to valid regulations”. The provision is redundant having in mind
that a child cannot be legally taken away from the parents or a guardian for the purpose
of adoption.
§ 237. Here we should point out the unfortunate failure of our legislature to explicitly
criminalize any attempted trafficking in juveniles for the purpose of adoption and start
regarding as aggravating circumstance placing the child in danger of a substantial
impairment of his or her physical or emotional development.253 Had this been done, the
degree of protection would have been raised significantly and illegal adoption would have
been discouraged. In line with this suggestion, the additional paragraph to Article 389
would be the following:
Whoever by the acts referred to in paragraph 1 of this Article, places the child in
danger of a substantial impairment of his or her physical or emotional development,
shall be punished by imprisonment for six months to ten years.
III.2.1.2 Application of Mandatory Provisions of the UN Convention on the Palermo
Protocol and CoE Convention
§ 238. The States Parties of the Palermo Protocol must never forget that they are obliged
to interpret the Protocol in accordance with the UN Convention. This means that some of
the UN Convention provisions are applied to the Protocol mutatis mutandis.
250
See e.g. the UN Convention on the Rights of the Child and the Council of Europe’s Convention on Action against Trafficking in Human Beings.
According to the previously valid Criminal Code, protection was given to any person below the age of fourteen.
In this respect see e.g. Art. 236 of the German Criminal Code.
253
The German Criminal Code could serve as an example of good practice in this case as well.
251
252
87
ARTICLES 1-5
III.2.1.2.1 Criminalization of Money Laundering
§ 239. It is an imperative obligation for the States Parties to incriminate the laundering
of the proceeds of a comprehensive range of trafficking offences in accordance with
Article 6 of the Convention.254 The Republic of Serbia has responded to this obligation by
endorsing in its Criminal Code the criminal offence of money laundering (Article 231 of
CCS). In line with this Report, we find it important to mention the following facts.
§ 240. Firstly, CCS makes the following acts punishable:
a. Conversion or transfer of proceeds of crime;
b. Concealment or disguise of the nature, source, or of any other facts concerning
proceeds of crime; and
c. Acquisition, possession or use of proceeds of crime.
§ 241. For these illegal acts, the perpetrator shall be punished by imprisonment for six
months to five years and a fine cumulatively envisaged as additional punishment by
the changes of and amendments to the CCS dating from the year 2009. A more severe
punishment is envisaged if the amount of the proceeds exceeds 1,500,000 RSD 255 – in
such a case the perpetrator shall be punished by imprisonment for one to ten years
and a fine.
§ 242. The latest changes of and amendments to the CCS introduced two more
aggravating forms of the offence: the cases when the perpetrator has committed the
basic offence with the proceeds acquired by criminal offence {Article 231 (3) of CCS} or
when the offence has been committed by a group of persons, for which a more severe
punishment is envisaged – imprisonment for two to twelve years and a cumulatively
envisaged fine {Article 231 (4) of CCS}.
§ 243. The criminal offence of money laundering also exists in case when any of the
above-mentioned illegal acts or aggravating circumstances can be attributed to a legal
person. In that case, a responsible person of the legal person shall be punished by the
punishment envisaged for such acts {see Article 231 (5) of CCS}.
§ 244. The essential element of crime is the knowledge that proceeds derives from the
crime and the intention to conceal or disguise illegal origin of the proceeds. In order to
punish for money laundering, proceeds can be attributable to any types of crime, including
trafficking crimes as well.
§ 245. The main offence is of intentional nature. Yet, the law punishes also for negligence
if the perpetrator should have known that money or the proceeds were “the proceeds of
crime”. In that case, the punishment is imprisonment for not more than three years.
§ 246. The law envisages mandatory forfeiture of proceeds of crime {Article 231 (7) of
CCS}. For the purpose of this Report, we find important to stress the following points:
254
255
See: Legislative Guides For The Implementation of The United Nations Convention against Transnational Organized Crime and the Protocols Thereto,
p. 272-273. Hereinafter referred to as: Legal Guidelines.
1 EUR = 105.18 RSD, as of 31 December 2010.
88
first, there is some confusion as to the meaning of the term “proceeds”. According to the
UN Convention, it relates to any kind of assets, including money as well. Yet, in relation
to conversion or transfer of proceeds of crime, the law speaks only about property while
in relation to other prohibited acts, in addition to the term “property”, it also refers
to money. In our opinion, Article 231 must be interpreted in accordance with the UN
Convention, meaning that the term “property” should mean all assets, corporeal and
incorporeal, movable or immovable, tangible or intangible, and legal documents or
instruments evidencing title to, or interest in, such assets.
§ 247. Second, confusion also exists in relation to the issue of who can be a perpetrator
of this offence. Basically, a perpetrator can be any person, but there are different opinions
whether this includes the perpetrator of the crime related to money laundering (socalled – the predicate offence). Some think that the Serbian legal system does not permit
the prosecution and punishment of an offender for both the predicate offence and the
laundering of proceeds from that offence.256 If this view is to be endorsed by the courts,
it would not stand contrary to the UN Convention – the Convention acknowledges this
issue and allows for the non-application of the money laundering offences to those who
committed the predicate offence, but only by countries whose fundamental principles
so provide.257
§ 248. Third, participation in, association with, and conspiracy or attempt to commit any
of the foregoing prohibited acts is punishable according to the Criminal Code.
III.2.1.2.2 Punishable Acts of Abuse of Travel Documents
§ 249. The States Parties are obliged under Article 20 of the CoE Convention to define
the acts of forfeiting, obtaining and producing travel or identity documents as punishable,
as well as withholding, forfeiting, concealing, damaging or destroying another person’s
travel or identity document.
§ 250. Article 355 (1) of CCS defines the following offences of document forgery as
punishable: forging, obtaining and producing travel or identity documents.
Whoever makes a forged document or alters a real document with intent to use such
document as real or uses a forged or false document as real or obtains such document
to use,
shall be punished by imprisonment up to three years.
§ 251. For the purposes of this Report, it should be pointed out that, according to the valid
judicial practice, travel or identity documents are considered to be public documents,
so the punishment envisaged for forging, obtaining or producing them is more severe –
256
257
Stojanović Z., Komentar Krivičnog zakonika, Službeni glasnik RS, Beograd 2006, p. 553-554.
See Art. 6 (2) (e) of the UN Convention.
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ARTICLES 1-5
three months to five years of imprisonment {Article 355 (2) of CCS}. The legislation also
explicitly prescribes that any attempt of such offence is punishable.
§ 252. We also point out that the existence of this offence does not require that a document
be forged for the purpose of any other offence, including the trafficking offence. If, for
instance, a passport is used as a means of committing the trafficking offence, it might be
regarded as concurrence of offences, provided that every legal condition is fulfilled.
§ 253. As regards the demand for defining withholding, forfeiting, and concealing,
damaging or destroying another person’s travel or identity document as punishable,
it needs to be mentioned that withholding another person’s identity documents is
punishable as part of the human trafficking offence {Article 388 (1) of CCS}, and that
forfeiting might be interpreted as already encompassed by the act of withholding.
§ 254. However, the acts of concealing, damaging or destroying another person’s identity
documents are not explicitly prescribed as constituent elements of the human trafficking
offence. Still, the recent changes of and amendments to the CCS enable criminalization
of these acts by applying the offence defined in Paragraph 2 of Article 336 of CCS as
preventing and hindering proving. The punishment envisaged by the above-mentioned
provision is three months to three years of imprisonment and a fine for anyone who, with
intent to prevent or hinder proving, conceals, destroys, damages or makes partially or
completely unusable another person’s document or other items serving as proof.
III.2.1.2.3 Responsibility of Legal Persons
§ 255. State Parties are required, both by the UN standards and CoE Convention, to
envisage the responsibility of legal persons for the criminal act of trafficking, as well as for
other criminal acts whose criminalization is sought for by these documents. It is intended
to proclaim the responsibility of trade enterprises, associations and similar institutions
for any criminal acts committed by any person on a leadership position. In order to be
able to call someone to account, any of the criminal acts described in the Protocol and
CoE Convention has to be committed. This act must be committed by a person on a
leadership position to the benefit of a legal person (support and instigation are included).
The expression “person on a leadership position” refers to someone who holds a top
position in an organization, such as the director/management. It is also required that
the person on a leadership position acts pursuant to his/her authorization (either as
representative of a legal person, or as decision maker, or supervisor), which indicates that
a person acted in accordance with his/her authorization and induced the responsibility of
the legal person. It is also required that State Parties are enabled to impose responsibility
on a legal person in case when a criminal act is not committed by a person on a leadership
position, but by some other person authorized by a legal person, e. g. an employee, or a
representative acting in accordance with their authorities.
90
§ 256. In the legal system of Serbia, a legal person’s responsibility and appropriate
sanctions for criminal acts are stipulated by the Law on Liabilities of Legal Entities for
Criminal Acts258 which has been in effect since 4 November 2008.
§ 257. For the purpose of this Report, we emphasize several basic assumptions of the
criminal liability of legal persons: according to this Law, legal person may be held liable for
a criminal act regulated by the CCS as well as by other laws, if the conditions were fulfilled
for responsibility of a legal person envisaged by the Code. Legal person is responsible
for a criminal act committed by a responsible person within his/her work obligations or
authorities, and in favor of the legal person. Legal person may also be held liable if a criminal
act is committed by a physical person (supervised and controlled by a responsible person),
in favor of a legal person, and due to the lack of supervision and control. Legal person may
be subject to the sanctions (financial sanction or termination of a status of legal person),
suspended sentence and security measures. Also, legal person may be responsible for an
attempted act, providing that the attempt of such act is generally punishable.
§ 258. Therefore, under the conditions stipulated by this Law, legal entities in Serbia may
be charged for the criminal act of trafficking, as well as for other criminal acts that we
have mentioned in this report, as required by the Palermo Protocol and CoE Convention.
III.2.1.2.4 Acts Must Be Criminal Acts (except for legal entities)
§ 259. We point out that criminal acts, pursuant to the Protocol and CoE Convention,
such as the acts of attempted trafficking, money laundry, ID abuse and destruction, are
considered to be criminal acts according to the Criminal Code of the Republic of Serbia.
Responsibility of accomplices in trafficking is regulated by the same piece of legislation.
III.2.1.2.5 Sanctions
§ 260. Sanctions that can be imposed against the perpetrator of the criminal act of
human trafficking are established in accordance with the domestic legislation. For this
act of crime it is possible to sentence the perpetrator to a term of imprisonment, fine or
suspension of the perpetrator’s driving license. It is not possible to release the perpetrator
on parole for this criminal act after the amendments to the Criminal Code of Serbia (CCS)
in 2009. In the following text we will consider the concept of sanctions.
a. Punishments
§ 261. The only punishment that is prescribed for the criminal act of human trafficking is
the punishment of imprisonment. That is a principal punishment. However, in addition to
imprisonment, a fine as a supplementary punishment may be imposed on the trafficker
pronounced guilty providing that trafficking was committed out of greed {Article 48 (2)
of the CCS – General Penalty Provisions}.
258
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ARTICLES 1-5
§ 262. If, in the course of committing the criminal offense of trafficking in human beings or
in the course of its preparation, a motor vehicle was used, a court may order the forfeiture
of a driving license from the perpetrator {Article 53 (1) CCS}. This punishment can be
ordered for a period not shorter than one or longer than three years {Article 53 (2) CCS}.
§ 263. For the basic form of this criminal act the perpetrator can be imprisoned for three
to twelve years. In case there are aggravating circumstances the punishment is stricter.
§ 264. When it comes to the sanctions envisaged for the criminal act of human
trafficking, an appreciable progress has certainly been made through the aggravation
of punishments that occurred in 2009 – the minimum imprisonment for the basic form
was raised from two to three years, while the maximum was raised from ten to twelve
years of imprisonment. In addition to that, after the recent modifications of the Criminal
Code that stipulates stricter penal policy, the perpetrator of the criminal act of human
trafficking cannot be released on parole. The same modifications of the Criminal Code
envisage that the punishment for this criminal act cannot be mitigated259.
b) Safety Measures
§ 265. Among the safety measures that are prescribed by the law, prohibition of professional
and other activities and duties, restraining order and ban on communication with victims,
expulsion of an alien from the country and the public announcement of the judgment
can also be applied when dealing with the criminal act of human trafficking. The Criminal
Code stipulates that the court can impose a safety measure of the expulsion of an alien
against the perpetrator who is a foreign citizen, for the period of one to ten years {Article
88 (1) CCS}. This is an optional, not a mandatory measure. When deciding whether to
impose this sanction, the court should consider the nature and severity of the criminal
act, the motives for this act, the manner in which this criminal act has been committed
and other circumstances that indicate the undesirability of the further stay of the alien
on the territory of Serbia {Article 88 (2) CCS}. However, this measure cannot be imposed
on a foreign citizen who is under protection of the Republic of Serbia, in accordance to
the ratified international treaties {Article 88 (4) CCS}. Beside that, although there is the
lack of court practice, it is implied that this measure cannot be imposed against a foreign
citizen to whom the asylum has been granted.
§ 266. Moreover, new safety measures have been introduced into the system of safety
measures envisaged by the Criminal Code – restraining order and ban on communication
with victims, which are of extraordinary significance for the protection of trafficking
victims260. This measure can last for three years at the longest.
§ 267. As for the measure that deals with the prohibition of professional or other
activity, the court can prohibit the perpetrator of human trafficking offence from
259
260
See new Article 57(2).
See the new Article 89a CCS.
92
exercising a certain profession, activity or some or all duties connected to disposition,
use, management, handling or looking after other people’s property if there is a justified
belief that his further actions would be dangerous.
§ 268. The court determines the duration of the measure from Paragraph 1 of this Article,
which cannot be shorter than one and longer than ten years, the first day being the day
of court decision becoming final and enforceable. It also stipulates that the time spent in
prison is not included in the period of duration for this measure (Article 85, CC).
§ 269. Finally, there is also a legal possibility the judgment finding the perpetrator guilty for
trafficking may be publicly announced. Article 89 (1) CCS provides that a court may order
a judgment against the perpetrator culpable for a criminal offense, which endangered life
or health of citizens, to be publicly announced at the costs of the perpetrator, providing
that such announcement would contribute to the diminishing or lessening of existing
danger. In the case of trafficking, this is an optional and not mandatory measure: whether
it will be ordered depends on the circumstances in which trafficking was committed.
III.2.1.2.6 Previous Sentences
§ 270. Article 25 of the UN Convention demands that each State Party should adopt
legislative and other measures that would enable them, when sentencing a person, to
take into account final and enforceable sentences pronounced by another State Party for
the criminal acts envisaged by this Convention.
§ 271. Regarding this, we need to point out that the Serbian criminal legislation envisages
a more severe punishment for previously sentenced persons (Article 55 of CCS on
recidivism). However, the law does not take recidivism into consideration when a person
has previously committed the same offence abroad, though this would make way for the
foreign court sentences to lead to more severe punishment, just as is the case with the
sentences of the domestic courts.
III.2.1.2.7 Presence of Defendants
a. Measures in the course of criminal proceedings
§ 272. The UN Convention requires from States Parties to respond appropriately to ensure
the presence of defendants at criminal proceedings261. This means that in accordance with
its domestic law and with due regard to the rights of the defense, States should ensure
that in deciding on release pending trial or appeal, the need to ensure the presence of the
defendant at subsequent criminal proceedings should be taken into consideration.
§ 273. The measures taken to ensure the presence of the defendant at trial and criminal
proceedings are set forth in the Criminal Procedure Act262. We emphasize the importance
of ban on leaving the location of residence, bail and detention.
261
262
See Article 11 (3) of the UN Convention.
Official Journal of the Federal Republic of Yugoslavia, no. 70/01 and 68/02 and Official Gazette of RS, no. 58/04, 85/05, 115/05, 49/07, 20/09
and 72/09.
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ARTICLES 1-5
§ 274. If there are circumstances under which the defendant could abscond, hide, go to an
unknown place or abroad, the court can make a reasoned decision to ban him from leaving
his apartment or the place of residence without permission {see Article 136 (1) CPA}. The
defendant can be banned from visiting certain places or meeting with certain people, or
approaching certain people, or he/she can be ordered to call a certain authority occasionally,
or a travel document or a driver’s license can be taken away from him temporarily {see
Article 136 (2) CPA}. The defendant shall be warned that a detention can be ordered against
him if he/she violates the imposed prohibitions {see Article 136 (4) CPA}.
§ 275. We note that these measures cannot restrict the right of the defendant to reside
in his/her home, to see the members of his/her family freely, as well as his/her close
relatives (unless these people are included in some of the measures ordered against him/
her) and his/her attorney {see Article 136 (3) CPA}.
§ 276. The mentioned measures may last as long as there is a need for them, and until the
final judgment, at the longest. Every two months, the investigative judge or the presiding
judge shall determine whether the implemented measure is still needed {Article 136 (7) CPA}.
§ 277. Through the amendments and supplements to the Criminal Procedure Act from
2009, a possibility of electronic surveillance has been introduced toward persons upon
whom some of the mentioned measures have been imposed. Namely, the court can order
electronic surveillance for the defendant upon whom one or more of the mentioned
measures have been imposed, so as to monitor the compliance with the restrictions
determined for the defendant, providing that this will not jeopardize the defendant’s
health. The locating device is attached to the wrist or ankle of the defendant, or in some
other way, by an expert, who, thereby, gives the defendant detailed instructions on the
operation of the device. The expert also handles the device with which he/she remotely
monitors the movement of the defendant, as well as his spatial position. Electronic
surveillance is carried out by law enforcement institutions, Security Information Agency
or some other authority {see Article 136 (10) CPA}.
§ 278. We especially emphasize that electronic surveillance as well as the measures
by which the defendant has been banned from visiting certain places or meeting with
certain people, or ordered to call a certain authority occasionally, or a travel document
or a driver’s license has been taken away from him temporarily, can also be imposed as
individual measures, if they are needed in order to protect an injured person or a witness,
prevent the defendant from influencing accomplices or concealers, or if there is a risk that
the defendant should finish the criminal act he/she has started, repeat the criminal act,
that is, commit a criminal act in question {see Article 136 (11) CPA}.
§ 279. The conditions for granting the bail in the Serbian legal system are set forth in
the Criminal Procedure Act (Articles 137-140). The defendant who should be detained
or has already been detained and for whom the circumstances indicate that he/she shall
abscond or avoid trial, may remain at large, or may be released providing that:
94
• The defendant personally, or another person, gives bail guaranteeing that he/she shall
not abscond until the conclusion of criminal proceedings, and
• The defendant personally promises that he/she shall not hide or leave his residence
without permission (Article 137 CPA).
§ 280. Under certain circumstances, the person against whom a ban of leaving the
residence has been imposed, can also be ordered to pay bail as a measure of respecting
this restriction {see Article 137 (2) CPA}.
§ 281. It should be mentioned that the bail will always be set in a pecuniary amount
determined with regard to the gravity of the criminal offence, the personal and family
circumstances of the defendant as well as the financial situation of the person giving
bail {see Article 138 (1) CPA}. Notwithstanding the bail being posted, detention will
be ordered for the defendant to whom the bail has been granted because of the risk of
absconding, if the duly summoned defendant fails to appear and to justify his absence, or
if following a decision that he/she remains at large, some other legal ground for detention
occurs against him {see Article 139 (1) CPA}. If the judgment imposes a sentence of
imprisonment, the bail shall be revoked only when the convicted person begins to serve
his sentence {see Article 139 (4) CPA}.
§ 282. As far as the detention is concerned, we point out that detention is an optional
and not a mandatory measure taken to ensure the presence of the defendant at trial and
criminal proceedings, that it can be granted only by the court’s decision and only if the
detention is necessary for the reasons of conducting criminal proceedings and if the same
purpose cannot be achieved by another measure {see Articles 141 and 142 CPA}.
§ 283. According to the Article 142 CPA, the detention can be ordered against a person
for whom there is a reasonable suspicion that he/she has committed a criminal act:
• if he/she is hiding or if his identity cannot be determined, or if there are other
circumstances pointing to a risk of absconding;
• if there are circumstances indicating that he/she will destroy, hide, change or
counterfeit the evidence or traces of the criminal act or if special circumstances
indicate that he/she will hinder the process by influencing the witnesses, expert
witnesses, accomplices or concealers;
• if special circumstances indicate that he/she will repeat the criminal act, or finish the
attempted criminal act, or commit a criminal act in question;
• if, as a defendant who has been duly summoned, he/she obviously fails to appear
at trial;
• if the criminal act, for which he/she has been charged, is punishable by imprisonment
of over ten years and if this has been justified by the particularly serious circumstances
of the criminal offence;
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ARTICLES 1-5
• if the accused has been sentenced by the court of first instance to a punishment of
imprisonment for five years or more and if this is justifiable because of the particularly
serious circumstances of the criminal offence.
§ 284. In our opinion, the cited statutory provisions ensure what is requested by the
UN Convention – the legislature made an appropriate balance between the rights of the
defendant and the need to ensure his/her presence at the criminal proceedings.
b. Parole or Early Release
§ 285. The UN Convention requests from States Parties to take into account the gravity
of trafficking offences when considering the possibility of parole for convicted persons.
According to the Serbian legal system, there are no special rules to be applied in case of
early release of a person sentenced for trafficking offences. In such a case – the general
rules shall be applicable.
§ 286. The Serbian legal system allows the convicted person to submit a petition for early
release after he/she has served two thirds of the sentence (see Article 46 CCS and Article
522 CPA). Such solution is applied today and is more restrictive than the previous one,
which allowed the convicted person to submit a petition for early release after he/she
has served half of the sentence. What we especially emphasize is the fact that there is no
mandatory parole or early release prescribed by the law.
§ 287. The first instance court which initially tried the case, decides on the petition.
Whether early release will be granted depends on whether the time specified by the law
regarding release on parole has expired, on a report on an inmate’s behavior, the fulfillment
of his/her working obligations, and on other circumstances indicating that the purpose of
punishment is met {see Article 522 (3) CPA}. Early release is granted conditionally – it
will be annulled if a convicted person commits a crime while on early release, or does not
perform a duty determined by court {see Article 47 CCS}.
III.2.1.2.8 Statutes of Limitation
§ 288. The UN Convention requests from States Parties to establish a long domestic
statute of limitations period for the commencement of proceedings for the trafficking
crimes. The Serbian Criminal Code envisages that the following statutes of limitation
shall be applicable to trafficking offences:
• For the main offence – the statutory period is of fifteen years;
• If the man offence of trafficking is committed against a person aged under 18, the
perpetrator may be punished by imprisonment amounting to its general statutory
maximum of 20 years, which in turn implies the 20-year statute of limitation;
• If trafficking resulted in a serious bodily injury, the envisaged penalty is an imprisonment
for 3 to 15 years, whereas the state of limitations is of 15 years;
96
• Where trafficking resulted in death of one or more persons, this again makes room for
imposing imprisonment amounting to its general statutory maximum of 20 years and
the 20-year statute of limitation;
• The same is valid if the committed offence can be imputed to a person who regularly
engages in this criminal activity i.e. to a “trafficker” or where organized group commits
trafficking - the statutory period is of 20 years;
• For the “client“ the statutory period is of 5 years.
• For the main offence of trafficking in children for the purpose of adoption, the
statutory period is 5 years;
• However, if the offence of trafficking in children for the purpose of adoption can be
imputed to a person who regularly engages in trafficking i.e. to a “trafficker” or where
organized group commits trafficking, the statutory period is of 20 years.
§ 289. It should be mentioned that the statute of limitations shall commence to run as
soon as the act is completed. If a result constituting an element of the offence occurs later,
then the statute of limitations shall commence to run at that time {see Article 104 (1) CCS}.
§ 290. The running of the statute of limitations shall be interrupted by any act aimed
at investigation of a crime or investigation and prosecution of the offender of the crime
committed {see Article 104 (3) CCS}. The running of the statute of limitations shall also
be interrupted if the offender, in the period when the statute of limitations runs, commits
the crime of the same gravity or a more severe crime {see Article 104 (4) CCS}. After each
interruption, the statute of limitations shall commence to run anew {see Article 104 (5) CCS}.
In any case, prosecution shall be barred by the statute of limitations, when twice period has
elapsed since the time indicated as the statute of limitation {see Article 104 (6) CCS}.
§ 291. In our opinion, the established statutes of limitation correspond to the gravity of
trafficking offences. The only exception is the period applicable to the basic offence of
trafficking in children for the purpose of adoption, which results from a relatively lenient
sentence envisaged for this crime (see § 232-237).
III.2.1.2.9 Asset Confiscation
§ 292. The applicable UN standards request that, to the greatest extent possible, tracing,
freezing and confiscation of the proceeds and instrumentalities of these offences should
be provided in domestic cases of trafficking.
§ 293. In 2008, the Republic of Serbia adopted a unique and comprehensive Law on
Seizure and Confiscation of the Proceeds from Crime263. Among the rest, this Law is also
applied on trafficking in human beings, trafficking in children for the purpose of adoption,
and showing of the pornographic material and using children for pornography if the
pecuniary gain has been acquired in criminal act, that is, if the value of the object of the
criminal act exceeds the amount of 1,500,000 RSD (about 15.200 EUR).
263
Official Gazette of RS, no 97/08.
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ARTICLES 1-5
§ 294. This Law defines the notion of proceeds very broadly: assets are considered to
be any kind of goods, material or immaterial, movable or immovable, of estimably or
inestimably great value and documents in any form by which the right or interest related
to these goods is determined. In addition, assets are considered to be an income or
other benefit acquired, directly or indirectly, from the criminal act, as well as the goods
into which it has been transformed or with which it has been blended. Finally, the Law
states that the assets of the defendant, special witness or decedent which is obviously
disproportionate with his/her legal income is considered to be the proceeds from crime.264
§ 295. Authorities in charge of detecting, confiscation and handling proceeds from crime
are the Public Prosecutor, court, Financial Intelligence Unit of the Ministry of the Interior
and the Directorate for management of seized and confiscated assets.
§ 296. Additionally, the Law envisages the possibility of a temporary and permanent
confiscation of assets. When there is a risk that the later confiscation of the proceeds
from crime would be more difficult or impossible, the Public Prosecutor may submit
a request for a temporary confiscation of assets upon which he/she makes decisions.
The temporary confiscation of assets lasts until the decision has been made about the
request for a permanent confiscation of assets265. The Public Prosecutor shall submit a
request for a permanent confiscation of the proceeds from crime after the indictment
has taken a legal effect, and at the latest within one year after the final termination of
criminal proceedings.266
§ 297. The Law on Seizure and Confiscation of the Proceeds from Crime also governs the
question of international cooperation, that is, mutual assistance in tracing the proceeds from
crime, ban on disposal, and temporary or permanent seizure of the proceeds from crime.267
§ 298. It should be mentioned that the provisions of this Law do not apply to people who
had acquired the status of special witnesses before this Law came into force.
§ 299. Finally, we point to the fact that CCS also envisages the sui generis measure of
confiscating pecuniary gain. The Criminal Code explicitly states: “No one shall keep
any pecuniary gain acquired by a criminal offence” {Article 91 (1) CCS}. This measure is
mandatory, and in order to apply it, it is not necessary that the defendant be convicted of
a crime. In that sense, no one can keep pecuniary gain stemming from human trafficking,
no matter whether he/she has been found guilty for that act or not.
III.2.1.2.10 Jurisdiction
§ 300. States Parties are required to establish jurisdiction of investigation, issuing
indictment and punishing all offences established by the CoE Convention and the
Protocol. Jurisdiction must also be established over offences committed by the nationals
264
See Article 3 Paragraphs 1 and 2 of the Law.
Ibid. Article 21-27.
Ibid. Article 28.
267
Ibid. Article 50-61.
265
266
98
who cannot be extradited on the ground of nationality. We will now consider jurisdiction
articles of the Serbian Criminal Code, which are directly applicable to trafficking offences
established by this law.
§ 301. In Article 6 (1) CCS, it is established that criminal legislation of the Republic
of Serbia is applicable to anyone who commits a crime on its territory. The territorial
jurisdiction of Serbia includes also its marine vessels and aircrafts {Article 6 (2) (3) CCS}.
§ 302. In certain cases, the Republic of Serbia has jurisdiction to investigate, prosecute and
punish criminal conduct that occurs outside its borders. First, according to the principle
of active citizenship, Serbia has jurisdiction over the crimes committed by its nationals
outside of its border (Article 8 CCS). This is valid also for a person who has acquired
Serbian citizenship after he/she committed the crime {Article 8 (2) CCS}. In order for
the State to exercise the jurisdiction, it is necessary that the perpetrator has been on
its territory or has been extradited to Serbia. Serbia can exercise the jurisdiction in this
case only if a procedural requirement of double incrimination is met – meaning that in
both states (in Serbia and in the territorial State) the conduct is considered a criminal
offence {Article 10 (2) CCS}. Yet, in case that the territorial State does not punish for such
conduct, Serbia can still restore to the principle of active citizenship upon the approval of
its State Prosecutor {Article 10 (2) CCS}. What is implied is that Serbia has jurisdiction over
its national who has committed the trafficking offence outside its borders even if such
crime is not punishable in the territorial State. Accordingly, it has been secured that the
“trafficker” who cannot be extradited due the nationality clause still can be prosecuted
for the trafficking committed abroad.
§ 303. For the purpose of this Report, it is important to mention that the Criminal Code
envisages the jurisdiction upon the so-called universality principle. Namely, it provides for
prosecution of a foreigner who has committed an offence outside of the territory of Serbia
against another foreigner {Article 9 (2) CCS}. In order to exercise the jurisdiction in such
case, it is necessary that the foreigner is present on its territory and has not been extradited
to another country {Article 9 (2) CCS}. For the crime of trafficking, it will not be necessary
to satisfy the requirement of double incrimination, since the Criminal Code explicitly
states that if the conduct, when committed, has been regarded criminal according to the
general principles of international law, double incrimination requirement need not to be
met in order to establish the jurisdiction over such conduct {see Article 10 (3) CCS}. All
what is needed to commence criminal proceedings is an approval of the State Prosecutor.
III.2.1.2.11 Extradition
§ 304. Human trafficking and similar offences established in the Criminal Code of Serbia
are extraditable offences - the penalties relating to deprivation of liberty can give rise
to extradition.
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ARTICLES 1-5
§ 305. As to the procedure, note that Serbia has not declared, pursuant to Article 16 (5)
of the UN Convention on Transnational Organized Crime, that it will take this Convention
as a legal basis for cooperation on extradition with other States Parties. In the absence
of an international or bilateral agreement regulating extradition between Serbia and
another State Party to this Convention, the extradition will be carried on in compliance
with domestic law. The recently adopted Law on Mutual Legal Aid in Criminal Matters268
regulates the extradition proceedings.
§ 306. For the purpose of this Report, we note that the most important requirements
for extradition refer to the request that the person whose extradition is requested is
not a citizen of Serbia, that the act for which the extradition is requested has not been
committed on the territory of the Republic of Serbia, against it or its citizen and that
an indictment on the basis of which the extradition is requested has not been issued
against the same person in the Republic of Serbia269. Apart from that, the requesting state
is, among other things, required to provide guarantees that in case of a conviction in
absentia the process will be repeated in the presence of the extradited person, as well as
that the death sentence prescribed for the offence on the basis of which the extradition is
requested, will not be issued, that is, enforced.270
§ 307. Finally, if extradition is denied on the ground that the fugitive is a Serbian national,
there is always legal possibility for domestic prosecution, which is one of the requests of
the UN Convention on Transnational Organized Crime (see § 303).
III.2.1.2.12 Mutual Legal Assistance
§ 308. Article 18 of the UN Convention on Transnational Organized Crime endorses
mutual legal assistance among States Parties regarding investigation, prosecution and
judicial proceedings for the offences established by the UN Convention and the Protocol.
The UN Convention specifies that each State Party must provide for Article 18 (9-29),
to govern the modalities of mutual legal assistance in the absence of a mutual legal
assistance treaty with another State Party. If existing domestic law governing mutual
legal assistance is inconsistent with any of the terms in the Article 18 (9-29) and if
domestic law prevails over treaties, the UN Convention requires the adoption of adequate
legislative measures.271
§ 309. In the Republic of Serbia, the fundamental principle concerning mutual legal
assistance is that it shall be afforded in accordance with the provisions of international
treaties. Only, if there is no international treaty or if an international treaty does not
regulate certain issues, the mutual assistance shall be afforded in accordance with the
recently adopted Law on Mutual Legal Aid in Criminal Matters. As to the international
268
269
270
271
See Article 16 of the mentioned law.
Ibid.
Article 18 (7) of the UN Convention.
100
treaties regarding international mutual assistance, note that apart from the UN
Convention, Serbia has also ratified the following international treaties relevant for the
matters we are discussing:
• European Convention on Mutual Assistance in Criminal Matters and its protocol 272,
• European Convention on the Transfer of Proceedings in Criminal Matters 273,
• Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime 274,
• European Convention on Extradition and its protocols 275,
• European Convention on the International Validity of Criminal Judgments276
§ 310. Serbia has also concluded numerous bilateral treaties regarding mutual assistance
in criminal and civil matters.277
§ 311. Article 16 (2) and Article 194 (4) of the Serbian Constitution specify that general
principles of international law and ratified international treaties represent an integral part
of the legal system. The Constitution also requires that ratified international treaties must
be in accordance with the Constitution {Article 16 (2) and Article 194 (4)}. Since there is
no prima faciae evidence that the Convention on Transnational Organized Crime is not
in conformity with the Constitution, therefore, although Serbia has made no specific
declarations regarding acceptability of Article 18, the priority of Article 18 is confirmed
by its own acts.
§ 312. In any case, it is worth mentioning that the provisions of the Law on Mutual Legal
Aid in Criminal Matters equal to a considerable extent to Article 18 of the Convention.
§ 313. First, according to the mentioned Law, mutual legal assistance particularly includes
extradition of the accused or convicted, taking over and transferring prosecutions, and
execution of criminal judgment. The Law also envisages other forms of international legal
aid including the execution of procedural action, such as calling and delivering written
material, hearing of the defendant, hearing of witnesses and expert witnesses, investigation,
search of premises and persons, temporary confiscation of assets; taking measures, such
as surveillance and recording phone and other conversations or communications and
optical recording of faces, controlled delivery, providing simulated business services,
conclusion of simulated legal transactions, use of undercover investigators, computer
search and data processing; exchanging information and delivering written material
and objects related to the criminal proceedings in the requesting state, delivering data
without a letter rogatory; use of audio and video conference connection, forming joint
272
Official Journal of FRY (International Treaties), no. 10/01.
Ibid.
Official Journal of FRY (International Treaties), no. 7/02
275
Official Journal of FRY (International Treaties), no. 10/01
276
Official Journal of FRY (International Treaties), no. 13/02.
277
E.g. with Albania, Algeria, Austria, Belgium, Bulgaria, Czech Republic, France, Greece, the Netherlands, Iraq, Cyprus, Hungary, Slovakia, Italy,
Germany, Mongolia, Poland, Romania, USA, Russia, Spain, Switzerland, Turkey and Great Britain. For more see, Grubač M. (2002), Zakonik o
krivičnom postupku, sa kratkim objašnjenjima, Beograd; Službeni glasnik, p. 393-395. In recent times, the significantly important agreements
are considered to be those concluded with Member States of the former SFRY, namely with Bosnia and Herzegovina, Montenegro, Croatia and
Macedonia. For more see List of multilateral and bilateral agreements in the field of international cooperation, Council of Europe, http://www.
mpravde.sr.gov.yu/images/1797-d-inventory%20of%20agreements%20-SR.pdf
273
274
101
ARTICLES 1-5
investigative teams; temporary surrender of a prisoner for interrogation before the
authority of the requesting state.278 Although the Serbian legislation does not specify
whether legal assistance will be provided with respect to investigations, prosecutions and
judicial proceedings against a legal person, this, in our opinion, does not render mutual
legal assistance in this case impossible.
§ 314. Second, although the UN Convention on Transnational Organized Crime allows
States Parties to refuse mutual legal assistance under certain conditions279, it makes clear
that assistance cannot be refused on the ground of bank secrecy or for offences considered
to involve fiscal matters.280 In this sense, the Serbian legislation is in conformity with
the Convention.
§ 315. And finally, we note that the international legal aid is also provided upon the
request of the International Court of Justice, International Criminal Court, European
Court of Human Rights and other international institutions founded by the international
agreement approved by the Republic of Serbia. The authorities in charge of providing
international legal aid are domestic courts and public prosecution, and certain actions in
the process of mutual legal aid are carried out by the Ministry of Justice, the Ministry of
Foreign Affairs and the Ministry of the Interior.
III.2.1.2.13 Special Investigative Techniques
§ 316. In accordance with Article 20 of the UN Convention on Transnational Organized
Crime, a State Party must:
a. Establish controlled delivery as an investigative technique available at the
domestic and international level, if permitted by the basic principles of its domestic
legal system;
b. Have the legal ability to provide on a case-by-case basis international cooperation
with respect to controlled deliveries, where not contrary to the basic principles of its
domestic legal system;
c. Where deemed appropriate, establish electronic surveillance and undercover
operations as an investigative technique available at the domestic and
international level.
§ 317. The concept of special investigative techniques to fight against certain crimes,
including organized crime, has been endorsed in the separate section of the Criminal
Procedure Act titled “Specific provisions on the procedure for the criminal acts of organized
crime, corruption and other especially grave criminal acts”, with the latest amendments
and supplements of this Act.281 The section establishes different kinds of investigative
techniques and regulates in a detailed manner the procedure for their implementation.
278
279
280
281
See Article 2 and Article 83 of the mentioned law.
Article 18 (21) of the discussed UN Convention.
Ibid. Article 18 (8) and (22).
See Section XXIXa CPA.
102
§ 318. For the purpose of this Report, note that the law establishes the special investigative
technique of controlled delivery (Article 5041 CPA) and permits the use of surveillance
and recording phone and other conversations or communication (Article 504e CPA) and
undercover operations (Articles 504i-504k and 504m-504nj CPA), as requested by the
UN Convention. It is important to remember that the technique of electronic surveillance
is also allowed, Article 136 (10) of this Act. The Criminal Procedure Act provides that all
of these techniques can be used in fight against human trafficking, that is, used in relation
to the acts whose incrimination is required by the mentioned international standards.
III.2.1.2.14 Obstruction of Justice
§ 319. Article 23 of the UN Convention requires the establishment of the following two
criminal offences:
a. Use of physical force, threats or intimidation or the promise, offering or giving of
an undue advantage either to induce false testimony or to interfere in the giving
of testimony or the production of evidence in proceedings in relation to offences
covered by the Convention, and
b. Use of physical force, threats or intimidation to interfere with the exercise of official
duties by a justice or law enforcement official in relation to offences covered by
the Convention.
§ 320. In the Serbian legal system, the use of physical force, threats or intimidation or
the promise, offering or giving of an undue advantage either to induce false testimony
or to interfere in the giving of testimony or the production of evidence in proceedings is
criminalized in Article 336 of the Criminal Code Interference in the Giving of Testimony.
A perpetrator may be any person, while the prohibited acts may occur in judicial or any
other governmental proceedings, including pretrial processes. The envisaged punishment
for this act is cumulatively imprisonment for six months to five years and a fine.
§ 321. The use of physical force, threats or intimidation to interfere with the exercise of
official duties by a justice or law enforcement official in relation to criminal offences are
established as aggravating circumstances of the following criminal offences: Interference
with Official Acts of Public Official and Attack on Public Official in Exercising Official Acts282.
The perpetrator of these offences shall be punished by imprisonment for one to eight
years or more in the case of inflicting grave physical injury. The attempt of both offences
is also punishable.
§ 322. The above-mentioned criminal offences are applicable to the perpetrator who
commits them in relation to trafficking offences. Therefore, we find their incrimination in
conformity with Article 23 of the UN Convention.
282
See Article 322 (3) and Article 323 (3) CPA.
103
ARTICLES 1-5
III.2.1.2.15 Protection of Victims and Witnesses
§ 323. The UN Convention against Transnational Organized Crime recognizes the
importance of protecting victims and witnesses - Articles 24 and 25 deal separately with
witnesses (protection only) and victims (assistance and protection). Article 28 of the
European Convention deals with these problems. Since the Palermo Protocol provides for
assistance to and protection and repatriation of victims (Articles 6, 8 and 9), the issues
regarding victim protection and assistance will be discussed in the sections devoted to
the analysis of the above-mentioned articles. Here, we are going to focus on the measures
provided in the Serbian legal system regarding the protection of witnesses.
§ 324. The 2005 Law on the Protection Program for Persons Participating in the Criminal
Proceedings283 regulates the protection of suspects, defendants, special witnesses,
witnesses, injured persons, expert witnesses and experts. Under certain conditions,
relatives and other persons close to the above-mentioned persons are entitled to
protection, as well. Protection program may be undertaken before, in the course of, as
well as after the criminal proceedings has been completed by a final judgment.
§ 325. The protection of the above-mentioned persons is permitted with regard to the
following offences:
• Offences against Constitutional Order and Security,
• Offences against Humanity and International Law,
• Organized Crime.
§ 326. A protection scheme includes:
• Physical protection, including physical protection of property,
• Domestic or foreign relocation,
• Identity protection and protection of data related to property,
• Altering personal identity.
§ 327. In addition, the Criminal Procedure Act provides evidentiary rules to permit witness
testimony i.e. special arrangements for giving evidence.
§ 328. In conclusion, we find that the standards regarding witness protection, which are set
forth in Article 24 of the Convention, have been duly respected in the Serbian legal system.
III.2.1.2.16 Cooperation of Offenders
§ 329. Article 26 of the UN Convention encourages cooperation between persons
involved in organized crime and law enforcement institutions. States Parties are required
to respond appropriately, but the substance of the appropriate measures is left to
national drafters.284
§ 330. As far as Serbian legal system is concerned, the cooperation between offenders
and competent authorities in fight against organized crime is based on the legislative
283
284
Legislative Guides, supra note 12, p. 172.
104
authority – the Criminal Procedure Act and the Law on the Protection Program for Persons
Participating in the Criminal Proceedings have regulated the related issues.
§ 331. Thus, the Criminal Procedure Act refers to the conditions under which the offenders
may get the status of a special witness, the proceedings for obtaining such a status,
immunity provisions, the obligations imposed to the special witness, his/her interrogation,
mitigation of punishment, non-punishment and the revocation of the protected witness
status (see Articles 504o-504ć CPA). We note that the special witness cannot be a person
for whom there is a reasonable suspicion that he/she is an organizer of a criminal group.
§ 332. The Law on the Protection Program for Persons Participating in the Criminal
Proceedings regulates in detail measures to be undertaken to protect life, health, physical
integrity, liberty and property of the protected persons, including the offenders who got
the special witness status.
§ 333. Both acts are applicable to trafficking offenders.
III.2.1.2.17 Law Enforcement Cooperation and Training and Technical Assistance
§ 334. The UN Convention requests from States Parties to strengthen the channels of
communication among their respective law enforcement authorities, undertake specific
forms of cooperation in order to obtain information about persons, the disposal of
proceeds and instrumentalities of crime, provide to each other items or quantities of
substances for the purpose of analysis or other investigative purposes, promote exchanges
of personnel including the posting of liaison officers, exchange information on a variety of
means and methods used by organized criminal groups, and conduct other cooperation
for purposes of facilitating early identification of offences.285
§ 335. According to the Serbian legal system, international cooperation in the field of
organized crime is to be implemented according to the ratified international treaties
or domestic laws. For example, the 2005 Law on the Protection Program for Persons
Participating in the Criminal Proceedings envisages that the international cooperation in
implementing this act shall be afforded upon international treaties or memorandums of
cooperation (see Article 39).
§ 336. Among many relevant international treaties, Serbia has ratified the Police
Cooperation Convention for Southeast Europe286; the Agreement on Strategic Cooperation
between the Republic of Serbia and the European Police Office was signed and ratified287
in 2009. Moreover, our country cooperates with SECI Center in Bucharest, Hunagry288
and MARRI Center in Skopje, Macedonia289. Among many bilateral agreements on police
285
Article 27 of the UN Convention.
287
288
http://www.secicenter.org
289
The Migration, Asylum, Refugees Regional Initiative (MARRI) was founded in 2003 as a result of a merger between two initiatives: Stability
Pact – Migration and Asylum Initiative (MAI) and Regional Return Initiative (RRI). MARRI Member States are Albania, Bosnia and Herzegovina,
Macedonia, Serbia, Croatia and Montenegro. http://www.marri-rc.org
286
105
ARTICLES 1-5
cooperation let us mention those signed in the course of 2009 with France, Switzerland
and Israel.
§ 337. In order to facilitate international cooperation, the Law on Mutual Legal Aid
in Criminal Matters entrusts certain affairs to the Ministry of the Interior, such as for
example, the execution of the decision on extradition.290
III.2.1.3 Other General Demands for the Criminalization of Human Trafficking in the
National Legislations Prescribed by the UN Convention and Palermo Protocol
III.2.1.3.1 Non-inclusion of Transnationality in Domestic Offences
§ 338. In the Criminal Code of Serbia, transnationality is not specified as an element of
the criminal offence of human trafficking. In that sense, the domestic law is in accordance
to Article 34 (2) of the UN Convention.
III.2.1.3.2 Non-inclusion of an Organized Criminal Group in Domestic Offences
§ 339. The UN Convention, in Article 34 (2), demands the introduction of similar criminal
offences in domestic legislation, regardless of the participation of an organized criminal
group. Having this on mind, we warn that the basic offence of human trafficking is defined
in accordance with this demand, while the participation of an organized criminal group
in committing the crime is seen as an aggravating circumstance when sentencing the
perpetrator {Article 388 (7) and Article 389 (3) CCS}.Thus, human trafficking and similar
criminal offences in the Criminal Code of Serbia are applied equally, no matter whether
they were committed by an individual, several people or an organized group.
III.2.1.3.3 Criminalization May Use Legislative and Other Measures, But Must Be
Founded in Law
§ 340. This standard is valid for every case when the UN Convention or Protocol refer to
“other measures” that need to be adopted in the course of establishing criminal offences.
Those measures must be founded in law.
§ 341. All measures aimed at the criminalization of behavior defined as human trafficking
and similar forms of exploitation are founded in law. This principle is followed not only
when it comes to criminalization, but also when adopting measures that regulate the
status of a human trafficking victim, protection of their privacy and identity, as well as
those connected to the issuing of travel documents.
III.2.1.3.4 Only Intentional Conduct Need to Be Criminalized
§ 342. It has been said before that the main offense of trafficking is of intentional nature.
Although the Convention does not request the conduct that involves lower standards
to be punished, still such conduct can be made a crime under Article 34 (3), which
290
See Article 37 of the mentioned Law.
106
expressly allows for measures that are more strict or severe than those provided for in the
Convention. The fact that the Criminal Code provides a more severe punishment if the
main offense of trafficking resulted in a serious bodily injury of a person or in death of a
person or more persons, corresponds with the line of reasoning given in Article 34 (3) of
the Convention. In order to be punishable, the bodily injury or death must be attributable
to the negligence of the perpetrator.
III.2.1.4 Optional Criminalization
§ 343. In addition to the demands for the explicit criminalization of human trafficking,
State Parties to the Palermo Protocol are also encouraged to consider the punishing of
other forms of exploitation of human beings, especially women and children (Art. 9, par.
5 of the Protocol).
§ 344. In the previous parts of this Report, we mentioned that the Serbian legislature
has criminalized various forms of exploitation of persons, including slavery and transport
of enslaved persons, the illegal crossing of state border and people smuggling, as well
as the exploitation of human trafficking victims by clients. In addition, some forms of
exploitation of children have also been explicitly made illegal.
§ 345. For instance, the Serbian Criminal Code envisages a series of offences related to
sexual exploitation of children and child pornography. To remind: these offences include
rape, sexual intercourse with a child, sexual intercourse by abuse of position, illicit sexual
acts, pimping and facilitating sexual intercourse, forcing a juvenile to witness sexual
intercourse, mediation in conducting prostitution, introducing pornography to children
and the exploitation of children in pornography. In the following part of this Report, we
are going to scrutinize the rudiments of articles criminalizing conducts related to the
exploitation of juveniles and children.
III.2.1.4.1 Criminalizing Offences Related to the Exploitation of Children and Juveniles
a. Crimes Related to Exploitation of Juveniles and Children
§ 346. The Serbian legislature has paid a special attention to the protection of juveniles
and children from sexual exploitation. If the criminal offence of rape, sexual intercourse
with a vulnerable person, sexual intercourse by abuse of position, illicit sexual acts or
mediation in conducting prostitution has been committed against a juvenile or a child,
the Criminal Code regards this fact as an aggravating circumstance.
§ 347. As a rule, the penalties that can be inflicted on the perpetrators who committed
any of the mentioned crimes against juveniles or children are more severe than those
that can be imposed if the victims are adults.291 Moreover, sexual intercourse with a child
(Article 180 of CCS) and pimping and facilitating sexual intercourse (Article 183 of CCS)
291
This pertains to the criminal offence of rape {Art. 178 (3) of CCS}, sexual intercourse with a helpless person {Art. 179 (2) and (3) of CCS}, sexual intercourse
by abuse of position {Art. 1818 (2) (3) (4) (5) of CCS}, illegal sexual acts (Art. 182 of CC) and mediation in conducting prostitution {Art. 184 (2) of CCS}.
107
ARTICLES 1-5
and forcing a juvenile to witness sexual intercourses (Article 185a of CCS) are drafted as
separate criminal offences aimed exclusively to protect juveniles and children. It needs
to be added that the amendments to the CCS from the year 2009 envisage considerably
more severe punishments for almost all offences against sexual freedom, particularly for
the offences against sexual freedom when the victims are children and juveniles.
§ 348. As regards the offences of pimping and facilitating sexual intercourse, as well
as mediation in conducting prostitution, the perpetrators of such offences have since
recently been forced to pay a fine in addition to the main punishment by imprisonment.
Finally, in certain circumstances the Criminal Code stipulates a more severe penalty when
the victim is a child than when the crime has been committed against a juvenile.
§ 349. According to the Serbian Criminal Code, instigation, attempt and aiding or abetting
in committing such crimes are also punishable.
§ 350. Speaking about forced prostitution, note that the law does not regard as an
aggravating circumstance the fact that the offender has deliberately or by recklessness
endangered the life of the child, nor if the offense involves serious violence or caused
serious harm to the child.292
b. Offences Concerning Juvenile Pornography
§ 351. In order to prevent and punish for child pornography, the Criminal Code in Article 185
envisages the offence of “presenting, obtaining and possessing pornographic material and
the exploitation of a juvenile in pornography” and in Article 185b “utilization of computer
networks or communication by any other technical means for committing a criminal offence
against the sexual freedom of a juvenile”. The following acts have been made illegal:
Presenting, obtaining and possessing pornographic material and the exploitation of a
juvenile in pornography
Article 185
1. Whoever sells, shows or publicly exhibits or otherwise makes accessible to a juvenile
writings, pictures, audiovisual material or other objects of pornographic content or shows
the juvenile a pornographic performance,
shall be punished by a fine or imprisonment for not more than six months.
2. Whoever abuses a juvenile for the purpose of production of pictures, audiovisual material
or other objects of pornographic content or for a pornographic performance,
shall be punished by imprisonment for six months to five years.
3. If the offence envisaged by Par. 1 and 2. of this Article has been committed against a child,
for the offence envisaged by paragraph 1 the perpetrator shall be punished by imprisonment
for six months to three years, and for the offence envisaged by paragraph 2, by imprisonment
for one to eight years.
292
Ibid.
108
4. Whoever obtains for himself/herself or other, or owns, sells, shows, publicly exhibits or
electronically or otherwise makes accessible picture, audiovisual material or other objects
of pornographic content produced by the exploitation of a juvenile,
shall be punished by imprisonment for three months to three years.
5. The objects referred to in paragraph 1 to 4 of this Article, shall be forfeited.
Utilization of computer networks or communication by any other technical means for
committing a criminal offence against the sexual freedom of a juvenile
Article 185b
1. Whoever with the intent to commit a criminal offence referred to in Articles 178 (4), 179
(3), 180 (1) (2), 181 (2) (3), 182 (1), 183 (2), 184 (3), 185 (2) and 185a of this Code, utilizing
a computer network or communication by any other technical means, arranges a meeting
with a juvenile and appears at the place agreed for the meeting,
shall be punished by imprisonment for six months to five years and a fine.
2. Whoever commits the offence referred to in paragraph 1 of this Article against a child,
shall be punished by imprisonment for one to eight years.
§ 352. As it has been known, according to the EU Framework Decision on combating
the sexual exploitation of children and child pornography, State Parties are required
to declare the following acts as criminal offences: production of child pornography,
distribution, dissemination and presentation of child pornography, supplying with or
allowing access to child pornography, as well as purchasing and possession of child
pornographic material.293 Thereby, it is of no significance whether the offences have been
committed by using computer systems or not. According to the EU Framework Decision,
victim of these criminal acts is a child, i.e. every person under 18. Even though Serbia is
not a member of the EU, it would be useful to make some comparisons.
§ 353. By criminalizing the above mentioned offences, Serbia has largely responded to
the established EU standards. By force of the recently adopted amendments to the CCS,
not only that the exploitation of children in child pornography has become punishable
by law, but also the purchasing or possessing of child pornography, as well as production,
trade and access to pornography featuring underage persons produced as a result of the
abuse of underage persons, i.e. children {Article 185 (2), (3) and (4) of the Criminal Code
of Serbia}.
§ 354. However, in our opinion sanctions envisaged by the law are mild, bearing in mind
that there is more to child pornography than just pornography: it can seriously jeopardize
both physical and mental integrity of a child.
293
Ibid. See Article 3.
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ARTICLES 1-5
III.2.2. Practice Analysis294
III.2.2.1. Human Trafficking in Serbia before the Criminalization
§ 355. The period until the criminalization of human trafficking in Serbia was characterized
by general ignorance of human trafficking as a social problem and its confusion with
prostitution and people smuggling.
§ 356. In practice, trafficking in women and children is mostly studied as a migration
or law enforcement issue, and rarely in the context of a human rights-based approach.
Trafficking victims suffer multiple forms of abuse and ill-treatment, including physical,
mental, and sexual violence. Authorities failed to treat the rape of trafficking victims in
the same way as they would treat the rape of other citizens. This is because victims of
trafficking are treated as prostitutes, and any alleged rape of such persons is seen as an
occupational hazard.
§ 357. During the 1980s, thanks to its better standards of living, SFR Yugoslavia had
been mostly the country of destination for victims from the Eastern Block, in particular
former Soviet Union. However, situation dramatically changed in the 1990s when Serbia
increasingly became the country of origin and transit for victims on their way from the
East to the West.
§ 358. It took a long time before the authorities realized that Serbia was both the country
of origin and destination, and not only the transit country, and that trafficking concerned
not only “some Moldavian and Ukrainian girls”, but also domestic citizens, and before
they accepted that trafficking in human beings was a very profitable criminal activity
widely present within the borders of Serbia. Victims, mostly from Moldova, Romania,
Ukraine, and Bulgaria, end up in Kosovo, Bosnia, Albania, and Western Europe.
§ 359. Children have been trafficked across Serbia for forced begging and theft in Western
Europe. War conflicts and the collapse of institutions in Serbian society during the last
decade of the 20th century created conditions for the surge of organized crime, including
groups that organized trafficking in human beings.
§ 360. Until the criminalization of human trafficking in the Serbian legislation (April
2003), trafficking victims in our country, like in other countries in the region, were not
recognized as such, but were mostly treated as criminals or at least as petty offenders295.
They were most often punished for sex work pursuant to Article 14 of the Law on Public
Peace and Order.296 Even in more severe cases, when the perpetrators were prosecuted
for pimping, victims were put in detention and treated as witnesses and not as victims.
294
This comment applies for each article addressed in this Report. The structure of Practice Analysis wherever possible follows the structure of Legal
Analysis.
It should be noted here that in 2002 NGOs established cooperation with the police and one number of victims was properly identified and
assisted.
296
Official Gazette of RS, no. 51/92, 53/93, 67/93, 48/94, 85/2005 – other law, 101/2005 – other law.
295
110
Article 14
Whoever practices prostitution or provides premises for prostitution shall be punished with
imprisonment of up to 30 days.
Whoever provides premises for prostitution to a minor shall be punished with imprisonment
of up to 60 days.
§ 361. Foreign citizens were mostly punished pursuant to Articles 106 and 107 of the
Movement and Residence of Foreigners Act297:
Article 106
A fine of up to RSD 50,000 or prison sentence of up to 30 days shall be imposed on an alien
1. Who has come to the Socialist Federal Republic of Yugoslavia when he is prohibited to do
so pursuant to the provisions of Article 25 hereof;
2. Who has produced inaccurate personal data or has used false documents (Article 34, Item 2);
3. Who has used another person’s travel document or has given his travel document to
another person to use it (Article 34, Item 3);
4. Who has come to the Socialist Federal Republic of Yugoslavia in an illicit way and has not
been granted the refugee status, i.e. asylum right (Article 34, Item 4);
5. Who has helped or induced another person to illicitly cross the state border of the Socialist
Federal Republic of Yugoslavia (Article 34, Item 6);
6. Who has come to the Socialist Federal Republic of Yugoslavia during the period in which
his temporary residence was canceled (Article 36, Paragraph 2);
7. Who has failed to leave the territory of the Socialist Federal Republic of Yugoslavia within
the period specified in a decision of the competent authority (Article 61, Paragraph 1).
For the violation referred to in Paragraph 1 of this Article, the alien shall also be given a
protective measure of banishment from the territory of the Socialist Federal Republic of
Yugoslavia.
Article 107
A fine of up to RSD 40,000 or prison sentence of up to 15 days shall be imposed on an alien
1. Who has moved, stayed or taken up permanent residence in a specific place or area
where moving, staying or taking up permanent residence by aliens is limited or prohibited
(Article 4, Paragraph 4);
2. Who has stayed in the Socialist Federal Republic of Yugoslavia for two days longer than
specified in his visa, tourist pass or temporary residence permit or who has failed to apply
for temporary residence permit within the specified time period (Article 16, Paragraph 1,
Article 31, Paragraph 1 and Article 32, Paragraph 1);
297
Official Journal of SFRY, no. 56/80, 53/85, 30/89, 26/90, 53/91, Official Journal of FRY, no. 24/94, 28/96, 68/2002, Official Gazette of RS, no.
101/2005 – other law, 109/2007 – other law.
111
ARTICLES 1-5
3. Who has left the place of residence determined by the competent authority (Article 63);
4. Who wears foreign military, police or customs uniform during his stay in the Socialist
Federal Republic of Yugoslavia contrary to the provisions of the law (Articles 65 and 66);
5. Who has failed to report his residence or the change of address to the competent authority
or to cancel his residence before leaving the place of residence (Article 80);
6. Who avoids reporting his residence or the change of address to the competent authority
(Article 81, Paragraph 2);
7. Who has refused to produce an identity document to the authorized person (Article 83,
Paragraph 2);
8. Who has given his personal identification card to another person for use or who has used
another person’s personal identification card for aliens (Article 91, Paragraph 2).
An authorized persons of the authority in the Republic, i.e. Autonomous Province responsible
for border control shall charge the alien immediately with the fine amounting to RSD 5,000
for violations referred to in Paragraph 1, Item 2 hereof.
§ 362. As said in §163-170 of the Initial Report of the Republic of Serbia to the Committee
on the Elimination of Discrimination against Women298, “The victims of trade in people,
before reaching the place (country) in which they were coerced to sex work (sanctioned
by the criminal act of mediation in conducting prostitution referred to in Article 251
of the PC FRY/BPC), used to come through illegal channels crossing the state border
illegally. (Sanctioned by the criminal act of illegal crossing of the state border referred
to in Article 249 of the BPC). For this purpose forged passports were used (sanctioned
by the criminal act of forged passport referred to in Article 233 of the PC RS). During
illegal transfer women were closely guarded (sanctioned by the criminal act of unlawful
deprivation of freedom referred to in Article 63 of the PC RS and the criminal acts of
establishing relationship of slavery and/or of transporting a person in a relationship of
slavery referred to in Article 155 of BPC)[...]In the period from 1992 to 2003, a total of
1,710 cases of the offence of conducting prostitution or making available premises for
conducting prostitution referred to in Article 14 of the Law on Public Peace and Order of
the RS were registered (1992 – 11; 1993 – 13; 1994 – 40; 1995 – 24; 1996 – 63;1997 – 100;
1998 –192; 1999 – 114; 2000 – 63; 2001 –165; 2002 - 637; six months of 2003 - 288) for
the purpose of committing minor offences by persons under the age of 14 (5); from 14 to
16 years (10); from 16 to 18 (66) and over 18 (1,629) or 95.2 per cent. In the period from
1992 to June 2003, a total of 241 criminal acts of mediation in conducting prostitution
referred to in Article 251 of the BPC have been registered in the territory of the Republic
of Serbia (1992 –2); 1993 – 0; 1994 – 2; 1995 – 8; 1996 – 16; 1997 – 10; 1998 – 10; 1999
– 15; 2000 – 15; 2001 – 42; 2002 – 76; 2003 45. Altogether 20 criminal acts are those
298
Convention on the Elimination of All Forms of Discrimination against Women, Consideration of reports submitted by States Parties under Article
18 of the Convention on the Elimination of All Forms of Discrimination against Women, Serbia, 17 October 2006.
112
referred to in Article 251, paragraph 2 of the BPC, i.e. criminal acts committed against an
underage female person by the use of force, threat or deception (1994 – 1; 1996 – 2; 1998
– 2; 2000 – 3; 2001 – 3; 2002 – 8; 2003 –1). During the period under review one criminal
charge was brought for the criminal act of showing pornographic material referred to in
Article 252 of the BPC (2001). Significant results in suppressing sex work were achieved in
the course of 2002. In the territory of Belgrade alone, 38 criminal charges were brought
against 58 persons for the criminal act of mediation in conducting prostitution and 33
criminal charges against 52 persons for organizing prostitution through the so-called
escort agencies (“Madonna”, “Angels”, “Millennium”, etc.). At the same time, thanks to
the police action further advertising in the media of the services of these agencies and of
the services of prostitutes was prevented. According to the Secretariat of the MUP RS,
Belgrade, about 600 prostitutes have been registered, which indicates that the number
of sex workers is rather large and that it is impossible to suppress prostitution completely
through legal measures and measures of repression.”
III.2.2.2. Practice of the City Petty Offence Authority in Belgrade
§ 363. Until 2003, no relevant research or analysis of the human trafficking problem in
Serbia had been done. In the course of 2003, ASTRA and Magistrates’ Association carried
out an analysis299 of finally decided cases under Article 14 of the Law on Public Peace
and Order and of finally decided cases under Articles 106 and 107 of the Movement and
Residence of Foreigners Act300. The aim of this analysis, which covered year 2002, was to
examine whether there were unidentified trafficking victims among persons, in particular
women, punished for petty offences. In the following paragraphs, we are presenting the
main findings of the analysis.
§ 364. In the practice of magistrates (petty offence authority), the most frequent petty
offences that were or may have been directly connected with human trafficking were those
involving sex work and foreigners’ staying in the territory of Serbia and Montenegro. Our
citizens who were trafficked for sexual exploitation were also not recognized as trafficking
victims: most often, they were prosecuted for the violation of public peace and order, i.e.
for sex work. Moreover, they were prosecuted because they were “caught in the act”, but
because the police had known them from before. Although they did not deny sex work,
they were rarely willing to reveal the names of their pimps and helpers.
§ 365. Foreign nationals, if they violated the provisions of the Movement and Residence
of Foreigners Act (Article 106), for which the protection measure of expulsion of the
alien from the territory of Serbia must be ordered, were sent after the proceedings to
the Detention Center for Foreigners and then deported. Thus, such person may not have
299
300
Praksa organa za prekršaje u Beogradu – prostitucija i (i)legalna migracija kao pojave iza kojih se krije moguća trgovina ljudima, ASTRA, Udruženje
sudija za prekršaje, Beograd 2003, www.astra.org.rs
The Asylum Law (Official Gazette of RS, no.. 109/2007) envisages that on the day of its coming into force, i.e. on April 1, 2008, Article 44-60 of
this Law shall cease to be valid.
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been avoided being deported regardless of whether she/he was trafficking victim or
entered the country voluntarily for other reasons. Since the petty offence proceedings
were conducted instantly, it was not possible to establish the actual state of affairs.
It was very difficult for the magistrate on duty to recognize a trafficking victim, which
would enable her/him to acquire the status of the witness and be placed in the shelter
for trafficking victims.
§ 366. The implementation of the expulsion measure is the greatest obstacle for the
success of criminal proceedings against the organizers and other participants in the
trafficking chain, because deportation prevents victims from appearing as witnesses
at trial.
§ 367. Of the total number of persons punished pursuant to Article 14 of the Law on Public
Peace and Order (306)301 during the analyzed period, 278 (90.78%) were women and 28
(9.15%) men (Chart III.2.2.1). All of them were punished under Article 14, Paragraph 1.
Chart III.2.2.1. No. of persons punished under Article 14 of the Law on Public Peace and Order, by gender
§ 368. A total of 21 persons were punished pursuant to Article 106 of the Movement
and Residence of Foreigners Act during the observed period, whereby one person was
punished for two petty offences from this paragraph. Thirteen persons (61.90%) were
punished for petty offence under Article 106, Paragraph 1, Item 4, six persons (28.57%)
under Paragraph 1, Item 7, two persons (9.25%) under Paragraph 1 Item 3 and one person
(4.76%) under Paragraph 1, Item 2 (Chart III.2.2.2).
301
The number of punished persons exceeds the number of cases, because some cases include more than one punished person.
114
Chart III.2.2.2. No of punished persons under Article 106 of the Movement and Residence of Foreigners Act,
by offence
§ 369. The analysis of Article 107 of the Movement and Residence of Foreigners Acts
shows that of the total number of punished persons, 309 (65.47%) were punished
under Paragraph 1, Item 2, 185 (39.19%) under Paragraph 1, Item 6, two (0.42%) under
Paragraph 1, Item 4 and only one (0.21%) under Paragraph 1, Items 1 and 7 respectively
(Cart III.2.2.3).
Chart III.2.2.3 No. of punished persons under Article 107 of the Movement and Residence of Foreigners Act,
by offence
§ 370. The majority of persons punished under Article 14 of the Law on Public Peace and
Order – 289 (94.44%) - were the citizens of Serbia and Montenegro, two (0.65%) were
the citizens of Bosnia and Herzegovina, one was Bulgarian and one Macedonian national
(0.32% respectively). For 13 persons (4.23%), it was not possible to determine citizenship
from the file (Chart III.2.2.4).
§ 371. The majority of persons punished under Article 106 of the Movement and Residence
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ARTICLES 1-5
of Foreigners Act, i.e. seven of them (33.33%) were the citizens of Moldova, six (28.57%)
were the citizens of Romania, three (14.28%) were from Ukraine and one from Bulgaria,
Azerbaijan, Mongolia, Thailand and Austria (4.76% each) (Chart III.2.2.5).
Chart III.2.2.4. Persons punished under Article 14 of the Law on Public Peace and Order by citizenship
Chart III.2.2.5 Persons punished under Article 106 of the Movement and Residence of Foreigners Act,
by citizenship
§ 372. The majority of persons punished under Article 107 of the Movement and Residence
of Foreigners Act, i.e. 104 (22.03%) were the citizens of China, 66 (13.98%) were the
citizens of Romania, 47 (9.96%) were Bulgarian and 40 (8.47%) were Russian nationals.
Category “others” includes the citizens of 36 countries302 (Chart III.2.2.6).
302
Australia, Albania, Algeria, Angola, Argentina, Azerbaijan, Belgium, Belarus, Bosnia and Herzegovina, Czech Republic, Dominican Republic, Ecuador,
Ethiopia, Philippines, Finland Great Britain, Georgia, Holland, Iraq, Japan, Columbia, Korea, Cuba, Libya, Hungary, Morocco, Mauritius, Mongolia,
Germany, Norway, Poland, Slovenia, Sri Lanka, Sweden, Turkmenistan, and Vietnam.
116
Chart III.2.2.6 Persons punished under Article 107 of the Movement and Residence of Foreigners Act,
by citizenship
III.2.2.3. Other Legislation Used to Criminalize Human Trafficking
§ 373. Besides previously discussed legal provisions, before the criminalization of human
trafficking in 2003, this crime was prosecuted as the form of establishment of slavery and
transportation of enslaved persons (Article 155 Fundamental Criminal Law303), unlawful
deprivation of freedom (Article 189 FCL), illegal crossing of state border (Article 249 FCL)
and mediation in conducting prostitution (Article 251 FCL).
III.2.2.4. Prostitution
III.2.2.4.1. Explanation of Terms
§ 374. The relation between sex work and human trafficking, besides the issue of
identification, is among the most complex ones. It was raised when the text of the Protocol
was prepared, too. “….Protocol Annotation: The terms ‘exploitation of the prostitution
of others’ and ‘sexual exploitation’ are the only terms in the definition of trafficking that
are intentionally left undefined and are also not defined anywhere else in international
law. The 100+ country delegations that negotiated the Trafficking Protocol at the UN
Crime Commission were unable to agree upon definitions for these two terms and so
they decided to leave them undefined. The majority of delegates and the Human Rights
Caucus understood that countries have different laws and policies on adult sex work and
that many countries would not want or be able to sign the Trafficking Protocol if it forced
them to change their prostitution laws. A few delegates and NGOs at the negotiations
insisted that all adult prostitution, including voluntary and even legal prostitution
involving adults, should be classified as trafficking and so they forced a yearlong debate at
the negotiations on the subject. The majority of delegates and the Human Rights Caucus
303
Official Journal of SFRY, no. 44/76, 36/77-corr., 34/84, 37/84, 74/87, 57/89, 3/90, 38/90, 45/90-corr., 54/90, Official Journal of FRY, no. 35/92,
16/93, 31/93, 37/93, 41/93, 50/93, 24/94, 61/2001, Official Gazette of RS, no. 39/2003.
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ARTICLES 1-5
rejected the notion that voluntary, non-coerced participation by adults in sex work, factory
work or any other work is trafficking. While such work can be abusive and exploitative, it
is only trafficking if it amounts to the internationally recognized human rights violations
of forced labor, slavery or servitude. The Human Rights Caucus advocated for a consensus
solution that would allow all countries to sign the Trafficking Protocol, including countries
that have laws criminalizing adult sex work and countries that have laws decriminalizing
and/or regulating adult sex work. All delegations agreed that trafficking involves slavery,
forced labor or servitude. However, since there is no international agreement on the
meaning of ‘sexual exploitation’, Caucus members proposed to include the term but leave
it undefined. In this way, all governments could sign the Trafficking Protocol because the
compromise definition would allow each government to decide for itself on the legal
treatment of voluntary adult sex work. This proposal was eventually adopted. Thus,
the Interpretative Note contained in explains the compromise language and recognizes
the existence of both coerced participation and non-coerced participation in adult sex
work. It explains that the Trafficking Protocol takes no position on the treatment of
non-coerced adult sex work and explicitly leaves its legal treatment to the discretion of
individual governments. Since forced or coerced adult sex work (and any other forced or
coerced work) and all child participation in sex work is covered in the Trafficking Protocol
in the context of slavery, forced labor or servitude, governments can omit the terms
‘exploitation of the prostitution of others or other forms of sexual exploitation’ from their
domestic laws. However, any government that decides to include these undefined terms
in their domestic law will have to define them clearly. The preferred definitions would
focus on the use of force or coercion (including psychological coercion) to hold people
against their will. The following definitions could be considered: ‘sexual exploitation’
means ‘the participation by a person in prostitution, sexual servitude, or the production
of pornographic materials as a result of being subjected to a threat, coercion, abduction,
force, abuse of authority, debt bondage or fraud’. ‘Exploitation of the prostitution of
others” could be defined as “the obtaining by a person of any financial or other benefit
from the sexual exploitation of another person…’.”304
III.2.2.4.2. Depenalization of Sex Work
§ 375. It is certainly very difficult to give answer to the question whether sex work
should be legalized or not and how and whether at all possible legalization would affect
the problem of human trafficking. If we look at the experience of other countries, we
will see that these two phenomena are not always directly linked. This means that in
countries where sex work has been legalized, such as Germany, human trafficking is still
present whatsoever. The same applies for countries where sex work is nor legal (e.g. some
304
Jordan A.D., Annotated Guide to The Complete UN Trafficking Protocol – Initiative Against Trafficking in Persons, International Human Rights Law Group,
Washington DC 2002.
118
federal states of the USA or Serbia), where human trafficking is present, too. Also, sexual
exploitation is only one form of human trafficking. If we put the issue of the legalization
of sex work in the context of Serbia, a question arises of how and whether at all this law
would be enforced. Would sex workers have right, for example, to full health and pension
insurance? Would they be stigmatized for their career choice? How much have they been
exposed to violence and abuse from their clients and pimps, etc? There are numerous
factors for and against the legalization of sex work. Let us mention just a few of them:
• Pro: crime decrease; tax collecting; better health protection of clients and sex workers;
possibility to associate into trade unions.
• Con: danger of other criminal activities hidden behind legalized sex work (human
trafficking, money laundering, etc.); prostitution is based on exploitation and human
rights violation; women do not chose prostitution, their living conditions force them
into it.
§ 376. Of key importance here is the fact that such a complex issue cannot be discussed
only theoretically. Among others, women who work in sex industry need to be included
into this debate because they should make decisions on conditions in which they are
going to work.
§ 377. Another significant aspect is that the issue of prostitution/sex work should be
observed exclusively in the human rights context.
§ 378. Some of recommendations305 for legislative intervention are as follows:
• Decriminalize all aspects of adult sex work resulting from individual decision;
• Enforce criminal laws against fraud, coercion, violence, child sexual abuse, child
labor, rape, racism everywhere and across national boundaries, whether or not in the
context of sex work;
• Guarantee sex workers all human rights and civil liberties, including the freedom
of speech, travel, immigration, work, marriage, and motherhood and the right to
unemployment insurance, health insurance and housing;
• Grant asylum to anyone denied human rights on the basis of a “crime of status”, be it
prostitution or homosexuality;
• All women and men should be educated to periodical health screening for sexually
transmitted diseases.
§ 379. Bad socio-economic situation is the root cause of sex work. Women should be
given other options and opportunities. More effort should be put on tackling the causes
of prostitution instead of using repressive measures against women involved in sex work.
§ 380. One of the goals of anti-trafficking media campaigns in Serbia was to inform public
of the concept of human trafficking and teach them to differentiate between this problem
and sex work and people smuggling as concepts it is often confused with. Before the
criminalization of human trafficking, citizens were not able to make this difference; they
305
Source: http://www.bayswan.org/ICPRChart.html
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ARTICLES 1-5
were condemning and stigmatizing the victims. Hence, media campaigns were the first
education and awareness raising tools. At that time, the relation between human trafficking
and sex work, i.e. the legalization and depenalization of sex work, already came to the
political agenda in Europe and in the world, but not in Serbia. Over time, this has become a
serious political issue which provoked the interest of both governments and NGOs. NGOs
advocating the legalization of sex work were exposed to direct or indirect pressure of both
governments and donors. “No funds made available to carry out this Act ... may be used
to provide assistance to any group or organization that does not have a policy explicitly
opposing prostitution and sex trafficking.“306 Also, some NGOs were required to make
written statements that they did not support legalization of sex work so that they could
keep having financial support. ASTRA has been faced with the same problem, where the
declaration (against) the legalization of sex work was most often taken as a criterion for
future cooperation or support. The treatment of these two topics as if it is one and the
same makes a confusion in general public, which institutions and NGOs dealing with this
topic have been trying to put right through campaigns, public sessions and similar activities.
III.2.2.4.3. Association of Night Bar Owners’ Initiative to Legalize Sex Work
§ 381. It is interesting that neither lay public nor professional community in Serbia have
raised this topic to the level of public debate, but the Association of Night Bar Owners
inspired great attention, having collected 2,000 signatures for the legalization of sex work.
(…) In the Association, it is said that their lawyers are preparing documentation they
will submit to the International Human Rights Court in Strasbourg. The president of
the Association Slavoljub Veljković says that he has been advocating the legalization of
prostitution for ten years.
So far, he has addressed many politicians, but has not received positive answer. Therefore,
he decided to collect documentation and send his request to the International Court of
Human Rights in Strasbourg, as well as to the International Monetary Fund...
“We are not pimps; we are currently pimps in some way because if there is no law on the
legalization of prostitution, we become some sort of pimps. But we don’t want to do that,
we want the law, to work as other businesses, shops, supermarkets, factories, for girls to
be employed, with legitimate years of service, pension and social insurance. Like in any
other institution, to know where the profit goes, and the profit is not small whatsoever.
About 1.2 or 1.3 million EUR. This is not small, someone is taking this, some of “the
protectors”, that is what I can say. It would be for the best to pass the law and then the
state could collect taxes”, said Veljković. “I’m asking for legalization above all in order to
stop our problems with the police and their problem with us. And the girls would have
protection and employment, as is the case in EU countries. There are ten to 12 thousand
306
Butcher K., Confusion Between Prostitution And Sex Trafficking,. Lancet. 2003.
120
women voluntarily practicing prostitution, and they are illegal. They enjoy no protection,
they work in brothels and streets, clients are not sure how risky it is to be with them. The
organizers are waiting for the police to jump down their throat any moment, while the
state cannot benefit from huge profits that are generated in this business.”. (…)
B92, 3 May 2005
http://www.b92.net/info/komentari.php?nav_id=167649
The President of the Night Bars’ Association of Serbia, Slavoljub Veljković, announced
the protest of 7,000 bar ladies in front of the Government or the Parliament because
of “the passage of the Law on the Legalization of Prostitution is dragged out”, Tannjug
reports. Veljković, who owns night club “Karibi” in Paraćin, called on the media to support
him and expressed doubt that the legalization of prostitution is being halted deliberately
because of personal interests and material gain of individuals, because prostitution brings
enormous profits. He specified that the Association gathered 138 night bars and that
around 5,000 persons signed the petition for passing the law, which was submitted to the
Republican Parliament in 2005.
Glas javnosti (daily), Tanjug (news agency), 17 April 2007
http://arhiva.glas-javnosti.co.yu/arhiva/2007/04/17/srpski/D07041603.shtml
§ 382. According to the Belgrade Police Department, around 800 sex workers are
registered in Belgrade, as well as 171 male pimps and 51 female pimps. Still, there is room
for some “gray number” that differs from official statistics.307 Unofficial annual turnover
when sex work in Serbia is concerned is estimated at a couple of million EUR. Although the
state does not have an official policy towards this issue, some institution representatives
have been expressing their personal opinions based on their long-standing work in the
field, and those opinions are mostly in favor of the suppression of prostitution.
(...) “The Head of the Public Peace and Order Section of the Belgrade Police Department
Budimir Poluga thinks that in the event of possible legalization of prostitution, situation on
the field wouldn’t change significantly. Prostitution is one of the most profitable criminal
activities. Other criminal activities, such as drugs, illegal arms trade, human trafficking…
are linked to it. “In my opinion, legalization would not eliminate problems linked to
prostitution. According to the experience of neighboring countries, where prostitution
has been legalized, I know that problems have continued, and the greatest one is with
pimps, because they make great profits and want to keep them. A small portion of these
profits go to prostitutes, and I know from practice that a prostitute gets from a pimp only
what it takes for survival” – Poluga says. (….)
http://kontra-punkt.info/print.php?sid=575
307
http://kontra-punkt.info/print.php?sid=575
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ARTICLES 1-5
III.2.2.4.4. Users of Commercial Sex Services – Survey Findings
§ 383. According to an unpublished survey by NGO Belgrade Center for Human Rights
which was done among the buyers of sex services308 in 2006, the only of the kind in
Serbia, clients, i.e. buyers of sex services do not see this as the exploitation of women
who are in difficult (material) situation nor do they think that such act lowers women’s
dignity. What is noticeable is that the buyers actually feel that the buying of such services
more diminishes their own personal dignity.
§ 384. The majority of respondents (the sample composed of persons who more or less
regularly buy sex services) estimate that places in which sex services are actually or
allegedly sold attract a broad and versatile circle of people (both men and women), while
the consumers of services are mostly foreigners, in particular those from former SFRY
republics. As far as the age of sex workers is concerned, analyzing respondents’ answers
it may be concluded that until 2003 there were much more girls between 18 and 22
years of age and that they were mainly from foreign countries, but they are “not here”
any longer. When faced with the problem of adultness, the respondents mostly blame
girls, because they are hiding their age or are physically built in such a way that it is not
possible to estimate their real age, while documents they carry are mostly forged. Still,
the buyers mostly describe “older” girls (over 25 years of age) as “of poor appearance,
old, unattractive and incapable of that job”. Asked about the age for which there is the
greatest demand, one of the respondents said: “Eighteen, nineteen, twenty, there are
some girls younger than eighteen. I used to know one, I’ve met her, she was 17. Police
officers used to frequent such places, which means that they knew everything…Those
places, they are open, they work normally…. I think it’s not right that a minor girl works
in such place….” (Resident of Novi Pazar, 22, single, law student)309
§ 385. Before the disintegration of SFR Yugoslavia and until 2003, girls in sex industry and
consequently most often (potential) trafficking victims were, geographically speaking,
coming from East European countries (Russia, Romania, Ukraine, Moldova, Bulgaria
etc.). However, the situation has dramatically changed in recent years and girls that are
currently working in clubs, night bars and similar joints where there is possibility of sexual
exploitation are mostly domestic nationals. One portion of respondents is aware that
girls from Eastern Europe were trafficking victims forced into sex work. Some respondents
notice that there are no foreign nationals any longer, but understand that this is because
they have voluntarily gone to work in other, neighboring countries. After police raids,
which took place mostly after the assassination of Prime Minister Đinđić and during the
Saber operation in 2002-2003, the majority of “suspicious” bars and night clubs were
closed down. As for foreign nationals who used to work there, it is believed that they
were deported, mainly because of forged documents, the lack of documents or the expiry
308
309
Belgrade Center for Human Rights, author Anđelka Marković, July 2006, unpublished document in the author’s possession.
Ibid.
122
of entry visa (obtained in legal or illegal way). Still, it is general opinion shared by both
general public and the buyers of sex services, that they were deported for conducting
prostitution and that “it is not good to hire them any longer because the police chase
them away”. What is noticeable in the period that followed the Saber operation is
increase in internal trafficking when, as mentioned earlier, foreign nationals were mostly
deported from Serbia and border control was tightened.
§ 386. With regard to respondents’ age the first time they bought a sex service, it ranges
between 14 and 40. The most worrying data is that the buying of sex service is often
the way to “treat” a child. Namely, it is not rare that the fist buying of sex service is
initiated by parents, family friends, godfathers, i.e. those who are both legally and socially
responsible to develop (appropriate) value system in the child. Of the total number of
respondents, 80% have continued (more or less regularly) buying sex services after the
first time, while 20% of them did this only once. Also, only 30% of respondents are
completely sure that they will not do this again, 43.4% are indecisive, while 26.6% think
that they will keep buying sex services.
§ 387. According to ASTRA database, as many as 23.5% of victims repatriated from
North Italy said that clients with whom they established the relation of trust over time
helped them get out of the trafficking chain.
(…) I came from Italy at the end of 2003. I was there for some six months. I was thinking
how to run away all the time. I was seeing the guy who helped me run away for a couple
of months, he was paying for our encounters like all other clients. He was a carabinieri,
but carabinieris were regular clients anyway… It took him a few days to work out a plan
for us to run away. I didn’t want him to have any troubles for helping me. He paid, as
usual, for an hour with me, but we didn’t come back. We went out of town immediately,
to some other place where we spent a few days in his friend’s place. I tried to have some
rest these few days and to finally decide what next, but I was terrified. I had impression
that someone would burst into the apartment any moment…. In the end, I called one
SOS hotline which number we’d obtained and there I got all necessary information. I
definitely decided to return to Serbia. I’m still today in contact with the guy who helped
me. The least I can do is not to reveal his name, where he’s from, where he works… He
did so much for me.
M.J. (20)
ASTRA Database, ID no. 471
III.2.2.4.5. Escort Agencies
§ 388. For the period before 2003, it is almost impossible to find data on the punishment
of human traffickers. During the same time, newspapers were full of ads for escort
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agencies which were, among other things, a cover for sex trafficking. The Belgrade Police
Department Public Peace and Order Section, under which jurisdiction is the suppression
of prostitution, was also in charge of reacting to such advertisements.
§ 389. Although NGOs were on more than one occasion reporting their doubt that
some escort agencies kept trafficking victims, no investigation was launched until
the autumn of 2002, when Petar Peslać, Chief of the Belgrade Police Department
Public Peace and Order Section was arrested on charges of the abuse of office. Being in
charge of the suppression of prostitution, this Section was also responsible for escort
agencies in which prostitution was taking place. Former Chief of this Section was
suspected of receiving bribes from agencies’ owners; in return, he did not make raids
in these agencies.
Petar Peslać (41) denies that he took money from prostitution
Bribes of DEM 14,000 to former police chief
There were suspicions even while he worked in the Police Department, from where
he was transferred two months ago
BELGRADE - Petar Peslać (41) former Chief of the Public Peace and Order Section of the
Belgrade PD was arrested two days ago on charges of receiving bribes in the amount of
DEM14,000 and a few valuable objects, later found in his house, from the owner of escort
agency “Vila”. Peslać denied before the investigating judge that he received the bribes,
but the police say they have solid evidence against him and that it is assumed that he, as
the Chief, took money from several agencies.
“These doubts were there already at the time when Peslać worked in the Police Department,
but we did not have enough evidence to raise criminal charges against him”, says Glas’
source close to the Belgrade PD. According to PD’s press release, from October 2000 until
November 2001, Peslać, as the Chief to the Office for Suppression of Prostitution and of
the Public Peace and Order Section, was receiving DEM 500 every month from the owner
of escort agency “Vila” in Vlajkoviceva and Brankova Streets so that he would not arrest
girls, the owner and agency’s security guards. While working at the Police Department,
Peslać did not organize any raid in this, as well as in a few other agencies. Two months ago
he was transferred to the Interior Ministry, where he worked as the operational worker at
the Public Peace and Order Section.
Police “check”
Police officers Miloš Tanasković (34) and Srđan Brajović (25) were arrested last week
on suspicion of transporting prostitutes from the agency “Madonna” and receiving DEM
20-50 per ride. Unofficially, many police officers who used to work on the suppression
of prostitution were linked with the owners of such agencies and, besides money, were
receiving agency’s “goods” for testing. This year, the police have started an thorough
124
action of cleaning up their own structures and criminal charges were raised against 14
police officers, mainly for bribery.
Glas javnosti (daily), 17 August 2002
http://arhiva.glas-javnosti.co.yu/arhiva/2002/08/17/srpski/H02081601.shtml
§ 390. In light of Article 9 of the UN Convention, it should be mentioned that although
state authorities often mention this case as an example of fight against corruption in the
police, Petar Peslać was released of all charges due to the lack of evidence.
Police officer released of requiting charges
Belgrade – Police major Petar Peslać (44), former Chief of the Office for the Suppression
of Prostitution of the Belgrade Police Department was cleared of charges of receiving
bribes yesterday because of the lack of evidence. Peslać was accused before the District
Court of taking money from the owners of escort agencies not to arrest them, together
with prostitutes, in the period 2000 – April 2001.
Blic (daily), 24 November 2005
http://www.blic.co.yu/stara_arhiva/arhiva/2005-11-24/strane/hronika.htm
§ 391. The girls who managed to get out of the trafficking chain also witness of trafficking
in women within escort agencies. Some of them were minor.
“(…) I used to work at the escort agency since I was 16. I was in debt and this was the
only way, I thought it would last a few months. I had to give all my earnings to the boss.
When I wanted to give up everything, he told me that I could, but only when I pay out
everything he invested in me. Later I found out that he bought me from a friend who took
me to the agency… I didn’t have anyone to turn to. The police was coming every day, but
I couldn’t say a word, because the boss was on good terms with them…. Anyhow, where
to complain when the whole Police Intervention Unit310 were my clients. The boss would
“treat” them so that they wouldn’t make raids. (…)”
Eighteen year old girl
§ 392. After the Peslać case, the police became more active in checking escort agencies,
identifying trafficking victims there. According to police officers who participated in these raids,
it was clear to them that it was not voluntary sex work in a great number of cases, but the girls
were “scared and kept by force in those agencies, but it was an established practice and the law
did not leave the police other options but to raise petty crime charges against these girls”311.
310
311
A police formation responsible for urgent interventions.
Inspector of the Section for Aliens of the Belgrade Police Department at the Training on Human Trafficking Problem for police officers, May 2005.
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§ 393. Soon, advertisements for escort agencies were replaced by advertisements for
“massage parlors”, “massage for gentlemen” and the like. By comparing telephone
numbers312 of some of these advertisements, it has been established that these were
the same agencies that had been advertised earlier as escort agencies. The owners used
another names, but kept the same modus operandi. Some of them were even at the
same addresses.
Girls, ambitious, of pleasant appearance, needed for exclusive massage for known
customers, extraordinary conditions, any agreement possible
Halo oglasi no. 83, October 2005
Ambitious girl, excellent looks only, needed for exclusive massage for foreign businessmen,
extra pay, everything provided, directly. Ana 064/xxx-xx-xx
Halo oglasi no. 857, January 2006
MASSAGE, massage oils, relax, whole body, for gentlemen, experienced masseuse.
Adrijana. Call 0-24.
064/xxx-xxxx
Halo oglasi no. 1094, May 2007
MASSAGE IN THE SERVICE OF PROSTITUTION
Because of the shutting down of escort agencies, pimps are unsuccessfully starting up
massage parlors
BELGRADE – Fight against prostitution and against the owners of escort agencies
continues. The arrest of Hasuneh Salahedin (27) from Belgrade is the last in a series
of actions of the Belgrade police. In a rented apartment in Nušiceva Street, downtown
Belgrade, Salaheldin was running an escort agency which he advertised in newspapers as
a massage parlor.
This is not the only case of shutting down the agencies whose owners act as intermediaries
in prostitution. The Belgrade police have recently reported that since January 2002 until
June this year, 63 agencies were shut down in Belgrade and 72 criminal reports were filed
against the persons who organized prostitution.
In recent years, escort agencies used to work undisturbed. They were freely offering their
services through the media. The majority of them have been shut down through police
action and criminal reports were filed against several pimps.
In last few months, escort agencies advertise as massage parlors. Passers-by on the
streets of Belgrade are handed over flyers offering body massage, while some bus stops
are covered with ads stating that parlors offer different forms of relaxation. The owners
312
Comparison made in the course of monitoring and processing data of ASTRA SOS Hotline for 2002-2010.
126
of so-called massage parlors, that also run prostitution business, check up the clients and
they are mostly reached upon the recommendation.
Escort agencies often advertise in the Internet, too…
Police officers as security guards at the agencies
During last year, the decision on dismissal from the Ministry of the Interior was rendered
against 12 police officers who worked as security guards at escort agencies. One of them
was the Chief of the Belgrade Police Department Public Peace and Order Section, Petar
Peslać, who was arrested a few months ago. However, it is worrying that a great number
of pimps have their people at the police, who inform them when the raid is planned.
Kurir (daily), 22 August 2003
http://arhiva.kurir-info.co.yu/Arhiva/2003/avgust/22/H-01-21082003.shtml
Belgrade Police Report on organized trafficking in human beings and prostitution
63 escort agencies shut down in year and a half period
Belgrade – In the last 18 months almost all night bars and 63 escort agencies were
shut down in Belgrade, according to the Report of the Belgrade Police on organized
trafficking in human beings and prostitution. In a comprehensive report on activities for
2002 and the five months of this year, it is said that during the 1990s, bars in which
foreign nationals practiced prostitution were widespread. In the last couple of years, 37
night clubs operated in the territory of Belgrade. Now, there are only three night clubs –
striptease bars, it is said in the communication. After the closing down of almost all night
bars, police work is focused on “escort agency prostitution” and 72 criminal reports were
filed for organizing prostitution. 63 agencies were closed and legal measures were taken
against the owners. During the last year, the decision on dismissal from the Ministry
of the Interior was taken against 12 police officers who worked as security guards for
escort agencies. One of them was the Chief of the Belgrade Police Department Public
Peace and Order Section Petar Peslać, who was arrested. It is said in the Report that
in the last 18 months significant progress has been made in suppressing street and
“agency’ prostitution. 729 petty offence charges were filed, of which 120 in March and
April this year. Within the Belgrade Police Department, there is a team for fight against
organized human trafficking, which has been operating for more than one year as the
part of the Border Police. The team, whose task is human trafficking prevention, victim
protection and the prosecution of perpetrators, is composed of four officers, but they
have at disposal all operational intelligence and specific assistance of all other services.
The police stress that human trafficking is the third most organized criminal activity after
drug trafficking and trade in stolen cars. The Belgrade Police Department has formed a
database with full names of 79 persons (organizers, accomplices and helpers) involved in
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ARTICLES 1-5
human trafficking and organized prostitution. Of this figure, 50 persons are the citizens of
Serbia and Montenegro, while the rest are persons from the countries of origin of foreign
victims and who make the first contact with them, recruit them and arrange their further
transfer. All operational intelligence, as reported, is exchanged with the Interpol and the
Europol, with whom joint actions have been carried out, such as the arrest of Andrija
Šušnjar, the collaborator of Milivoje Zarubica, who is in detention in Italy, As a part of
cooperation with the Europol, the action “Leda” was carried out on May 5-12 this year, in
cooperation with all EU and SEE countries, aimed at collecting data and screening current
human trafficking situation.
Operational intelligence is exchanged with the countries – members of the Interpol and
the Europol. During this year, in the territory of Belgrade, 23 trafficking victims have
been identified – 12 Moldovan nationals, 1 Romanian, two Ukrainian and eight Chinese
nationals. Another 15 foreign nationals have been identified who are suspected to be
trafficking victims and who were transferred across the territory of Serbia and Montenegro
and sold to persons in Italy and Bosnia and Herzegovina. Criminal reports were filed
against 17 persons for 40 trafficking offences, it is said in the Report. 12 persons were
dismissed from the Interior Ministry because they worked as security guards for escort
agencies.
Beta, Danas (daily), 20 July 2003
http://www.danas.co.yu/20030620/dezurna1.html
On 6 December 2010, ASTRA SOS Hotline received a call from a citizen who, whilst browsing
the website www.poslovi.rs, came across an ad which was put on 5 December 2010, and which
he considered included human trafficking. In this ad, a company registered in the Serbian
Business Registers Agency (http://pretraga.apr.gov.rs/RepsisPublicSite/Public/Enterprise/
BasicData.aspx?BusinessEntityId=2960682&RegistryCode=20567473&rnd=359940221),
offered a job in an Escort Agency in Austria and a secured work visa for girls 18-35 years of age.
ASTRA sent a letter to inform the Office of the Attaché for Labour and Social Issues of
the Republic of Austria, as well as the Ministry of Economy and Regional Development
(MERD) of the Republic of Serbia. The representatives of the MERD referred ASTRA to the
Department of Market Inspection, because the MERD’s responsibilities do not include
monitoring of economic entities that do not have a license to conduct job brokering.
The Austrian Ministry of the Interior carried out certain searches – however, the name
of the company as well as the e-mail address listed in the ad (which contains name and
surname) were not familiar to them. The search through the available personal data of
the stated person to contact was also fruitless.
Prostitution through escort agencies is legal in Austria. However, in keeping with the state
law in Austria, the persons from third countries are not granted work and residence permits
128
for sex work in Austria. In this case, it was illegal advertising, because in the ad it was listed
that the agency took care of providing the necessary work and residence permits.
ASTRA was informed that the Department of Market Inspection forwarded the information
about this case to the Ministry of the Interior.
III.2.2.5. How Human Trafficking Has Actually Been Criminalized in Serbia
§ 394. Although Serbia and Montenegro ratified the UN Convention against Transnational
Organized Crime in June 2001, as said before, human trafficking was not recognized
as criminal offence in our legislation until April 2003. It is interesting that, in spite of
preventive anti-trafficking campaigns which NGOs conducted in Serbia since 2001 and
increasing presence of the topic in the media, this offence was introduced into criminal
legislation without public debate and “by the back door”. Namely, human trafficking in
Serbia was criminalized only thanks to the prompt reaction of the representative of the
Ministry of the Interior Border Police Directorate, Section for the Suppression of Illegal
Migrations and Human Trafficking, who observed in the draft of the new Criminal Law of
Serbia, posted at the website of the National Assembly, which was waiting for passage,
that human trafficking was not included. After his intervention, this error was fixed and
human trafficking was criminalized as Article 111b of the Criminal Law of Serbia.
Trafficking in Human Beings
Article 111b
1. A person who by force or threat, by misleading or keeping in delusion, by the abuse of
authority, confidence, dependence relation or difficult conditions of another person:
recruits, transports, transfers, delivers, sells, purchases, mediates in delivery or sale, harbors
or holds another person for the purpose of acquiring some benefit, exploitation of his/
her labor, pursuing a criminal activity, prostitution or begging, of using for pornographic
purposes, depriving of a bodily part for the purpose of transplantation, or using in armed
conflicts, shall be sentenced to a term between one and 10 years in prison.
2. If the act from Paragraph 1 hereof is perpetrated against several persons, by abduction, in
the course of performing an official duty, within a criminal organization, in a specially cruel
or in a specially humiliating way or if a severe bodily injury has occurred, the perpetrator
shall be sentenced to a term of at least three years in prison/
3. If the act from Paragraph 1 hereof is committed against a minor, or if the victim dies, the
perpetrator shall be sentenced to a term of at least five years in prison.
4. For the act from paragraph 1 hereof committed against a person who has not turned 14,
the perpetrator shall be sentenced to a term prescribed for such an act even if no force,
threat or any other of the stated ways has been used.
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ARTICLES 1-5
III.2.2.6. Human Trafficking and Illegal Migrations
§ 395. If we put aside how this offence was introduced into the Serbian criminal
legislation, we may conclude that it has changed to a great extent institutions’ attitude
towards victims and made the job of all anti-trafficking actors in our country easier. As
said in the Legal Analysis, this Article recognized human trafficking perpetrated in the
course of performing an official duty as an aggravating circumstance, which is not the
case with currently valid Article 388. Still, the main objection to Article 111b is that it
failed to distinguish between human trafficking and people smuggling. Thus, since April
2003 (when trafficking was first criminalized) until January 2006 (when the new Criminal
Code came into force), the police had filed criminal reports for human trafficking pursuant
to Article 111b for the majority of people smuggling cases. In this way, a false picture was
created, i.e. that state authorities, the police and the judiciary were efficiently combating
human trafficking, while in reality these were mostly people smuggling cases. On the
other hand, this fostered public confusion about what human trafficking and people
smuggling were all about.
A taxi driver transported Turkish illegal migrants
PROKUPLJE – The Prokuplje Police reported that a taxi driver Srbobran Nikolić (45) from
Donja Trnava near Niš was arrested and brought before the investigative judge under
suspicion of human trafficking. On October 10, Nikolić, driving Mercedes 300, attempted
to transport, from Rudar, Kuršumlija municipality, four Turkish nationals who entered
our country illegally, without visa, from Kosovo. Traffic patrol of the Prokuplje Police
Department stopped the vehicle in Beloljin during regular traffic control and arrested the
taxi driver and Turkish nationals. A petty offence report was filed against Turkish nationals
for illegal entry into Serbia and Montenegro. The petty offence judge sentenced them to
ten days in prison, after which they were sent to District Penitentiary in Prokuplje. They
were also banished from our territory and banned to enter the country for the period of
one year.
Blic (daily), 14 October 2004
http://www.blic.co.yu/stara_arhiva/arhiva/2005-10-14/strane/hronika.htm
HUMAN TRAFFICKERS ARRESTED. IN THE ACTION OF THE SERBIAN INTERIOR
MINISTRY, ON THE BORDER WITH ROMANIA, THE MEMBERS of the Organized Crime
Department of the Serbian MoI arrested yesterday in the vicinity of Vršac the organizer
and members of an international criminal group that have been practicing human
trafficking for a longer period of time. The action was carried out at the moment when
this group was transferring four Chinese nationals from Romania to our country. On
reasonable suspicion of a serious criminal offence, the police arrested Branivoje Simić
130
(43), Nikola Opsenica (47), Stojan LJubinković (52), Aleksandar Nikolić (29), Jožef Šćop
(34) and Chinese nationals Ju Huanjun (40) and Ju Tong (30). The criminal report also
included Huang Honghui (37), Chinese national, who is currently abroad. After several
months of work, the members of the Organized Crime Department arrested the head
of the criminal group Branivoje Simić called “the Devil”, as well as the other members
of the group, each of whom was in charge of a specific task. According to the Serbian
MoI, Simić was preparing and for abundant financial compensation illegally transferring
foreign nationals, mostly Chinese, towards Italy as final destination. He is also suspected
of cooperating with other mafia groups from Croatia, Slovenia, Romania, Serbia and
Montenegro and Italy.
Večernje novosti (daily), 6 August 2005, page 20, author: S. N. J.
§ 396. This confusion greatly changed statistical picture in the reports of the Ministry of
the Interior regarding criminal reports filed for human trafficking.
RESULTS OF THE MINISTRY OF THE INTERIOR313
March 2004 – February 2005:
- Fight against human trafficking successfully continued and several channels for illegal
transfer of people were broken; among illegally transferred persons, the majority were the
citizens of Albania (261) and Turkey (227). 66 criminal reports were filed – 52 for human
trafficking and 14 for illegal crossing of state border. The Republican Government has
set up the Anti-Trafficking Council which is lead by the Interior Minister.
In the first nine months of 2007, the police officers of the Ministry of the Interior of Serbia
filed a total of 26 criminal reports for human trafficking, Article 388 CCS, which included
a total of 57 perpetrators. 83 persons appeared as the victims of the said criminal offence.
§ 397. This confusion was largely contributed to by the media and journalists who, being
insufficiently informed of the topic, often cannot differentiate between specific terms,
thus calling one and the same phenomenon human trafficking, smuggling and voluntary
sex work.
§ 398. Besides confusion in using the terms, journalists in their articles and TV stories also
support many stereotypes about human trafficking (e.g. that it happens only to young
and naïve girls, that only Roma people sell their children, that only foreign nationals may
fall victim and the like). They also sometimes use misogynous and racist terms (“Stop
white slavery”, “Trafficker in white slavery discovered”, “Moldovan Women in Action”,
“Cheap Ukrainian Girls”). Journalists most often recognize only sexual exploitation as the
form of human trafficking, neglecting others. The reporting on this topic is most often
313
www.mup.gov.rs
131
ARTICLES 1-5
inspired by a specific event (police raid, trial) and is always sensationalistic (“Children in
Cages”), whereas investigating journalism in the area of human trafficking does not exist.
HUMAN TRAFFICKING CHAIN BROKEN, SREMSKA MITROVICA – Eight citizens of Turkey
and Albania, who attempted to illegally get to the European Union across the territory of
Serbia and Croatia, were found in the house of M.I. (46) from Šid, who was hiding them
and preparing them for smuggling. It is assumed that they entered Serbia through Kosovo
and Land Security Zone. On their arrival, the immigrants stayed in debt of EUR 3,000 to
an unknown Kosovo Albanian, who was marked as the main organizer of the group.
Kurir (daily), 9 December 2007
§ 399. Thanks to the adoption of the new Criminal Code of Serbia, which came into force
in January 2006, these two offences have been finally distinguished, i.e. illegal crossing of
the state border and people smuggling are now regulated by Article 350.
III.2.2.7. Trafficking in Children
§ 400. The percentage of identified child trafficking victims in Serbia rose in 2004 and
remained very high over years.
Chart III.2.2.7.1. Percentage of child trafficking victims
§ 401. This phenomenon may be explained in several ways. In addition to a general
upward trend in child trafficking worldwide, the fact is that the representatives of Serbian
institutions, above all the Ministry of the Interior, have become better trained to recognize
trafficking victims and the problem of child trafficking has consequently become more
visible. On the other hand, children, being psychologically and physically weaker, are
traditionally treated as vulnerable, harmless and helpless. Hence, they are provided with
assistance before women and more attention is paid to them. Also, a great number of
campaigns, in particular those focused on child trafficking victims, have contributed to
citizens’ reacting more often and reporting their suspicion of child trafficking. However,
132
when women are concerned, their vulnerability is often neglected. It is believed that
their victimization was contributed to by their own behavior. Also, the calendar fact
of adulthood is treated as the argument of value in proving that she has agreed to the
consequence. This ambivalent attitude, visible in the judiciary too, to a great extent
arises out of still dominating patriarchal social patterns, often mixed with open or hidden
misogyny and xenophobia. Therefore it is still considered socially acceptable to help a
child, but not a woman – victim of a violent crime.
§ 402. During 2010, NGO Child Rights Centre in cooperation with the Coalition of the
civil society organizations for monitoring the exercising of the rights of the child in Serbia
initiated work on drawing up the Strategy for Combating Trafficking in Children and
supporting action plans.
In September 2010, ASTRA SOS Hotline received a call from the inspector of the local
Police Department – the Department of Border Police for Foreigners and Combating
Illegal Migrations and Human Trafficking, who asked for help in finding accommodation
for an underage person detained for possession of narcotics. During a conversation with
her, it was discovered that the girl was a victim of human trafficking for the purpose
of sexual exploitation which she was exposed to for a long period of time. The police
estimated that her safety was compromised and that she could not stay with her family
because, as the inspector stated in the conversation, the traffickers used to come to get
her earlier and take her away. The girl was provided with urgent assistance, after which
the preliminary investigation was instituted.
ASTRA database, ID number 2663
III.2.2.8. Money Laundering
§ 403. Money laundering is the practice when money acquired through illegal transactions
or transactions in gray economy is incorporated into normal financial and economic
flows. This means giving legitimacy to illegally acquired cash which, first by effecting
it to a bank account, transfers into gyro money and then into cash. At the same time,
money laundering implies the incorporation into regular economic flows of the money
that comes from criminal activities (drugs trafficking, illegal arm trade, smuggling, human
trafficking, robberies, organized crime, tax evasion, corruption) in order to prevent the
discovery of its origin. The 9/11 event added another dimension to this problem, showing
the link between money laundering and terrorism.
§ 404. The beginning of the building of a system against money laundering in Serbia is
linked to the adoption of the first Law on Money Laundering Prevention in 2001, which
came into force on 1 July 2002. The shortcomings in the area of criminal-justice definition
have been fixed by the entry into force of the Criminal Code of Serbia on 1 January 2006,
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ARTICLES 1-5
while novelty in the part of the system related to prevention were introduced by the
adoption of presently valid Law on Money Laundering Prevention. The second document
which is still awaiting the passage is the National Strategy for Combating Money
Laundering and Financial Terrorism.314
§ 405. Criminals invest 15% of their earning into legal financial flows in their own country,
while as much as 60% are invested abroad. The two-thirds of money earned from organized
crime is “laundered” through investing into legal financial flows. Money is laundered in
the sectors with quick money turnover, where corruption is widespread and where there
are good chances for illegal business without any control. These are various export-import
companies, which are very convenient for organized crime, shops, bet shops, casinos,
antique shops and boutiques. Criminal profits are legalized through public works, building
roads, sewage system or construction activity, too. Financial crime in Serbia boomed
during the major part of privatization. Because of the inflow of “dirty money”, this type of
privatization is designated as “privatization through tycoonization”.315
§ 406. Although it is generally known that the main goal of human trafficking is acquiring
financial gain through the exploitation of people and that financial investigation should
be part of every human trafficking investigation, including the investigation of money
flows, this is not usually done in practice. Basic obstacles include “the lack of knowledge
in Serbia in the area of criminal financial investigations in state authorities in this field
(…) as well as the lack of specialists and specialized subjects in academic, vocational
and specialized studies of criminalistic, police and security profiles such as criminal
intelligence analysis, the analysis of criminal activities, operational analysis and criminal
investigative analysis. (…) Also, another shortcoming is the lack of mixed teams for
conducting criminal financial investigations and the lack of legislation. (…)316
§ 407. The officers of the Ministry of the Interior who work on combating human
trafficking have cooperation with the Department for Money Laundering Prevention.
They increasingly use the mechanism for the exchange of information with financial
intelligence services. Still, the main problem in practice is still insufficient awareness in
the Serbian judiciary of the need to confiscate profits acquired by committing a criminal
offence of human trafficking and that financial investigation should go in that direction.
Also, the provisions on the confiscation of assets acquired through the perpetration of
criminal offence in the Criminal Code of Serbia are a dead letter.
§ 408. Human traffickers’ profits are estimated at around USD 32 billion, of which USD
10 billion is derived from the initial “sale” of individuals. The remainder represents the
estimated profits from the activities or goods produced by trafficking victims317. Many girls
314
315
316
317
Milovanović, M., Aktuelni trenutak u kreiranju sistema za borbu protiv pranja novca i finansiranja terorizma, Revija za bezbednost, br. 5, Beograd
2007.
Blic (daily), 10. July 2007.
Manojlović D., Pranje novca – teorijsko i empirijsko istraživanje, Revija za bezbednost, br. 2, Centar za bezbedonosne studije, Beograd 2008, http://
www.cbs-css.org/arhiva.php
UNODC - http://www.unodc.org/unodc/en/press/releases/2007-03-26.html
134
witness that they had to give a portion, and most often the whole earnings, to traffickers.
If exploitation takes place in a foreign country, money is most often sent through money
transfer services or by making payments to specific bank accounts.
(…) Before he sent me to Italy, he gave me telephone numbers and names of people I
should contact when I got there, as well as the numbers of accounts where I should send
the money to pay off my debt. He told me to write this down on the inner side of my
trousers, because nobody would find it there. (…) When I went to Serbia to testify, I put
on those trousers to show them to the judge in case he didn’t believe me. (…) Most often
we sent money through Western Union, he said it was the safest (….)”
ASTRA database, ID no. 218
§ 409. The representatives of institutions who work on suppressing human trafficking are
aware of the links between this crime and money laundering, but also of the problems in
discovering and proving it.
§ 410. Data presented to the public by the then Central Bank Governor Mlađan Dinkić
show that during the first five months of 2003, USD 522 million “left” Serbia for the
countries considered to be “a tax paradise”, while one year earlier the outflow of money to
these destinations amounted to as much as USD 964 million, “a 25% increase compared
with the period before that action”318.
III.2.2.9. Convictions for Human Trafficking
§ 411. Penalties for human trafficking in Serbia are rather light, which is in line with
generally light penal policy in the country.
§ 412. In addition, in determining the sentence, legally neutral facts, such as “young
person”, “father of underage children” and the like, are almost without exception taken as
alleviating circumstances in favor of the accused. Although the Serbian legal system does
not know the case law concept, but criminal offence is strictly individual, including the way
and conditions under which it has been committed, when determining the sentence, the
courts apply hidden equalization of the punishment in accordance to previous judgments,
which always tends towards envisaged minimum. Maximum punishments have never
been rendered for trafficking offences, whereby it should be borne in mind that even when
they go to prison to serve generally minimum sentences, the perpetrators may go out free
long before the expiry of the sentence by using various legal means, such as parole request
due to illness, farm work etc. During their short stay in prison, the activity for which they
have been sentenced usually does not stop, because the profits are not compromised.
The real purpose of punishment could be reached only through rigorous penal policy,
with simultaneous seizure of assets. Since the judiciary is not ready to apply (for decades)
318
Refers to the police action Saber carried out in 2003 after the assassination of Prime Minister Đinđić.
135
ARTICLES 1-5
existing provisions on the confiscation of proceeds acquired through the commission
of the criminal offence, it is not clear why, in the course of criminal proceedings, tax
authorities do not use their broad jurisdiction in administrative procedure.
§ 413. In all trafficking cases prosecuted so far, the accused have been boasting around
with their wealth during the trial (e.g. the Belgrade District Court K no. 931/04, underage
victim, J.M. the defendant: “My property is valued EUR 1 million”; the Fourth Municipal
Court in Belgrade K no. 1581/03, the accused Borivoje Ninković “I make USD 10,000
a month, I have a flat in Dubrovnik”, and the like). At the same time, according to
information they themselves have given in court, some of the perpetrators do not have
even primary school and less than 10% completed secondary school. They are without
exception unemployed and without profession, saying that they support themselves from
occasional jobs, that they are supported family members (for example the provider is the
wife who runs a newspaper stand), from real estate rental etc.
§ 414. According to the data from the Statistical Office of the Republic of Serbia319,
from 2003 to 2009, 349 criminal charges were raised for the criminal offence of human
trafficking referred to in Article 388 of the Criminal Code of Serbia. The biggest number of
criminal charges were raised in 2004, against 69 persons, and the least of them in 2003 –
only 10. However, in 2004, only 2 persons were convicted, and in the period 2004 – 2009,
a total of 71 adults were convicted.
§ 415. In the course of 2005, two persons were sentenced to imprisonment for 4.5,
that is 2.5 years respectively. It was in this year that one perpetrator was sentenced
to imprisonment for 8 years, while the total sentence for four persons tried in these
proceedings amounted to 21-year imprisonment. At the end of 2005, ten members of one
criminal group charged with human trafficking were sentenced to a total of 20 years in
prison, while maximum individual sentence in this trial was 4 years. In 2009, the highest
sentence was imposed so far for the criminal act from Article 388 of the CCS - 10 years
of imprisonment. The Supreme Court of Serbia confirmed this sentence in the appeal
process. The accused was the main human trafficker in the case “Jet Set”. In this case,
the Deputy District Prosecutor in Novi Pazar, as well as two police officers appeared as
accomplices. In August 2009, in the appeal process, the Supreme Court confirmed the
decision of the lower court, which declared the Deputy Prosecutor and the police officers
guilty for abuse of office and human trafficking, confirming their suspended sentences to
three years. The Prosecutor used the services of some of the sexually exploited victims.
319
http://webrzs.stat.gov.rs/WebSite/Default.aspx
136
Source: Statistical Office of Serbia
The number of convicted adults, by criminal offence Human Trafficking
Republic of Serbia
2006
13
2007
14
2008
12
2009
20
Table III.2.2.9. Adults convicted for human trafficking
§ 416. According to the data ASTRA collected based on the provisions of the Law on
Unrestricted Access to Information of Public Concern, about the number of proceedings
conducted in 2010 for the criminal offences from Articles 388 and 389 of the Criminal Code
of Serbia, as well as the number of sentences (final and interim) which were pronounced in
the same period for these offences, we found that 17 higher courts conducted proceedings
for the criminal offence of human trafficking, while nine courts (in Pirot, Prokuplje, Leskovac,
Kruševac, Užice, Kraljevo, Kosovska Mitrovica, Sombor i Čačak), did not conduct such
proceedings. In 2010, a total of 55 proceedings were conducted for the criminal offence
of human trafficking before the higher courts in Serbia, while there were no proceedings
for the criminal offence of trafficking in juveniles for the purpose of illegal adoption. We
note that, based on the collected data, we cannot make a conclusion about how many
proceedings were instituted in 2010, and how many of them were transferred from the
previous years. As expected, the biggest number of proceedings was conducted before
the Higher Court in Belgrade (16) and Higher Court in Novi Sad (11). In the same period,
12 sentences were pronounced, of which five were final, two interim, in one case the
first instance sentence was overruled, and in the re-initiated proceedings the pronounced
sentence was still not final, one sentence was under appeal, one condemnatory sentence
was reversed on appeal and the case was returned for a new trial, while two proceedings
were conducted before the Court of Appeal for making decisions on regular legal remedies.
§ 417. Final judgments were pronounced in the Higher Court in Valjevo (1), Higher Court
in Novi Sad (1) and Higher Court in Belgrade (3).
In one case of child trafficking, the Supreme Court of Serbia has altered the judgment
against the accused for trafficking in human beings, Article 388, Paragraph 3 in connection
with Paragraph 1 of the Criminal Code, made by the Sombor District Court K 120/06.
The alteration concerned only the decision on penalties, keeping thereby the determined
individual prison sentences. Victim’s aunt who trafficked her has been sentenced for
human trafficking, Article 388, Paragraph 3 in connection with Paragraph 1 CCS, to 3 years
and 10 months in prison, and for abduction, Article 134, Paragraph 1, as co-perpetrator,
in connection with Article 33 CCS, to imprisonment for 2 years. She has been rendered
a unified sentence of imprisonment for 4.5 years. The accused Josa Zlatković has been
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ARTICLES 1-5
sentenced for human trafficking Article 388, Paragraph 2 in connection with Paragraph 1
CCS to 2 years in prison, and for abduction, Article 134, Paragraph 1, as co-perpetrator, in
connection with Article 33 CCS, to imprisonment for 1 year and 6 months. He has been
rendered a unified prison sentence of 2 years and 6 months. The Sombor District Court
has sentenced Maria Ivanek to unified prison sentence of 5 years and 6 months and Josa
Zlatković to uniform prison sentence of 3 years and 2 months.
ASTRA Database ID no. 1610
The judgment of the Supreme Court of Serbia, Kž I 1432/07, 13 September 2007
§ 418. Still, in spite of significant progress made after the criminalization of human
trafficking in Serbia, and especially after the introduction of Article 388 CCS, in practice,
offenders are still rarely indicted under Article 388. Namely, due to the lack of experience
and insufficient education of the police and prosecutors’ offices, as well as due to
the lack of evidence, charges are often raised for other criminal offences and not for
human trafficking.
“(...) I started with prostitution at the beginning of 2006. It was mostly under the influence
of my older acquaintance, he was like a father to me. I worked with another girl, both of
us worked for him, giving him all the money. After some time, he sold us to one young
man, and when she started dating that man, they started running the business together,
directing the largest number of clients to me and, because of threats, I couldn’t refuse
anyone. They used to give me some money at the beginning, but later they were taking it
all. They were often pointing out the possibility for me to go to Spain because, according
to them, ‘girls work in prostitution legally there and lots of money could be made’, while
they had some people who could have helped me. However, when I realized after a few
months that I was too physically and mentally exhausted to do this any longer, they
started blackmailing me, threatening and later physically abusing me. My parents and
my older brother observed the signs of violence on my face and body. I was afraid to talk
about my situation with them, but they were persistent. Under the pressure of everything
that had happened, what I couldn’t bear any longer, I told them all. My family reported
everything to the police and one NGO. (…)”
Although all elements of human trafficking were there in girl’s statement, in 2006,
due to the lack of evidence, the perpetrators were indicted of acting as intermediary
in prostitution. The police referred her to ASTRA recovery and reintegration program.
Judicial proceedings are still pending.
138
After a four-year trial against perpetrators accused of the offence of human trafficking from
Article 388, Para. 6 in connection with Para. 3 and 1 CCS, at which a trafficking victim was
represented by ASTRA lawyer, on 15 July 2010 the Novi Sad Higher Court rendered the
first-instance judgment sentencing Đurić Ljiljana to six years of imprisonment, Manojlović
Dušan to five years of imprisonment, Đurić Radosav to two years of imprisonment and
Đurić Radoje to two years of imprisonment.
On 29 December 2008, the District Court in Belgrade reached a decision in the criminal
proceedings against five accused males for the criminal act of human trafficking, who, in
the period from August 2002 to 11 June 2007, in Bosnia and Herzegovina and in Serbia,
by using deception, maintaining deception, abuse of trust, a relationship based on
dependence and difficult situation of the injured person, with difficult physical invalidity,
recruited, transported, transferred across the border and kept, in order to obtain financial
gain through exploitation of the person – begging. The principal offender committed
a criminal act of human trafficking from Article 111-b Paragraph 1 of CL RS and was
convicted to 5 years of imprisonment, and the rest of the offenders each committed one
criminal act of human trafficking as accomplices from Article 111-b Paragraph 1 of CL RS,
and related to Article 24 of the Fundamental Criminal Law and they were convicted to
2 years, one year and 3 months of imprisonment respectively (this was the sentence for
two of them), 11 months, 1 year and 3 months of imprisonment. The Supreme Court of
Serbia passed the sentence no. Kz I – 2018/09 in the case of the offender Tahir Tahiri and
others, in accordance with the appeals by the District Prosecutor, defence counsels of the
accused and the lawyer of the injured, ASTRA’s client. This sentence reversed the first
instance judgment of the District Court in Belgrade with regard to the qualification of
the act and with regard to the length of the sentence for the principal accused Tahiri. His
sentence was extended from five to six years of imprisonment, while the sentences for
the other accused stayed the same, in the scope from 11 months to two years.
ASTRA database, ID base 1737
III.2.2.9.1. Mladen Dalmacija Case
§ 419. As said earlier, generally light penal policy affected penalties for trafficking offences
to be light, too. Among the highest sentence so far was pronounced in 2005 by the
Special Organized Crime Department of the Belgrade District Court in the case against
Mladen Dalmacija who was tried in absence and sentenced to 8 years in prison.
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21 Year Imprisonment for Pimps
BELGRADE – A four-member group charged for organized transfer of girls from Ukraine to
Italy for the purpose of prostitution was sentenced yesterday before the Special Court to
a total of 21 years in prison. The leader of the group, who is on the run, Mladen Dalmacija
(30) called Mladja or Pop (Priest), the citizen of Bosnia and Herzegovina, was sentenced
in absence to imprisonment for eight years. His accomplice Vladimir Dudić (35) from
Belgrade got six and his wife Tetjana (28) four years in prison. Dragan Andrijašević (41)
called Žuti from Zvečka near Obrenovac was sentenced to three year imprisonment.
It has been established that Dalmacija, who is hiding in Italy and Spain, in late December
last year – early January this year, organized a criminal group that was supposed to illegally
transfer girls from Ukraine to Italy. The police failed to identify several group members
from Ukraine and Italy. During the trial, it has been established that Dalmacija had an
agreement with the Dudić spouses to find several girls in Ukraine and for each of them
they were supposed to get EUR 1,600 from him. Tetjana, Ukrainian national, managed to
trick two students, Oksana Nazirova and Olena Ivanov to come to Belgrade, by promising
them the jobs of baby sitters and exotic dancers in Germany with a weekly pay of EUR
700. Then they described to Dalmacija over the phone how “the items” looked like. The
girls were kept in Dudić’s apartment in Pere Segedinaca no 20 Street. The group was
discovered when they attempted to transfer Oksana to the Belgrade airport.
In the reasoning of the judgment, Judge Radmila Dragićević-Dičić said that the guilt of
the accused has been incontestably established and that their defense was unconvincing
and contradictory. Vladimir Dudić will be kept in detention until the decision has become
final, while Tetjana and Andrijašević were allowed to go. Tetjana has been forbidden to
leave her place of residence without court’s approval and her passport will be taken. She
is obliged to report to the court every other week. Also, this is one of the first judgments
in which the judge directly refers to the UN Convention and the Protocol.
Glas javnosti (daily), 1 December 2005
arhiva.glas-javnosti.co.yu/arhiva/2005/10/01/srpski/H05093002.shtml
The above mentioned Mladen Dalmacija, sentenced in absence before the Special
Department of the Belgrade District Court, was arrested in Italy in 2007 and extradited
to Serbia. The process against him is reopened. However, his case represents an excellent
example of general weaknesses of the judicial system, at the same time indicating to the
lack of clear will and motivation of regular courts to run such proceedings in accordance
with nominally accepted standards.
Mladen Dalmacija and his accomplice Zdravko Laković are accused before the Third
Municipal Court in Belgrade in October 2002 of acting as intermediaries in prostitution,
illegal deprivation of freedom and document forfeiting, since human trafficking was not
140
legally criminalized at that time. The victims, two Moldovan nationals, who managed to
escape from the apartment in which they were locked before they were sold away, were
put in the Shelter for Trafficking Victims. During the first hearing before the investigative
judge, victims’ lawyer was not allowed to be present since they had the status of
witnesses and not of victims at that moment. The first trial session was scheduled for
late December 2002, but although the girls were there and willing to testify, the trial was
postponed because of the absence of public prosecutor. The girls returned to Moldova
in mid-January 2003, not satisfied with the procedure which did not let them make the
statement. Another trial session was scheduled for February 18, but it was postponed
because of the absence of both defendants. On that occasion, the Presiding Judge of
the panel was angry because of the absence of girls, but she accepted the explanation
of Mladen Dalmacija’s attorney who said that “he is due to arrive from Prijedor”, that
is, from a foreign country (Bosnia and Herzegovina). In this way the defendant violated
imperative provisions on mandatory reporting to the court of any change in the address,
but the court did not react. The next trial session in late March 2003 (the Saber action was
already underway) was postponed again, because Dalmacija failed to appear, allegedly
sending a telegram from B&H. The Presiding Judge did not accept the request of victims’
attorney to apply legal measures, saying that thus far Dalmacija had regularly responded
to court summons. However, she sharply reprimanded the attorney for girls’ absence. The
search notice for Dalmacija was released as late as on April 30, 2003 (when he was on
the run for at least two months) and this happened after the petition of victims’ attorney
to the President of the Court and the Minister of Justice. After another postponed trial in
May the same year (Dalmacija still at large), the proceedings died out. Four years later,
Dalmacija was extradited from Italy and was in the meantime sentenced to eight years
in prison before the Special Court for human trafficking. He was put in Sremska Mitrovica
Penitentiary Institution, but was transferred to the District Prison in Belgrade in the
autumn of 2007, because the proceedings before the Special Court were reopened.
At the same time, the proceedings started in 2002 continued before the Third Municipal
Court, tried by the same Presiding Judge. It is therefore understandable that benevolence
she had earlier shown towards Dalmacija continued; the trial session was once
postponed because Dalmacija was not brought from jail in Sremska Mitrovica without
any explanation; the next two times because he was not brought from the Belgrade
District Prison only two blocks away from the court (the first time without explanation
and the second time because, according to the report of prison management, “he was
preparing his defense before the Special Court); once because the judge sent the file
to the Special Court for possible uniting of cases (which was refused and the case was
returned) and finally, on June 25, 2008 because the Public Prosecutor’s Deputy failed to
appear (although his office is two floors above the courtroom!). Particularly worrying is
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ARTICLES 1-5
the fact that it did not even occur to the Judge to check before each session whether the
accused Dalamcija would be brought in or to call the Prosecutor who failed to appear. On
the other hand, it is terrifying that the court obviously does not have sufficient authority
before the prison administration, while the accused Dalamcija, in all likelihood, possesses
mechanisms to manipulate those who are supposed to protect society from him.
Then again, there are examples of good practice; for instance, in the process against
five persons accused for human trafficking in Novi Sad K 8/07, the Presiding Judge did
not accept the absence of one of the accused as the reason for postponement, but she
made sure that he was brought to trial in less than an hour by ordering the competent
police unit to urgently find him. Again, during the same trial, the same Judge considered
it unnecessary to call victims’ attorney if the victim did not testify at that session. Such
ambivalence towards the rights of victims in criminal proceedings results, inter alia, from
the deficiencies of the Criminal Procedure Act (victim is not a party to the proceedings, but
only a participant; no explicit obligation to send procedural documents to victims’ attorney;
no relevant practice or binding positions of the Supreme Court etc.). On 19 March 2009,
the first instance judgment was rendered against Mladen Dalmacija and Zdravko Laković,
before the Third Municipal Court in Belgrade for the forgery of travel documents, docket
number Ki 1407/02. Dalmacija was sentenced to the imprisonment of one year, with the
time spent in remand included, while Laković got a suspended sentence, i.e. he will be
imprisoned in the event that he commits a criminal poffence in the period of two years.
ASTRA Database 259
III.2.2.9.2. Milivoje Zarubica Case
§ 420. The human trafficking case that has certainly attracted broad public attention in
the country and abroad is the case of Milivoje Zarubica, who was declared by the media
to be one of the most notorious traffickers in Serbia and the region. He and his group had
been known to the police in Serbia and in the neighboring countries from before, since he
ordinarily trafficked in women from Eastern Europe and exploited them in his brothels and
in the streets of Serbia and Italy. The public had heard of Milivoje Zarubica in 2002, when,
after the eight hours of negotiations, construction inspection with assistance of special antiterrorist forces (SAJ), knocked down his illegally constructed building. This was actually a
well-known brothel where, among others, trafficking victims were kept, too. In the “defense”
of his establishment, Zarubica had the help of his friends and cousins; he even used his
underage children to prevent the demolition. The municipal Social Welfare Center in charge
has never raised the question of child rights violation on that occasion. In this action, one of
Zarubica’s friends cut with the knife at that time the only air pillow in Serbia used to prevent
people standing on the roof to get hurt. SAJ officers entered the building, after which all
people were taken down from the roof and arrested, and the building was knocked down320.
320
Politika (daily), 2 August 2002, http://www.kontra-punkt.info/2002/avgust_2002/v_2avgust_motel.html
142
§ 421. Criminal proceedings against Milivoje Zarubica should have been a positive
example of general and special prevention of human trafficking in Serbia, especially given
the fact that until the trial, this case implied the cooperation of all anti-trafficking actors,
governmental and non-governmental.
In January 2003, a Moldovan woman was placed in the shelter for trafficking victims after
having had a spine surgery. After a several months of recovery and after having testified
against the perpetrators, who were one of the links in a massive trafficking chain, she was
repatriated to Moldova.
At first, after the surgery, medical examinations indicated that the spinal injury, which
the victim sustained in attempt to run away through the balcony of a flat in which she
was exposed to extremely humiliating sexual violence for 13 days, was successfully
treated. However, complications appeared one year later and additional intervention was
necessary to prevent total atrophy of lower extremities.
The man who is directly responsible for these events, who bought her and exploited her in
particularly cruel way and whom she attempted to run away from, was sentenced to one
year in prison in Serbia for rape, Article 103 Paragraph 2 in connection to paragraph 1 CL RS.
On the other hand, the man who recruited this girl was sentenced to imprisonment
for 11 years in Moldova. This speaks of the difference between penal policy in Serbia
and Moldova.
Judgment of the Belgrade District Court K no. 309/03, 4 March 2004
The first–instance proceedings lasted less than a year and ended by Milivoje Zarubica
being sentenced to the imprisonment for years and 6 months; Stanko Savanović got the
same sentence and five of the accused were sentenced to the term between 8 months
and 2.5 years. The remaining six of the accused received suspended sentences. Milivoje
Zarubica and Stanko Savanović were acquitted for the rape of two Moldovan nationals
due to the lack of evidence. Looking from the outside, the judgment was perceived in
public as a positive example of efficiency. However, essentially, this represents an obvious
manifestation of powerlessness and the lack of political will for persistent enforcement of
the law and for clearly indicating and strictly punishing for criminal offences with strong
gender element committed through the violation of basic human rights of victims.
The first group of six Milivoje Zarubica’s associates was arrested in January 2003,
after a Moldovan girl A.T. managed to run away from the apparent (in which she was
raped and abused for 13 days) by jumping out of the window from the 3rd floor, when
she sustained serious spine injury. Zarubica himself, together with six other accused,
was arrested only during the Saber operation. One of the previously accused, so called
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Aleksandar Putnik, with several aliases, has never been caught, the proceedings against
him have been separated and it is not known whether the police is looking for him at all.
It is indicative that some of the accused marked him as the national intelligence agency
officer who spent much time in the battlefields of former SFRY. The first group of the
accused was indicted in March 2003 and Zarubica and the second group as late as at the
end of July 2003, although there was no reason for such delay. It is symptomatic that
in the part of investigative proceedings that referred to Milivoje Zarubica, nobody from
Public Prosecutor’s Office found it appropriate to attend the questioning of the accused,
although Public Prosecutor’s Office is located in the same building as the court. When
the indictment was finally made, it took several months to join the proceedings, which
happened as late as in the autumn of 2003. It is interesting that one of the accused
said that he canceled the power of attorney to his defense attorney “because Zarubica
is paying for all the attorneys”. Pending the trial, the defense strategy was mostly to
declare the entire indictment untrue and planted by the police, with the participation
of the attorney of the victim and NGOs. The accused did not try to hide misogyny and
xenophobia in their statements (“look at her [the victim] Mr. Judge, do I need someone
fat, dirty and ugly like that?”), and the defense counsel were not hesitant either (“This
is Serbia, we will not comply with the fashion and whims of the Safe Women’s House:”,
“Victim’s attorney is theatrical and rude, she instructed the girls what to say”). The
Presiding Judge of the panel did not notice such insults and when it went too far, he
would sometimes give verbal warning to the defense and the accused. When on two
instances the girls were brought from Moldova to testify, in spite of legal provisions, the
Presiding Judge did not approve the accused to be removed from the courtroom, but
only moved Milivoje Zarubica 2 meters behind the victims, in spite of enormous fear that
the two girls showed. By the way, the court does not have separate rooms in which the
victims or witnesses could wait safely and without encounter with the accused, for their
turn to give statements. As a consequence, we witnessed several unpleasant scenes in
front of the courtroom. Pending the trial, the accused behaved inappropriately freely,
whispering among themselves, exchanging jokes, insulting aloud the victims while they
were testifying, making occasional threats. At the same time, the relatives of the accused,
some 50 of them, mostly did not obey order in the courtroom, calling out insults to the
victims and their attorney, as well as ASTRA and OSCE Mission representatives. Nothing
of this was recorded in trial minutes or was recorded only in a brief and reduced form,
and hence, anyone who was not there could not get the real picture of the course of
the trial and of the atmosphere in the courtroom from court records. Public Prosecutor’s
Deputy (in the middle of the trial transferred to the Special Court, from where he also
went out during the trial for the assassination of Prime Minister Đinđić at the moment
when the trial was at risk of being stopped) acted rather uninterestedly. When one of
144
the girls for the first time plucked up the courage during the main hearing to tell how she
was repeatedly raped in the presence of other girls by several of the accused, the Public
Prosecutor did not broadened the indictment, saying that “it takes more time, it’s not
that simple”. The girl returned to Moldova and her rapist will not be brought to justice.
Also, it remained unclear why money trail was not followed in this case, when several
witnesses and the accused spoke of money transfers through the Western Union for the
account of Milivoje Zarubica.
When the trial was somehow finalized, with all the above said deficiencies, the judgment
was disappointing. Savanović was sentenced to imprisonment for one year for, as the
court established, brutal and humiliating multiple rape (with threats to the victim
that he would kill her and her underage daughter in Moldova), which he did alone or
simultaneously with Aleksandar Putnik, which rape lasted for two weeks until the girl
found her escape in running away using knotted bed sheets to climb down the balcony
on the third floor, when she fell down and remained permanently disabled due to spine
injury. Such judgment has sent a message to all women in Serbia that the system does
not see their protection relevant, while the perpetrator may not even be punished. For
all other offences, the perpetrators received more or less symbolic sentences, which
the Supreme Court of Serbia slightly increased in the process of appeal, which lasted
for two years. The Supreme Court of Serbia also revoked the judgment in the part in
which Stanko Savanović and Milivoje Zarubica were accused of raping two girls. However,
the same judge as in the first-instance trial acquitted them, for which reason the judge
was changed. This does not mean that the proceedings will be fairly finished, because
several trial sessions that were scheduled did not take place, either because the file is
still at the Supreme Court of Serbia (upon extraordinary legal remedy filed by Milivoje
Zarubica) or because of Zarubica’s failure to appear, excusing himself with serious illness
for which no evidence was filed. The last (not conducted) trial session was scheduled for
8 January 2008. It was postponed practically indefinitely. Also, it is not clear why Milivoje
Zarubica was not called to serve the sentence of 4 years and 6 months after the judgment
became final.
The trial against Milivoje Zarubica and his group has shown the main weaknesses of the
judiciary in such cases. The lack of main technical conditions for the protection of victims
in court building essentially degrades victims’ personality, while insufficiently defined
procedure allows for different treatment from case to case, depending on judge’s personal
view. Usual procedure for proving violent offences with sexual elements additionally
humiliates the victim, because it forces her to repeat at the trial session every detail
(including anatomical ones) of the rape and similar acts. In the majority of cases, the
court allows the victim to be questioned about her previous life and in moments one get
lost whether it is the perpetrator or the victim on trial, which results in an attitude that
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some of the victims are less worthy of court protection. If the victim is of lower social
or educational background, a prostitute and a foreign citizen on top of everything (the
antagonism of small differences is obvious without exception when persons from former
SFRY republics of former Eastern block are in question), if she submitted out of fear, not
giving physical resistance, in the majority of cases she will not be treated with respect
even by the court.
Supreme Court of Serbia’s judgment, Kž I 1656/04, 26 December 2005
§ 422. Although one of the ideas was to build a branch office of the Rakovica Social
Welfare Center in place of the destructed building321, in 2003, while in detention, Zarubica
sued the state for illicit demolition of his building and won the case.
(…) It says in the ruling that the City was in charge of the demolition and therefore,
the municipal staff should now return the building into the previous shape. After the
spectacular demolition of “Sveti Nikola” Bed & Breakfast in August last year and dramatic
arrest of the owner Milivoje Zarubica, who is still in remand, on February 27 this year, the
Belgrade District Court decided in his favor in the civil action against Rakovica municipality
for illicit demolition of his building. Milivoje Zarubica appealed to city authorities first,
and when his appeal as refused, he turned to the District Court which found him in right.
According to Bojan Milić, President of the Rakovica Municipality, it is said in the reasoning
of the ruling that not the Rakovica municipality, but the City of Belgrade, had jurisdiction
to demolish “Sveti Nikola” Bed & Breakfast, because this was a business structure.
- Although the ruling was rendered in February, we received it two months later, in
April. Since the ruling implies the restoration of the process, this would mean that the
municipality now has to rebuild the new structure with the same name and the same
purpose, and that the City should demolish it, “because it is City’s jurisdiction” – explains
Milić disappointedly. Milić says that the second reason for which the court accepted
Milivoje Zarubica’s appeal is that municipal order for the removal of the structure does
not contain the number of the lot in which the structure is placed and also there were no
evidence that the bed & breakfast was built on public space. With all respect for judicial
authority, they are shocked in the municipality by such a ruling and it stays unclear
whether Zarubica’s structure will be rebuilt and then redemolished.
Glas javnosti (daily), 13 May 2003
http://arhiva.glas-javnosti.rs/arhiva/2003/05/13/srpski/BG03051203.shtml
§ 423. After the demolition of “Sveti Nikola” Bed & Breakfast, Zarubica continued his
activity, now in private apartments, where he kept and exploited girls until they were
321
Glas javnosti (daily), 2 March 2004.
146
transferred to North Italy. During the state of emergency, which was introduced on 12
March 2003 after the assassination of Prime Minister Đinđić, in the police operation
Saber, a large number of persons suspected to be members of criminal groups were
arrested in connection with the assassination. Many were direct or indirect actors in
trafficking chains, including Milivoje Zarubica and members of his criminal group. Many
anti-trafficking actors pinned their hopes that this trial will send a message on state’s
position towards human trafficking and therefore the media often reported on it.
One of the first criminal indictments for suspected trafficking in women and acting as
intermediary in prostitution was filed against Milivoje Zarubica (37), who was arrested in
police action Saber. Informed sources say that it will depend on the outcome of this trial
whether prostitution will boom again. If Zarubica were convicted and got high sentence,
this would, it is assumed, scare other pimps.
Danas (daily), 20 July 2003
(...) Milivoje Zarubica (37), suspected by the police to be one of the biggest human
traffickers in this region, was arrested on Monday after nearly two-month search. The
police have found him in the basement of the house of his friend Milan Miletić (36) in
Batajnica, hiding behind a heap of coal. The search for Zarubica, an organizer of smuggling
of girls from Eastern Europe, but also from Serbia, towards the streets of Italy and brothels
in Bosnia and Herzegovina, started after the arrest of four of his helpers. On that occasion,
the police arrested Zvezdan Stanković (32) from Kosovska Kamenica, Stanko Savanović
(34) from Belgrade, brothers Dragan and Zoran Tomić (32) from Belgrade, and later
Zarubica’s associates from Pančevo Radovan Mrvović and Miroljub Radivojević. The two
Pančevo residents kept in an apartment two Romanians, one Albanian and one Serbian
national, who were awaiting documents for going to Italy, where they were supposed
to practice prostitution. Zarubica’s people were arrested in the mid-January, after the
runaway attempt of the captive A.T. (26) from Moldova from the private lockup in Ilije
Stojadinovića Street. The unfortunate girl tried to climb down, using bed sheets, from the
apartment in which Savanović was sexually abusing her. The girl fell and got seriously
injured and ended in hospital. It has been established that in that apartment, until the
arrest, Zarubica’s group kept 11 girls, three of whom were caught with forfeit passports at
the border checkpoint. Their final destination was Italy. Although many of his associates
were arrested, Zarubica was resisting police search for two months. Still, the police
established in the meantime how the naive girls were caught in this white slavery net.
Through advertisements in Moldovan town Kishinev, women smugglers were looking for
girls for “legal job in Italy or other Western European countries”. The girls would be illegally
transferred from Romania to Serbia, and then brought to the private prison of Zarubica’s
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helpers, the Tomić brothers, in the village of Piroman. Even before the said arrests, there
were stories about Zarubica that he was the organizer of the whole business and that he
was known as the owner of the brothel with girls from East European countries. He was
arrested several times on suspicion of involvement in trafficking in women, but he was
never convicted. Before the Second Municipal Court, there is a pending trial against him
for trafficking in women. Namely, seven girls were found in one apartment in Skojevska
Street, while as many as 43 girls were found under his “sponsorship” in Resnik.
Blic (daily), 28 March 2003
§ 424. Yet, following the chronology of this case, we may see that Milivoje Zarubica did
not go to serve the jail sentence to which he was convicted with final decision. Moreover,
he was regularly responding to summons and is not kept in detention pending trial
in connection with all actions against him. ASTRA and the police are in contact with
trafficking victims that were recruited and exploited by Zarubica and his group during and
after the completion of criminal proceedings.
“(…) I met Puja (Zarubica) at the beginning of 2005. He sent me to Italy, me and six
other girls, on 13 May 2005, I’ll never forget that day, because it was Friday the 13th. He
‘arranged’ Slovenian visa for us through one hairdresser’s parlor, which issued a certificate
that we worked as hairdressers and that they were sending us to attend cosmetics fair in
Slovenia… When we arrived in Italy, his friends awaited us and told us that we would be
working in the street. I just turned 18. (…)”
On 6 November 2008, the Anti-mafia Court sentenced Milivoje Zarubica in his absence
to 17 years of imprisonment and 150.000 EUR of fine for the criminal offence of human
trafficking and mafia association in Italy. Several years earlier, after searching certain
apartments in Tofane Street (Andrea Kosta zone) in Bologna, girls from Eastern Europe
(Romania, Ukraine and Moldova) who engaged in prostitution were found. Some of them
agreed to cooperate with the police and then the name Puja appeared, as the name of the
main leader. Investigation showed that he had developed a business both in Bologna and
London. Elisabetta Melotti, the public prosecutor in the proceedings, and the investigators
found that Zarubica had, as early as at the beginning of the 1990s, transferred women to
Italy in pontoons. In the proceedings, several of his associates were accused and then
convicted, among whom were also his relatives. Zarubica was defended ex officio by the
lawyer Fabrizio Petix who gave notice of an appeal, because, according to him, Puja and
Zarubica were not the same person (during the proceedings Zarubica’s former girlfriend
discovered his real name).
148
As far as court proceedings in Serbia are concerned, several main hearings that were set
down were not held, mainly because the documents from 2008 were located in the
Supreme Court (in relation to the extraordinary legal remedy filed by the attorney of Milivoje
Zarubica), or because he did not appear in court, saying he had “some serious illnesses” for
which he did not deliver proof. The last main hearing (which was not held) was set down
for 8 January 2008. It was postponed practically indefinitely. In late May 2008, Zarubica
escaped to avoid arrest on suspicion that he paid the bribe of 3.000 EUR for the freedom of
his two sons, accused of robbery. Zarubica escaped from Belgrade only a few hours after a
seven-member criminal group of lawyers, policemen and doctors were arrested on suspicion
that they accepted monetary award to “free” clients from criminal accountability. Zarubica
should have been arrested as a mediator. By monitoring two lawyers, it was determined
that Zarubica paid them 3.000 EUR in order for them to secure that criminal charges not be
filed against his two sons. Zarubica succeeded once again in avoiding the police, and in the
moment when the arrest was planned, he was, for the second time, on the run. Interestingly
enough, after the validity of the judgment of the Supreme Court in Belgrade in 2005,
Zarubica was not invited to serve the sentence of four and a half years of imprisonment, but
the warrant for his arrest for serving the sentence was issued by a court in Lebane322. It was
impossible to obtain the information about when exactly the arrest warrant was sent out
and why it was not done from Belgrade, where he was convicted, but by the court in Lebane.
ASTRA baza podataka, ID broj 975
§ 425. In the meantime, Zarubica resided under a false name in Niš and Leskovac, where
he worked in the trade of cultural goods found during illegal archaeological excavations
in various locations in Serbia. On 11 March 2010, the Ministry of the Interior announced
that the members of the Department for Combating Organized Crime arrested Milivoje
Zarubica in Blace near Kuršumlija. When they arrested him, they found with him the
documents with the name Zoran Papović, based on which he resided in Niš and Leskovac.
What was interesting was the fact that the man known by the name of Zoran Papović, in
whose name Zarubica was issued the ID card, actually existed. There is also the information
that Zarubica, using this false name, managed to set up a meeting in the Government of
Serbia in order to secure a postponement of the execution of the sentence “for his friend
Milivoje Zarubica who is a good and honest man.”
Milivoje Zarubica Arrested
In Blace near Kuršumlija, the members of the Department for Combating Organized Crime
arrested Milivoje Zarubica, known to the public as “the Balkan king of human trafficking”
322
http://www.glas-javnosti.rs/clanak/hronika/glas-javnosti-11-03-2010/sbpok-uhapsio-milivoja-zarubicu
http://w w w.novosti.rs/code/navigate.php?Id = 9& status =jedna&vest=173251&title _ add = Uhap%C5%A1en%20Milivoje%20
Zarubica&kword_add=hapsenje%2C%20milivoje%20zarubica
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BELGRADE – In Blace near Kuršumlija, the members of the Department for Combating
Organized Crime arrested Milivoje Zarubica (1965), known to the public as “the Balkan king
of human trafficking”, the Ministry of the Interior announced. The court in Lebane issued a
warrant for arrest of Milivoje Zarubica for four years of imprisonment, in accordance with
the final judgment of the Higher Court in Belgrade. When they arrested him, they found
with him counterfeit documents with the name Zoran Papović, based on which he resided
in Niš and Leskovac, where he worked in the trade of cultural goods found during illegal
archaeological excavations in various locations in Serbia, the statement said. According
to the police, during 1999, three criminal charges were raised against him, and only in
one of the actions against Zarubica, in December 1999 in Resnik, the police found 46 girls
from Romania and Moldova and 180.000 Deutsche Marks. In 2003, Zarubica was on the
run for two months, while the police searched for him for mediating in prostitution, and
he was arrested in Batajnica during the action “Sablja”, the statement said. In 2004 and
2005, the Higher Court in Belgrade convicted him along with 11 more people for criminal
acts related to human trafficking, because he participated in organizing prostitution and
illegal deprivation of liberty of at least 11 Moldovan female nationals. In November 2008,
the Italian Anti-mafia Court in Bologna convicted Zarubica for 17 years of imprisonment
and 150.000 Euro of pecuniary penalty for criminal acts of human trafficking and mafia
association, the statement of the Ministry of Interior said.
FoNet | 11 March 2010, 16:17 |
http://www.novosti.rs/vesti/naslovna/aktuelno.69.html:267547-Uhapsen-Milivoje-Zarubica
III.2.2.9.3. Trial In Absentia
§ 426. The Criminal Procedure Act, in Article 304, Paragraph 2 and 3, envisages that, upon
the motion of the prosecutor, the accused may be tried in absence only if they fled or are
otherwise not amendable to justice, provided that particularly important reasons exits to
try them although they are absent. Article 407 governs trial in absence, while Article 413
stipulates that criminal proceedings in which a person was convicted in absentia (Article
304) shall be reopened even beyond the conditions referred to in Article 407 of the Act,
provided that the convicted person and his defense submit a request for the reopening of
proceedings within a term of six months from the day it becomes possible to conduct a
trial in the presence of convicted person. Also, criminal proceedings in which a person was
convicted in absentia shall be reopened even beyond the conditions referred to in Article
407 of this Act provided that a foreign state allowed his extradition under the conditions
that the proceedings be reopened.
When the accused who is convicted in absentia to imprisonment sentence, conditions for
the extension of detention for not being amendable to justice are fulfilled.
150
From the reasoning: by the first-instance judgment, the accused has been found guilty
for human trafficking and convicted to imprisonment. At the same time, his detention
was extended. It turns out from the records that the accused was in detention upon the
ruling of the investigating judge and that pursuant to Article 566 CPA, the wanted notice
was issued against the accused, too. Since the accused was not available to the court and
that he was not deprived of liberty, the panel decided to try him in absentia. Since the
accused was not arrested until the termination of the trial, in rendering the judgment the
court decided to extend his detention, bearing in mind the circumstance that he is not
amendable to authorities, and if the detention against the accused were revoked and he
found himself in the territory of the Republic of Serbia, he would remain out of reach of
state authorities until the judgment becomes final. Therefore, reasons for extending the
detention are justified and legitimate.
(Ruling of the Supreme Court of Serbia, Kž II 1974/04, 13 December 2004 and ruling of the
Belgrade District Court K. 247/04, 22 June 2004) Sudska praksa, ING PRO paket propisa
III.2.2.10. Penalties Affecting the Property of the Perpetrator
§ 427. In the structure of criminal penalties that may be rendered with the aim of suppressing
and preventing criminal offences in Serbia, penalties that affect the property of a convicted
person are very important. In the criminal justice system of Serbia today, the only penalty
of this kind is fine provided under Articles 49 and 50 of the Criminal Code of Serbia. The
confiscation of property envisaged by former Fundamental Criminal Law, i.e. the Criminal
Law of FR Yugoslavia (Article 39a) does not exist since 1 January 2006. The confiscation of
property had been restored in our criminal legislation (after 1990) through the amendments
and supplements to the Fundamental Criminal Law of April 2003. However, this penalty
could have been applied only for certain offences – the offences with elements of organized
crime. It was prescribed as a specific, subsidiary penalty which consisted of the confiscation
of the entire property of the convicted person without compensation within the limits set by
the law. This penalty could have been optionally imposed if two cumulative circumstances
had been met: that this was the perpetrator of the offence with the elements of organized
crime and that sentence of not less than 4 years had been imposed to such person.323
§ 428. For efficient fight against organized crime, it is necessary to hit on its property. The
first person to advocate such an attitude was Judge Giovanni Falcone. He was the first to
apply economic analysis of a criminal organization on the mafia, comparing the structure
of that organization with the structure of a criminal enterprise. Namely, his opinion was
that a repressive approach in fight against the mafia cannot be sufficient in itself, because
if the structure of that criminal enterprise continues to produce wealth, the mafia will
always be able to attract new members and new leadership. If you arrest one of them or if
323
Jovašević D., Primena kazne konfiskacije imovine u suzbijanju organizovanog kriminaliteta, Revija za bezbednost, br. 4, Centar za bezbednosne studije,
Beograd 2007.
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you convict them to long prison sentences, new, more aggressive and more capable ones
will arrive. Therefore, the only proper way to suppress organized crime is to reduce the
capital and profits of criminal enterprises. What Judge Falcone has taught us is still valid,
and the system of economic analysis of illegal activities is broadly applied in the countries
of modern democracy.324
§ 429. By adopting the concept of fight against criminal property, especially in the context
of organized criminality, by the seizure of assets acquired illegally, criminals and criminal
organizations would have smaller room for hiding the origin and existence of illegally
acquired property, for using illegally acquired assets or for covering criminal activity and
avoiding punishment for criminal offences committed. As a result, the criminal power of
criminal organizations would be destroyed.325
III.2.2.10.1. Confiscation of Gain Acquired Through Criminal Activity
§ 430. Before the criminalization of human trafficking in Serbia, victims were often
treated as perpetrators of some crime. Some of the girls have witnessed that the police
officers who interviewed them before putting them to the shelter required them to take
off all their jewelry. Having left the shelter, that jewelry was not returned to them.
“(...) They were taking all the money I earned, but I had much gold with myself, necklaces,
bracelets and rings. All of these I got in Macedonia and Italy in previous two years. When
they arrested us, I handed everything over to the police, I took off everything I had on me.
I asked them when they were going to return my jewelry, they said when I left for home.
I asked for a receipt or some sort of certificate that they took my jewelry, otherwise how
they would know what they took from me. They told me not to worry, they knew, they
did not need anything mine, they would give it back. One of them even asked whether I
did not have trust in the police.
When they told me that I would be transferred from the prison326 to the shelter for
trafficking victims, I asked for my jewelry. A younger police officer slapped me in the face
because I was rude and because he already told me that I would get my jewelry when I
left for home. I asked no further questions, but except for my clothes and that jewelry, I
had nothing else. (…)”
The police officer who slapped her in the face came by to the shelter several times, he
talked to her and in the presence of shelter stuff repeated that there would be no problem
regarding the jewelry, i.e. that she would get it back. This girl was repatriated to her
country of origin (Moldova) in late 2003. She never got her jewelry back.
324
http://www.pravdautranziciji.com/pages/article.php?id=1660&PHPSESSID=c3c079756e2f7e758a555eb3342ebff2
Bošković G., Efekti prodora organizovanog kriminala u legalne ekonomske tokove, Revija za bezbednost, br. 7, Centar za bezbedonosne studije,
Beograd 2008.
326
Detention Center for Aliens in Padinska Skela near Belgrade.
325
152
§ 431. The Law on Seizure and Confiscation of Proceeds from Crime327 regulates
comprehensively the conditions, procedure, competent authorities and ways of the
seizure of assets, as well as the managements of such assets. The Law came into force on
1 march 2009 and may be applied on trafficking offences. All assets confiscated during the
period covered by this report are temporarily confiscated.
NOVI SAD, 12 May 2006 (Beta)
Zorić: To seize all assets that do not have the proof of origin
The spokesman of the Special Prosecutor’s for Organized Crime Office Tomo Zorić said
today that it was necessary to adopt legislation that would make it possible to seize all
assets for which there was no proof of origin from persons accused of organized people
smuggling and human trafficking. Zorić said that at the moment, such accused persons
might be faced only with the confiscation of property acquired through the specific
offence. At the roundtable “Reporting on Organized Crime”, Zorić said that so far the
highest penalty imposed on persons convicted for people smuggling or human trafficking
in Serbia had been eight year imprisonment and the average sentences ranged between 2.5
and 3 years in prison. He warned that with such penal policy the state “will not efficiently
fight human trafficking”. The Spokesman of the Special Prosecutor’s for Organized Crime
Office said that between March 2002 and December 2005, 186 trafficking victims had
been discovered in Serbia. “Of this figure, 80 victims were of our origin, meaning that
we are the country of origin, and not only of transit for people smuggling and human
trafficking”, said Zorić at the roundtable “Reporting on Organized Crime” that took place
in the Novi Sad School of Journalism. Zorić said that the illegal migration of population
across Serbia usually took place in such a manner that the groups of four-five persons,
when they arrived to our country, were first transported through “regular channels” to
Novi Sad or Belgrade. According to him, they are then taken over by persons who organize
their smuggling and who take them most often to the vicinity of Šid. From there, they are
transported, across neighboring countries, to their final destinations. Zorić also said that
persons who lived in border towns and who decided to harbor illegal migrants earned 330
EUR per night.
http://www.pronadjipravo.com/index.php?link=opsirnije&id=171&table=vesti
§ 432. Positive experiences of other countries should be used in this area (e.g. of Germany),
which use property seized in this way for the prevention, protection and suppression
of human trafficking. Thus, budget allocations are increased, and funds are directed to
quality recovery programs for victims, technical equipment and the education of state
authorities, as well as to prevention.
327
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ARTICLES 1-5
III.2.2.11. Setting Up the Special Department of Belgrade District Court for Organized
Crime and Prosecutor’s Office for Organized Crime
§ 433. Following the history of the establishment of specialized department for organized
crime, we may see that Prime Minister Đinđić announced year 2002 to be the year of fight
against organized crime. In July 2002, the Government of Serbia passed the Law against
Organized Crime. For this Law to come into force, it should have been incorporated
into the federal Criminal Procedure Act, i.e. it was necessary for it to be passed by the
Federal Parliament, too. However, the Democratic Party of Serbia (DSS) and Montenegrin
Socialist People’s Party obstructed the passage of this Law until December 2002. On
July 27, 2002, the DOS328 Presidency decided to dismiss the DSS from the governing
coalition. On August 3, 2002, there was an attempted murder of Ljubiša Buha Čume,
where one of the assassins was Milorad Ulemek Legija. Because of the obstruction in
the adoption of the Law against Organized Crime, the institution of witness-associate
still did not exist. In December 2002, the Federal Parliament passed the Law. The same
month, the members of JSO329 and criminal gang “Zemunski klan” blew up “Defense
Road”, company owned by Ljubiša Buha Čume. Having got information that the mafia
had access to information that were highly confidential at that moment, Prime Minister
Đinđić decided in January to dismiss the then top officials of Serbian Intelligence Agency
BIA, Andrija Savić and Milorad Bracanović. In the same month, Special Prosecutor’s Office
and Special Department of the Belgrade District Court for Organized Crime were set up.
III.2.2.12. International Cooperation
§ 434. The suppression of human trafficking implies international cooperation of all antitrafficking counterparts. The Strategy to Combat Trafficking in Human Beings in the Republic
of Serbia in Article 10 speaks of the necessity of international cooperation aimed at signing
and implementing legal instruments, improving the data exchange system, speeding up the
legal aid procedure and implementing more comprehensive financial investigation.
§ 435. While NGOs have advantage in that respect, since they are not bound by any
formal and administrative obstacles, and the exchange of information is possible by
telephone or e-mail, state institutions have a formalized framework of cooperation they
need strictly to comply with.
In 2005, proceedings for the criminal offence of human trafficking committed against
ASTRA’s client who, at the time of the offence was 15 years old, was started before
the Sremska Mitrovica District Court. She gave her statement in May 2005 and March
2006. After her last appearance before the court, two foreign witnesses were questioned.
Before rendering the judgment, the court was waiting only for the original passports of
328
329
Democratic Opposition of Serbia which came to power after wining the elections and brining down Milosevic’s regime.
Serbian Interior Ministry Special Operations Unit.
154
the trafficker and the victim to be sent from Germany, passports which the traffickers
obtained for the two of them to cross international borders on their way to the destination
country. These documents should have been sent by official diplomatic channels, through
embassies and Justice Ministries. However, after almost two years, the judge has not
received these passports, for which reason the entire case is on halt.
At the same time, making use of this situation, the trafficker started paternity procedure
for the child born in the period when the victim was exposed to exploitation, in order to
be able to require custody of that child later. The judgment, i.e. conviction in the case
of human trafficking offence would have great impact on the outcome of paternity, i.e.
custody procedure.
In the meantime, ASTRA’s client and her five-year old daughter are permanently exposed
to his threats and are forced to be on their guard all the time and in fear that these threats
could be realized.
§ 436. As far as police cooperation is concerned, it includes investigation, the possibility of
appointing a liaison officer, the exchange of information for coordination of joint actions
or specific methods and instruments that are used by organized criminal groups.330 Specific
forms of police cooperation are discussed in detail in chapter III.7. of this Report which
analyzes Article 10 of the Palermo Protocol and corresponding articles of CoE Convention.
III.2.2.12.1. International Legal Aid
§ 437. International legal aid in trafficking cases depends on several factors. The bringing
of victims to testify is proportionally rare, because the state is more interested in using
its mechanisms if this involves the ensuring of presence of the accused for serious criminal
offences. The costs are often the issue in the majority of cases. The slowness of the
procedure itself compromises the effectiveness of the bringing of the victims, while the
procedure is additionally complicated if it involves the country in which Serbia does not
have its diplomatic mission, such as, e.g. Moldova. The central authority in Serbia for
international legal aid is the Section for Normative Affairs and International Cooperation
of the Ministry of Justice of the Republic of Serbia. This procedure is often very lengthy,
which is in contrast to Article 16 of CPA and to right to trial in reasonable time. In human
trafficking cases this is often detrimental both for the victim and for the process in general.
In the Zarubica case, the Presiding Judge of the panel filed a request to the competent
Ministry for ensuring the presence of victims from Moldova. His interventions failed
to speed up the process and it turned out in the end that the request waited for more
330
Đurđević Z., Međunarodna saradnja u suprotstavljanju međunarodnom kriminalu, Revija za bezbednost, br. 7, Centar za bezbedonosne studije, Beograd
2008.
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than one month in the Serbian Embassy in Ukraine. Then, when it was finally forwarded
to Moldova, their Public Prosecutor’s Office did nothing. For this reason, victims’ legal
representatives and ASTRA contacted SECI Center and girls were finally brought to Serbia.
In addition, the Belgrade District Court at the time (2004) did not have possibility to send
necessary documents by fax to foreign countries or to make international phone calls.
This was done by victims’ attorney instead. When finally SECI Center team, with FBI’s
assistance, came to the state border with the girls, they were stopped by Serbian border
authorities, because the girls allegedly did not have due invitation requiring their presence
at the trial. Only after several hours of waiting, they managed to enter the country.
In the case against Borivoje Ninković before the Fourth Municipal Court in Belgrade, the Presiding
Judge of the panel assessed that the presence of the victim was necessary, but that the court
did not have means to ensure this, because his requests to the competent ministry remained
unanswered. The girl came and testified, but with ASTRA’s and OSCE Mission’s assistance.
In the case against Mladen Dalmacija and Zdravko Laković before the Third Municipal
Court in Belgrade, the Presiding Judge of the panel claimed that the court would cover the
costs of transportation of two victims from Moldova. However, in this case, the costs are
only a technical element, because the brining and questioning of the girls six years after
the incriminated event would represent unacceptably cruel revictimization and brutal
violation of their basic human rights. A special problem in this case is the fact that five
of seven scheduled sessions did not take place for various reasons, mostly because of the
absence of the accused Mladen Dalmacija. Therefore, it is not probable that the girls,
even if they had come, really would have had the opportunity to make their statements
at the trial, because according to the Criminal Procedure Act, the trial session cannot be
held or any procedural activities cannot be done without the presence of the accused.
III.2.2.13. Judicial Treatment of Trafficking Victims
§ 438. Obvious absence of real perception of the status of the victim of criminal offence
and the lack of efficient solutions that would enable the victim to give a valid and
acceptable statement in the shortest possible time period without violating her individual
rights. In the majority of cases, the victim of crime is at the same time a collateral victim
of an inefficient legal system.
§ 439. It is generally known that trafficking victims, after the initial recovery period,
mostly want to leave the shelter they are put in, in order to return to their families.
156
They want to forget the trauma they survived as soon as possible and start rebuilding
their lives. Besides the fear of traffickers, this is one of the reasons why they reluctantly
respond to court summons. If they are foreign nationals, they are usually repatriated,
which makes their future presence in court difficult.
In late January 2008, the local police department was informed about a citizen of Serbia
who was deported from Italy after entering the country with emergency travel document.
Upon arrival at the airport, she was obviously upset, with a visible physical injuries and
malnourished, declining at the same time to undergo a medical examination at the airport.
After giving a statement to the local police a month later, proceedings were instituted ex
officio with her as a witness/injured party for the case of human trafficking. Considering
the fact that she lived in a small town and that her former husband who was involved in
her sexual exploitation knew her entire family, she started receiving threats from him
and his family saying that she had to retract the said statement. After her retracting the
statement, the Public Prosecutor raised charges against her for perjury.
ASTRA provided legal assistance to this woman and informed the US State Department about
this case which is in violation of Article 26 of the CoE Convention (Provisions on Impunity).
During the proceedings, numerous suspicious actions were happening (the documents
from the case were missing, the proceedings were stalled, hearings were constantly
delayed...). Out of fear, constant threats from traffickers and the impossibility of a normal
life, the client went abroad, where she resides today.
In the mid 2010, the District Prosecutor’s Office requested to review the case, after which
the case against her was dropped, and the new investigating procedure regarding the
offence of human trafficking was instituted before the Basic Court where she was the
witness injured.
III.2.2.13.1. Compensation Claims
§ 440. Judges quote Article 16 CPA in their judgments and, not wanting to prolong the
procedure, refer victims to realize their right to the compensation of damages in litigation.
This is one of the reasons why until the release of this Report no trafficking victim won
damages in civil procedure.
§ 441. Namely, in criminal judgments, it is usual that compensation claims are not
discussed whatsoever, i.e. they are neither accepted not denied. Instead, the victim/
injured party is referred to litigation, without listing any reasons or with a blanket
explanation that this is done in the name of the efficiency of the procedure, even when
this is not really the case.
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The Novi Sad District Court referred the victim to litigation, although neuropsychiatrist
and psychological examinations were made during criminal proceedings, establishing to
which extent the victim was traumatized by defendants’ acts and what consequences
the trauma caused to her personality (PTSD etc.). If damages were adjudicated on that
occasion, it would only contribute to the efficiency of the procedure. Thus, the victim
will be forced to run expensive and lengthy litigation, which may realistically take two to
three years.
Zoran Balog and Branko Novaković, accused of the criminal offence of so-called cruel
murder of the late B.K., were tried before the Pančevo District Court. The girl was beaten
to death for hours, because she ran away from the accused for whose account she was
forced into prostitution for a longer period of time. The perpetrators were sentenced to
imprisonment for 12 years and 6 months each, while the mother of the victim, E.K. was
referred to litigation. Pending the trial, the Presiding Judge of the panel was addressing
victim’s mother with her first name, thus showing disrespect, allowed the defense
counsel to use insults when talking about the deceased and the like. Although none of the
participants in the proceedings denied mother’s grief over murdered daughter, the court
referred her to litigation without any legally valid argument. The litigation ended with
settlement, but compensation of damages has not been effected until today because the
perpetrators are in prison and they do not have any property from which the Plaintiff may
be paid out.
§ 442. Since this is a usual practice in Serbian courts, victims have no right to appeal
the criminal judgment in which compensation claim is not practically decided about,
but they are referred to new proceedings, which brings about both revictimization and
considerable costs.
§ 443. During 2010, there were numerous initiatives related to the issue of compensation
to victims of human trafficking. The OSCE Mission to Serbia in cooperation with the
Association of Public Prosecutors and Deputy Prosecutors of the Republic of Serbia
started a project that aimed to change legislation in this field.
III.2.2.13.2. New Investigative Techniques
§ 444. Successful suppression of all forms of organized crime, including human trafficking,
has been to a great extent alleviated by the introduction of special investigative techniques
in the Criminal Procedure Act. Some of them turned out to be very successful in practice.
Thanks to them, evidence in the Dalmacija case was successfully collected.
158
III.2.2.14. Police Cooperation
§ 445. The beginning of work on the suppression of human trafficking was marked by the
absence of network between state authorities. This was an important obstacle to the
efficient combating of this form of organized crime. The closeness of state institutions,
in particular of the police, in the previous period, was not without impact. It took some
time to build trust and gradually establish cooperation with professionals from other
countries. This was contributed by numerous regional seminars and trainings that the
representatives of institutions attended, above all thanks to foreign donors and funds,
where direct contacts were established, which made later cooperation easier.
§ 446. The sluggishness of the state apparatus, enormous red tape, complicated
procedures, and strict hierarchy of specific authorities makes efficient work on combating
human trafficking significantly difficult, even when there is a good will on the part of
individuals who work in these institutions. This gives advantage to criminals who do not
have these obstacles and “successfully” cooperate in their fields of activity. On the other
hand, there are many examples that due to the lack of cooperation or slow administration,
some cases need to be stopped due to the statute of limitation. It is much more serious
when this concerns searches for persons who went missing in the trafficking chain, where
the passage of time is in reverse proportion to the successfulness in solving the case.
In June 2007, father of a girl who was kept locked by the trafficker in a bar in Montenegro
called ASTRA SOS Hotline. She managed to contact her father through SMS and told him
to urgently send the police, because she was afraid that she would be sold in the following
four days to another trafficker who would take her to Albania. On the same day, ASTRA
contacted Serbian Ministry of the Interior by telephone, and then sent the official memo
to inform them about this case.
However, the representatives of the Ministry of the Interior informed ASTRA that, since
this involved human trafficking in the territory of another state, and regardless of the
fact that the victim was a Serbian national, these information needed to go through
administrative procedure which would take at least 10 days before it got back to the
operational level. It was impossible to officially send this memo on time and the police
representative told ASTRA to contact an NGO in Montenegro, because in that way their
police could be alarmed quickly enough.
The same day, ASTRA contacted Safe House for Women in Podgorica, which contacted
the local police and the first contact with the girl was made on June 21.
§ 447. The first progress in inter-state cooperation appeared with regard to donations
which foreign governments or their embassies were giving Serbia in the form of
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ARTICLES 1-5
technical assistance and equipment for institutions, above all the police. Technical
assistance included renewing the fleet, technical equipment and organizing professional
development trainings for the staff.
§ 448. A positive development in regional cooperation is certainly the establishment of
Southeast European Co-operative Initiative (SECI) Center in Bucharest, that was lunched
as an idea within the Euro-Atlantic cooperation in May 1995 in Vienna. Participating states
are: Albania, Bosnia and Herzegovina, Bulgaria, Croatia, Greece, Hungary, FYR Macedonia,
Moldova, Romania, Serbia, Slovenia, and Turkey. Serbia (then FRY) officially became a
member by the decision of the Federal Government of 23 August 2001. The SECI Center
is unique because the customs and the police work together in direct cooperation within
a mutual Project. The project does not overlap with any other initiatives, because it is not
political co-operation, but a real operative collaboration and it works under the guidance
and counsel of recommendations and directives of the INTERPOL and WCO.331 This
Center has given significant contribution to the coordination of assistance, protection
as well as the organization of transportation of witnesses, foreign nationals in the case
against Milivoje Zarubica in 2003-2004.
§ 449. A good example of cooperation and networking may be the Special Department
for War Crimes of the Belgrade District/Higher Court, which has established excellent
cooperation with governmental and nongovernmental organizations both in Serbia
and aboard, with whom it is in permanent communication aimed at the exchange of
information and successful solving of cases in the war crimes area.
III.2.2.15. Abuse of Modern Technology for Human Trafficking and Other Forms
of Exploitation
§ 450. As explained in the Legal Analysis, the possession of child pornography was
not punishable in Serbia and hence the police and Public Prosecutor’s Office often had
a problem to prove the production and distribution of child pornography, which are
punishable elements of the offence. This changed thanks to the latest amendments and
supplements to the Criminal Code, facilitating to the great extent the job of the police
and prosecutor. The Internet and SMS massaging have recently become increasingly used
for recruiting young people into the human trafficking chain. According to the research
which ASTRA conducted in 2006332, although 98.8% of young people have heard of
human trafficking, only 15% think that anybody could fall victim. This fact certainly
calls for “preventive alarm”. 70.5% of respondents uses the Internet, more specifically
for entertainment (76.6%), to find useful information (63.2%), for sending and receiving
e-mails (36.9%), for meeting new people (26.6%). 38% of the sample and more than
half of those who use the Internet, use it for communicating (chatting) with other people.
331
332
http://www.secicenter.org/
Human (Child) Trafficking – A Look through the Internet Window, ASTRA, Belgrade, 2006.
160
Grafikon III.2.2.15.1. Internet use for the whole sample (in percent)
§ 451. Further, 37% of young people who chat have experienced different unpleasant
situations on line – sexual harassment, insults, vulgar language, threats, fights, abuse,
practical jokes or ethnically based insults. In 47.8% of cases, they receive different offers
– for meeting their contacts in person, dating, traveling together, sex, job offers, modeling
offers, sex in exchange for money, etc. In 37.8% of cases, respondents met their chatting
partners in person. Offers that young people most often receive through the Internet are for
meeting in person and dating. Much more often such offers were received by girls. However,
87.4% of all respondents can imagine the recruitment over the Internet as a real danger!
Grafikon III.2.2.15.2. Chatting experience
The pedophilia chain discovered in Serbia, Šabac – The first pedophilic chain in Serbia
discovered in Šabac, photos sent over the Internet. According to Blic’s sources, the photos
of sexual abuse of children, the youngest of whom is only one year old and the oldest is 9,
have been sent to the world for months from one Internet address in Serbia. Right before
Easter holidays, in an action launched by US FBI, an 18-year old boy from reputable local
family was arrested in Šabac, who was sending the photos from his home PC. The arrested
boy was ordered one-month remand. He decided to remain silent before the investigating
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judge of the Šabac District Court. “The action started ten days ago, when FBI sent a memo
to the Belgrade office of Interpol asking for certain check up to be done in Šabac. Namely,
the case was initiated when the photos of abused children sent from Šabac were received to
the Internet address of one US citizen. The man was shocked. He instantly reported the case
to the police. FBI joined the action and notified the Belgrade Interpol”, said for Blic a source
close to the top of the Serbian MoI. Certain data were given to the police, based on which it
was precisely located where the photos were sent from. “We reacted instantly. The Criminal
Justice Police of the Serbian MoI and the Šabac Police, in cooperation with the investigating
judge and public prosecutor, appeared in front of the house from where the photos were
sent,” said the source. “The police officers armed and with full equipment, went into the
first action of arrest for Internet pedophilia in Serbia. They were not little surprised when
the door was opened by a boy who had become of age only a few months before. The shock
was even greater when it was established that it was him who was sending these monstrous
photos”. The boy was instantly arrested, brought before the investigating judge, while the
police confiscated his computer, from which files with photos are still downloaded. All
files in which photos were kept were protected by passwords and so far a great number
of photos of abused children were found. Blic’s source from the MoI says that this is only
one in the series of actions of the police in cases connected with serious social pathology in
which foreign nationals are also directly or indirectly involved.
Blic (daily), 6 May 2005
Three cases recorded
“(…) Serbia is the part of the world, including new communication technologies, which is
accompanied with ‘the dark side’, i.e. high technology crime, including internet pedophilia.
Three cases have been reported in our country so far, two of which ended with convictions
at the first instance trial. Jugoslav Stefanović from Loznica, who was distributing child
pornography over the Internet, but also engaged in prohibited sexual acts with underage
girl, was sentenced to 12 years in prison, while another person from Šabac was sentenced to
three years in prison for the distribution of child pornography” – says Stamenković.
Glas javnosti (daily), Saturday 10 February 2007
§ 452. During 2009-2010, Target Centre for Prevention of Deviant Behaviour in Young
People from Novi Sad carried out a survey “Abuse of the Internet – Violence and Abuse
through the Internet” in which over 200 schools on the territory of Vojvodina participated.
Educational forums were organized with children and parents.
Some of the findings
• Do you know that some persons use a false name on the Internet and are you worried
about that?
162
› I do and I am worried - 40%
› I do but that I am not worried – 55%
› I do not know and I am not worried – 5%
• Do you contact the persons on the internet whom you do not know in the real life?
› Yes, often – 25%
› Yes, rarely – 40%
› Yes, whenever I get a chance – 10%
› No - 25%
• Do you know that “blind dates” with someone you “met” on the Internet end up as
human trafficking?
› This only happens abroad (Serbia does not have that problem) - 65%
› Yes, I do (I’ve heard, I’ve read.....) – 25%
› I do not think that way when I use the internet – 10%
• Do you know someone in your environment who had a problem on the Internet and
what was the problem?
› No – 25%
› Yes, in my school they created groups for some children – 35%
› There are children in our school who steal profiles (they hack) – 25%
› False prize games – 15%
§ 453. In 2009, the Ministry of Telecommunications and Information Society carried out a
research, and then started a website about safe usage of the internet within the campaign
Click Safely. The research was carried out in 16 towns in Serbia, covering a sample of 509
elementary and secondary school pupils.
According to the results of the research, children spend little time on the Internet and this is
usually not quality time. The Internet is most often used for fun, mainly chat (14 percent),
watching videos (16 percent), while 12 percent of pupils surf the internet without a previous
plan. When it comes to the entertaining content, in the first place there is visiting the popular
social networks such as Facebook, on which 73 percent of the respondents have an open
account, while 21 percent of them have an open account on the other popular social network,
MySpace. Besides updating their account on social networks (18 percent) and playing games
(16 percent), a lesser number of the respondents said that they use the internet when
they want to find out more about a certain matter (16 percent). A large number of the
respondents, 31 percent of them, said that their parents do not know what they do on the
Internet. Interestingly enough, no less than 12 percent of the pupils in Serbia has their parents
in the list of their friends on Facebook. The fact that on the Internet children are exposed to
risky behaviour, as well as in the real life, is confirmed by the fact that 31 percent of them
met in person someone they met for the first time on the Internet. Although 85 percent of
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the respondents said that they never experienced any inconvenience on the global network,
the rest 15 percent listed harassment, defamation, false representations and “older persons
coming on to them” as the most frequent inconveniences they experienced on the internet.
31% of the pupils met in person someone they met for the first time on the internet
57% of the pupils spend less than 5 hours per week on the Internet
21% of the pupils do not have internet at home
15% of the pupils experienced inconvenience on the Internet
34% of the pupils chat with strangers
31% of the pupils stated that their parents do not know what they do on the Internet
http://www.kliknibezbedno.rs/
III.2.2.16. ”Missing Babies“ Case
§ 454. Although not directly connected with the exploitation of children, we should
certainly mention here that in the course of 2000, Serbia was shaken by a scandal
involving potential child trafficking, the so called “missing babies” case, Namely, parents
who were told that their children died at birth, particularly in the period 1970-1990, were
suspicious of these deaths. Dozens of these parents are now looking to find out whether
their children have really died or whether they were taken from them illegally and now,
without knowing, live with different families and, possibly, in other countries. According
to the Public Prosecutor’s Office, a total of 764 reports were received (539 rejected, of
which 383 due to statutory limitation and 147 for other reasons). No criminal charges
have raised until today.333
§ 455. Incomplete documentation - discharge papers, non-existing or incomplete birth and
death certificates and unclear or lacking official stamps on doctors’ reports, etc. – raised
the parents’ suspicion of the possible misconduct of hospital staff. Until now, none of these
cases was prosecuted – investigations have been made, but not one indictment has been
issued. This generated strong public pressure, including the media, NGOs and individuals,
for this matter to be seriously investigated where possible. The representatives of the
parents have expressed, several times, their discontent with the work of state institutions
and demanded that the truth be found. They have stated that the documentation in
hospitals is in “chaos” and requested a state commission to be formed that would consist
of doctors, lawyers, MPs and the representatives of the Ministry of Internal Affairs. 334
§ 456. Under this pressure, on 23 May 2005 the National Assembly of Serbia decided to
set up an Inquiry Commission that would establish the truth regarding the newborns who
disappeared from maternity wards in several Serbian towns.335
§ 457. The law and practice of childbirth registration are very problematic and need to be
333
334
335
Ristović M., Trgovina bebama u Srbiji – rođeni da nestanu, Miša Ristović, Niš 2006.
Brkić M. [et. al.], Prava deteta u Srbiji 1996-2002, Centar za prava deteta, Beograd 2003.
164
corrected. A special problem exists with newborns that died after birth as the law does
not explicitly envisage an obligation to identify and register such newborns, but only to
register the information given thereby to the mothers. There is also no legal obligation
on the part of the health-care system to let mothers identify their newborns before their
burial, although they are the only ones able to do that. Such practice is, clearly, in collision
with the Serbian Regulation on the methods and procedures for determination of time
and cause of death, for autopsy and for procedures concerning dissected parts of body336.
According to Article 7 of this Regulation, when accepting the body of a deceased person
to a health-care institution for burial, an identity check has to be done, without exception.
The current regulations lack provisions concerning the obligation of burial of stillborns and
newborns that died immediately after birth in health-care institutions. Hence, it is implied
that the bodies of such children shall remain in the health-care institutions, which is also
the procedure applied in practice. Cases of this kind could only be resolved by official court
investigation, but the situation itself could be prevented if births and deaths were recorded
in a different way and if there were no gaps in the legal system and regulation.”337
§ 458. On July 14, 2006, the National Assembly of Serbia finished its extra session, started on
June 5, by adopting the report made by the Inquiry Commission formed to establish the truth
about newborns who had disappeared from maternity wards in several Serbian towns. As the
Chairman of the Assembly Predrag Marković stressed, this was the first time in the history of
parliamentarism in Serbia that the Report of the Inquiry Commission was adopted.338
§ 459. The conclusion of the Inquiry Commission’s report339 contains suggested measures
to be taken, including the following:
• The work of the Interior Ministry, public prosecutor’s offices and the judiciary should
be unblocked;
• The Interior Minister should set up a specialized unit that would carefully investigate
all cases reported by suspicious parents. The Minister should notify the Commission
of these activities within three months;
• The Special Belgrade District Court’s Department for Organized Crime should take
over the jurisdiction for all missing babies’ cases;
• The legislation should be amended in order to prevent the statutes of limitation in
these cases and thus unblock the judiciary and public prosecutor’s offices.
• Prevention measures should be taken so that such places would not repeat in future.
§ 460. We do not know whether any of the measures proposed in the Inquiry Commission’s
Report have been carried out in practice yet.
336
Alternative report on the International Covenant on Economic, Social and Cultural Rights for Serbia, Child Rights Center, ASTRA, Belgrade Center for
Human Rights and Group 484, 2005.
338
Ristović M., (2006), op.cit.
339
Republika Srbija - Narodna Skupština, 01 Broj: 02-445/05, 20.02.2006. godine.
337
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ARTICLE 6
Janković sent the report about the case of “missing babies” to the parliament
Tanjug – Ombudsman Saša Janković stated today that he sent the report about the
case of the so-called “missing babies” to the Serbian Parliament, after the procedure he
conducted based on the complaints of the parents.
As noted, after several months of research which included several ministries, local
authorities and health and other institutions, the Ombudsman found that a series of
administrative procedures related to babies, that is, their bodies, were not respected, or
did not exist, although they were necessary.
The Ombudsman also found that the individual authorities, organizations and officials
had an irresponsible attitude towards the documentation, that there was an inhumane,
bureaucratic relationship of certain public officials with the members of the families,
but that because of all shortcomings in the documentation and the passage of time, it
cannot be estimated whether someone took advantage of the officials’ negligence and
irresponsibility and illegally separated some babies from their families.
Janković pointed to the fact that even today there are some imperfections in the
procedures and gave recommendations in his report in order to promptly correct them,
and with them also to avoid the possibility that “there happens a new unpredictable case
of missing babies”.
The Ombudsman referred the recommendations to the Ministries of Health and the
Interior, as well as the Ministry for Public Administration and Local Self Government.
The Ombudsman also estimated that adopting a new law could contribute to determining
the final truth in these cases, the statement said.
Blic, 3 August 2010
http://www.blic.rs/Vesti/Drustvo/201242/Jankovic-poslao-skupstini-izvestaj-o-slucajunestalih-beba
§ 461. Recommendation no. 52. of Concluding Observations of the Committee on
Economic, Social and Cultural Rights340: ”The Committee urges the State Party, in
addition to the recent legislative measures to combat trafficking in persons, to prosecute
and punish perpetrators and corrupted law enforcement officials involved in trafficking,
to provide medical, psychological and legal support to victims, to raise awareness about
the dimension of the crime among law enforcement officials, and to include updated
statistical data on the number of victims, perpetrators, convictions and the type of
sanctions imposed in its next report. The Committee also encourages the State party to
proceed with the adoption of a National Plan of Action on trafficking in Serbia.”
340
Committee on Economic, Social and Cultural Rights, Thirty-fourth session, 25 April – 13 May 2005, Consideration of reports submitted by states
parties under articles 16 and 17 of the covenant Serbia and Montenegro.
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III.3.Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially
Women and Children, Article 6 – Assistance to and protection of victims of
trafficking in persons
CoE Convention on Action against Trafficking in Human Beings, Article 10
– Identification of the victims, Article 12 - Assistance to victims, Article 13 Recovery and reflection period, Article 15 – Compensation and legal redress and
Article 27 - Ex parte and ex officio applications
Palermo Protocol
Article 6
Assistance to and protection of victims of trafficking in persons
1. In appropriate cases and to the extent possible under its domestic law, each State Party
shall protect the privacy and identity of victims of trafficking in persons, including, inter
alia, by making legal proceedings relating to such trafficking confidential.
2. Each State Party shall ensure that its domestic legal or administrative system contains
measures that provide to victims of trafficking in persons, in appropriate cases:
a. Information on relevant court and administrative proceedings;
b. Assistance to enable their views and concerns to be presented and considered at
appropriate stages of criminal proceedings against offenders, in a manner not
prejudicial to the rights of the defense.
3. Each State Party shall consider implementing measures to provide for the physical,
psychological and social recovery of victims of trafficking in persons, including, in
appropriate cases, in cooperation with non-governmental organizations, other relevant
organizations and other elements of civil society, and, in particular, the provision of:
a. Appropriate housing;
b. Counseling and information, in particular as regards their legal rights, in a language that
the victims of trafficking in persons can understand;
c. Medical, psychological and material assistance; and
d. Employment, educational and training opportunities.
4. Each State Party shall take into account, in applying the provisions of this article, the age,
gender and special needs of victims of trafficking in persons, in particular the special needs
of children, including appropriate housing, education and care.
5. Each State Party shall endeavor to provide for the physical safety of victims of trafficking in
persons while they are within its territory.
6. Each State Party shall ensure that its domestic legal system contains measures that
offer victims of trafficking in persons the possibility of obtaining compensation for
damage suffered.
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ARTICLE 6
CoE
Article 10
Identification of the victims
1. Each Party shall provide its competent authorities with persons who are trained and qualified
in preventing and combating trafficking in human beings, in identifying and helping
victims, including children, and shall ensure that the different authorities collaborate with
each other as well as with relevant support organisations, so that victims can be identified
in a procedure duly taking into account the special situation of women and child victims
and, in appropriate cases, issued with residence permits under the conditions provided for
in Article 14 of the present Convention.
2. Each Party shall adopt such legislative or other measures as may be necessary to
identify victims as appropriate in collaboration with other Parties and relevant support
organisations. Each Party shall ensure that, if the competent authorities have reasonable
grounds to believe that a person has been victim of trafficking in human beings, that
person shall not be removed from its territory until the identification process as victim
of an offence provided for in Article 18 of this Convention has been completed by the
competent authorities and shall likewise ensure that that person receives the assistance
provided for in Article 12, paragraphs 1 and 2.
3. When the age of the victim is uncertain and there are reasons to believe that the victim is
a child, he or she shall be presumed to be a child and shall be accorded special protection
measures pending verification of his/her age.
4. As soon as an unaccompanied child is identified as a victim, each Party shall:
a. provide for representation of the child by a legal guardian, organisation or authority
which shall act in the best interests of that child;
b. take the necessary steps to establish his/her identity and nationality;
c. make every effort to locate his/her family when this is in the best interests of the child.
CoE
Article 12
Assistance to victims
1. Each Party shall adopt such legislative or other measures as may be necessary to assist victims
in their physical, psychological and social recovery. Such assistance shall include at least:
a. standards of living capable of ensuring their subsistence, through such measures as:
appropriate and secure accommodation, psychological and material assistance;
b. access to emergency medical treatment;
c. translation and interpretation services, when appropriate;
d. counselling and information, in particular as regards their legal rights and the services
available to them, in a language that they can understand;
168
e. assistance to enable their rights and interests to be presented and considered at
appropriate stages of criminal proceedings against offenders;
f. access to education for children.
2. Each Party shall take due account of the victim’s safety and protection needs.
3. In addition, each Party shall provide necessary medical or other assistance to victims
lawfully resident within its territory who do not have adequate resources and need such
help.
4. Each Party shall adopt the rules under which victims lawfully resident within its territory
shall be authorised to have access to the labour market, to vocational training and
education.
5. Each Party shall take measures, where appropriate and under the conditions provided for
by its internal law, to co-operate with non-governmental organisations, other relevant
organisations or other elements of civil society engaged in assistance to victims.
6. Each Party shall adopt such legislative or other measures as may be necessary to ensure
that assistance to a victim is not made conditional on his or her willingness to act as
a witness.
7. For the implementation of the provisions set out in this article, each Party shall ensure
that services are provided on a consensual and informed basis, taking due account of the
special needs of persons in a vulnerable position and the rights of children in terms of
accommodation, education and appropriate health care.
CoE
Article 13
Reciovery and Reflection period
1. Each Party shall provide in its internal law a recovery and reflection period of at least
30 days, when there are reasonable grounds to believe that the person concerned is a
victim. Such a period shall be sufficient for the person concerned to recover and escape
the influence of traffickers and/or to take an informed decision on cooperating with the
competent authorities. During this period it shall not be possible to enforce any expulsion
order against him or her. This provision is without prejudice to the activities carried out
by the competent authorities in all phases of the relevant national proceedings, and in
particular when investigating and prosecuting the offences concerned. During this period,
the Parties shall authorise the persons concerned to stay in their territory.
2. During this period, the persons referred to in paragraph 1 of this Article shall be entitled to
the measures contained in Article 12, paragraphs 1 and 2.
3. The Parties are not bound to observe this period if grounds of public order prevent it or if it
is found that victim status is being claimed improperly.
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ARTICLE 6
CoE
Article 15
Compensation and legal redress
1. Each Party shall ensure that victims have access, as from their first contact with the
competent authorities, to information on relevant judicial and administrative proceedings
in a language which they can understand.
2. Each Party shall provide, in its internal law, for the right to legal assistance and to free legal
aid for victims under the conditions provided by its internal law.
3. Each Party shall provide, in its internal law, for the right of victims to compensation from
the perpetrators.
4. Each Party shall adopt such legislative or other measures as may be necessary to guarantee
compensation for victims in accordance with the conditions under its internal law, for
instance through the establishment of a fund for victim compensation or measures or
programmes aimed at social assistance and social integration of victims, which could be
funded by the assets resulting from the application of measures provided in Article 23.
CoE
Article 27
Ex parte and ex officio applications
1. Each Party shall ensure that investigations into or prosecution of offences established in
accordance with this Convention shall not be dependent upon the report or accusation
made by a victim, at least when the offence was committed in whole or in part on its territory.
2. Each Party shall ensure that victims of an offence in the territory of a Party other than the
one where they reside may make a complaint before the competent authorities of their
State of residence. The competent authority to which the complaint is made, insofar as
it does not itself have competence in this respect, shall transmit it without delay to the
competent authority of the Party in the territory in which the offence was committed. The
complaint shall be dealt with in accordance with the internal law of the Party in which the
offence was committed.
3. Each Party shall ensure, by means of legislative or other measures, in accordance with
the conditions provided for by its internal law, to any group, foundation, association or
non-governmental organisations which aims at fighting trafficking in human beings or
protection of human rights, the possibility to assist and/or support the victim with his or
her consent during criminal proceedings concerning the offence established in accordance
with Article 18 of this Convention.
III.3.1. Legal Analysis
§ 462. Palermo Protocol and CoE Convention discuss in detail the issues of assistance to the
victims of human trafficking and their protection. In the following part of this Report, we
170
will deal with the compatibility of domestic legislation with the standards of the mentioned
international documents which refer to the protection of the victim’s identity and privacy,
participating and protection of the victim in the course of criminal proceedings, measures of
support as to alleviate the suffering and damage the victims have suffered, help in recovery
and rehabilitation, counseling and informing the victim about his/her rights, medical help,
employment, educational and training opportunities, children’s special needs, physical safety
of the victims as well as the possibilities of receiving a compensation for damage suffered.
III.3.1.1. Protection of Victim’s Identity and Privacy
§ 463. Article 6 (1) of the Protocol and Article 30 of the CoE Convention impose
obligation on States Parties to protect the privacy and identity of victims, particularly in
the course of judicial proceedings. Satisfactory measures to meet this obligation include
conducting the criminal proceedings, together with excluding members of the public or
representatives of the media or imposing limits on the publication of specific information,
such as details that would permit identification of the victim341.
§ 464. The protection of individual’s privacy interests in the course of judicial proceedings
has been given a rank of the constitutional guarantee. On this account, Article 32 (3) of
the Serbian Constitution, which secures the right to fair trial, proclaims the following: The
press and public may be excluded from all or part of the court proceedings only in the interest
of protecting national security, public order and morals in a democratic society, interests of
juveniles or the protection of private life of the parties, in accordance with the law.
§ 465. The Criminal Procedure Act (CPA)342 also recognizes the need to protect privacy
interests of the parties and other participants in the criminal proceedings. The Act does
not specifically refer to trafficking victims, but its provisions on the protection of privacy
and identity of persons participating in the criminal proceedings are directly applicable in
case of trafficking victims.
§ 466. Although, in principle, the trial is open to the public, the panel may at any time, by
virtue of the office or on the motion of the parties, exclude the public from the whole or
part of the trial if this is necessary, inter alia:
• to protect minors and
• to protect the private life of the participants in the proceedings or when the court
considers this necessary in light of the special circumstances because of which the
public may hurt the interests of justice {see Article 292 CPA}.
§ 467. In addition, the presiding judge of the panel must instruct persons attending a trial
in camera that they are bound to keep information presented at the trial confidential and
that the failure to do so is a criminal offence {see Article 293 (3) CPA}.
341
342
See Legislative Guides For The Implementation of The United Nations Conventions against Transnational Organized Crime and The Protocols
Thereto, supra note 12, p.. 283.
Official Journal of FRY, no. 70/01, 68/02, Official Gazette of RS, no. 58/04, 85/05 – other law, 85/05, 115/05, 49/07, 20/09 – other law, 72/09,
76/10.
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§ 468. For the purpose of this Report, it is important to have a look at special provisions
of the Criminal Procedure Act regarding the examination of the injured persons, witnesses
and special witnesses. Before analyzing these provisions, the reader should know that,
according to the Criminal Procedure Act, persons who are likely to furnish information
regarding the criminal offence, the perpetrator and other relevant circumstances shall
be summoned as witnesses (see Article 96 CPA). This also includes the possibility to
summon victims of trafficking as witnesses.
§ 469. Recent amendments and supplements to the Criminal Procedure Act from
2009 deal in more detail with the institution of the special witness: when there are
circumstances indicating that the witness’ life or the life of the persons close to him/her
may be in danger, as well as their body, health, freedom, or property of large scale, and
especially when criminal acts of organized crime, corruption and other very grave criminal
acts are in question, the court may decide to provide the witness with special protection
measures {see Article 109a (1) CPA}. Special witness protection measures encompass
examination of witnesses under the conditions and in a way that ensures that his/her
identity will not be discovered as well as measures of physical security of the witness in
the course of the proceedings and particularly:
• in camera trial,
• concealing witness’ appearance and
• examination in a separate room with the changes in voice and appearance of the
witness by using technical devices for the transmission of sound and image {see
Article 109a (2) and Article 109g (3) CPA}.
§ 470. The court is obligated to inform the parties and the witness confidentially about the
date, hour and place of the witness’ examination by using a special order, which presents
an official secret {see Article 109g (1) CPA}. Before the beginning of the examination, the
witness is informed that he/she will be examined using the measures of special protection,
what these measures are and that his/her identity will be discovered to no one except the
judges who decide on the subject, and one month before the trial to the parties and attorney
{see Article 109g (2) CPA}. Additionally, the data about the witness’ identity, the identity
of the persons close to him/her and other circumstances that may lead to discovering their
identities, will be put in a special envelope, sealed and entrusted for safekeeping to the
Witness Protection Unit by the investigative judge, that is, the panel. The sealed envelope
can only be opened by the second instance panel that decides on the appeal against the
judgment. The envelope will contain the date and hour of the opening and the names of
the panel members familiar with the content of the data, after which the envelope will be
sealed again and returned to the Witness Protection Unit {see Article 109g (4) CPA).
§ 471. Finally, the court must instruct all persons attending the special witness examination
that they are bound to keep information about him/her or people close to him/her, their
172
domicile, place of residence, relocating, bringing, keeping, place and manner of examining
the witness, presented at the trial confidential and that the failure to do so is a criminal
offence (see Article 109đ CPA).
§ 472. For the purpose of this report, we also find important to stress that a juvenile shall
always be tried in camera and that no one can make public information regarding juvenile
proceedings or decisions delivered in such proceedings, without court permission. In any
event, even if the court gives permission to open to public certain information regarding
juvenile proceedings, the name of the juvenile or other data regarding his/her identity
cannot be disclosed (Article 55 of the Juvenile Offenders and Juvenile Justice Act343).
§ 473. Apart from the Criminal Procedure Act, the Police Act344 imposes obligation to police
officers to keep confidential the identity of a person who furnishes information regarding
the criminal offence or the perpetrator – identity data are considered confidential and
they can be used only in accordance with the procedure envisaged by the law (Article 74
of the Police Act).
§ 474. Considering the mentioned legislative solutions, we are of opinion that at the
legislative level, Serbia has met the obligations proscribed by the mentioned international
standards which require from States Parties to protect privacy and identity of the victims
of trafficking. In practice, however, these legislative rules are often violated due to
negligence or unprofessional media reporting. We expect that the Law on the Protection
of Personal Data345 and its implementation will effectively prevent such occurrences.
III.3.1.2. Participation of Victims in Proceedings
§ 475. States Parties’ basic obligation to ensure that victims of human trafficking are
permitted an opportunity to participate in judicial proceedings is set out in Article 25 (3)
of the UN Convention and then practically reaffirmed in Article 6 (2) of the Protocol. This
mandatory obligation applies to all offences covered by the UN Convention, which includes
the offence of trafficking covered by the Protocol. This obligation is also discussed in Article
27 of the CoE Convention. The requirement has been respected in the Serbian legal system.
What follows are closer details on the implementation of the legislative solutions.
§ 476. Victims of trafficking offences are allowed to present their views and concerns in
the course of criminal proceedings.346 They can do it prior to the final determination of the
guilt – either in the course of investigation and/or at the trial. Note that in the Serbian legal
system it is not possible, like in some other countries, for the victim to give a statement
about the impact of the offence after the conviction, but prior to the passing of the sentence.
Rules concerning criminal proceedings do not allow that. Namely, after having announced
343
346
In the Criminal Procedure Act, the term “victim” is not used, but the term “injured person”. Injured person is a person whose personal or property
right has been violated or infringed in the criminal act. The injured person is, in most cases, the victim of a criminal act.
344
345
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that the trial is closed, the panel shall retire for deliberation and voting for the purpose of
rendering a judgment {See Article 348 (3) CPA}. The court founds its judgment only on
evidence presented at the trial {see Article 352 (1) CPA}. If it finds that the accused is guilty,
it will deliver a judgment of conviction in which the court will state, inter alia, the offence
for which the accused is found guilty of and the decision on the sentence (see Article 356
CPA). Thus, no further statements are possible to be given once the trial is closed.
§ 477. Now, pending investigation, the victim is entitled to call attention to all facts
and to present evidence important for the criminal case {see Article 60 (1) CPA}. At the
trial, the victim is entitled to present evidence, to examine the accused, witnesses and
expert witnesses and to comment and clarify their statements, as well as to give other
statements and make other motions {see Article 60 (2) CPA}. The victim is also entitled
to inspect files and objects which are evidence {see Article 60 (3) CPA}. The authority
that conducts the proceedings must inform the victim about these procedural rights {see
Article 60 (4) CPA}.
§ 478. In addition, victims of trafficking in human beings can express their views on the offence
once they are summoned as ordinary witnesses or have been given the status of special
witnesses. In most cases, given the fact that they fall within the group of especially vulnerable
witnesses, they will be examined under the special evidentiary rules. (see § 469-472).
§ 479. Finally, victims of trafficking are entitled to have assistance in presenting their views in
the course of criminal proceedings. Thus, according to Article 67 of the Serbian Constitution,
everyone is entitled to legal assistance under conditions prescribed by the law. Legal
assistance is provided by legal professionals, as an independent and autonomous service,
and offices established within the local self-government. The Constitution refers to law
when it comes to conditions for providing free legal aid {Article 67 (3) of the Constitution}.
§ 480. If the victim is a minor or a person declared incapable of performing legal acts, his/
her legal guardian is authorized to give all statements and perform all actions to which
the victim is entitled. Yet, the victim who is a minor of sixteen years of age or more may
herself/himself give statements and undertake procedural actions (see Article 65 CPA).
§ 481. Adult victims are entitled to appoint their representatives to exercise their
procedural rights {see Article 66 (1) CPA}. If, however, the victim assumes the prosecution
from public prosecutor for a trafficking offence punishable by imprisonment for a term
of more than five years, the court may assign a legal representative to her/him if this is
to the benefit of the proceedings and if the victim, due to her/his financial situation, has
insufficient means to pay for the legal representation {see Article 66 (2) CPA}.
§ 482. As shown earlier by this analysis, victims of trafficking are given possibility to
express their views and concerns in the criminal proceedings conducted in regard with
trafficking offences established in the Serbian Criminal Code in accordance with the
obligations set forth in the Protocol.
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III.3.1.3. Assistance and Protection of Victims
§ 483. Article 6 (3) of the Palermo Protocol, as well as Article 12 of the CoE Convention
recommend States Parties an extensive list of support measures to be adopted with an
aim to reduce the suffering and harm caused to victims and to assist in their recovery and
rehabilitation. To implement these measures, generally, legislation will not be needed,
except to the extent that it may be needed to ensure that the necessary resources are
allocated and that officials are assigned and instructed to deal with victims347. Although
the Protocol does not require legislation to regulate the activities of non-governmental
organizations that deal with victims, the adoption of legislative measure in this respect
can be of significant importance. Namely, it is well known that victims of trafficking
will approach NGOs rather than state-based agencies and the viability of such services
depends on their being as independent as possible from the State and on ensuring that
potential victims know this.
§ 484. As said before, the Republic of Serbia has not adopted a comprehensive act aimed
at combating trafficking in human beings, which would include measures to ensure
social assistance to trafficking victims and resources for their recovery. However, the
Serbian Government adopted the Strategy to Combat Trafficking in Human Beings in
the Republic of Serbia in December 2006 which, inter alia, anticipates different social
and security measures to help the victims recover and (re)integrate into society. These
measures are further defined in the Conclusion on the adoption of the National Plan
of Action to Combat Trafficking in Human Beings for the period 2009-2011, which was
adopted by the Serbian Government.348
§ 485. Additionally, the Law on Associations has recently been adopted, regulating the
work of non-governmental organizations including those that offer help to the victims
of human trafficking349. Moreover, the Constitution of the Republic of Serbia and several
valid pieces of legislation include measures that indirectly secure social assistance and
protection of the victims, in particular counseling and information regarding their legal
rights, as well as medical, employment and educational assistance.
III.3.1.3.1. Counseling and Information Regarding the Victim’s Legal Rights
§ 486. As said before, the Serbian Constitution guarantees to everyone legal assistance
under conditions prescribed by the law. Victims of trafficking are entitled to such
assistance. As we have already emphasized, the authority conducting the proceedings
must inform the victim about their procedural rights.
§ 487. The Serbian Constitution also speaks about the right to information in one’s own
language within the course of judicial proceedings. The right to information on reasons for
347
348
349
See Legislative Guides, supra note 12, p. 288.
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arrest and charge in a language which the person concerned understands, is guaranteed by
Article 27 of the Constitution. In addition, everyone is entitled to the right to free assistance
of an interpreter if the person does not speak or understand the language officially used in
the court {Article 32 (2) of the Constitution}. The Criminal Procedure Act reaffirms these
rights: it guarantees right to use their own language to all participants in the proceedings,
including victims and witnesses {see Article 9 (2) CPA}. Interpretation costs shall be borne
by the state authority, while the victim shall be informed about this right before the first
hearing. The victim may waive the right to interpretation in the case he/she speaks and
understands the official language of the proceedings {see Article 9 (3) CPA}.
III.3.1.3.2. Medical Assistance
§ 488. A meaningful assistance to victims of trafficking in human beings encompasses
health care measures necessary for their physical and psychological recovery350. In most
of the cases the necessary measures do not depend on the state’s discretionary powers –
on the contrary we speak here about victim’s rights in the medical context. The purpose
of this section of the Report is to provide a survey of the most basic patients’ rights
applicable also to the victims of trafficking.
§ 489. We start form the constitutional level: the Serbian Constitution, unlike many
constitutions, guarantees social and economic rights, including the right to health care
and the right to social assistance. While the right to health care has been recognized to
everyone – without discrimination, the right to social protection is reserved only for Serbian
nationals. More specifically, the right to protection of one’s mental and physical protection
is guaranteed to everyone {Article 68 (1) of the Constitution}. Health care for children,
pregnant women, mothers on maternity leave, single parents with children under seven years
of age and elderly persons is provided from public revenues unless it is provided in some other
manner in accordance with the law {Article 68 (2) of the Constitution}. It should be noted
that the family, mother, single parent and child have been given special protection under
the Constitution (Article 66 of the Constitution). While the forms of this protection are to
be determined by a separate law, the Constitution makes clear that mothers shall be given
special support and protection before and after childbirth {Article 66 (2) of the Constitution}.
§ 490. The Health Care Act351 of 2005 stipulates concrete conditions upon which foreign
nationals can exercise the right to health care and provides for an extensive list of the
patients’ rights. Among them, particular attention should be given to victim’s right to
emergency medical treatment, right to medical assistance and right to informed consent.
§ 491. The right to emergency medical care in the Serbian Health Care Act has not been
envisaged as an individual right, which - when made operational - can be made enforceable
on behalf of an individual patient, but primarily as the societal obligation of the state and
350
351
Article 6 (3) (c) of the Palermo Protocol and Article 12 (1) (b) and (3) of the CoE Convention.
176
private health care institutions. Thus, the Health Care Act, in several articles, obliges state
and private health care institutions to provide emergency medical treatment without
specifying beneficiaries who qualify for such medical treatment (see Articles 88, 95, 102,
105 HCA). However, it is obvious that everyone is entitled to receive emergency medical
care because Article 18 (7) of this Act ensures that the Republic of Serbia provides such
treatment to persons whose residence is unknown, while Article 240 explicitly regulates
that state and private institutions are obliged to provide emergency medical treatment to
a foreign national. The Act makes clear that health care providers cannot refuse to provide
emergency medical care based on the conscientious objection (Article 171 HCA).
§ 492. As to the costs, Serbian citizens are entitled to a free emergency medical treatment,
while the law makes some distinctions with regard to foreigners. The most important is
that the law explicitly provides free emergency medical treatment if obtained in the state
institutions for foreigners who are victims of trafficking in human beings {Article 241 (6)
HCA}. The Act however does not refer explicitly to victims of trafficking in human beings
in regard with the costs of emergency medical treatment obtained in private institutions.
Yet, we assume that in such cases victims would be also exempted from the payment
because Article 242 emphasizes that the costs of emergency medical treatment obtained
in private health care institutions will be paid from the budget if a foreigner does not have
necessary means to pay for the treatment.
§ 493. It is important to mention that the Health Care Act takes human rights approach in
regulating medical care and extends mandatory health protection to persons with special
needs or persons who have been traditionally subjected to various kinds of discrimination.
Thus, persons enjoying health care covered by compulsory health insurance or the budget
(if they are not included in compulsory insurance schemes), include:
• children up to 15 years of age or until the completion of their education;
• students up to 26 years of age;
• women, pregnant women and those in the first year of maternity leave;
• elderly – persons older than 65;
• persons with disabilities;
• persons suffering from AIDS or some epidemical or serious diseases;
• persons receiving social welfare benefits;
• nuns and monks, and
• members of the Roma minority without permanent or temporary residence in the
Republic of Serbia due to their traditional way of life.
§ 494. Special needs in health protection are not manifestly recognized to the victims
of trafficking in human beings as in case of the above-mentioned group of citizens.
Nevertheless, since usual victims are women and children, it seems that their right to free
medical assistance is implied, at least when nationals or members of Roma community
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without permanent or temporary residence in Serbia are concerned. Paradoxically,
the Health Care Act is much more specific when foreign nationals, who are victims of
trafficking in human beings, are concerned, because it explicitly states that medical
services encompassed by compulsory health insurance will be covered by the budget if
they are provided to foreigners who are victims of trafficking in human beings. {See Article
242 (1) and (6) HCA}. To avoid this paradoxical situation, we recommend to amend the
law in the following way:
A victim of trafficking in human beings, even without a required residence permit, has
the right to health protection covered from public revenue.
§ 495. Finally, the right to health protection secures to trafficked persons the following
services covered by compulsory heath care insurance:
• prevention and early diagnosis of illnesses;
• medical examinations and treatments regarding family planning, pregnancy, child
delivery and maternity;
• specific dental services;
• AIDS treatment and treatment of some other epidemical or serious diseases;
• emergency medical and dental treatments;
• medications and medical equipment and technical aids.
§ 496. The last right that we want to emphasize here is the right to informed consent.
Namely, it is increasingly recognized that patient’s consent to medical treatment has to
be informed. According to the Health Care Act, everyone has the right to all types of
information notwithstanding their state of health, medical service or manner in which
they are using it, as well as to all information available on the basis of research and
technological innovations. (Article 27 HCA). For the purpose of this Report, we want to
emphasize that victims of trafficking in human beings enjoy the right to informed consent
as any other patient in Serbia. Consider now the legal framework which is supposed to
protect patients’ interests in information disclosure.
§ 497. First, a patient must be timely informed on the following: diagnosis and prognosis,
proposed medical service, its benefits, risks and outcomes, availability of alternative
treatment, non-treatment risks, as well as of particular effects of medications. (Article 28
HCA). Furthermore, the act envisages an exception from the obligation to inform the patient
of the diagnosis if that would endanger patient’s health, but in that case, a relative of the
patient must be informed of the diagnosis (Article 28 HCA). A patient can waive his/her right
to information with the exception regarding the information about necessity of treatment, its
potential risks, as well as the risks of non-treatment. Health care providers and professionals
must use a language known to the patient or interpreter’s service, and communicate in a
178
way that is comprehensible to persons without a medical background. Finally, a health care
professional is obliged to enter into the medical documentation the fact that the patient has
given an informed consent after being adequately informed (Article 28 HCA).
§ 498. A patient has the right to decide freely about all matters concerning his/her health
and life {Article 31 (1) HCA}. As a rule, no medical measures may be taken with respect
to the patient without his/her consent. Exceptions pertain to the emergency treatment
in circumstances in which the patient is unable to give his/her consent (including the
impossibility of obtaining the timely consent of patient’s guardian or legal representative)
(See Article 34 HCA). For other incompetent patients, the consent must be given by their
parents or legal representative. A child older than 15, capable of making self-regarding
decisions, may give consent by him/herself. The law requests that in all circumstances
in which legal representative needs to give the informed consent, the patient, whether
a minor or an adult unable to understand, must still be as involved as possible in the
decisions regarding him/her. (Article 35 HCA).
§ 499. The patient has the right to complain (Article 39 HCA) and the right to
compensation (Article 40 HCA). The Health Care Act introduces the institution of a
protector of patient’s rights, who is empowered to review patients’ complaints within
the health institutions. A protector is independent in his/her work and must decide on
a complaint within eight days. If the patient is dissatisfied with the decision, he/she may
complain to the health inspectorate.
§ 500. We would like to notify that, regrettably, the Health Care Act does not stipulate
that health care services, providers and professionals have to provide patient-tailored
information, particularly taking into account the religious or ethnic specificities of the
patient. It does not request either that the information must be given with enough
advance time (at least 24 hours notice) to enable the patient to actively participate in the
therapeutic choices regarding his/her state of health. Moreover, it is highly questionable
whether the statutory solution which enables consent to be given orally or even be
presumed - is acceptable, or it significantly weakens the level of protection.
III.3.1.3.3. Employment, Educational and Training Opportunities
§ 501. When it comes to legislative measures adopted to provide for employment and
educational opportunities to trafficked persons, one should note that there are few of them
and neither refers directly to the victims of human trafficking352. Yet, the following measures
may serve as starting points in providing meaningful assistance to victims of human trafficking.
§ 502. To begin with the Constitution: it specifies that the right to work shall be
guaranteed in accordance with the law {see Article 60 (1) of the Constitution}. The 2005
Labor Act353 specifies the conditions upon which citizens, foreign nationals and apatrides
352
353
Implementation of these measures is proscribed by Article 6 (3) (d) of the Palermo Protocol and Article 12 (4) of the CoE Convention.
Official Gazette of RS, no. 24/05, 61/05.
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could have access to the labor market. Note, however, that the highest Serbian law
provides that all jobs shall be available to everyone under equal conditions {Article 60
(3) of the Constitution}. Non-discrimination approach is also taken in regard with same
basic working conditions: everyone is entitled to the right to respect of his/her person
at work, safe and healthy working conditions, necessary protection at work, limited
working hours, daily and weekly interval for rest, paid annual holiday, fair remuneration
for work done and legal protection in case of termination of employment {Article 60 (4)
of the Constitution}. Moreover, no person may forgo these rights {Article 60 (4) of the
Constitution}. Especially vulnerable persons - women, young and disabled persons are
entitled to special protection at work and special working conditions in accordance with
the law {Article 60 (5) of the Constitution}.
§ 503. The constitutionally protected right to work is further specified in the Labor Act and
the Law on Employment and on Unemployment Insurance354. In principle, the Labor Act
extends its protection to foreign nationals and persons without citizenship and prohibits
any kind of discrimination regarding persons seeking an employment (See Article 20 LA). It
also includes provisions protecting women, children, maternity and disabled persons. The
conditions governing access to the labor market are regulated in the recently adopted Law
on Employment and on Unemployment Insurance. A foreign national or an apatrides can
register as an unemployed person if he/she has an approval of permanent or temporary
residence and a valid work permit (see Article 85 (2)). The issues of employment, when this
law is in question, also include the issuing of work permit to a foreigner and an apatrides
(see Article 6 (5)). The National Employment Agency also keeps separate records about
foreigners and apatrides, and the records about the unemployed cease to be maintained
when the foreigner no longer has the approval for permanent or temporary residence (see
Article 83 and 88 (8)). Apart from the standard clause which bans discrimination, this
Law also guarantees gender equality at the labor market and a positive discrimination of
persons who traditionally have more difficulty in employment (see Article 5).
§ 504. The employment of foreign nationals is still regulated by an old and obsolete
Act on Conditions for Employment of Foreign Nationals355. The National Employment
Agency issues an opinion approving or rejecting the employment of foreign nationals. An
employer who wants to employ a foreigner without residence permit or with a temporary
residence permit is obliged to ask the National Employment Agency to issue an opinion
related to the employment of such foreigners.
§ 505. Legislative measures, which would explicitly secure victims of trafficking in human
beings to have access to vocational training and education are notably missing. Namely,
since recently, vocational training and professional education have been issues heavily
treated in the Serbian legislation and in particular - in the Labor Act and the Law on
354
355
Official Gazette of RS, no. 71/03, 36/09.
Official Journal of SFRY, no. 11/79 and 64/89.
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Employment and on Unemployment Insurance. Yet, programs and measures envisaged in
these acts do not extend to trafficking victims. We do not argue here that the legislature
must recognize the victims’ right to vocational training and education, but adopt rules
that should help them to (re)integrate into society and gain independence. In this sense,
it is encouraging that the Conclusion on the adoption of the National Plan of Action to
Combat Human Trafficking for the period 2009-2011 was adopted, since it particularly
addresses this issue.
III.3.1.4. Special Needs of Children
§ 506. Article 6 (4) of the Protocol provides that each State Party, in considering measures
to assist and protect victims of trafficking, shall take into account the special needs of
child victims. The measures should include:
• appointing a guardian to accompany the child throughout the entire process;
• ensuring the child’s protection and protection of his/her legal rights and interests in
the course of criminal proceedings;
• providing appropriate shelters for child victims in order to avoid the risk of
• revictimization;
• establishing special recruitment practices and training programs for those dealing
with child victims, and
• ensuring that the child returns to his/her home country in a speedy and safe manner
when it is established that repatriation is in the best interest of the child.356
§ 507. In Article 5 (5) the CoE Convention binds State Parties to take special measures
in order to decrease the risk of children’s exposure to trafficking primarily by creating a
climate suitable for children’s protection. This convention also binds the States to take
necessary measures regarding the children identified as trafficking victims, especially
with consideration to their education, appointing a guardian, etc. What follows is the
discussion on these points in the context of the Serbian legal system.
III.3.1.4.1. Special Needs of Children: Constitutionally Recognized Protection
§ 508. There are two characteristics of the Serbian Constitution regarding the status
of children: first, it guarantees a special protection to children and second, it is childrights oriented. Thus, the Constitution announces the special protection for the child.
Additionally, it makes clear that the child is protected from psychological, physical,
economic and any other form of exploitation or abuse {Article 64 (3) of the Constitution}.
It also commits the state to provide special protection for children without parental care
and mentally or physically challenged children {Article 66 (3) of the Constitution}.
§ 509. In relation to the welfare of children, the Constitution forbids children younger than
15 years of age to be employed and determines that children under 18 may not be employed
356
See Legislative Guides, supra note 12, p 289-291.
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at jobs detrimental to their health or morals {Article 66 (4) of the Constitution}. As to their
education, it spells out that primary education is mandatory and free, whereas secondary
education is free, but not mandatory {Article 71 (2) of the Constitution}. Next, it secures
that health care for children, pregnant women, mothers on maternity leave, single parents
with children under seven years of age is provided from public revenues unless it is provided
in some other manner in accordance with the law {Article 68 (2) of the Constitution}.
§ 510. With regard to criminal proceedings, the Constitution allows the press and public to be
excluded from the trial if it is in the interests of juveniles {Article 32 (3) of the Constitution}.
§ 511. As to more specific rights, the right to personal name, entry into the registry of
births, the right to learn about its ancestry and the right to preserve his/her own identity
has been expressly constitutionalized with regard to a child. Note that any child born in
the Republic of Serbia shall have the right to citizenship of the Republic of Serbia unless
conditions have been met to acquire citizenship of some other country {Article 38 (3)
of the Constitution}. The above-mentioned rights are guaranteed to every child. The
Constitution also equates a child born out of wedlock and a child born in wedlock: they
are entitled to the same rights.
§ 512. Finally, the Constitution refers to the parental rights and duties. It specifies that
parents have the right and duty to support, provide upbringing and education to their
children and that parents are equal in exercising these rights and duties {Article 65 (1)
of the Constitution}. A person may be deprived of some or all parental rights or their
parental rights may be limited only by the court decision if this is in the best interests of
the child and in accordance with the law {Article 65 (2) of the Constitution}.
§ 513. Notwithstanding the high level of the protection given by the Constitution itself,
we regret to state that the Serbian Constitution still preserves a paternalistic approach
with regard to the rights of the child. Namely, instead of recognizing that a child, by reason
of his/her physical and mental immaturity, needs special safeguards and care, including
appropriate legal protection, the Constitution determines that children shall enjoy human
rights suitable to their age and mental maturity {Article 64 (1) of the Constitution}. This
reversed state of affairs may downgrade a child-oriented policy in Serbia. Moreover, we
conclude with regret that the principle entrenched in Article 3 of the UN Child Rights
Convention, ensuring that in all actions concerning children, whether undertaken by
public or private social welfare institutions, courts, administrative authorities or legislative
bodies, the best interests of the child shall be a primary consideration, has not been given
a status of the constitutional principle.
§ 514. Note that the work on comprehensive law on children’s rights has been in progress,
the proposer of which is to be the Ombudsman of the Republic of Serbia n 2010. The
passing of such Law has been envisaged by the very Constitution.
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III.3.1.4.2. Guardian Protection
§ 515. The Serbian authorities have ensured that the child victim is not left without an
appropriate guardian protection. The Family Law357 has reaffirmed the constitutional
principle which obliges the state to undertake all necessary measures to protect the child
from negligence, psychological, physical, emotional and any other form of exploitation or
abuse (Article 6 FA).
§ 516. Next, the Instruction to Police Officers in Treating Minors and Juveniles358 issued
by the Minister of the Interior, obliges the police officers to inform the Agency for
Coordination of Protection of Trafficking Victims without delay that the minor or juvenile
has been identified as a victim of trafficking in human beings or of any other exploitation
offences, which will then undertake assistance and protective measures {See Point 12 (3)
and Point 22 (3) of the Instruction}.
§ 517. One of the anticipated measures is the appointing of a guardian. According to the
Family Law, a temporary guardian must always be appointed to the child who is a foreign
national when he/she is in the territory of the Republic of Serbia or to the child whose
residence is unknown, providing that the child is without parental or guardian protection
{See Article 131 (2) FA}. Apart from these conditions, a legal guardian may be appointed if
it is in the best interest of the child {See Article 131 (1) FA}.
§ 518. A temporary legal guardian is empowered to supervise and represent the child,
secure him/her means of living and administer the child’s property {Article 135 (2) FA}.
§ 519. Apart from the state, assistance may come from civil sector, as well. Although
the Criminal Proceedings Code does not explicitly stipulate a possibility for NGOs,
foundations, associations or groups to provide assistance or support to the victim, with
her/his consent, during criminal proceedings, that possibility is never denied to the victim
in practice if she/he has previously asked for assistance or support from such organization
or group. In that respect, members of these associations and groups are allowed to
accompany the victim during the proceedings, whereas in many cases, NGOs provide
expert legal counseling and representation for the victims, including the child victims.
III.3.1.4.3. Special Needs of Children in Judicial Proceedings
§ 520. On several occasions in this Report, we have emphasized that the procedural laws
have been drafted in a child-sensitive manner. Here, we will remind of legal solutions
which confirm our observation.
§ 521. As said, victims of trafficking offenses are able to present their views and concerns
in the course of criminal proceedings. If the victim is a minor, his/her legal guardian is
authorized to give all statements and perform all actions to which the victim is entitled.
The minor needs to have a lawyer from the very beginning of the proceedings, i.e. from
357
358
The Instruction 01 no. 4898/06 was issued on 1 May 2006.
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the first hearing of the suspects. Nevertheless, the victim who is a minor of sixteen years
of age or more may herself/himself give statements and undertake procedural actions.
§ 522. In most cases, given the fact that child victims of trafficking fall within the group
of especially vulnerable witnesses, they will be examined under the special evidentiary.
To remind, in such a case, it is possible to do the examination with assistance of a social
worker or a psychologist and without the presence of parties and other participants in the
proceedings. The law also allows excluding the public, in which case the identity data of
the minor shall be kept confidential as a state secret. The identification procedure will be
carried on in such manner that excludes confrontation of the minor with the defendant.
§ 523. When taking actions to which the minor is a party, especially at his/her hearing,
participants in the procedure are to act carefully, with special consideration to the minor’s
maturity, other personal characteristics and protection of his/her privacy, so that the
proceedings would not have negative effects on his/her development.
III.3.1.4.4. Providing Shelters for Child Victims
§ 524. The first thing to be noted is that in Serbia, there are no programs specially designed
for the victims of child trafficking. The lack of specialized assistance and protection service
for children represents a gap in the assistance framework in Serbia. Yet, it does not mean
that the child victim is left with no accommodation whatsoever.
§ 525. The legal foundation to accommodate child victims of trafficking in shelters in
order to avoid their revictimization is a general provision of Article 28 (6) of the Law on
Aliens359, which regulates the placement of trafficking victims in the country. Furthermore,
the minor foreigner is placed in a shelter with his/her parent or other legal representative
in case of persons impossible to be immediately removed under compulsion and persons
whose identity has not been determined or not owning a travel document (Articles 51
and 52 of the Law on Aliens). The minor foreigner is not allowed to return to his/her
country of origin or third state ready to accept him/her until an adequate reception for
him/her is provided (Article 52, Paragraph 2).
§ 526. Note that if a child victim gets a status of a special witness, securing him/her a
shelter is one of the protective measures envisaged in the Law on the Protection Program
for Persons Participating in Criminal Proceedings (Article 14).
§ 527. Finally, in the course of pre-trial proceedings, the juvenile judge may order a
juvenile be placed in a shelter, educational or other similar institution, or to be placed
under the supervision of a guardian authority or moved to another family, if it is necessary
for a separation of the juvenile from the surroundings she/he lives in or works in, for
the protection or housing of the juvenile (see Article 66 of the Juvenile Offenders and
Juvenile Justice Act).
§ 528. Practically speaking, we remind that the Agency for Coordination of Protection of
359
184
Trafficking Victims should coordinate assistance and protection of trafficked persons in
Serbia, as well as make the first evaluation of a potential victim and her/his needs. This
includes placement in shelters or other safe accommodation facilities.
III.3.1.4.5. Special Recruitment Practices and Training Programs
§ 529. In order to ensure that individuals responsible for the care and protection of child
victims understand their needs, are gender-sensitive and possess the necessary skills both
to assist children and to ensure that their rights are safeguarded, the Serbian legislature
has established that new special practices of mandatory and additional training for such
officials should be undertaken on the regular basis.
§ 530. Special recruitment practices are envisaged in the laws related to professionals
whose actions can produce particularly sensitive outcomes when implemented towards
children. Thus, the Police Act provides that as a rule, in cases involving children and
juveniles, only police officers specially trained for work with juveniles can implement
police measures towards minors and children {See Article 38 (1) of the Police Act}.
Exceptions are allowed only in cases when it is impossible to secure the presence of police
officers trained and authorized to deal with juveniles {Article 38 (2) of the Police Act}.
In addition, except in urgent cases, police measures can be implemented against minors
only in presence of their parents or legal guardians {Article 38 (3) of the Police Act}. In
any case, if it is not possible to secure the presence of parents or legal guardians, police
officers must secure presence of a person trained to work with juveniles, who is not a
police employee or involved in the case {Article 38 (5) of the Police Act}.
§ 531. Additional requirements with regard to police officers are designed in the Instruction
to Police Officers in Treating Minors and Juveniles issued by the Minister of the Interior. The
Instruction requires that only public officials trained in the field of child rights and juvenile
justice can act in cases involving minors and juveniles (see points 7 and 16 of the Instruction).
The Police Act also sets forth mandatory trainings for police officers (Article 153).
§ 532. Note that on the legislative level there are special recruitment practices envisaged
in the Juvenile Offenders and Juvenile Justice Act as well as in the Family Act. The former
says that a juvenile judge as well as judges of the juvenile panel must be persons trained
in the field of the rights of the child and juvenile delinquency, while lay judges shall
be elected among professors, teachers, tutors and other persons trained in juvenile
education (Article 44 of the Juvenile Offenders and Juvenile Justice Act). In Article 126,
The Family Act lays down special conditions under which persons may be appointed as
legal guardians.
§ 533. Finally, as it can be presupposed, special recruitment practices and training programs
are envisaged in legislation in the area of education. You can learn more about training
programs implemented so far in the chapter analyzing Article 10 of the Palermo Protocol.
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III.3.1.4.6. Ensuring a Speedy and Safe Repatriation
§ 534. Finally, with regard to children’s special needs in cases where child victims are
involved, the Palermo Protocol and the CoE Convention invite legislators of State Parties
to consider that such children do not return to their home countries unless doing so is in
their best interest and, prior to the return, a suitable caregiver such as a parent, another
relative, some other adult caregiver, a government agency or a childcare agency in the
country of origin has agreed and is able to take responsibility for the child and to provide
him/her with appropriate care and protection. In those cases where return is voluntary or
in the best interest of the child, each State Party is encouraged to ensure that the child
returns to his/her home country in a speedy and safe manner.360
§ 535. The repatriation issue of child victims to human trafficking has been analyzed in the part
dealing with harmonization of the RS legislation to the requirements in Article 8 of the Protocol
and Article 16 of the CoE Convention referring to repatriation of trafficking victims in general.
III.3.1.5. Physical Safety of Victims
§ 536. Article 6 (5) of the Palermo Protocol and Article 28 of the CoE Convention set forth
the requirement for State Parties to adopt measures needed to secure physical safety of
trafficking victims.
§ 537. One of the main requirements of the police authorities is to provide physical safety
to all notwithstanding their nationality, gender, legal status etc. This requirement has been
regulated by the police legislation, including the Police Act, the Instruction to Police Officers
in Treating Minors and Juveniles and the Juvenile Offenders and Juvenile Justice Act.
§ 538. Thus, in this respect, the Republic of Serbia fulfils the requirements arising from the
international documents stated herein.
III.3.1.6. Possibility of Obtaining Compensation
§ 539. One of the mandatory requirements set forth in Article 6 of the Palermo Protocol
relates to the requirement to State Party to ensure that its legal system contains measures
that allow trafficking victims the opportunity to seek compensation for the damages
suffered. State Party can meet such obligation by adopting:
a. Provisions allowing victims to sue offenders or others under statutory or commonlaw torts for civil damages; or
b. Provisions allowing criminal courts to award criminal damages (that is, to order that
compensation be paid by offenders to victims) or to impose orders for compensation
or restitution against persons convicted of offences; or
c. Provisions establishing dedicated funds or schemes whereby victims can claim
compensation from the State for injuries or damages suffered as a result of a
criminal offence.
360
See Legislative Guides, supra note 12, p 290-291.
186
§ 540. In the Serbian legal system, the victim of human trafficking has a possibility to
obtain compensation for damages either within criminal proceedings or under the rules of
civil law. Also, on 12 October 2010 Serbia signed the Council of Europe Convention on the
Compensation of Victims of Violent Crimes, which allows victims to claim compensation
from the State for injuries or damages suffered as a result of trafficking offences. On this
occasion, we urge the state authorities to ratify this Convention as soon as possible.
§ 541. As said, the victim’s right to compensation can be exercised in criminal proceedings.
This is stipulated in the Criminal Proceedings Code - a claim for indemnification arising
out of the commission of a criminal offence shall be considered in criminal proceedings
upon the motion of authorized persons provided that this does not considerably delay
proceedings (see Article 232 CPA). The claim for indemnification may consist of a demand
for the compensation of damages, recovery of an object or the annulment of a certain
legal transaction. The victim shall be informed of this right by the court conducting the
proceedings (Article 234 CPA). The motion may be submitted prior to the conclusion of
the trial before the court of first instance, at the latest. Persons entitled to assert a claim
for indemnification, including victims of trafficking in human beings, may withdraw their
motion until the conclusion of the trial and submit it as a civil action (Article 235 CPA). In
its judgment for conviction the court may satisfy the claim of the authorized person fully,
or it may satisfy it partially while directing the authorized person to assert the rest of the
claim in a civil action {Article 237 (2) CPA}. If data established in criminal proceedings
furnish no reliable basis for either full or partial adjudication, the court shall direct the
authorized person to assert his claim in its entirety in a civil action {Article 237 (2) CPA}.
When rendering a judgment of acquittal, a judgment rejecting the charge, or a ruling
discontinuing criminal proceedings, the court shall direct the authorized person to assert
his/her claim for indemnification in a civil action {Article 237 (2) CPA}.
§ 542. Designed in such a way, there would be nothing to object to this possibility if there
were more judgments in practice enabling victims to be compensated immediately. It is for
this reason that the proceedings are criticized, because the court is not bound to decide
on the motion for indemnification, i.e. to explain its decision in detail. The court is also
not obliged to give detailed notification to the victim regarding compensation procedures.
§ 543. All in all, although trafficking victims have a possibility to be compensated for
damages, we recommend amending the Criminal Proceedings Code by introducing
the possibility to award victims compensation only within the criminal procedure and
eliminating a need for the victim to file a civil lawsuit. This would make the trafficking
victim’s right to compensation more effective.
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III.3.2.Practice Analysis
III.3.2.1. Protection of Victims’ Identity and/or Privacy
§ 544. The protection of trafficked person’s identity and privacy is certainly one of the
issues too often severely neglected in practice, first of all by the media, but also by
institutions and NGOs that are in contact with victims.
§ 545. Journalists are criticized because, hungry for sensations, they often put the victim
in danger by revealing, directly or indirectly, her/his identity. Investigative journalism in
Serbia is still insufficiently professional and there are only a few journalists who fully
respect the identity and privacy of the victim and her/his family.
In the summer of 2004, an attempt of kidnapping a girl (12) for possible sexual and
labor exploitation took place in downtown Belgrade. The witnesses of this event, the
representatives of an organization which, inter alia, deals with the problem of human
trafficking, instantly notified the authorities and the media, i.e. a reputable TV station
known for its high reporting standards. In the TV story that followed we could see the
faces of children whose kidnapping was attempted and their identity and the identity of
their whole family was fully disclosed. Since this was a story about the family with many
children, all of them appeared in the TV story. All of them were wearing T-shirts with
”STOP Human Trafficking“ slogan..
§ 546. In addition, in the majority of cases the media, when writing about victims, publish
the photos of their family members, places where they live, information from their personal
lives and the like, all of which make them visible and recognizable in their communities. In
such context, the fact that they are designated with initials or that their faces are blurred in
the photos have no effects. Several TV stations, including those that declare themselves as
liberal, aired the video of the arrest in one Nove Pazar’s brothel, where clients’ faces were
blurred, but the girls were fully showed, wearing their underwear. The same procedure
is used when children are involved. We can often see more or less modified photos of
deceased victims. Such obvious violation of basic human rights usually does not inspire
reaction either from law enforcement authorities or professional community, not to
mention society as a whole. On the other hand, the perpetrators of gender-based crimes
with pronounced sexual elements often enjoy media support, and distasteful and offensive
statements by their relatives and defense counsel are regularly printed.
§ 547. On more than one occasion journalists used victims’ initials in their articles or
revealed details about their residence, interviewed their neighbors or gave other indicators
based on which it was possible to discover the identity of the victim. This jeopardizes not
only court proceedings that are in preparation or pending, but also aggravates further (re)
integration of the victim into her community upon the return.
188
§ 548. Certainly one of the most severe forms of revealing the identity and violating the
privacy of the victim is when trafficking victim is a child, whom journalists designate with
initials, but then state the full name of child’s parents, in which way they indirectly reveal
child’s identity.
In the course of 2005, ASTRA was contacted by mother of a girl who was locked and
sexually exploited in one bar in the territory of Novi Sad. After her successful rescuing
from traffickers, the girl was placed in the Shelter for Trafficking Victims in Belgrade. At
the same time, numerous articles appeared in the papers, in which her initials and home
address were given. Since she lived in a small town in Vojvodina, the very act of giving her
initials was sufficient for all the citizens to know what person that was about. During that
period, she was in the shelter, and thus it was more on her family to bear this situation.
Although she knew in detail what was going on, she was not most directly exposed to the
consequences of such media treatment.
However, in the August of 2006, another trafficking victim was rescued from the same
bar in Novi Sad. Articles about this event appeared in the papers, but, besides the initials
of the girl who was rescued on that occasion, the initials of ASTRA’s client were given too,
with detailed account of the events from one year earlier. Her data instantly appeared in
three highly popular TV shows about organized crime in Serbia; in one of these shows, the
reporter said her full name. In the days that followed this police action, almost all papers
and TV stations were reporting about this case.
Because of this, she contacted the police, but was told that, although they did not reveal
her name, they must have given certain information to the press about cases they worked
on and about arrests. Her interest in these events was caused by her concern for her
safety and safety of her family. Namely, she lived the whole time in fear that traffickers
would contact her again. However, the police officers who were informed about the entire
case and about threats she used to be receiving, would not tell her whether anyone form
that criminal group was arrested. The entire situation had very negative effect on her
psychological condition, especially bearing in mind that she unofficially found out that
two people from that criminal group managed to escape, which only added to already
existing intensive fear.
As she said later: “It came to climax when my mother’s boss brought the papers to work
and showed them to her, saying that they were writing about me again”. Because of
extreme psychological anxiety and stress, the girl was, with ASTRA’s assistance, put in the
Temporary House in Belgrade, where she stayed even after the media attention linked to
this case calmed down, i.e. until she has become psychologically stable.
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§ 549. Still, positive examples of investigating journalism should be mentioned, too.
One of such projects is certainly a radio broadcast by the author Miloš Teodorović aired
at Radio Free Europe on a pedophilia case in a small town in southern Serbia. Of key
importance and certainly praiseworthy in this case is that the story did not focus on
the data about the victim or contact with her, but on the overlooks by the police and
social services made as a result of the lack of coordination in combating crime. Miloš
Teodorović won “Zoran Mamula” prize for year 2006 for that story, awarded by B92 for
special achievements in radio journalism.361
§ 550. During identification and later, in the process of victim’s recovery and care, the
Agency for Coordination of Protection for Trafficking Victims (hereinafter: the Agency)
gathers all relevant information about the victim which are stored and kept in the
database run by this Agency. However, it is not specified (or such information is not
known) who has access to these data, for how long they are kept, in which way they
are protected and for what purposes they are used, as well as whether the victims are
informed on the fact that these data are kept.362
§ 551. To what extent victim protection is not taken seriously can be illustrated by examples
where state authorities and NGOs that are supposed to work on victim protection exposed
them to the risk and secondary victimization by bringing them into direct contacts with
researchers, journalists, persons attending seminars and public sessions in order to as
“illustratively” as possible describe the problem of human trafficking or to hear victim’s
experience “at first hand”. These situations are often used for self-promotion of these
authorities and organizations, while the most frequent excuse was that ”the victim
herself wanted media attention” or “the benefit of current and future victims” from
human trafficking research. Without questioning the significance of research in the field
of human trafficking and with full understanding of researchers’ need to get information
from the original source, i.e. directly from the victim, we nevertheless think that physical
and psychological safety of persons who had this experience has absolute priority over
all other reasons.
In 2003, a journalist preparing a story about human trafficking for Serbian national
television RTS contacted the Coordinator of the Shelter for Trafficking Victims in
Belgrade, asking her to provide him contact with the victims and their appearance in the
story. The girls who lived in the Shelter were informed about the details pertaining to the
shooting, including that their identity would be protected and that their participation
would be paid. One of the girls agreed and told to the camera how she had ended up
in the trafficking chain, about her staying in one Western European country and how
361
362
Source: http://www.b92.net/info/komentari.php?nav_id=224604
Personal Data Protection Act, Official Journal of FRY, no. 24/98 and 26/98; Constitutional Charter of Serbia and Montenegro, Article 64, Official
Journal of SCG, no. 1/2003.
190
she had managed to run away from the traffickers. She received promised amount of
money for participating in the show. However, what was not explained to the girl are
negative consequences that appearance in the media could bring in the context of serious
trauma experience. It is important to stress that none of the members of her family knew
what happened to her during her staying aboard. In the show, she was shot from close
distance, so that although her face could not be seen, her figure was clearly visible. The
final version of the broadcast was cleared by Shelter’s Coordinator and by not the girl. The
girl’s grandmother watched this show and recognized her by her coat and by the way she
walked. What came about was very difficult and unpleasant and certainly traumatizing
for the girl, especially bearing in mind that a short time before that she had managed to
run away from exploitation and that at the time of airing the story she was a witness in
the proceedings against the trafficker. In a very poor psychological shape, she contacted
ASTRA, asking for support in this situation. ASTRA intervened with the director of this
documentary, asking him to put right this overlook, which was subsequently done for
future broadcasting.
§. 552. Human trafficking is a very serious form of crime and this must not be ignored in
order to implement activities planned within projects for which funds have been raised,
and without going into deeper issues of human trafficking or dealing with traumas of the
victims and protection of their identity.
At the beginning of 2007, the Red Cross of Serbia offered assistance in the form of food
parcels and hygiene kits to trafficking victims – Serbian nationals. The proposition of the
Red Cross was to do the distribution of parcels through the network of their activists upon
assistance request submitted by the Agency for Coordination of Protection of Trafficking
Victims. Victims would personally take over the parcels after producing their identification
documents to the Red Cross representatives. However, the basic principles of work with
victims would be violated in this way, for which reasons organizations involved in direct
victim assistance insisted that the Agency should take over the distribution of parcels, in
which way the identity of victims and their safety would be protected.
In June 2007, after a seemingly reached agreement, because of the difficulties in finding
an administrative solution which would enable the Agency for Coordination of Protection
of Trafficking Victims to distribute the packages, a change happened in the planned
procedure and the Agency intended to refer victims directly to the Red Cross. In relation
to this matter, ASTRA contacted the representatives of the Ministry of Labor and Social
Policy (we note that until today the authority of a certain instance in that Ministry over
the Agency has not yet become clear), as well as the representative of the Republican
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Institute for Social Protection and the National Coordinator for Combating Human
Trafficking. In the responses that ASTRA was given from them, they tried to assure us that
they would try to find an appropriate mode of cooperation with the Red Cross and that
the victims’ rights would not be jeopardized.
In practice, instead of packages of food and hygienic products, the victims got financial
assistance. The money was paid into the bank account used by the Agency, and then
distributed to the beneficiaries through the social welfare centers or given to them in
person in the Agency premises. The Agency was supposed to provide to the Red Cross only
the ID number of the victim from its database as a feedback, which would ensure protection
of the identity of the victims who had received financial assistance from the Red Cross.
However, at the beginning of 2011, in one concrete case of providing assistance to
the victim of human trafficking, an Agency officer asked ASTRA to provide the basic
information about the victims who are given financial assistance as well as the relevant
information with regard to their human trafficking experience so that she could deliver
them to the Red Cross of Serbia. This unambiguously violates the privacy and reveals the
identity of the victim of human trafficking.
ASTRA Journal – 51-1/07, 51-2/07, 51-3/07, 51-4/07, 62-1/07, 63-1/07
III.3.2.2. Participation of Victims in Proceedings
§ 553. In criminal proceedings against traffickers, victims mostly appear as injured
parties/witnesses. Injured parties (as said before, Serbian legislation does not know the
term “victim”) have right to representation through their legal representative in the entire
course of the proceedings. Victim’s legal representative has right to participate in all
procedural actions, propose evidence, examine the accused, witnesses, expert witnesses
and other participants, submit compensation claim and, finally, give the closing. In case
of the absence of Public Prosecutor, he/she may assume prosecution. For this reason,
it is necessary that in all stages of the proceedings for trafficking offences the victim is
ensured representation by professional and sensitisized attorneys, ready to fight and face
misogyny, xenophobia, certain personal risk and different modalities of obstruction.
§ 554. Since the victim, and consequently her legal representative, does not have the
status of the party but only a participant to the proceedings, the court is not obliged to
send them the indictment, expert witnesses’ findings or even the judgment. The victim
does not have the right to appeal the judgment, except for the part pertaining to costs
or in case that Public Prosecutor has assumed the prosecution from the victim that
instituted the proceedings as a private plaintiff. For this reason, good cooperation with
Public Prosecutor is vital for the protection of victims’ personal rights, because this is the
only way in which the arguments of her legal representative may be presented through
Public Prosecutor’s appeal.
192
§ 555. Victim’s right to participate in criminal proceedings and testify is in the majority of
cases respected in practice. However, the problem arises when trafficking victims do not
want to take part, usually, out of fear for traffickers’ reprisals, but in spite of that, according
to information ASTRA has, they are often exposed to direct and indirect blackmails from
state officials, above all the police, but sometimes even from the staff of the Agency for
Coordination of Protection of Trafficking Victims, who “explain” the victim how it is in her
interest to appear in court. Victim’s testimony is still one of the crucial, if not the only
evidence against traffickers.
§ 556. In US State Department’s 2003 Trafficking in Persons Report363 it reads “Despite
enhanced law enforcement capacity, court adjudication generally was weak. In several
instances, courts dismissed cases for lack of evidence or allowed confusing and degrading
testimony in trial”, the 2006 TIP Report364 stresses that “There were some reports of
victims being poorly treated in courts outside Belgrade. Courts often require victims to
testify against their traffickers repeatedly for criminal and civil proceedings, creating
unnecessary trauma and travel costs.... The government should institutionalize a referral
mechanism to continue the increase in identification and protection for trafficking
victims in Serbia. It should ensure its witness protection law is fully applied, to prevent
re-traumatizing trafficking victims who are willing to assist law enforcement and testify
against their traffickers.” According to the 2009 TIP Report365, “The Government of Serbia
continued to actively investigate trafficking cases, but it did not provide evidence it
adequately prosecuted, convicted and punished trafficking offenders. Trafficking suspects
accused of violent crimes often continued to be freed during the pre-trial and appeal
process, posing a serious risk to their victims”.
§ 557. As said in the Concluding Observations of the UN Human Rights Committee:
Serbia and Montenegro. 12/08/2004, “The State Party should take measures to combat
trafficking in human beings, which constitutes a violation of several Covenant [on Civil
and Political Roghts], rights, including articles 3 and 24 and the right under article 8 to be
free from slavery and servitude. Strong measures should be taken to prevent trafficking
and to impose sanctions on those who exploit women and children in this way. Protection
should be extended to all victims of trafficking so that they may have a place of refuge
and an opportunity to give evidence against the persons responsible in criminal or
civil proceedings.”366
§ 558. Victims receive the most severe threats immediately before and pending criminal
proceedings. Hence, the issue of trafficking victims’ participation in court proceedings is
closely linked to the issue of victim/witness protection. The Act on the Protection of Persons
363
http://www.state.gov/g/tip/rls/tiprpt/2003/
http://www.state.gov/g/tip/rls/tiprpt/2006/
http://www.state.gov/g/tip/rls/tiprpt/2009/123139.htm
366
Concluding Observations of the Human Rights Committee: Serbia and Montenegro. 12/08/2004., CCPR/CO/81/SEMO. (Concluding Observations/
Comments), Convention Abbreviation: CCPR, HUMAN RIGHTS committee, eighty-first session, consideration of reports submitted by states
parties under article 40 of the Covenant.
364
365
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Participating in the Criminal Proceedings of 2005 came into force on 1 January 2006. The
procedural measures of victim protection are mostly reduced to their physical protection
pending the trial and provisions that regulate special ways of their questioning; therefore,
they do not give adequate safeguards that their life, health, physical integrity, freedom or
property will not be at risk if they give a testimony that would incriminate the perpetrators of
trafficking offences. For this reason it is necessary to establish adequate protection program
for witnesses, victims and persons close to them that would, together with procedural
measures, ensure their satisfactory protection before, during and after criminal trial367.
In the mid 2008, a victim of human trafficking reported to the police that her life was in
danger because of the threats she received from her ex-husband, who was at the same
time a trafficker. He sexually exploited her in Italy and forced her to commit criminal acts.
Based on the statement she gave to the local police after returning from Italy, criminal
proceedings have been instituted against him ex officio for the criminal act of human
trafficking in which she was a witness-injured.
Soon after, she began to receive threats from her ex-husband (trafficker) and his family,
who asked her to retract the statement. With regard to the fact that she lived alone and
without any sort of protection, the trafficker’s son forced her out of the house she lived
in and took her to the court house, where in the presence of a lawyer retained by the
trafficker, she was forced to sign a document stating that she retracted the statement
given to the police earlier. However, the Public Prosecutor then instigated proceedings
against her for perjury, after which the victim contacted ASTRA, where she was provided
with legal assistance.
The trafficker continuously and in various ways threatened the victim and her family.
Normal life in the town she was born in was completely impossible for her, and that is why
she left abroad, where she is today.
In the mid 2010, the case against her was dropped and the preliminary investigation for
human trafficking in which she was the victim was reinstated. However, even today there
are no conditions for her safe return to Serbia and the city in which the trafficker lives too.
§ 559. So far, the Law on the Protection Program for Persons Participating in the Criminal
Proceedings has mostly been applied in the case of assassination of Prime Minister Đinđić.
For human trafficking cases, i.e. for victims who testified in criminal proceedings it has not
been applied even once.
§ 560. This is mostly due to the failure to recognize real danger for the victim or the lack
of funds to apply the law in specific cases. A judge to the proceedings shall be obliged to
367
Nikolić B., Značaj zaštite svedoka u borbi protiv organizovanog kriminala i drugih najtežih oblika kriminaliteta, Revija za bezbednost, br. 7, Centar
za bezbednosne studije, Beograd 2008.
194
take care of the safety of all parties during the trial while they are in the courtroom, but
he/she also has possibility to require police protection if someone’s safety is endangered.
Unfortunately, this is quite rare in practice.
§ 561. Before the adoption of this Law and thanks to sensitivity and professional conduct of
the then Public Prosecutor Deputy for Organized Crime who worked on the Pančevo Group
case368, witness protection was provided with assistance of the third country. This positive
example shows that with professional work, commitment and good will it is possible to
work out a good solution, even if it is not explicitly envisaged in the law, as well as that it is
necessary to establish regional cooperation in the matter of witness protection.
§ 562. Although there are few examples of the protection of victims, we should certainly
mention an excellent reaction of the Judge of the Subotica District Court in the treatment
of underage trafficking victim during criminal proceedings.
In 2007, a trial for trafficking offence started before the Subotica District Court. The
victim, represented by ASTRA’s attorney, was 15 years old at the time of recruitment
and exploitation. The Judge insisted that the girl should give her testimony in court via
video link, in which way her direct confrontation with traffickers was avoided. Although
she was in the same building as the group of the accused at that moment, she was never
exposed to direct contact with them. Moreover, in her coming to trial and leaving the court
building, all special protection measures were taken in order to prevent any possibility of
victim’s meeting with traffickers and her possible revictimization. None of the above listed
procedures undertaken towards the protection of the rights of the child was done upon the
intervention of ASTRA’s attorney, but the Judge to the proceedings initiated them herself.
ASTRA database, ID no 1460
§ 563. Pending the trial against traffickers, many technical problems arise, which are
common to other proceedings, too, but one number of problems is specific for human
trafficking, organized crime and the testifying of human trafficking victims.
In one of two trials held for the compensation of non-material damages, in which the
injured party way represented by ASTRA’s attorney, the foreign victim trafficked for the
purpose of sexual exploitation was supposed to give her testimony before the Fourth
Municipal Court in Belgrade in the summer of 2006. Long preparations were held before
this trial, in terms of raising funds to ensure girl’s presence at the trial, i.e. trip from her
resident country to Belgrade, adequate accommodation during her staying in Belgrade,
coordination of activities aimed at police providing physical safety of the victim during
her staying, etc.
368
For details, see the rest of the article.
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However, in spite of all detailed preparations, the trial did not start on time due to the
power failure and there was a possibility that it would not take place at all (it was not
possible to keep minutes by hand). At one point, the Judge even mentioned that she would
need to schedule the new session if electric power did not return on time. Fortunately,
the power came back two hours later and the trial session could have started. Otherwise,
the session would have been postponed and it is not certain whether it would be possible
again to find money and organize the trip and accommodation for witnesses. Moreover,
the girls who were already scared would have been forced to go through the whole
procedure all over again.
§ 564. Besides this example, you can read more about technical difficulties and the
shortage of equipment in courts in the analysis of Articles 1 – 5 of the Palermo Protocol
and corresponding articles of the CoE Convention.
§ 565. The cases of corruption and the involvement of state officials in the human
trafficking chain are another reasons for the lack of victims’ trust in institutional
assistance. It is interesting that, according to the evaluation of police work at the level
of local communities in former Yugoslavia in 1992-1996, 25.5% of respondents were
satisfied with their work, while as much as 42.7% said they were not satisfied.369
Detention for Deputy Public Prosecutor in Novi Pazar
Belgrade, 17:24
The National Assembly of Serbia has approved today the detention of the Deputy
Public Prosecutor in Novi Pazar, Palamar Senad, suspected of the abuse of office. The
Assembly has made this decision at the beginning of its afternoon session upon the
proposal of the Administrative Committee who had previously considered the request
of the Sombor District Court Judge to approve the detention for Palamar Senad. A
motion for investigation against Palamar Senad was filed to the Sombor District Court
under suspicion that he knew of human trafficking cases, but failed to report the offence
and its perpetrators in the period December 2005 – 12 July 2007. It is also said that
Senad had direct knowledge of the offence because he used sexual services of human
Beta, 14 November 2007
http://www.portalargus.org/vesti/8057.html
On August 11, the Supreme Court upheld the May 2008 convictions of Senad Palamar,
the former public prosecutor in Novi Pazar, and 12 others for running a trafficking and
prostitution ring. Twelve defendants were convicted and received sentences ranging from
369
Zekvić U. Žrtve kriminala u zemljama u tranziciji, Beograd, 2001.
196
one to eight years in prison. Palamar and two police officers who received suspended
sentences were released on time served. The group’s ringleader received an eight-year
prison sentence.
2009 Human Rights Report– Serbia370
§ 566. Trafficking victims feel most pressure right before and pending court proceedings.
However, the need for their protection often extends to the longer period of time after
the completion of the proceedings in which they testified. The issue of trauma and
psychological pressure because of the contact with the institution (which they often
encounter for the first time) will be discussed in other sections of this Report, but here we
should look at how institutions treat the issue of victims’ safety. The trial against Milivoje
Zarubica and his groups should certainly be mentioned as a positive example, where SECI
center from Bucharest participated in the bringing of witnesses from Moldova to Serbia
and their protection.
In 2005, at the trial for human trafficking offense, Article 388 (1) CCS in Pančevo, the
trafficker was sentenced to 9 months in prison. Pending the trial, the victim was exposed
to pressure to change her testimony: she was offered money, acquaintances were giving
her “friendly” advice to drop charges, strangers were waiting for her in front of her
house, warning her what could happen to her and her mother whom she lived with, she
received numerous offenses and open threats by trafficker’s family. The defense tried
to repudiate her statement by putting special emphasis on the fact that she was heroin
addict. The Public Prosecutor and ASTRA’s attorney who represented the victim had great
cooperation during this trial, which resulted in the provision of full and adequate support
to victim. Only thanks to Public Prosecutor’s effort, her understanding and support for
ASTRA’s client during the proceedings, as well as her willingness to use all her prerogatives
and activate all relevant actors, the police, Public Prosecutor’s office and ASTRA had very
good and coordinated cooperation during the whole trial.
§ 567. Many cases of victims/witness giving up testifying or changing their statements at
the trial session confirm that these threats are serious and effective.
The girls that had been forced into prostitution escaped from their traffickers, only to be
kidnapped and beaten up. After a few hours, one of them died of internal bleeding. She
was purposely left conscious throughout the torture in order to intensify her suffering.
ASTRA’s attorney represented the girl’s mother in both criminal and civil proceedings.
370
Bureau of Democracy, Human Rights and Labor, 2009 Country Reports on Human Rights on Human Rights Practices, March 11,2010, http://www.
state.gov/g/drl/rls/hrrpt/2009/eur/136056.htm
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Pending criminal trial before the court of first instance, another girl who was present
during the murder on which occasion she sustained light bodily injuries, said that she was
not the victim and that the documented injuries were not inflicted by the defendants
which, as stated in the judgment “the court could not accept because it was obvious that
with such statement the victim wanted to protect herself from possible consequences she
would have suffered if she had testified to the detriment of the accused…”. She appeared
at one court session, after which it was not possible to reach her. In the judgment of the
Pančevo District Court, it is further said “All of these indicate that the injured party XX as
the eyewitness and the actor of the event was in great fear for everything she saw, heard
and felt on her own skin and especially the death of the deceased YY For this reason she
denies that the defendants inflicted injuries on her. Based on all these facts, the Court
assessed that the party is scared for her future”.
Judgment of the Pančevo District Court, K.br.133/04, 14 April 2005
§ 568. How profitable and organized human trafficking is, it is shown in numerous cases
of threats to victims that extends to several years after their rescue from the human
trafficking chain. After the trial has been completed, the victim becomes “not interesting”
for institutions (the police and the judiciary). Consequently, she is left on her own devices
to take care of her safety, i.e. to report any possible threat like any other citizens.
In 2005, criminal proceedings for a trafficking offence were initiated in Sremska Mitrovica.
At the time of the offence, the victim was underage. At the same time, the trafficker initiated
proceedings to establish paternity of their child born at the time when the victim was
exploited, so that he could later require custody. In 2005 and 2006, right before the trial
session, the trafficker phoned to the Agency for Coordination of Protection of Trafficking
Victims in an attempt to come in touch with the victim and learn the location where she
and her child are located. Given his permanent attempts to come in contact and very
aggressive threats to victim’s security, which suggested his plan to kidnap the child, she
was forced to move frequently. On two instances she was, together with the child, placed
to the shelter for trafficking victims. On her second arrival to the Shelter in 2007, she came
to Belgrade, where ASTRA representatives waited for her. Already at the bus station she
saw the trafficker in a car parked on the other side of the street, who started following
them at close instance after they have left the bus station. ASTRA representatives tried
to use city jam to run away and at one point thought they succeeded. However, when he
realized he was seen, the trafficker left the vehicle he was previously seen in and took a
taxi, trying to hide on the back seat so that he would not be seen again. Not wanting to
reveal the location of the shelter, and out of fear for the safety of the client and her child,
198
ASTRA representatives went to Belgrade Police Department, from where the police, with
special precaution measures, transferred the woman and her child to the shelter. It is still
unclear how the trafficker came to information on victim’s and her child’s movement and
arrival to Belgrade, since this information was known to ASTRA and of the Agency staff
and two police officers in Sremska Mitrovica with whom we have very good cooperation.
In 2007, ASTRA started assistance and recovery program with a boy who had spent six
years in the human trafficking chain, i.e. forced begging. At the moment when he fell
victim, he was underage, i.e. 17. When he was 12, he had an accident after which his both
arms were amputated. Because of this tragic event and generally difficult family situation,
he dropped out from primary school. The father of the family is in the psychiatric
institution and while he lived with his family, he physically and mentally abused his wife
and children. The boy has six siblings and, since only mother makes income, the family
lives in very difficult material conditions.
The neighbor who was familiar with these circumstances and who knew that the boy
had slim chances to help his family by finding a job invited him to go to Bosnia and earn
money through begging. He promised the boy a better life, share in the money earned in
this way and possibility to earn enough to buy a flat in Belgrade. Over a longer period
of time he was convincing and pressuring the boy until he finally accepted, after which a
six-year torture started across Bosnia. After the boy run away from this situation in 2007
and returned to Serbia, criminal action was instituted against the trafficker and his family
which also participated in the exploitation. Pending the trial, both the victim and his
mother were offered money by trafficker’s close relative in order for the boy to change his
testimony based on which charges were raised. Such offers were very frequent during the
trial, especially bearing in mind that these two families live in neighborhood, for which
reason their encounters are often and hard to avoid.
III.3.2.3. Victim’s Assistance and Protection
§ 569. Besides human trafficking cases, victims often appear as parties to other
proceedings, civil and non-contentious, which are directly or indirectly linked to human
trafficking experience they survived. Most often these are cases related to custody of
children, the annulment of forced marriages, property disputes. State authorities, above
all the Agency for Coordination of Protection of Trafficking Victims, do not show interest
in providing legal aid in such cases, i.e. in coordinating this assistance. This is often rather
frustrating for victims, since sometimes their existential issues depend on the outcome
of these trials, which largely affect their reintegration and prevention of re-trafficking.
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In 2005, a few months after the child birth, ASTRA’s client filed for a divorce and custody
of her child. She fell victim to trafficking when she was underage, for which reason she
quit school right after the primary school. This considerably limited her employment
opportunities and possibility to be able to support herself and her child. She had very
difficult relationship with her husband, full of quarrels, disputes and increasing physical
violence. However, she stayed in that marriage primarily for financial reasons. Later she
decided to file for a divorce. The institution of the proceedings turned out to be a very
strong motive for her to go back to school and find a job, in which way she managed to
gain independence, i.e. to provide for herself and for her child.
§ 570. Although the role of the Agency in representing these interests is defined in the
Memorandum of Cooperation (Section II, Article 2.1 Victims’ Interests), which was signed
between ASTRA and the Agency for Coordination of Protection of Trafficking Victims,
there were situations when the Agency to a great extent made victims’ situation even
more difficult and in a way compromised their safety, forgetting their primary role, i.e. the
protection of victims’ interests.
In January 2006, the representative of the Agency for Coordination of Protection of
Trafficking Victims, based on information which validity had not been previously verified,
reported to the competent Social Welfare Center her suspicion that the girl identified as
trafficking victim in 2005 voluntarily worked as a sex worker and neglected her three-year
old daughter. It is not known what kind of checkups SWC made upon this report, but the
girl did not suffer any consequences.
However, this report could have very serious consequences on victim and her daughter,
since two processes were pending at that time: in 2005 criminal action was instituted for
illegal crossing of stare border and people smuggling, where she was the victim/witness,
while the other case was instituted by the trafficker who wanted to establish paternity of
the child she gave birth to during the period of exploitation. In addition to the fact that
the said report could have impact on the course of these trials, the safety of the victim and
her daughter was also jeopardized, because in that period the trafficker was intensively
attempting to find out their location by contacting all actors (the Agency, ASTRA, SWC).
§ 571. Victim assistance and protection include a wide range of actions and services,
from crisis intervention and direct assistance (medical, legal and psychological) to a long
rehabilitation and finally reintegration process.
200
§ 572. In theory, the work with victims has three phases371:
1. Crises intervention
a. Shelter/alternative accommodation
b. Emergency medical assistance
c. Psychological assistance
2. Rehabilitation
a. Accommodation at the recovery shelter if necessary
b. Material aid
c. Legal assistance
d. Medical assistance
e. Psychotherapy, PTSD treatment
3. (Re)Integration
a. Recovery of the system of vital values
b. Family (re)integration
c. Community (re)integration
d. Economic (re)integration
e. Culture (re)integration
f. Realization of legal rights
§ 573. Rehabilitation implies the restoration of trafficking victim’s capacity for independent
life. Kessler372 defines it as the enabling of the unable for the utmost mental, social,
professional and economic benefit they are fit for. The aim of rehabilitation is to enable
trafficking victims to reintegrate into their families, living and working environment.
Assistance in rehabilitation consists of specific basic services, such as accommodation
in a safe house or shelter and assistance in satisfying medical and psychological needs,
the protection of rights they are legally entitled to, as well as the forms of vocational
education and/or training.
§ 574. (Re)integration may be defined as the process of victim’s inclusion into the
community in his/her country of origin and the rebuilding of relations inside it. This
process takes place at four levels: psychological, socio-economic, socio-political and
cultural. It includes a range of complex issues, from legal, regulatory and safety aspects
to funding and informing the victims of agencies that offer direct assistance and
reintegration programs in the country of origin and repatriation, including preparations
for return, company during the return and reception in the country of origin, as well as the
protection from stigmatization. Trafficking victims’ will to return home, different aspects
of return and regulations pertaining to the reflection period and the issuance of residence
permit may affect the efficiency of reintegration programs.
371
372
”(Re)Integration of the trafficked persons: a process or result?“, La Strada Moldova Express, Issue No.3 April 2007.
Simić M., Rehabilitacija invalida, Fakultet političkih nauka, Beograd 1996.
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§ 575. The term “re-integration” (also called integrational or social inclusion) is broadly
used by assistance providers to describe the work with returned women that offers
the victims long-term solutions, enables social inclusion in their countries of origin, is
available for longer period of time and is broader than short-term, direct help.373
§ 576. Stability Pact Task Force defines “return and re-integration assistance to victims
of trafficking” as ”… comprehensive programmes designed to re-integrate victims
of trafficking into society, including through actively preventing stigmatisation, job
training, legal assistance and health care and by taking measures to co-operate with nongovernmental organisations to provide for the social, medical and psychological care of
the victims”.374
§ 577. Also in the Background Paper, “the SPTF recognised the different needs of returning
victims - from social, medical and psychological care to protection from stigmatization and
support in job training”. At the same time, it emphasized the government’s responsibility
to provide re-integration support. While the Background Paper is very general and focused
mainly on trafficking in women, it did establish baseline definitions of prevention and
awareness raising for those institutions co-operating with the SPTF”375.
§ 578. A successful (re)integration program requires the inclusion of all relevant actors, but
it also depends on the conditions in the country of origin, conditions experienced at the time
of reception, personal characteristics of victims, their capability of managing stress, their
capacity to adapt to changes, the existence of social network, the possibilities to keep in
touch with the relatives in the home country, the possibilities of long-term accommodation,
the existence of xenophobia, prejudices etc. It can be seen that the reintegration program can
not be the same for everybody. However, if we want to talk about successful reintegration, it
needs to be tailored to fit the needs of every individual victim.376
§ 579. The quality of programs designed to assist to (re)integration is decisive for the
entire process. In the same way as the program has to be tailored to the needs of every
individual victim, its intensity and duration should be defined individually depending on
the problems and needs experienced by a specific victim. It is necessary to take into account
for how long the victim was exposed to exploitation. Longer exposure to the situation in
which the person do not have any control and to permanent intimidation would certainly
require longer period for recovery, rebuilding one’s life and regaining independence.
§ 580. Needless to say that victim assistance program which form and duration are
defined by NGOs are not sufficient. State authorities and professional community need
to get involved, too, so that these programs could be applied in a broader context. Human
373
Limanowska B., Principles and Guidelines on Human Rights and Human Trafficking, Volume 3, UN Office of the High Commissioner for Human
Rights, 2002.
374
SPTF Defintion of ”Re-integration of Victims of Trafficking“ in Limanowska B., Principles and Guidelines on Human Rights and Human Trafficking,
Volume 3, UN Office of the High Commissioner for Human Rights, 2002.
375
The SPTF was officially closed on 30 October 2004. For more information see: http://www.stabilitypact.org/stabilitypactcgi/catalog/cat_descr.
cgi?subcat=1&prod_id=52
376
Equal open Europe Project Transnational Committee, 2nd publication, October 2007.
202
trafficking hits society as a whole and for this reason the very same society should be
actively involved the provision of assistance.
§. 581. Reflection and recovery period is a period of time given to a person who is suspected
to be trafficking victim during which she/he can take a rest, escape traffickers’ influence
and consider his/her situation and future steps, including the decision on testifying
against traffickers. European Convention requires that the state parties provide in its internal
law a recovery and reflection period of at least 30 days, when there is the slightest indication
that a person has been trafficked. This implies that the granting of the reflection period must
not be subject to further legal requirements since it would undermine and even contradict the
aims of the delay.
§ 582. When the competent authorities have the slightest indication that a person has
been trafficked, this person should be immediately granted the reflection period. This
implies that the granting of the reflection period must not be subject to further legal
requirements, since it would undermine and even contradict the aims of the delay. In order
to make possible the reflection period in the case of foreign citizens the European Convention
stipulates that “Parties shall authorize the persons concerned to stay in their territory”. Two
conditions stipulated in Article 14 (1) on issuing residence permit are that the victim’s stay is
either “needed for his/her own personal situation” or it is “necessary for his/her cooperation
with the authorities in investigation or criminal proceedings”. The aim of these conditions is
to enable the states to choose whether they will approve residence permits in exchange for
cooperation with judicial authorities, or they will issue a residence permit on the basis of the
victim’s needs, or both of these conditions will be adopted concurrently. The CoE Convention
has left to the discretion of a state party to determine the length of the residence permit,
although the states have to determine the length in accordance with the aim of the provision.
§ 583. The reflection period has multiple goals, since it prevents immediate expulsion,
and allows the person to start the recovery process377, avoid possible reprisal from
traffickers and escape their influence, make an informed decision about his/her options
such as whether to assist with criminal proceedings, to pursue compensation claims,
and/or to participate in a social assistance program. However, the reflection period and
the related assistance measures should be granted to any presumed trafficked person,
including nationals of the same country and EU nationals, with a view to allowing that
person to recover, escape from retaliation and take an informed decision as to whether to
cooperate with the competent authorities.378
377
See the Council of Europe Convention on Action against Trafficking in Human Beings and its Explanatory Report, in particular Article 13, Paragraph
1. See also Council Directive on Residence Permit issued to third-country nationals who are victims of trafficking in human beings or who have
been the subject of an action to facilitate illegal immigration, who cooperate with the competent authorities (2004/81/EC). Article 6 clearly states
that the reflection period aims at allowing trafficked persons to recover.
378
http://ec.europa.eu/justice_home/news/events/anti_trafficking_day_07/mecanisms_manual.pdf
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III. 3.2.3.1. Evolution of the Treatment of Trafficked Persons in Serbia
§ 584. A mechanism (which could be called National Referral Mechanism379) must be
established in every Member State, aimed at ensuring coordination of government
action and cooperation with civil society organizations or other service providers such
as public or private recognized and specialized centers. The mechanism should ensure
that presumable trafficked persons are immediately informed in a language that they
understand about their rights and options, and referred to the assistance services when
they are claiming to be victims of trafficking or when the competent authorities have a
suspicion that she/he has been subject to trafficking. The mechanism should be sensitive
to issues of age, gender, ethnic and religious background of identified or presumed victims
of trafficking. In particular, it should include specific child friendly services and be based
on a gender-sensitive approach.380 The process of building National Referral Mechanism
in Serbia was long and complex.
§ 585. In. the US State Department’s 2004 TIP Report it is stated: “The government
and NGOs communicated well on protection activities, but police operated without
a formalized referral system and victims tended not to cooperate due to insufficient
protections. The Organization for Security and Cooperation in Europe (OSCE) oversaw
establishment of a referral center housed in the Social Affairs Ministry. Police relied on
an NGO-run shelter overseen by the IOM to house victims. Police commonly interviewed
victims upon police apprehension, and those who did not self-identify as victims were
charged with prostitution or deported. The government did not implement a regional
Ministerial declaration on residency status for victims.”
§ 586. As far as the treatment of trafficked victims is concerned, with regard to assistance
mechanism, we may distinguish four periods: The first period covers the 1990s. During
the entire decade, there were no systematic mechanisms aimed at helping the victims of
trafficking. The problem of trafficking in women was not recognized at the political level.
The Criminal Law of the Republic of Serbia did not contain the provision that incriminates
trafficking in human beings. The investigation and bringing to justice of persons responsible
for trafficking in women was very difficult, almost impossible. Since there were no clear
standards for identifying the victims of trafficking, a large percentage of women found
during raids in bars, motels and similar establishments were arrested, interrogated and
sent to a magistrate’s court, where they were prosecuted pursuant to the Movement and
Residence of Foreigners Act. In these cases, the Magistrate had quite narrow powers: it
could rule a fine, jail sentence of up to 30 days or deportation. Without exception, such
women were treated as illegal immigrants. If they were foreign nationals, they were sent
to the Detention Center for illegal immigrants in Padinska Skela, from where they were
later deported to the country from which they entered Serbia, without prior evaluation
379
380
National Referral Mechanisms, Joining efforts to Protect the Rights of Trafficked persons. A Practical Handbook, OSCE/ODIHR, 2004.
204
of the situation and victim’s position in the country of origin. If it concerned domestic
nationals, there were punished under Article 14 of the Public Peace and Order Act.
§ 587. It should be stressed that women’s NGOs were the first to draw public attention to
the fact that this problem in our country existed. Since the problem was not recognized,
girls and women received no institutional support and were handed over to traffickers’
mercy. Very often, the very same trafficker waited for deported girls on the other side of
the border and transported them back to Serbia.
§ 588. The second period lasts from the 2000 democratic changes until 2004. The Yugoslav
Team for Combating Human Trafficking was set up first, and shortly after that, in May
2002, there came the National Team for Combating Human Trafficking of the Republic
of Serbia. Significant changes in the procedures and treatment of trafficking victims could
be observed after 2002 when, owing above all to political will (appropriate legislation
was still lacking), informal mechanisms for helping victims were established. Trafficked
women were no longer treated as persons who violated the law, but were identified by
the Agency for Coordination of Protection of Trafficking Victims and given the status
of a victim. This status was not defined by specific documents or procedure, but was
done ad hoc in every individual case381. Following identification, they were referred to the
shelter for trafficked victims, run by a local NGO funded by International Organization
for Migrations (IOM). IOM also bore repatriation costs. Many overlooks were made in the
provision of direct victim assistance during this period and in the realization of victims’
rights. On the other hand, this is when the first ideas and initiatives for the formalization
of cooperation between anti-trafficking actors in order to reduce such overlooks to the
minimum appeared. One of the documents drafted then, but, unfortunately never signed,
is the Memorandum of Cooperation between anti-trafficking actors. This document was
drafted by OSCE Mission to Serbia in consultations with all potential signatories. This
draft document was very good, since it contained elements that have not been included
in other former or later documents (e.g. risk assessment). On the other hand, it was the
result of joint work of governmental and nongovernmental sector and international
organizations. The Ministry of the Interior of the Republic of Serbia did not offer this
document for signing, allegedly because the election of the new Government that was
underway at that moment and the lack of competent Minister, while IOM was rather
reserved on that occasion. Thus, a unique opportunity to formalize cooperation among
the actors and thus eliminate shortcomings in the provision of assistance to trafficking
victims and assuming responsibility for such shortcomings was missed.
§ 589. In the third period, as a result of a joint project of the Ministry of Labor,
Employment and Social Policy and OSCE Mission to Serbia and Montenegro, the Agency
for Coordination of Protection of Trafficking Victims was set up in March 2004, as the
national referral mechanism, within the Institute for Upbringing of Children and Youth in
381
ASTRA has no knowledge of details of this procedure.
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Belgrade. The Mobile Team was also founded as a part of the Agency. The main task of the
Agency is to act as a coordination center in the organization of assistance and protection
of trafficked victims in Serbia, as well as to make the first evaluation of a potential victim
and her/his needs. Mobile Team members were the Ministry for Social Issues, NGOs
ASTRA and Counseling Center against Family Violence. The Mobile Team also recorded
the first cases successfully solved in cooperation of GOs and NGOs. This is certainly the
period in which victim assistance and protection of their rights was at the highest level
and shortcomings least frequent. Because of the results achieved within the Mobile Team,
ASTRA actively advocated for such model of referral mechanism. In our opinion, this is
the concept that should be restored, because in practice it has proven to be the most
efficient for the identification and provision of direct assistance to trafficking victims.
In April 2005, the Subotica police arrested one Serbian national and three girls from Ukraine.
The night before, they came by taxi from Novi Sad and spent the night at a hotel in Subotica
with three Slovenian citizens. The police and the investigative judge took their statements,
and the taxi driver who drove them to Subotica and back to Novi Sad was identified. One
of the Ukrainian nationals used to work in Serbia, while for the other two girls this was the
first time. All four girls were very young, very scared and all of them instantly said that
they did not wish to testify against traffickers. After the joint intervention by the Agency
and ASTRA, the girls were put in Shelter in Belgrade. The intervention primarily composed
of very well guided interview the representatives of ASTRA and the Agency had with the
girls, informing them of all accommodation possibilities and available forms of assistance.
This interview contributed to girls’ being noticeably relaxed and to shift from refusing
any communication, which was the situation while they were in Subotica, to being very
satisfied with offered solutions when they came to Belgrade.
A trafficking victim was, with her two-year old daughter, staying in the shelter for safety
reasons during the trial. In May 2005, she was summoned to testify and went to Sremska
Mitrovica in the company of ASTRA and Agency representatives. Since another girls sold
by the same trafficker was summoned to the same trial session, we talked with that girl,
too. ASTRA and Agency representatives informed her on the activities of direct victim
assistance providers and available forms of help. Later, when our client went to Sremska
Mitrovica again in the company of ASTRA representatives, the Agency provided logistic
support (transport). In this specific case, ASTRA and the Agency had very efficient
cooperation on several instances, thus adding to the quality an provided forms of
assistance and information.
ASTRA Database, ID 814, ID 820
206
§ 591. The fourth period in combating human trafficking in Serbia started in November
2004, when the concept of the Agency with the Mobile Team was abandoned. From
then on, the Agency has been working with two staff members: a social worker and a
psychologist/legal specialist. The Agency is designed as a coordination center for all actors
involved in the provision of assistance to victims. Upon the information on (presumed)
trafficked victim, the Agency does the identification or confirms the identification done
by the police, also being in charge of the first assessment of (presumed) victims’ needs
and coordination of assistance to them. Although in the Agency’s promotional leaflet it
could be read that it operates 0-24h, this is not realistic in practice, since the Agency has
only two staff members that are supposed to cover the entire territory of Serbia.
III.3.2.3.2. Direct Victim Assistance Providers in the Republic of Serbia
§ 592. Direct assistance to trafficking victims in Serbia is for now provided by the civil
society organizations, specifically by three NGOs until October 2010, when the shelter
(which operated within the Counseling Center against Family Violence) was closed. .
§ 593 ASTRA – Anti Trafficking Action is a non-governmental organization dedicated
to the eradication of all forms of trafficking in human beings, especially in women and
children. Since 2002, ASTRA has been running an SOS hotline service specialized for
direct assistance to trafficked persons in the process of recovery and (re)integration, as
well as for support to families and communities of survivors aimed at their as successful
as possible social inclusion. The reintegration program is additionally developed through
ASTRA Daily Center which was launched in January 2007.
§ 594. Direct victim assistance is provided taking care of the best interest of trafficked
persons and their individual needs, with full participation of the person receiving the
assistance, based on the principles of trust, respect for differences and individual wishes,
needs and recovery pace, non-discrimination and highest standards in work. 382
§ 595. In addition to direct victim assistance, ASTRA SOS hHotline also has a preventive
role, because calls in connection with human trafficking prevention make up nearly
one fifth of all calls received. Namely, through ASTRA SOS hotline, citizens can learn
something about the human trafficking problem, but also get informed about the
possibilities for legal education or work in foreign countries and employment-related
legal advice, i.e. checking the legitimacy of the employer, destination and employment
contracts, which is very important, because ASTRA is the only actor in our country that
offers this kind of service.
§ 596. Through this and other three programs – Prevention and Education, Networking
and Research and Reporting – ASTRA attempts to address the human trafficking problem
as comprehensively as possible, examining its causes, consequences, dynamics and trends.
Since human trafficking is very dynamic phenomenon, such approach is very important in
382
Find more about ASTRA’s assistance to trafficking victims and their families in Annex 6 – Active Anti Trafficking Actors.
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order to adjust prevention strategies and design and develop new forms of assistance, as
well as in order to recognize new potentially vulnerable groups, increase their awareness
and capacity for self-protection, but also to support institutions to provide better and
more efficient assistance.
§ 597. Shelter for Trafficking Victims was launched in 2002 as a program run by the
NGO Counseling Center against Family Violence and funded by the Government of
Austria383. The shelter was a place where trafficking victims could get accommodation,
food, psychotherapeutic and medical assistance and lawyer’s services. This was a closetype shelter, and for safety reasons, beneficiaries had limited freedom of movement,
and besides full-time and part-time staff members and associates, since 2006 only
representatives of the Agency for Coordination of Protection of Trafficking Victims had
access to the shelter. Earlier, the police also had access to the shelter, which was often
disturbing for the beneficiaries. The shelter worked as a collective accommodation
center. It had four counselors employed, one of whom was present for 24 hours a day at
the shelter. The beneficiaries were often children victims of trafficking and children who
were not trafficked themselves, but who accompanied their mothers who were identified
as trafficking victims. Since October 2010 this shelter was closed down.
§ 598. NGO Atina was set up in 2004 and, with IOM’s support, it provides assistance
to the victims of human trafficking and sexual violence. It operates through three
programs: Temporary Home, Open, Club and Field Support Team. The Temporary House
was launched in Belgrade in April 2004. Besides accommodation and food, it provides
basic and alternative services in the process of reintegration: medical and psychological
assistance, legal counseling, family mediation and counseling, assistance in formal
and alternative education and job hunting, and assistance in solving problems from
immediate environment.384
§ 599. The Open Club was started in Belgrade in the August of 2006. It has been
designed with help and support from former and actual beneficiaries and offers basic and
alternative support programs in reintegration. The program has been designed in such a
way that, besides direct assistance and support, it provides the beneficiaries with a space
and framework for informal gathering and spending time together. The Open Club has a
library, audio and video materials and computers; different cultural activities – lectures,
movie projections, etc. take place in there.
§ 600. The Field Support Team has arisen as a response to the needs in the reintegration
of the victims of human trafficking and sexual exploitation who have returned to their
original communities.
§ 601. NGO Atina’s clients are women and girls, the citizens of Serbia and foreigners who have
383
384
Paragraph 158, Convention on the Elimination of All Forms of Discrimination against Women, Consideration of reports submitted by States Parties
under article 18 of the Convention on the Elimination of All Forms of Discrimination against Women, Serbia, 17 October 2006.
Annual Report 2005, http://www.atina.org.yu/index.php?option=com_content&task=view&id=10&Itemid=2
208
temporary residence permits, victims of human trafficking and sexual exploitation. Regularly,
staying in the Temporary Home lasts for about one year, but sometimes beneficiaries stay
longer or, when needed, use this form of accommodation on several instances.
§ 602. It should not be forgotten that many victims do not need shelter or alternative
accommodation, because they return to primary/secondary family or have some other
form of accommodation. Still, other needs of these victims are the same as of the victims
who live in the shelter, i.e. they are in need of medical, legal, psychological assistance and
support, education, economic empowerment and other reintegration program services.
III.3.2.3.3. Memorandums of Cooperation
§ 603. In the course of 2005, ASTRA initiated the signing of the Memorandum of
Understanding with the Agency for Coordination of Protection of Trafficking Victims. The
text of the memorandum was made by ASTRA and only slight corrections were made in
line with the suggestions of Agency’s staff member. The main goal of this document, like
it is stressed in its text, is to make “a step ahead towards efficient provision of professional
assistance in all the aspects in which cooperation so far indicated to the possibilities of
strengthening of protection and assistance mechanism”.
§ 604. Around the same time, the Agency signed similar document with NGO Atina
and Counseling Center against Family Violence which ran the Shelter for Trafficking
Victims. These memorandums are bilateral, of internal nature, and all four of them, to
our knowledge, differ by their content that is known only to the Agency and organizationsignatory. There is no standardized form of the Memorandum that would consistently
define cooperation between the Agency and all the actors whose activities it is supposed
to coordinate and which would clearly specify responsibilities and scope of work of the
Agency and nongovernmental organizations it directly cooperates with. Because of the
lack of transparency in signing these documents, an opportunity was missed to precisely
define the procedure in the process of identification of and assistance to trafficking victims
in which all relevant civil society organizations would be included. Only in that context,
memorandums could be expected to reach their goal, i.e. to be tools for strengthening
protection and assistance mechanism.
§ 605. International Organization for Migrations has an important role in the antitrafficking scene in Serbia. In the course of the 1990s, as well as at the beginning of
this century, besides vital role in the repatriation of trafficking victims, IOM Office to
Belgrade also participated in the identification385 of and assistance to victims, above
all by supporting NGO Atina’s shelter. It is sometimes very difficult to define their role
in the National Referral Mechanism. Namely, as IOM has been increasingly involved
385
Many victims with whom ASTRA was in contact with complained of exhausting interviews and too many questions in IOM questionnaire that they
had to answer in order to be identified as victims. Since the Agency for Coordination of Protection of Trafficking Victims started using the same
questionnaire in 2004, much better practice has been developed. Namely, the shelter staff would be gradually entering into the questionnaire
data they obtain from victims and then forward them to the Agency.
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in direct work with trafficking victims and dealing with individual cases (especially by
supporting the establishment of NGOs whose primary purpose is the implementation of
these programs), it is not clear whether they have shifted the focus of their activities to
direct victim assistance or this is an international organization with much broader scope
of work. Especially when human trafficking problem is concerned, their engagement
goes by far beyond activities they carry out as the international organization: “... IOM
will continue to support the strengthening of the Republic of Serbia’s institutional and
operational capacities, particularly effective border management and cross-border
cooperation. Social and economic impacts of transition will be tackled through targeted
interventions addressing livelihood issues and improving reintegration prospects of
vulnerable populations, with a broader community perspective. Particular attention
will be paid to defense personnel facing redundancy, refugee and displaced populations,
irregular migrants, actual and potential victims of trafficking and vulnerable minority
groups including the Roma. IOM will also contribute to policymaking and continue to
build the competencies of relevant service providers, both within the government and the
civil society386”. Such undefined engagement creates perplexities regarding the position
of IOM as an international organization which, nevertheless, actively participates in the
implementation of activities at the level of local civil society sector. Since 2010, IOM
has been carrying out a Joint Program for combating human trafficking together with
UNHCR, UNODC and the Government of Serbia.
III.3.2.3.4. Victim Identification and Coordination of Direct Assistance
§ 606. A human rights based approach requires early identification and assistance to
victims of trafficking in human beings.387 Identification is crucial to ensure both the
protection of the rights of trafficked persons and successful prosecution of the traffickers.
§ 607. Due to the complexity of the human trafficking phenomenon, the final
identification of victims might require longer period of time. Failure to identify victims
at an early stage can result in insufficient protection and violation of their rights388..
However, self-identification might be difficult, especially in cases where traffickers have
abused a position of social vulnerability.
§ 608. In addition, there are many barriers for victims to come forward, such as fear of
386
http://www.iom.int/jahia/Jahia/pid/700
An identical definition of trafficking is contained in Article 3 of the UN Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially
Women and Children (Palermo 2000), and in Article 4 of the Council of Europe Convention on Action against Trafficking in Human Beings
(Warsaw 16/05/2005). A similar definition appears in Article 1 of the EU Council Framework Decision on combating trafficking in human beings
(2002/629/JHA). For the purpose of the EU Council Framework Decision on the standing of victims in criminal proceedings (2001/220/JHA), victim
shall mean any natural person who has suffered harm, including mental or physical injury, emotional suffering or economic loss, directly caused by
acts or omissions that are in violation of the criminal law of a Member State (Article 1, Paragraph a). For the purpose of the (2005) CoE Convention
on Action against Trafficking in Human Beings (Warsaw 16/05/2005) victim shall mean any natural person who is subject to trafficking in human
being as defined in Article 4 of the same Convention. All the present recommendations apply to any presumed victim from the beginning of the
identification process.
388
WHO, Ethical and safety recommendations for conducting the interview with women victims of trafficking, WHO, Geneva 2003.
http://www.who.int/gender/documents/en/final%20recommendations%2023%20oct.pdf
387
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reprisals against them or their children or families, fear of deportation, or the situation
of dependency in which they find themselves. With regard to the identification of child
victims, indicators have to reflect the international definition of child trafficking389
according to which trafficking occurs even if no illicit means of coercion or abuse have
been used.
§ 609. International, regional and EU legal standards recognize the particular vulnerabilities
of children and the legal obligations of Governments to afford special protection and
assistance, and ensure legal safeguards to child victims.390
§ 610. According to the original idea, the main task of the Agency is to coordinate all actors
in the organization of assistance to and protection of trafficking victims391. However, when
we talk about the identification of (presumed) trafficking victims, from the very beginning
we have been witnessing the replacement thesis and arbitrary interpretation of the tasks
of the Agency, above all by the police and international organizations392. Namely, there
is no official document or formal decision based on which it could be concluded that
the Agency shall do the identification of (presumed) trafficking victims. For example, the
Instruction on Work of the Agency for Coordination of Protection of Trafficking Victims
(issued by the Acting Director of the Institute for Upbringing of Children and Youth on
9 November 2004) sets out that the main tasks of the Agency are to assess the needs
of trafficked persons, to refer potential victims to adequate form of assistance (Shelter,
medical treatment...) and to organize any other necessary aid (relating coordination).
Moreover, the Agency shall not give final opinion on whether a person is a trafficking
victim without organizations in charge of direct victim assistance.
§ 611. On the other hand, in the provisions of Paragraph 1 of the Instruction on Conditions
for Approving Temporary Residence to Foreign Nationals being Victims of Trafficking,
which was issued on July 5, 2004 by the Minister of the Interior of the Republic of Serbia,
it is anticipated that in case of foreign nationals for whom the Agency assesses that
need to be assisted and treated as trafficking victims, the police department in charge
according to the place of residence of the victim shall approve temporary residence for
humanitarian reasons. On 20 September 2004, Chief of the Border Police Directorate
for Aliens and Administrative Affairs issued the Instruction on Procedure for Approving
Temporary Residence permit to Foreign Nationals Victims of Trafficking.
§ 612. If we would nevertheless stick to this concept, the police should contact the Agency
389
Article 3c and Article 3d of the (2000) UN Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children; Article
1 of the Framework Decision on combating trafficking in human beings (2002/629/JHA); Article 4c and Article 4d of the (2005) CoE Convention
on Action against Trafficking in Human Beings.
390
391
National Referral Mechanism is a framework of cooperation through which state authorities fulfill their obligation to protect and enhance
trafficking victims’ human rights, by coordinating their efforts in strategic partnership with civil society – National Referral Mechanisms, Joining
efforts to Protect the Rights of Trafficked persons. A Practical Handbook, OSCE/ODIHR, 2004.
392
At that moment, the Agency did not take any position, which may be understood as the distribution of responsibility among the Mobile Team
members. After the canceling of the Team, faced with the lack of an official document that would specify responsibilities in this area, the Agency
has started to accept the position of the police and international organizations.
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for every presumed trafficking case. In practice, however, the Agency staff most often only
confirms the identification done by the police. Moreover, the identification criteria used
by the Agency are not clear and in such cases it seems as if it acts as “extended hand” of
the police that is the first who come in contact with (presumed) victims. Also, it has been
shown in practice that the police arbitrarily inform the Agency about presumed trafficking
victims, while most often excuse for such practice (given in informal communication) is
the sluggishness and the lack of proactive approach on the part of the Agency staff.
§ 613. Besides various pressures on one side and inertness of the Agency staff member(s)
on the other, also lacking is a pro-active approach to the identification of trafficked persons.
For example, the Agency’ does not have practice to visit Shelter for Illegal Migrants to
check whether there are foreign nationals accommodated there whom the police failed to
identify as victims. Since the canceling of the Mobile Team, there has been an indisputable
trend of exclusion of NGOs from the process of identification, i.e. such collaboration exists
only on paper. No memorandum of cooperation in this area has been signed between the
police or other Governmental institutions on one side and NGOs on the other.
§ 614. As for raids conducted by the police units, we cannot say that they were regular.
This especially applies to the period following the assassination of Prime Minister Đinđić
in March 2003. Two years before that, human trafficking was taking place in bars, clubs
and similar establishments. In that period, police raids were much more frequent. In such
raids, most often ten to twenty girls would be found and brought in. Year 2003 was
marked by the assassination of Prime Minister Đinđić and the declaration of the state of
emergency. In police operation “Saber” that followed, a large number of persons suspected
to be members of criminal groups were arrested in connection with the assassination
and many were direct or indirect actors in human trafficking. Although the results of
these police actions were significant, what they have resulted in is change in the modus
operandi of traffickers. When bars and clubs in which trafficking occurred were closed,
exploitation moved to private flats in the suburbs of Serbian towns. All subsequent raids
resulted in a smaller number of found and identified victims (in some reports, this drop
in the number of identified victims is interpreted as being due to decrease in the size of
human trafficking in Serbia)393.
§ 615. In the Second Annual Clearing Point Report 2003 - 2004, it is said that as many
as 80% of trafficking victims were found and identified by institutions (the police and
social welfare centers), while self-referral accounts for only 20%394. What one should
be aware of according to ASTRA’s database is that escape is the rarest way out from
the trafficking chain. In only a few cases, victims successfully escaped from traffickers: in
subsequent communication with these persons, we would learn that after having escaped,
393
Limanowska, B., Trafficking in Human Beings in South Eastern Europe 2004 – Focus on Prevention in Albania, Bosnia and Herzegovina, Bulgaria,
Croatia, the Former Yugoslav Republic of Macedonia, Moldova, Romania, Serbia and Montenegro, the UN Administrative Province of Kosovo, UNICEF,
UNOHCHR, ODIHR, 2004, p. 57.
394
Surtees R., Second Annual Report on Victims of Trafficking in South-Eastern Europe 2005, Regional Clearing Point, p. 527.
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they contacted NGOs or the Embassy. For eight years of work, ASTRA SOS Hotline has
recorded only two cases of trafficking victims who managed to call our hotline directly
from the situation of acute violence.
§ 616. A certain number of trafficked persons were identified through ASTRA SOS Hotline, both
in the first stage of reporting to SOS hotline (presumed victims) and in subsequent field actions
where the presumed victim is confirmed or not confirmed to be actual victim of trafficking.
ASTRA SOS Hotline was contacted for the case of a minor girl who was suspected to be a
trafficking victim. According to information received, the girl was forced into prostitution
and begging by her mother in their place of residence and in a nearby town. For this
reason, the girl stopped going to school.
The local police was notified of the case, subsequently requesting official report from the
Social Welfare Center with regard to this and to one other girl.
ASTRA proposed to the Center possible options for providing care to the girl. She has
been temporarily placed in the Safe House (that work within the social welfare center in
a nearby town) until an appropriate foster family for her was found.
Although the Social Welfare Centre in charge has encountered indications of child
trafficking in their previous practice, too, this was the first time they decided to take
concrete protection measures and place the child in the shelter.
§ 617. Indicators upon which the Agency makes/confirms the identification include:
“documentation and transportation, exploitation, victim’s appearance and behavior,
reliability on provided data and information and fear”395. Although in many presentations
of Agency’s work it can be heard that “(…) the Agency does not make final decision on
whether someone is a victim or not without consultations with direct service providers”396,
in our opinion, it does not really use the possibility of assistance and experience of the
NGO sector in determining whether specific situation is a human trafficking case. It
can be assumed that one of the reasons for such practice of the Agency staff is that
independent NGOs are critical in assessing both their own work and the work of others,
all of this aimed at the provision of best quality victim assistance. It seems that such
an approach has become a limiting factor for enhancing cooperation. Failure to use the
resources of available actors, as well as the lack of capacities on the part of the Agency
(both human and financial), sensitivity and knowledge of its staff, unclear standards in the
identification of and dealing with trafficking victims, as well as dealing with specific cases
395
These indicators were also presented at the presentation of the work of the Agency for Coordination of Protection of Trafficking Victims given at
the training for medical workers organized by the Red Cross of Serbia in June 2007, but, unfortunately, we have not received any explanation of
these indicators based on which the appearance of the victim and the reliability of data are assessed, bearing in mind PTSD and other consequences
of human trafficking.
396
Presentation of work of the Agency for Coordination of Protection of Trafficking Victims given at the training for medical workers organized by the
Red Cross of Serbia in June 2007.
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instead of coordination, contribute to the poor quality of work. In such constellation, it is
not realistic to expect that victims’ rights would be respected in accordance with signed
and ratified international conventions.
§ 618. At the beginning of its work, the Agency’s staff included one social worker and one legal
specialist, who coordinated the Agency. They obtained substantial financial and experiencewise support, above all from OSCE Mission to Serbia in order to become sensitized and
professionally developed for work with trafficking victims. However, OSCE Mission stopped
financing the Agency on 31 May 2005, while the state failed to continue the support as
planned. For this reason, the legal specialist left the Agency and from that moment, several
psychologists, legal specialists and social workers changed on that position. Since all of them
stayed for a short period of time, it was not possible to include them into some continuous
education process that could bring qualitative progress to the victim assistance area.
§ 619. On the other hand, the most often situations in which the Agency contacts NGOs
refer to the accommodation of victims in the existing NGO-run shelters, since there is still
no state shelter for trafficking victims, and to the costs of different forms of assistance
needed to (presumed) victims. Yet, NGOs are often not allowed to make contact with the
victim, but their participation is reduced exclusively to financial support in the assistance
scheme. Although ASTRA has always responded to Agency’s request so far, believing that
victims’ wellbeing is our ultimate interest, such an approach is in contrast to the basic
principles of work of NGOs and shows the lack of understanding of the Agency staff for
the role of the civil sector in society.
In 2006, the Agency contacted ASTRA asking ASTRA’s lawyers to represent, before the
Kruševac Municipal Court, a trafficking victim – Bulgarian national. ASTRA provided legal
representative, but has never been in direct contact with the victim who had spent a short
period in the shelter for trafficking victims before that. The contact has been maintained
through the Agency throughout the whole assistance period and we can not talk about
the referral of the victim to ASTRA, but only about using ASTRA’s funds without any
intention of serious cooperation and long-term assistance to the client.
§ 620. In general, NGO potentials are insufficiently used in spite of the fact that we have
informed the Agency staff on more than one occasion of NGO possibilities and resources
in the provision of assistance and reintegration programs to trafficking victims. For that
very purpose, ASTRA has printed large quantities of informative materials intended for
clients and institutions whom the Agency comes in contact with. In our opinion, it is of
great importance to focus on Agency’s work on the coordination of victim assistance in
future, at the same time increasing its personnel and financial capacities. By not giving
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consideration to other victims’ needs, besides the need for shelter, for now the Agency
only refers clients to those NGOs that run shelters.
In 2006, a trafficking victim contacted ASTRA SOS Hotline directly from the situation of
violence. After successful intervention of the police of Bosnia and Herzegovina on the basis
of information provided by ASTRA, the girl was accommodated in the Shelter, where, upon
her own wish, she stayed for a short period of time. and returned to Serbia. When ASTRA
notified the Agency of this case and attempted, through the Agency and competent SWC,
to contact her, the Agency officer said that it could be understood as “running after” the
victim. On the other hand, the girl was not identified or sheltered in the territory of Serbia
and it was very likely that she was not familiar with assistance possibilities during recovery
period in our country. The Agency found out from the competent SWC that they had known
that girl from before, mostly because she was a sex worker. In spite of this and in spite of
the fact that girl’s mother, whom she returned to live with, was most directly involved in
her sale, the Agency officer still thought that SWC could do the assessment of living needs
and that additional intervention was not needed. During the following month, the Agency
officer nevertheless went to visit the girl in the town where she lived and notified ASTRA
of that later. Based on information which the girl gave during the conversation, and which
she confirmed to us over the phone, it was clear that this was the case of human trafficking.
However, Agency’s assessment was that the girl only needed material assistance, because
the victim herself stressed this as a priority. It is not known whether she was given the
contacts of organizations that could provide direct assistance or, bearing in mind the entire
situation, whether these contacts were given to the social worker that should have done
the case monitoring. Although ASTRA received first information about this case and shared
these information with all relevant actors aimed at victim assistance, at the moment when
assistance would have been realized in the process of recovery and (re)integration, the
Agency officer did not do the coordination and referral, but made the complete assessment
of victim’s individual needs based on one interview. In this way, the Agency fully excluded
the possibility of bringing the victim in contact with organizations that run (re)integration
programs, reducing their possible involvement and the need of a person, who was sold by
her mother and subsequently sexually exploited, to the provision of material aid.
§ 621. In spite of numerous training seminars that were organized for state officers who
are in direct contact with trafficking victims, where it was pointed out to the need to
conduct interview with the victim after her/his first recovery from the trip and with a
tone which is appropriate to the relation with the victim (client) and in no way from
the position of power, oversights still occur. Numerous prejudices are still there, too,
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including the doubt whether they are victims at all. Thus, it happens that the Agency staff,
forgetting their main role of coordinating victims’ protection, after receiving information
about a specific victim, go with the anti-trafficking police team inspector to the airport
and interview that person at the airport for several hours, in inappropriate premises,
whereby the person in question has been already identified as victim in the country of
destination. This could be quite exhausting after the previous traumatizing experience
and certainly does not contribute to the building of a relation of trust with the victim
which is necessary for future cooperation. Therefore it does not surprise that, after such
interviews, the majority of victims refuse assistance offered to them, wishing to leave the
airport as soon as possible.
In January 2006, an underage citizen of Serbia, identified in Italy, was repatriated to
Serbia. An ASTRA representative and two employees of the Agency for Coordination
of Protection of Trafficking Victims waited for the girl at the airport. The contact with
the girl has been established immediately after she has entered the airport building and
communication continued in one of the rooms at the airport. ASTRA representative
complained because the room was inappropriate for interview: it looked like a storage
space for unused desks and chairs and it was not possible to sit properly for conducting
the interview. Moreover, the air in the room was stale. It was obvious that the room was
not used for a long time and that it was not prepared for usage. To ASTRA’s objection,
the Agency’s psychologist suggested that the interview could be done at the police or on
Agency’s premises. ASTRA representative warned that it was in no way desirable to take
the child to the police, while the other staff member said that there was not enough time
to organize their going to the Agency.
After everyone shortly introduced themselves, one Agency officer started asking a series
of questions about girl’s departure for Italy, crossing the border and other details that had
nothing to do with assistance that should have been provided to the girl. This part of the
interview completely resembled police questioning. Finally, the girl said that she wanted
to go home as soon as possible. However, at that moment a police officer came who
showed ASTRA and Agency representatives into the room which was used by the airport
police. He also wanted to ask the girl about her trip, people who took her away and who
she met in Italy and the like. Since she already told everything to the employee’s of the
Agency, the girl refused to continue answering the questions because she did not “want
to repeat the same things twice” and she “told everything minutes ago”. The interview
started at 12.40 and ended at 13.57 o’clock.
§ 622. In contrast to the basic role of the Agency for Coordination of Protection of
Trafficking Victims, where the protection of (presumed) victims’ human rights should
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represent a strong component, its staff has never attempted to oppose the representative
of other NGOs or institutional bodies in situations when basic human rights and the
rights of trafficked persons were compromised. In our opinion, conformism and the
avoidance of confrontation with those who violate victims’ rights represent Agency’s
modus operandi in this very sensitive field. Although we believe this is only a temporary
phase that could be improved through more successful education, currently it results in
not always satisfactory treatment of presumed victims and inadequate protection for
which both material and partially human resources have already been developed.
While the Mobile Team was operational in 2004, ASTRA participated, together with the
Agency, in the identification or the provision of certain sorts of assistance to 16 trafficking
victims. However, when the Mobile Team was cancelled, the Agency considerably changed
its attitude towards ASTRA, which can be illustrated by the number of victims the Agency
referred to ASTRA: two in 2005, three in 2006 and five in 2007. In 2008 ASTRA did not
have any referral from the Agency. Seven victims were referred in 2009 and two in 2010.
More specifically, a total of 10 trafficking victims were referred to ASTRA in these three
years, which is 62.5% of victims referred in the first year of cooperation (2004). This is
in no way proportional to the number of victims which the Agency identified. Since the
number of organizations - service providers did not increase in this period, it cannot be
used as an explanation for such lack of cooperation.
Another illustration of the (absence) of cooperation is a case from 2007, when ASTRA
was contacted to provide legal assistance in the proceedings that took place in a town in
southern Serbia, in which a trafficking victim participated as a witness-injured party. In
addition to the fact that the victim was not referred to ASTRA and we did not have contact
with her, the Agency officer categorically said over the phone that no one from ASTRA
could go with them and the victim to the trial and that there was no need for that. Also,
probably provoked by such request, the Agency officer said that because such requests
to do the monitoring during the provision of assistance (although without insisting on
the establishing of direct contact with the victim to whom assistance is provided), she
would not come to ASTRA any longer. Such an attitude seriously compromises the right
of victims the Agency is in contact with to get adequate assistance and to be informed
about the options at all. In this specific case, ASTRA provided legal assistance in next
three trial sessions until the judgment was made. It is important to stress that ASTRA’s
representatives did not attend any trial session or directly contact the victim.
§ 623. The Agency runs two data bases: a database of assistance provided to identified
victims and a database of the institutions, organizations and professionals who can
provide specific sorts of assistance to trafficked persons. Data which the Agency obtain
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at identification and later, in the process of coordinating victim assistance, are kept in the
first database.
§ 624. The problem of technical nature which should be certainly resolved concerns the
location of the Agency. Namely, since it has been founded, the Agency works on the
premises of the Institute for Upbringing of Children and Youth in Belgrade. The nature
of work of both the Institute and the Agency is rather specific. Specific characteristics of
work with (presumed) trafficking victims require a separated location which would meet
basic criteria for contact with a trafficked person. Moreover, in 2004, the US Embassy, at
ASTRA’s and OSCE Mission’s initiative, donated to the Agency a car (Opel Sintra) which
is not used by the Agency, but for other purposes. During 2005, the Agency had been
transporting the victims by taxi until the moment when the Institute placed at Agency’s
disposal the car and the driver whenever they requested.
§ 625. As far as repatriation of trafficked persons is concerned, the state has left this area,
primarily because of its costs, to the International Organization for Migrations. After they
spend some time in the shelter and after their travel documents have been prepared,
foreign nationals are most often repatriated to their country of origin.
§ 626. One of the strategic goals defined in the Strategy to Combat Trafficking in Human
Beings in the Republic of Serbia is the prevention of secondary victimization of victims/
witnesses by state bodies through respecting consistently the victims’ human rights,
enabling efficient protection and effectively informing the victims about their rights.
In addition, the Strategy foresees the creation of long-term programs of protection
and reintegration of trafficking victims aimed at the provision of psychological support,
assistance and protection to all trafficking victims regardless of their willingness to
cooperate with authorities, enabling the continuance of schooling and professional
development, finding adequate accommodation and finding out the possibility of
receiving monthly compensation in the process of (re)integration.
§ 627. Since the beginning of the provision of assistance to trafficking victims, all victim
assistance costs have been covered from foreign donations. The budget of the Republic
of Serbia does not have a budget line allocated for direct assistance to trafficking victims,
but only one-time allocations have been made several times. In June 2006, the Ministry
of Labor and Social Policy signed the agreement with the Austrian Embassy in Serbia
and NGO Counseling Center against Family Violence (which ran until October 2010 the
shelter for trafficking victims). According to this agreement, the Ministry donated to the
Shelter EUR 75,000 of the total amount of EUR 289,000 which was the value of the
project to be implemented in the next three years397. The Austrian Government undertook
to continue financing the shelter through its development agency in the remaining part of
the project. Transparency and security, long-term financing of victim protection projects,
in particular those associated with shelters, would certainly contribute to better quality
397
The news taken from the website of the Government of Serbia on 14 June 2006 http://www.srbija.gov.rs/vesti/dokumenti_sekcija.php?id=42956
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of provided assistance, including long-term engagement of victim assistance staff. Also,
to improve the work, the mentioned projects would have to be regularly evaluated by the
donors, especially if Serbian government appears as the donor.
III.3.2.3.5. Counseling and Information Regarding the Victim’s Legal Rights
§ 628. Since the referral mechanism in Serbia is insufficiently developed and without
clear procedure, it is hard to establish what is the first point where the victims get
information and how comprehensive and quality this information is. The fact is that
a large number of victims are not informed about all the rights they are entitled to.
Sometimes it depends on victim’s cooperation with the authorities, above all the police,
whether she/he will be offered assistance. Some of the victims who had the first contact
with the Agency for Coordination of Protection of Trafficking Victims said that they did
not obtain all information of available forms of assistance or that information provided
were incomplete.
On more than one occasion ASTRA SOS Hotline has received calls from persons who,
having escaped from the trafficking chain, were trying to realize their right to different
forms of assistance. Already in our first conversation we would find out that they had
been in contact with the Agency for Coordination of Protection of Trafficking Victims
earlier, but did not get information about ASTRA and assistance available through its
programs. They learned about ASTRA from the members of other NGOs whom they
approached in search for support.
§ 629. The Agency is not supposed to provide specific forms of assistance to (presumed)
victims of trafficking, but only to give information about victim assistance providers. It is
important to stress here that besides ASTRA, only NGO Atina can provide free legal aid
by lawyers sensitized for work with trafficking victims. The Shelter used to provide legal
assistance only to its residents. This is all of free legal aid available to trafficking victims
not only in Belgrade, but in the whole territory of Serbia.
§ 630. However, the Agency’s employees rather opt for personally accompanying the
victim during the court proceedings, although they do not have formal legal education to
provide professional legal aid and counseling. Moreover, the existence of a mobile team of
organizations specialized in the problem of human trafficking would enable representation
in every town in Serbia, which is, depending on the organization, a possibility that is rarely
or even never used.
§ 631. As far as informing the victims of their legal rights is concerned, the above said
about free legal aid should be borne in mind. Namely, trafficking victims obtain free legal
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advice from legal specialists and lawyers who are engaged by NGOs and not from state
agencies. Besides information about their rights, legal consultations with the lawyer,
representation in criminal proceedings where victims appear as witnesses/injured parties,
NGOs also provide representations in civil actions for the compensation of damages,
where victims are mostly referred to after the completion of criminal proceedings. These
lawyers also represent victims in other civil and non-contentious proceedings which are
of key importance for rebuilding their lives, but which they would not be able to afford.
If we have a look at the number of legal assistances which ASTRA provided to its clients
in the period 2002-2010, we will see that there is a need for this form of assistance to be
provided by the state. Namely, during the previous period, ASTRA provided legal aid nearly
300 times, which means that one legal aid intervention was provided every 10 days in the last
eight years. In addition to informing trafficking victims about their rights, this also included
legal consultations, contract analyses, representation in criminal, civil and non-contentious
proceedings, etc. This shows a clear need for the introduction of such forms of free legal aid.
According to the Report of the Free Legal Aid Fund398, which was at that time considered to
be a starting phase for the introduction of this system in our country, the greatest number
of legal aid interventions which the citizens required from competent authorities referred to
primary legal aid, such as advice, information and simple petitions. Since human trafficking
is a serious problem and very often the problem connected to organized crime, it cannot be
expected that trafficking victims will be included in this legal aid scheme. Hence, NGOs will
remain the only source of legal assistance to trafficking victims.
ASTRA Database, Statistics for the period 2002-2010
§ 632. Some NGOs, because of the lack of resources, do not hire lawyers to represent
the victims in court proceedings, but only provide legal consultations. This is certainly
insufficient, bearing in mind the seriousness of the trafficking offence and psychological
and physical state of the victims. On the other hand, the Agency has failed to react in
such situations and engage the lawyers of other NGOs. Namely, coordination, which is
the primary role of the Agency, has not been achieved.
In 2006, the girl who was accommodated in the shelter for trafficking victims went several
times, in the company of the Agency officer, to court to give her statement. Although
formally all shelter residents have access to free legal aid, shelter’s lawyer was not present
at any session, because of which legal support and aid was not effectively ensured. As the
Agency was notified of this in the last second, it was not possible to hire the lawyer from
another NGO.
Legal advice or information on legal matters was not possible in such circumstances (the
398
Report on Work of the First Partners of the Legal Aid Fund, UNDP, Serbia, 2008.
220
Agency officer in question is a psychologist and not legal specialist). Also, such treatment
meant that the victim did not have support from the person who was familiar with the
legal system, which is imperative in work with trafficking victims throughout the entire
court proceedings. Court proceedings in connection with trafficking in human beings
always have manifold negative impact on trafficking victims and represent the form of
secondary traumatization. For this reason, the victim should be ensured representation
by sensitized lawyers throughout the entire proceedings.
Minutes from the meeting of the Group for Direct Assistance to Trafficking Victims
held on the premises of the Agency for Coordination of Protection of Trafficking
Victims on 7 February 2002
§ 633. It should be mentioned that this legal aid is free for victims, but not for NGOs
who engage the lawyers and pay them according to the Pricelist of the Belgrade Bar
Association or employ lawyers who provide this service.
§ 634. Moreover, many victims who lived in the shelter claimed that they did not have
timely information about court proceedings, their legal status or when they would be
allowed to return to their country of origin, which additionally increased their anxiety.
§ 635. Here we should also discuss victim’s right to be informed about his/her rights in
the language she/he understands399. Trafficking victims who were foreign nationals most
often had contact with the Section for Aliens of the Belgrade Police Department. Due to
specific nature of their work, police officers employed there speak foreign languages or
engage professional interpreters. Also, during court proceedings, presiding judges usually
ensure the interpreters so that the victim could communicate with the court and answer
the questions.
§ 636. Still, there have been examples that state authorities failed to ensure the interpreter
for the victim or called the interpreter only when they needed information and not when
the victim had a need to communicate in her/his language.
One of the first actions of the Mobile Team (ASTRA and the Agency for Coordination
of Protection of Trafficking Victims) was the identification of three girls. The girls were
Romanian nationals who were found in one motel east of Belgrade. Since in the first
contact they said that they did not understand Serbian, ASTRA representative required the
interview to be stopped and to wait for certified interpreter. The Agency’s representative
refused, saying that “all of them understand Serbian, they just pretend”. Team members
got into an open conflict, but thanks to ASTRA representative’s persistence, the girls were
provided with the interpreter in the Shelter.
399
It is interesting that the new Asylum Law (Official Gazette of RS, no. 109/2007), in Article 11 provides for free of charge interpretation in the
language of the country of origin, i.e. the language the person in question understands. This obligation refers to the use of sign language and
availability of materials in Braille and other appropriate formats.
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In November 2004, a 12-year old Iraqi national was placed in the shelter for trafficking
victims. Since she spoke only Arabic, the interpreter was provided right away. The
interpreter was the professor of Arabic language at the Belgrade University Faculty of
Philology. Her assistance in establishing communication with the girl developed on several
levels. During the first days of girl’s staying in the Shelter, it was agreed with the staff
that the professor would come any time either the girl or the staff needed her for formal
conversation that would provide data necessary for further planning or the assessment
of the situation. Also, the professor was permanently available on her mobile phone, i.e.
any time during the day when it was necessary to translate something. Shortly after the
girl had arrived to the Shelter, the professor started giving the girl Serbian lessons several
times a week. Since the girl had the basic knowledge of English language, which was
insufficient for communication, but it was a good starting point, the girl simultaneously
studied English. Soon after, both her Serbian and English vocabularies were improved
in such a way that she was able to communicate with the staff and other resident. It is
important to stress here that the interpreter was initially hired primarily to enable the
staff communicate with the girl and learn basic information about her and her needs. It
was only at the initiative of the professor, who agreed to be available non-stop for the
best interest of the girl, that the possibility of establishing constant and independent
communication with the girl was taken into consideration, so that she would not be
completely isolated given the fact that she was not allowed to leave the Shelter. The
professor/interpreter provided her services for the most part free of charge, wanting only
to help the girl to adjust better in a foreign country and in a completely new and for a
child of her age unusual circumstances. She recognized the girl’s needs which were not
foreseen in the work of Shelter and which the Shelter staff did not observe as relevant.
We should look at the implications of the girl’s studying Serbian at the Shelter. Namely,
from the moment of her identification, the girl showed strong resistance towards
reconnecting with her parents and returning to Iraq. For her, studying Serbian was a sign
that her staying was not in question and that she was getting prepared for living in Serbia.
The arrival of her family, which she was not notified of until the moment she met with
them in Belgrade, and her quick return to Baghdad, were certainly in contrast to her
expectations. At the same time, persons who were linked to the question of her staying in
Serbia and whom she was in contact with, were encouraging her to study Serbian and to
joint various activities, in which way they indirectly confirmed her expectations. On the
other hand, during her staying in the Shelter, no measures were taken to create conditions
for her staying in Serbia. In this way, due to inappropriate understanding of child’s needs,
the girl was given a false hope that her wishes will be respected.
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In October 2006, at the meeting of the Agency for Coordination of Protection of
Trafficking Victims, it was agreed that ASTRA would try, through the Danish Red Cross,
to find the brother of a girl who lived at that moment in the shelter for trafficking victims.
Since this was an Albanian girl from Kosovo who only spoke Albanian, she was provided
with the interpreter on several occasions when she had meetings on Agency’s premises in
connection with search for her brother. To our knowledge, she was preparing to go to her
sister’s at the end of December, because her brother, whom we managed to contact with
in the meantime, was not in situation to take her, although she was still in the Shelter at
that time.
It is indicative that during three months, which is the shortest period of her staying in the
shelter according to the available data, the staff did not have any verbal communication
with her. Besides several times when she went to the Agency, the interpreter was not hired
for counseling, informing her on any issue or providing some form of assistance which the
Shelter offers to trafficking victims. If during three months of her staying in the closedtype shelter a trafficking victim or a person who suffered any form of trauma is not able
to communicate verbally, due to language barrier, with persons from her environment,
it is obviously not the treatment that is in accordance with basic principles of humanity.
III.3.2.3.6. Medical Assistance
§ 637. It is well known that trafficked persons have the experience of physical and
mental abuse resulting in physical injuries and (long-term) mental problems – they often
suffer the consequences of physical/sexual violence, alcohol and drug addiction and
psychological traumas. As a rule, trafficking victims need urgent medical and psychological
assistance immediately after escaping from the situation of trafficking. Such a need exists
also throughout the whole period of recovery, which usually begins in the country of
destination and continues in the country of origin, and may take years. Psychological
assistance should be inclusive and flexible to adequately respond to the needs of every
individual client. This is upon which the shape and duration of assistance programs should
be determined throughout a long period of recovery.
In mid-January 2003, a Moldovan national was put in the Belgrade Emergency Medical
Center because of serious spinal injury which she sustained after she tried to climb down
the balcony of the flat in which she had been sexually exploited for 15 days. Although
she was not critical, it was certain that this young woman and a mother of two would
stay paralyzed unless money for her surgery were found. For a couple of days, intensive
communication took place between all relevant local and international organizations that
could bear the costs of the surgery.
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In the end, IOM covered the costs and the surgery was successful. The woman was
returned to the shelter for trafficking victims already on January 27, where she was
recovering following doctors’ advice.
§ 638. With regard to medical assistance, it should be borne in mind that it includes
not only emergency medical assistance provided at the first contact, i.e. after the victim
gets out of the trafficking chain, but also assistance that is provided in later stages of
recovery. Besides medical assistance in treating the most common problems faced by
trafficking victims (gynecological, dental, internal, ophthalmology…), they also need
psychological and sometimes even psychiatric help. All these sorts of medical assistance
are provided thanks to NGO donations. Theoretically, domestic citizens who are
identified as trafficking victims and who have medical insurance can ask for assistance in
public health institutions. However, in practice, in fear of institutions, they would rather
approach NGOs for help. Foreign nationals, either for language barrier or for ignorance,
rely exclusively on NGOs. Most often, medical assistance is rendered in private clinics,
when for administrative reasons or for the absence of free terms, this cannot be done in
public health institutions.
§ 639. The issue of adequate psychological assistance to trafficking victim is often raised
at the meeting of the providers of direct victim assistance. The patient’s medical records
are often poorly kept, which would later present a problem for both doctors in the country
of origin and judicial authorities in the destination countries where criminal proceedings
most often take place.
In January 2003, a Moldovan national had a spine surgery at the public health climatic in
Belgrade (see the previous example). She recovered successfully and, after she testified
against the perpetrators who were one of the links in a large human trafficking chain, she
was repatriated to Moldova.
In July 2004, an ASTRA employee traveled to Moldova for business. She used the
opportunity to meet with the client, who complained of severe pain and informed us that
Moldovan doctors feared that her lower extremity muscles might atrophy. She asked us
to find a medical report on her surgery in Belgrade which was necessary for her further
treatment and possibly for another surgery.
However, the entire procedure in Serbia lasted for several months. The main problem
was that the patient was a foreign national whose medical costs were covered by an
international organization. The hospital kept requiring additional documents and
postponing the issuance of the paper which should have been an integral part of the
medical records. Although the patient officially addressed the hospital in Belgrade, both
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personally and through the international organization which paid for the surgery, the
findings and records of the surgery were never delivered to her.
§ 640. To our knowledge, no state institution which have the capacities to implement
such program within the scope of its work have ever offered psychological assistance
to trafficked persons, nor are there specialized programs targeting this population. The
Agency is supposed to coordinate the provision of psychological assistance to trafficked
persons, but not to be the service provider itself. Ever with such a tiny role in the provision
of this form of assistance, the Agency acts passively.
§. 641. The shelter for victims of human trafficking within the Counseling Centre against
Family Violence did not have permanently employed psychologists, but they came to
visit once or twice per week or as needed. The work was mainly individual, and therapy
was not implemented continuously.
The shelter for trafficking victims provides psychological assistance to all its beneficiaries,
more specifically, “a team of psychologists and psychotherapists help the shelter residents
overcome their trauma and post-traumatic period”, as can be read on the website of the
Counseling Center against Family Violence which runs the shelter400.
However, girls who spent some time in the shelter and used its services said that
psychological assistance was primarily reduced to the provision of medicamentous
therapy. Support and individual counseling are not part of the activities which take
place there. On the other hand, besides one psychologist, it is not known who
would be the members of the team for this kind of assistance as mentioned on this
organization’s website.
ASTRA’s client, to whom ASTRA continued to provide psychological assistance during
two years after her departure from the shelter and who is today very successful and
functional person, was very often saying that she did not receive expected assistance
from the psychologist at the shelter:
“… she is so arrogant that I could not talk with her at all. We maybe talked only once or
twice while I was at the shelter…I felt like a guinea pig. It seemed as if she was asking the
questions out of curiosity, just to hear about everything I have been through. I have never
felt that she understood how I felt, how hard it had been for me back then… And it was
horrible. Support and real help would have been very helpful for me during that period…”
It is not unrealistic that the psychologist in question had a specific therapeutic approach
which did not fit the client, but it certainly cannot be true for all similar statements
we got from other shelter’s beneficiaries. Besides an introductory interview, when the
psychologist was taking data from the victims for the anamnesis, they did not have any
400
http://www.savetovalisteprotivnasilja.org/active/sr-latin/home/aktivnosti_v01/skloniste.html
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professional psychological support. Instead of therapeutic sessions, the assistance in this
area was based on medicamentous treatment, mostly of acute symptoms.
§ 642. Mentally challenged or psychologically changed victims are particularly neglected.
Only in a few cases a psychiatrist was engaged. Although they were accommodated in
the shelter, they were soon referred to specialized institutions, for which it should be
borne in mind that are equipped rather poorly, while medical staff there is not trained to
address the needs of trafficking victims. Moreover, there has not been any initiative for
alternative programs for such victims.
In 2004, the Shelter admitted a young woman (35) who was sold by her partner for sexual
exploitation. In addition to her poor physical shape – she had a STI, unwanted pregnancy,
stomach problems, etc. - it was found that the client had been schizophrenic since the age
of 18 and that she was occasionally hospitalized in one psychiatric hospital in Belgrade.
Although the Shelter formally provides psychological and when needed psychiatric help,
besides psychiatric medicamentous treatment that was prescribed upon her arrival and
was regularly purchased from then on, no subsequent check-ups were performed nor did
the psychiatrist talk with her to assess her psychological condition later. This is important
to know bearing in mind that this is a closed-type shelter with collective accommodation
and at least three children (age 11-14) were living there at every moment of her staying .
Since her condition changed over time, i.e. the staff observed prolonged periods of
psychological anxiety and motor hyperactivity, several times they called the psychologist
who was occasionally visiting the shelter. Unfortunately, after numerous calls to do
something, since victim’s condition deteriorated dramatically, the psychologist in
question gave the following answer: “Let her go totally insane and then we will arrange
the hospitalization”.
Short time after this conversation, the victim was showing weaker and weaker control of
her impulses and after she verbally threatened to other residents of the Shelter, she was
taken to the Emergency Medical Center. After a few days, she was sent to long treatment
in the psychiatric institution in Padinska Skela. The doctor who admitted the victim said
to the Shelter employee: “Why have you waited for so long?”.
The described inadequate treatment of the victim during her staying in the shelter directly
resulted from the absence of sensitized staff that has specialized training for work with
trafficking victims who are psychologically changed.
From the conversation with the employee of the Shelter for Trafficking Victims in
Belgrade, September 2004
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§ 643. We should certainly mention the Institute for Forensic Medicine in Belgrade as a
positive example of victim assistance service. The staff of the Forensic Medicine Institute
has a long-standing cooperation with NGOs that deal with the problem of violence in
general. An advantage of this institution is that its findings are admissible in court and the
victim does not have to undergo medical examination all over again for trial purposes once
she/he has been examined at the Institute. The staff of the Institute for Forensic Medicine
which is sensitized and trained for work with victims of all forms of violence, carries out
clinical examinations401 in order to obtain high quality and complete documentation
needed for forensic expertise. According to the research, the documentation on the
examination of victims of violence is poor and incomplete. Consequently, in some court
proceedings it is not possible to draw reliable conclusions (e.g. regarding the mechanism
of inflicting injurious or when the injury was inflicted). The Institute for Forensic Medicine
is pointing to the importance of developing the center where the victims who have
got injured in a violent event would be referred and where they would be examined at
the request of the police, the judiciary and NGOs, but also at their own request. The
police and judicial authorities refer victims of all forms of violence to the Institute for
Forensic Medicine so that they could be provided with adequate health services, as well as
medicinal and photographic documentation appropriate for the court proceedings.
§ 644. In March 2004, an examining room for the victims of violence was set up402 and
in one-year period 37 examinations were done. There are 17 forensic medicine doctors,
two biologists at the DNA lab and one toxicologist working at the Institute. Based on the
analysis of court records from the Belgrade District Court and on medical documentation
of 113 rape victims, it has been found that only in one fifth of cases the doctor wrote
down the anamnesis, while the description of injuries in only 9% of cases met the criteria
advocated by forensic medicine doctors. As little as 45% of the analyzed findings were
satisfactory, while the photographs were not taken in any case. Therefore, although those
victims received good health service, they were not provided with valid documentation,
which is one of the most important pieces of evidence in court proceedings.
§ 645. Problems which trafficking victims are most often faced with in medical institutions
are the ignorance of medical workers regarding the problem of human trafficking or the
lack of sensitization for the problems victims are suffering. This is additionally illustrated
by the fact that since the beginning of work of ASTRA SOS Hotline to date, we have not
received any report of a presumed human trafficking case by a medical doctor or other
medical professional. On the other hand, almost all victims testify of having had medical
assistance which the trafficker provided and paid for403.
401
402
403
These services are charged according to the official price list.
That is why in 2005 ASTRA started the first trainings for medical doctors and health care professionals.
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At the beginning of February 2006, the girl who was several years earlier identified as
trafficking victim called ASTRA, asking if one of SOS consultants could go with her to the
gynecologist at the health center. She said that some time ago she had been raped and
robbed at her own home. We had known from before that she lived alone and that the
house was inappropriate for living (no bathroom, kitchen or heating). She reported the
case to the police, but did not go to see the gynecologist yet.
Before the examination, the SOS consultant introduced the doctor into information
relevant for the case, in particular that the girl had had the experience of sexual violence.
However, having done the examination, the doctor asked to talk again with the consultant
and started by saying: “Don’t bring her here again”. She explained that the girl was
neglected both in terms of health and hygiene and that she refused to do the examination
in such circumstances. She also asked whether our client was sex worker. It was explained
to her that the girl lived in very inadequate conditions and that severe infection resulted
from the abuse she suffered which was not immediately medically treated.
The control check-up after the end of the treatment and subsequent check-ups were done
at the private clinic with whom ASTRA has signed a memorandum of cooperation and
which doctors are sensitized for working with highly traumatized persons.
§ 646. Victim’s right to information on her/his health status, including her/his HIV status,
is the issue that requires special consideration. Unfortunately, HIV and STD testing for
trafficking victims is not regular practice in Serbia.
§ 647. Moreover, the protection of privacy of victim’s health data is very often a
questionable issue. Hence, due to prejudice and general ignorance of the staff in state
institution, but also in some NGOs, victims are discriminated against and victimized.
At the beginning of 2006, ASTRA’s client who suffers from Turner Syndrome was admitted
to one home for mentally challenged persons. This admission required enormous
eagerness and coordination with competent social welfare center.
Since the girl had been previously diagnosed with Hepatitis B, the staff of the home
agreed to admit her only temporarily, but refused to ensure any durable solution. When
ASTRA team went for a visit in mid-February, we were informed that her further staying
was seriously questionable. This was because the girl allegedly did not fit into the profile
of their beneficiaries, since she was only lightly mentally challenged, while the home was
intended for more serious patients. In addition she had Hepatitis B, which, alongside the
kidney infection the girl also had, required constant medical supervision, which was not
possible to ensure there.
However, it turned out that essential problem was that the information about her
Hepatitis B status “leaked” and the whole village – the majority of the staff live in that
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village – was in fear that the infection would spread. It is not known how something that
should be confidential medical data turned into public information. However, in spite
of dramatic violation of ethics in the treatment of home’s beneficiaries, emphasis was
put on the fact that the girl did not meet criteria for admission in that specific collective
accommodation and that the safety of both beneficiaries and employees was seriously
compromised. The girl was isolated in an inadequate room, where she lived with another
home resident because “they could not isolate her completely”, as the home director said.
The situation was the same in March: the girl was still isolated, which she had difficulties
to cope with. Fear of epidemic was still very strong, although ASTRA representatives tried
again to explain to the staff – which, by the way, should have certain medical knowledge
– that with minimum precaution measures this type of Hepatitis was not contagious
because it could be transferred only through the exchange of bodily fluids.
At the end of May, the girl was tested once again. When it was confirmed that the type of
Hepatitis B which she had was inborn and inactive, she was released from isolation where
she spent 4 months.
It was as late as in early June that we were informed by the Agency for Coordination of
Protection of Trafficking Victims that the social worker from the competent social welfare
center called to say that the girl could stay in the home.
Today, she is one of the favorite beneficiaries, very active in their cultural programs.
§ 648. The reaction of those who come in contact with trafficking victims and the
financing of medical treatment of ill victims are special issues. The same problems are
generally experienced by persons infected with STDs and HIV/AIDS in Serbia.
§ 649. In this area, ASTRA has excellent cooperation and positive experience with the
Students’ Policlinic in Belgrade, which provides free and anonymous HIV/AIDS and
Hepatitis B and C, with pretest and post-test counseling.
III.3.2.3.7. (Re)integration
§ 650. In view of everything said about employment, educational and training
opportunities in the Legal Analysis of Article 6 (3), and having in mind the significance of
economic empowerment in the (re)integration of trafficking victims, we may conclude
that this area is still in its early stage of development and that only NGOs provide such
assistance in Serbia. Again, other countries in the region do not have many positive
examples and good practices of reintegration, either.
§ 651. The (re)integration of trafficking victims in Serbia is often confused with recovery
and is not approached as the process which requires the involvement of different state
authorities because of its duration and because of the experience of professionals in
institutions which may be used for the (re)integration of trafficked persons. Although the
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list of problems is much longer and without going into the reasons for such an approach,
we are of the opinion that (re)integration in practice is without good reason equalized
with recovery. If state institutions are pursing such policy, NGOs must not be satisfied
with that, accepting the lack of findings as an excuse for not working404.
§ 652. Having in mind that economic (re)integration is also important in terms of the
prevention of recidivism, it should be stressed that financial assistance in the emergency
phase does not exist. As for institutions, only social welfare centers, which work within
the Ministry of Labor and Social Policy, have possibility to give one-time material aid to
their clients. Formally, this means that only domestic nationals may be the recipients of
this aid; more precisely, only domestic nationals with permanent residence in specific
municipality. Even in such cases, this procedure may take time, which certainly does not
constitute it as an emergency help. Moreover, social welfare centers may offer longterm material aid if the beneficiary, besides the above mentioned condition, fulfills other
conditions, e.g. that his/her monthly income does not exceed certain threshold which is
determined relative to statutory minimum wage in the Republic of Serbia.
§ 653. As far as NGOs are concerned, to our knowledge, financial assistance is the rarest
form of assistance offered to trafficking victims. An enormous obstacle is the lack of
understanding on the part of donors with regard to this type of costs. Only sporadically
budget lines regarding emergency fund are approved.
On several occasions, when it was necessary to provide living necessities (food, hygiene,
clothes) and medications for trafficked persons, ASTRA would pay agreed amount of
money to the account of the social welfare center in charge which would be spent for
that specific purpose. This has turned out to be very good practice in cases when prompt
reaction was necessary.
ASTRA data base ID 2590
§ 654. A basic prerequisite for the provision of assistance and for subsequent successful
(re)integration is client’s consent. This also applies to psychological assistance. Trafficked
persons often refuse any assistance immediately after they have got out of the situation
of violence, but they come back after a few months or a few years. It is important to
emphasize that the victim is entitled to assistance at that time, too. However the
Agency for Coordination of Protection of Trafficking Victims takes this initial refusal for
granted and often use it as an excuse for its own passiveness, without bothering to learn
something about the psychology of trauma and about mistrust which all victims have
in contact with institutions. This is up to the assessment of the very person in question
whether he/she is capable of coping with that experience her/himself or not, whether
404
If we calculate the costs of this project per client, they are EUR 1000 annually, which leaves room for NGOs to lobby their governments for
reintegration funds for trafficking victims to be allocated from their state budgets.
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her/his coping mechanisms are effective and efficient or not. All coping mechanisms
which contribute to the integration of client’s personality, psychological benefit and his/
her better functioning in the outer world are always supported whole-heartedly.
§ 655. In 2005, ASTRA, in cooperation with UK organization “Women to Work”, carried
out a pilot economic empowerment program for trafficking victims. The program was
based on mentoring system, which is still not very often in Serbia. This program, besides
support, gave our clients knowledge on how to start up a SME. However, some excellent
business plans could not be implemented in reality because banks require a real estate
or other valuables as a collateral for the loan, which trafficked persons in the majority of
cases do not possess.
§ 656. In direct contact with trafficking victims, we have learned that (re)integration is
a long-term process that requires comprehensive approach and cooperation of all actors
involved in the provision of assistance, both governmental and nongovernmental. To
achieve this, ASTRA extensively uses all contacts it has with institutions and international
organizations, and with regional and international networks established in the previous
period, but it also participates in building new ones. The reality of our clients shows that
they are often suffering PTSD, hard economic situation, complicated family relations,
interrupted education process, unemployment, legal invisibility in the system, difficulties
in realization of their basic rights, lack of free health services.
§ 657. (Re)integration programs must constantly be changed and adjusted to the clients’
needs and not be rigid and all-purpose On the other hand, rapid involvement of the
state institutions is necessary, not only because of state funds, but also because of the
experience and expertise that professionals from institution have in their fields.
§ 658. When we talk about the cooperation among countries, we are usually focused
on police cooperation and prosecution. Invaluable for the process of (re)integration is
cooperation and exchanging the information between NGOs and institutions from the
destination and source countries. These pieces of information sometimes could be crucial
for the recovery of the victims and further reintegration process.
§ 659. The lack or non-efficiency of complementary (re)integration programs makes our
work much harder. For example, there are no alcohol and drug rehabilitation programs or
resocialization programs for convicts after they have served their sentence. Also, for the
(re)integration of trafficked persons, it should be remembered that one number of clients,
as well as some social groups, have never been really integrated into society. In such cases
we may speak only of integration, which is again associated with specific difficulties.
In 2007, ASTRA came in contact with a young man who was identified as a trafficked
person for the purpose of forced begging. This case was specific because the client was
a person with disability (he lost his both arms in an accident when he was 15). Feeling
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rejected and useless, he was accepting various job offers, trying in this way to satisfy other
people’s wishes and expectations. He though that others would accept him better in this
way and that he would fit in more easily as less discriminated and more useful member
of both his family and society as a whole. What made his situation additionally difficult
is evident absence of adequate social welfare measures that would enable him to satisfy
his own needs and his desire for self-expression through some form of activity. In this
specific case we cannot talk about reintegration, since previous integration did not exist
or its quality was unsatisfactory.
The young man was recruited for human trafficking by a neighbor who was familiar with
his situation. The neighbor recognized our client’s needs and found a way to exploit him,
giving false promises and offers of friendship and support, which in the end turned out to
be only a manipulation designed to win boy’s trust in order to push him more easily into
many years of exploitation and torture.
After having got out of the trafficking chain, this young man has been faced with double
difficulties in the process of (re)integration: as a person with disability and as a trafficking
victim. The lack of adequate measures for handling any of these problems only added
to already difficult situation. Besides having to cope with the trauma caused by the
loss of arms, he is now forced to deal with PTSD which resulted from human trafficking
experience, which is, again, closely linked to his disability.
ASTRA Database, ID no.l1737
§ 660. In addition to the fact that only a few organizations in Serbia target persons with
disabilities, and even smaller number of them can offer activities for this specific form of
disability, it should be stressed that we also do not have adequate (re)integration programs
for male trafficking victims. Problems they face are different from those experienced by
female victims, which, if the victim is a person with disability, considerably aggravates the
process of (re)integration.
§ 661. All these factors make the process of (re)integration of trafficking victims difficult
and require the adjustment of these programs and tailor-made approach. Moreover, it
is necessary to ensure dedicated work of all relevant actors – both governmental and
nongovernmental - on primary integration of these clients. Only than can we talk about
reintegration process. Persons with disability are only one of the marginalized social
groups for who (re)integration process is to a great extent aggravated.
§ 662. ASTRA has worked with other groups of people whose (re)integration process
require completely different standards and rules.
In 2006, a girl with psychologically changed behavior was identified as a trafficking victim.
Several years earlier, she was diagnosed a bipolar disorder. One of the side effects of
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this disorder is the loss of rational judgment of situations and people, weak control of
impulses and the loss of self-criticism. She was recruited by her then boyfriend. Due to
specific characteristics of her state, the process of (re)integration must involve broader
range of assistances, with special emphasis on psychological assistance in order to, first of
all, stabilize her psychological condition and establish some sort of psychological balance.
Only than could she benefit from other forms of assistance that lead to final (re) integration.
§ 663. Besides mental health hospitals, there are no organizations, either in Belgrade
or elsewhere in Serbia, that deal with problems or provide support for psychologically
changed persons and that can provide assistance to trafficking victims. Namely, (re)
integration of these clients requires lots of work, commitment and persistence, whereby
effects may be unnoticeable for a longer period of time. In addition, there is a risk of failure
due to the dynamics of psychological condition and its unpredictability. The complexity
of the (re)integration of trafficking victims and the lack of readiness of some organizations
and institutions to deal with it more thoroughly and deeply result in the situation that
such persons never enter the assistance system.
§ 664. Serbia does not have sufficient number of successful drug rehabilitation programs,
while long-term and systematic assistance almost does not exist. One of important
conditions for successful (re)integrations is stable environment and support from close
persons. The fact that systematic assistance and support does not exit either for trafficked
persons or for addiction diseases makes the entire process additionally difficult.
Since 2005, ASTRA has been in contact with a girl who belongs to the vulnerable group in
terms of reintegration. Namely, the girl is a drug addict, which in part contributed to her
becoming a trafficking victim. An aggravating factor for her reintegration was the absence
of support in her family, i.e. dysfunctional family, which pushed her into addiction in the
first place. The same factors are the obstacle for both her rehabilitation from narcotics
and for (re)integration after getting out of the trafficking chain. In work with this client,
ASTRA has been trying to find ways that would ensure permanent recovery, but assistance
was provided mostly sporadic and ad hoc.
A client, who was in her first trimester of pregnancy, came to ASTRA due to an abstinence
crisis. Regardless of the fact that she had succeeded for a long time to keep her need for reusing
drugs under control, at that moment she felt she needed an emergency meeting with a doctor.
Accompanied by a consultant of the ASTRA SOS Hotline, the client went to the Special Hospital
for Addiction Diseases in Belgrade, in the infirmary, where, after a conversation about her
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ARTICLE 6
current condition, they referred her to the Counseling Centre within the Hospital. The next day
the client found out that she needed a letter of reference for the treatment in the authorized
Health Centre, but regardless of the fact that she did not have the necessary documentation,
the manager of the Department of Diagnostics and Treatment of Drug Addicts as well as a
social worker held the meeting with her and they made plans for further steps.
Almost a month later, after the reference letter arrived, the client spoke to a psychiatrist
who proposed to the client the possibilities of the Special Hospital. The hospital treatment
lasts as many days as it is needed to regain a psychophysical stability, but they gave
up on this because her pregnancy was contraindicated for a hospital accommodation
and treatment. The stabilization phase would be possible in the Clinic for Drug Addicts
(individual work with the patient and his/her family which lasts a few months) or in a Daily
Hospital for Drug Addicts (group work with the patients and their families, every working
day for two months), but since it was necessary to involve an associate, i.e. a member of
the family or a partner, and the client had neither the support of the current partner nor
the parents’ support for this kind of treatment, once again there was no solution to the
problem. The doctor suggested that she consult her colleagues and check for additional
options. It turned out that despite the good will of all the employees in the Special Hospital
for Addiction Diseases, there was no support program, created based on the individual
needs and possibilities of the persons who used drugs and want to treat their addiction.
III.3.2.4. Special Needs of Children
§ 665. The Convention on the Rights of the Child is nowadays a broadly accepted
document which has to a great extent changed the understanding of the rights and
freedoms of the child. The definition of a child, i.e. childhood was changing during the
history and it has become recognized as an age category which is after all different than
adulthood. Childhood still has different definitions and how a child is treated depends on
specific tradition and culture. The Convention is the document which recognizes specific
needs of a child and rights the child is entitled to on that basis. The rights of the child are
today recognized both in national and international law. The Convention on the Rights
of the Child, adopted in 1989, is the most important international instrument in this
area. Rights recognized to children by this international document cover all aspects of
child’s life: state, family, school, institutions, etc. The basic goal of the Convention is to
change attitudes towards children and to shift from protective (and in some societies
even negative) approach to the idea of equality of children with other human beings.
The Convention is one of the most important international instruments which not only
clearly and explicitly defines the rights of the child for the first time, giving a rather
extensive list of all rights (civil, political, economic, cultural, etc.), but it is also the
international document with the largest number of ratifications. The Republic of Serbia
234
has ratified the Convention on the Rights of the Child and thus undertook to take care of
its implementation, i.e. to protect the rights of the child and to promote the position of
children. However, this is not only the obligation of the state, but also of individuals, who
must show through their every-day actions that they recognize and respect the rights
which belong to children and youth405.
§ 666. According to UNICEF Guidelines406, child trafficking is the act of recruitment,
transportation, transfer, harboring or receipt of a child for the purpose of exploitation
either within or outside a country. Consent of the child victim to the intended
exploitation is irrelevant even if none of the following means have been used: “force,
coercion, abduction, deception, abuse of power or actions taken while one is in a state
of vulnerability or while one is in the control of another person”. 407 A child victim of
trafficking (“child victim”) is any person under 18 years of age.
§ 667. Due to their physical and psychological development, children are more vulnerable
to human trafficking. For this reason, there is a corpus of rights that should ensure as
comprehensive as possible protection of children. The concept of the rights of the child
designates rights which are human rights in their nature and which belong to every child
regardless of where the child lives, i.e. regardless of the state, political, cultural and economic
environment, tradition, customs and beliefs in a specific community. Although all rights are
equally important and indivisible, four of them are promoted into basic principles:
• Right to life, survival and development,
• Best interest of the child,
• Non-discrimination,
• Participation.
§ 668. Child’s right to participation means that a child capable of forming an opinion will
be recognized the right to express such opinion regarding all issues of his/her concern,
whereby due attention should be paid to child’s opinion in accordance with her/his age
and maturity.
§ 669. Acting in the best interest of a child is a legal standard which requires
operationalization, because abuses are easily possible: who should estimate what is the
best interest of the child and how can we be sure that the decision made in the specific
case is right? That is why it is often said that the rights are indivisible. To make sure that
the decision will reflect the best interest of the child, in addition to sensitized and trained
professionals, it is also necessary that children take part in the assessment of their own
best interest.
§ 670. Trafficking in children is a special form of abuse and violation of the rights of the
child which has a range of specific characteristics compared to other forms of human
trafficking. It includes:
405
406
407
Vršnjačka medijacija - od svađe slađe, GTZ German Agency for Technical Cooperation.
UNICEF, Guidelines for Protection of the Rights of Children Victims Trafficking In Southeastern Europe, May 2003.
Ibid.
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ARTICLE 6
• Child trafficking for the purpose of sexual exploitation, child pornography and
pedophilia,
• Child trafficking for the purpose of labor exploitation,
• Child trafficking for the purpose of forced begging,
• Child trafficking for the purpose of criminal offenses, drug dealing and other forms of
asocial behaviors,
• Trafficking in unborn children or in newborns for the purpose of adoption,
• Child trafficking for the purpose of marriage,
• Child trafficking for participation in armed conflicts,
• Child trafficking for the purpose of organ selling.
§ 671. Children who are at risk of human trafficking are:
• Children without parental care,
• Roma children,
• Children living in open correctional facilities and immediately after leaving children’s
homes,
• Children with disabilities,
• Children with asocial behavior,
• Children in dysfunctional families,
• Children – victims of family violence (physical, emotional and sexual),
• Children who live and/or work in the street.
§ 672. Besides general principles by which children –victims are entitled to special
protection measures - as children and as victims - in accordance with their special
rights and needs, the best interest of the child is the basic priority in all procedures
involving children. Persistent respect of child’s rights to non-discrimination, information,
confidentiality and respect for the view of the child are necessary, too. UNICEF Guidelines
govern the process of identification, the appointment of a guardian, questioning, interview
and initial activities, referral to appropriate services, cooperation of all actors, care and
protection in transitional period, the regularization of status, the implementation of a
durable solution, safety and victim/witness protection.
§ 673. Physical, psychological and psycho-social damage which child trafficking victims
have experienced and their vulnerability to exploitation require that they should be
treated separately from adult victims in legislation, policies, programs and interventions.
Child trafficking victims should receive appropriate support and protection with special
emphasis on their special rights and needs.
§ 674. During exploitation, children are exposed to different forms of violence and
they feel helpless, without safety and support, thus losing the sense of belonging and
of psychological footing. By falling victim to trafficking, the child enters the process of
very specific socialization by a criminal environment, which may result in developing a
236
range of destructive and asocial behaviors. The basic principle in providing support to
child trafficking victims includes work on building their own strengths and comprehensive
recognition of needs, views and capacities of the child and its environment. Efforts invested
in measures for recovery and reintegration of children are based on respect for individual,
developmental and other needs of children and the participation of children, families
and direct support network in the planning of needed services and protection measures.
The promotion of child’s strengths and participation is aimed at achieving as relevant as
possible interventions, resuming responsibility for one’s own life, coping with helplessness
which trafficking victims are faced with, building self-respect and preserving child’s dignity.
§ 675. The system of protection and assistance for children – trafficking victims has to
contain criteria for appropriate identification of the child, mechanisms for referral of
the child to specialized services, procedures for appointing a guardian that would ensure
acting and decision-making in accordance with the best interest of the child, measures
for regulating residential status, assistance in rehabilitation and reintegration, as well as
measures for the protection of children-witnesses and victims of trafficking and quality
access to justice.
§ 676. Anti-trafficking actors in Serbia started paying attention to children as a special
category of (presumed) trafficking victims as late as in 2004, when the statistics of all
governmental bodies and nongovernmental organizations showed increase in the number
of identified child trafficking victims. According to ASTRA SOS Hotline, this percentage
reached as much as 63% in 2004; children continued to constitute very high proportion
of all identified trafficking victims in the years to come. It is interesting that data from
other countries in the region reported the same trend. This prompted a larger number of
publications and research into child trafficking to appear in this period.
§ 677. Although Serbia does not have a comprehensive database kept by uniform criteria, all
actors involved in direct victim assistance register growth in the share of children compared
to the period before 2004. Most of these children are the citizens of Serbia (90.3%).
SOURCE
2004.
2005.
2006.
2007.
2008.
2009.
2010.
NGO ASTRA
63.08%
30.5%
45.45%
40%
50%
34.21%
24.32%
NGO Counseling Center against
Family Violence - shelter
45.16%
21.5%
50.0%
33.33%
33%
27%
/
25%
14.28%
38.6%
15.38%
21.82%
28.30%
22.95%
47.36%
20.7%
58.9%
43.33%
54.54%
45.67%
47.19%
NGO ATINA
Agency for Coordination of
Protection of Trafficking Victims
Table III.3.2.4.1. Proportion of children in the total number of identified trafficked persons
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ARTICLE 6
§ 678. It should certainly be borne in mind that child trafficking existed before, too.
However, children were not recognized as a specific category of victims that is much
more susceptible to manipulation than adults. On the other hand, a lot have been done
on the education of those who come in contact with children who are or may fall victim
to trafficking, which has also contributed to better and more timely identification. State
institution now recognize that human trafficking is not something that only hits foreign
nationals, but that this is a form of organized crime which does not leave out anyone
regardless of gender, age, citizenship or nationality. As said earlier, human traffickers,
faced with stronger response from governmental, nongovernmental and international
organizations, are adjusting and changing their ways of operation. Like it has been observed
in other countries in the region, human trafficking is moving to private apartments and
members-only clubs. Also, internal trafficking, as well as trafficking in children, has proven
to be much less risky. All of these show that traffickers changed not only routes across
which they transport their victims, but also their modus operandi throughout the entire
process of human trafficking.
§ 679. Children are most often trafficked for sexual exploitation, including forced
marriage, and for forced begging, often in combination with sexual exploitation.
§ 680. In December 2006, the Government of Serbia passed the Strategy to Combat
Trafficking in Human Beings in the Republic of Serbia. The Strategy mentions children
only in a general context as a particularly vulnerable category. It has failed to make special
reference to the needs of children – victims nor has it mentioned programs intended for
them. This is at the same time one of the basic objections to the Strategy.
§ 681. On 30 April 2009, the Government of the Republic of Serbia adopted the National
Action Plan to Combat Human Trafficking for the period 2009-2011408. Numerous
activities were proposed in relation to the child victims of human trafficking within the
particular strategic goals: Institutional Framework, Help, Protection and Reintegration of
Victims, International Cooperation, Monitoring the Implementation of the Mechanisms
for Combating Human Trafficking, Evaluation of the Results.
III.3.2.4.1. Guardian Protection
§ 682. According to the Family Law409, a child without parental care (a minor ward) or
a person of age who is deprived of legal capacity (mature ward) may be placed under
guardianship. The decision on placing someone under guardianship is made by the
guardianship authority. Such decision must include a guardianship plan. By the decision
on placing someone under guardianship, the guardianship authority appoints a guardian
and decides on the accommodation of the ward. The guardianship authority shall first try
408
409
On 30 April 2009, the Government of the Republic of Serbia adopted a Conclusion on Establishing the National Action Plan for Combating Human
Trafficking for the period from 2009 to 2001 which was filed under number 05 Number: 012-10196/2006-4 (Official Gazette of RS, no. 35/09).
Official Gazette RS, no. 18/2005.
238
to accommodate the ward in a family of his/her relatives. If the ward has property, the
guardianship authority’s standing commission performs an inventory and estimates the
value of the of ward’s property.
§ 683. The minister responsible for family protection prescribes the mode of operation,
the composition and the funding of the standing commission. A person who has personal
characteristics and abilities necessary to perform the duties of a guardian and who has
consented to being a guardian may be appointed as a guardian. A ward’s spouse, relative
or foster parent are primarily appointed as a guardian, unless the ward’s interest requires
otherwise. A ward who has reached ten years of age and who is able to reason has the right
to propose the person to be appointed as his/her guardian. As far as guardian protection
in practice is concerned, it most often depends on where the child trafficking victim is
being accommodated.
§ 684. In Serbia, regarding victim assistance, there is one SOS Hotline (ASTRA) and until
October 2010 there were two shelters for trafficked persons in Serbia (NGO Atina which
is operating today and NGO Counseling Center against Family Violence which stopped
working on 21 October 2010)410. Serbia does not have specialized shelter for child trafficking
victims411. If the child does not return to his/her family (children often refuse to return to
their family or families are not ready to admit them), such child can be placed either in
shelter for adult victims or in some institution for children without parental care. These
institutions do not have specialized reintegration programs for child trafficking victims.
It does not surprise that children often run away from there. Another lacking program is
the program for (re)integration of psychologically changed children who survived human
trafficking. Because of the absence of adequate solutions for their accommodation and
care, children often stay unprotected. Numerous trainings have been organized in recent
years for professionals who may come in contact with trafficking victims, but it is still
insufficient. Social welfare centers are assessed as especially weak link in that respect
because they often do not know the problem and the existing referral mechanisms. Thus,
we fear that a certain number of children is placed in children’s homes without being
identified as trafficking victims and consequently without receiving adequate assistance.
Unfortunately, the Agency for Coordination of Protection of Trafficking Victims does not
have special mechanisms and procedures of work with child trafficking victims, but the
full responsibility is assumed by the social welfare center in charge.
§ 685. If the child was placed in the shelter for trafficking victims, a person from the social
welfare center in charge would be appointed as a guardian. In several cases, the competent
SWC estimated that it was in the best interest of the child to appoint the psychologist
410
411
All three programs are funded by foreign donors. The Government of Serbia participated in the financing of the shelter ran by NGO Counseling
Center against family Violence since June 2006 until October 2010, when this shelter was officially closed, while remaining funds were provided
by the Austrian donor.
Shelter for trafficking victims ran by the NGO Counseling Center against Family Violence was intended for adult victims, but children – victims are
also placed there.
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ARTICLE 6
of the shelter in which the child lived as the guardian. If the child was placed in some of
public child-care institutions (shelters for abused children or children’s homes), standard
procedure would be applied and a person from the SWC in charge would be appointed as
a guardian to that child.
§ 686. In some cases competent social welfare centers managed to find very quickly
the appropriate foster families for children identified as trafficking victims, with full
participation of a child in question and in cooperation with NGOs. (Re)integration of
victims in foster families takes place under further supervision of competent social worker
and psychologist.
In July 2004, ASTRA came in contact with a underage boy who was identified by the
Mobile Team as a trafficking victim. Since Serbia did not have adequate shelter in which
the boy could have been placed, the Mobile Team decided to provide him temporary
accommodation in the shelter for trafficking victims. The boy, at that point of 11, had
been the victim of sexual and labor exploitation and forced begging since the age of 7 and
maybe even earlier. Thanks to good cooperation with competent social welfare center,
in relatively short period of time, an appropriate foster family was found for the boy and
both sides were prepared for this arrangement. The foster family lives outside Belgrade,
in which way the boy was given additional security because persons who exploited him
lived in Belgrade.
After he was placed in the family, ASTRA, in cooperation with local social welfare center, has
been providing the boy with psychological assistance, i.e. regular and continuous therapy.
Moreover, the therapist knows the foster family and is in contact with them, too. Having
in mind all aspects of the situation, she worked with the boy on several issues: adjustment
to the new situation, coping with trauma from the past, with permanent monitoring and
resolving the problems typical for the boy’s age. Cooperation between the therapist,
social worker in boy’s place of residence, social worker (guardian) in Belgrade and ASTRA
is very important. This especially applies to the exchange of information among all actors,
thanks to which the process of providing assistance to the boy was flawless. Moreover, the
boy got a computer, school books and supplies and support to continue education. ASTRA
and SWC continue monitoring the recovery, actively providing assistance necessary for
full reintegration of the child, which is done through regular telephone contacts and visits
in his home, as well as through the inclusion of professionals whose help is needed.
One of the examples of good cooperation of NGOs and institutions is the case of 16year old girl, client of the local social welfare center in one town in Vojvodina. The social
worker of this Center was going for regular home visits to the girl who was identified as a
240
trafficking victim. The quality of contact she managed to build with the girl and her family
greatly contributed to the stabilization of their family situation. Moreover, immediately
after the identification, the social worker stressed that the girl suffered PTSD. After that,
the girl had regular therapies. The fact that the girl and the social worker lived in the same
place was very important for the girl’s safety, particularly during the trial.
In cooperation with this social worker, several times we together made the plan of further
steps that would be later fully and successfully implemented.
§. 687. Since in child victims of human trafficking there are often health issues or behavioral
disorders due to the exposure to different forms of abuse, they cannot be placed in foster
families with standard trainings, but only in those trained for specialized fostering412.
In June 2009, ASTRA was contacted by the representatives of the Municipal Department
11 of the city of Vienna, the office for youth and family “Drehscheibe”, concerning the
case of a girl of Serbian nationality who was identified in Vienna as a victim of human
trafficking with the purpose of sexual exploitation. Since the girl was in a poor psychological
condition, she was provided with an adequate medicaments and psychotherapy during
her stay in that institution. It was unknown whether and what role her parents had in her
departure to Austria and sexual exploitation that followed, which is why upon returning
to Serbia she was accommodated in the shelter for victims of human trafficking. At the
time, the social welfare center was unsuccessful in finding the family that could take the
girl in for a specialized fostering. According to the fact that even after two months they did
not find an appropriate family, in October, the girl was placed in the emergency reception
unit for chidlren. In order to urgently place the girl in the appropriate accommodation,
ASTRA contacted the authorized CSW more than once, as well as the Centre for Family
Accommodation for Children and Youth in Belgrade, but to no avail. In March 2010, she
was relocated to the children’s home.
ASTRA database, ID number 1460, S 62/09, S 81/09
§. 688. The mentioned situations point to the fact that it is necessary to carry out special
trainings for foster families who are willing to take in children with traumas of a human
trafficking experiences, so that they could be ready to perform the role of a foster parent
in as good and adequate way as possible.
412
Specialized fostering meets the needs of a child with psychophysical developmental problems, exposed to health difficulties or behavioral
disorder, for whom it has been estimated that implementing fostering is in his/her best interest and who is placed in a foster family for a shorter
or longer period of time (Regulation on Fostering, Official Gazette of RS, no 36/08).
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ARTICLE 6
III.3.2.4.2. Special Needs of Children in Judicial Proceedings and Training of Persons who
work with Children Victims
§ 689. Oversights of state authorities in the provision of specific legal aid and protection
to child trafficking victims are impermissible. Even judicial authorities, although
formally provide all procedural security conditions in the courtroom, often forget about
the protection of a child before and after the trial. They do not find this segment to
be something which they should take care about. Failures are most often in the social
welfare centers. Not understanding the seriousness of trauma which the child trafficking
victim sustained, they do not take additional precaution measures to protect the child
from revictimization.
The underage boy, who had been exposed to multiple forms of exploitation for at least four
years, after some time in the shelter was placed in a foster family outside Belgrade. Several
actors have been actively involved in his recovery and reintegration: local SWC, Belgrade
SWC in charge of the boy and ASTRA, which hired therapist and provided different forms of
material assistance in accordance with boy’s needs. Simultaneously, the judicial proceedings
against persons who exploited him, i.e. his aunt and her partner, were instituted. However,
the NGOs involved in boy’s reintegration (ASTRA, the Shelter) were not notified thereof
and legal aid completely lacked. Moreover, preventive measures were not taken to avoid
direct encounter between the traffickers and the child. As a result, the boy came to court
only accompanied by his foster parents. The SWC representative was not present, although
this was the trial which involved a minor, and therefore she had a legal obligation to be there
and make sure that boy’s rights were protected. As the organization that had capacities to
provide legal aid to its clients ASTRA was not notified, although the SWC had been informed
earlier about ASTRA’s activities. Thus, the boy ended up without legal advice, preparation
for the trial and representation by the lawyer. However, the greatest failure in this case
was that the boy was summoned to appear in court at the same time as his aunt accused
of exploiting him. No special measures were taken to avoid this encounter. In this way,
the boy was exposed to additional stress and it considerably affected his sense of security,
regardless of the fact that he had been dislocated to a completely new environment where
he did not have unpleasant experiences until that moment.
Although ASTRA is in regular contact with the social welfare center in charge, at the end
of October 2010 we received information that the judgment had been rendered on 16
September 2009 and that the trafficker was sentenced to 4 years and 6 months in prison.
ASTRA Database, ID no 571
§ 690. In spite of numerous trainings on the problem of human trafficking for SWC staff,
not all employees had possibility to attend them. Hence, they lack knowledge about
242
this topic and about special needs of a child who survived human trafficking, as well as
about situations and precaution measures which they, as a guardian, should take care
about while performing their guardian role. On the other hand, only small number of
persons form the judiciary passed the trainings about human trafficking. They are often
not sensitized to run the trials in which trafficking survivors appear and therefore do not
use all possibilities that the law provides for the sake of victim protection. This often
results in failures that only add to child’s trauma.
In May 2006, a trial started in which ASTRA’s client, 13-year old girls appeared as the
victim/witness. She had been identified as trafficking victims one year earlier. Since she
was not in contact with her father and her mother refused to take care of her because
she was “difficult”, the guardianship was first taken by her grandmother, but the girl
was soon put in a children’s home. On two occasions she left the Home, but she was
appearing at the trial sessions in the company of her mother, grandmother or sisters.
ASTRA contacted competent SWC several times, but they never had reliable information
about girl’s whereabouts.
In September 2006, she came to the trial session with her grandmother. SWC
representatives were not present there, like they had not attended the previous trials,
too. On that occasion, the lawyer representing the girl found out that the children of
accused spouses, who lived near girl’s grandmother, stopped her at the street and took
her to their home, where she spent the night. The lawyer observed that the girl was in
fear, especially of the accused man, for whom she previously said that he had beaten her.
On that day, she completely changed her statement.
At the end of September, ASTRA came to detailed information about what had been
happening before the girl changed her statement. Namely, before the last trial session
the mother reported to the SWC that the girl did not spend the night with her and that
she suspected that the children of the accused took her with them. The Center checked
and they really found the girl in their house. However, according to the assessment of the
social worker who made the visit, her safety was not compromised because these were
small children who probably did not influenced her testimony. On the other hand, it was
not taken into account that the accused were already released from custody then and it
was not said where they spent that night, although it is very likely that they were in that
house too, i.e. in direct contact with the girl.
Having in mind fear that the girl showed at the hearing, it is highly unlikely that social
worker’s assessment under such circumstances could be considered valid.
§ 691. Legal possibility that a guardian of an underage victim may give all statements and
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ARTICLE 6
perform all procedural actions to which the underage victim is entitled is almost never
used in practice, but the role of a guardian is understood as a pure legal formality that
must be observed.
§ 692. Such situations indicate that it is necessary to continue with organizing trainings
for the employees of CSW, because due to the limited number of the participants in the
trainings and the fluctuation of the employees in these institutions, their representatives
may not possess relevant knowledge on the issue of human trafficking.
§ 693. It should certainly be stressed that the expertise, the enforcement of the law
and willingness to cooperate with institutions and NGOs have resulted in successful
processes in which minors were protected in the best possible way and their secondary
victimization avoided.
In 2004, ASTRA’s lawyer represented a 16-year old boy, foreign national identified as
trafficked person in Serbia. The reaction of the police and of the Prosecutor’s Office was
for several reasons assessed as the example of very good practice. The police investigation
was very quick and effective. With regard to the fact that this was a boy with disability,
it is very important that all actors who dealt with the boy were highly sensitized. From
the very beginning, the boy had his legal representative and an interpreter. He gave his
statement in the presence of child psychologist and it was video recorded. On the basis
of the recording which was used further in the proceedings, the secondary victimization
of the boy was avoided. The entire process with the underage person was in accordance
with the law and the boy could soon leave the country.
In 2007, a human trafficking trial was held before the Subotica District Court where an
underage girl appeared as the victim. The trial was regularly monitored by competent
social worker and ASTRA’s lawyer and consultant. After one trial session in which the
girl testified, when leaving the court building she and her company observed a group of
6 – 7 men – and two accused among them – standing in front of the building, under the
influence of alcohol, loudly talking. Since they did not look naïve at all and the accused
were hostile towards ASTRA’s client, threatening and swearing at her while she was giving
her testimony, it was realistic to assume that they were waiting for her to get out and it
was desirable to avoid their encounter. For this reason, the court security accompanied
the girl, her lawyer, the social worker and ASTRA consultant to their car thorough the
back door.
244
III.3.2.4.3. Providing Shelters for Child Victims
§. 694. Child victims should be placed in safe and suitable accommodation (i.e. temporary
shelter or some form of alternative accommodation and care) as soon as possible after
their identification. Social service authorities, in cooperation with NGOs and international
organizations, shall develop standards of care for places where child victims are
accommodated. Under no circumstances should a child be placed in a law enforcement
detention facility. This includes detention in, for example, detention centers, police cells,
prisons or any other special detention centers for children.413
§ 695. As said earlier, there is no specialized shelter for child trafficking victims in Serbia. If
the child does not return to the family, he/she may be placed in the shelter for adults or in
some of child-care institutions, which do not have specialized reintegration programs for
trafficking victims (Institute for Upbringing of Children and Youth – Emergency Reception
Unit, Belgrade).
§ 966. Moreover, what aggravates the recovery of such children is that their movement
is restricted, i.e. when they are accommodated in the close-type shelter, they are not
allowed to leave. Thus, on more than one occasion, children used the incautiousness of
staff to run away from the shelter. The very fact that this shelter was locked up had
negative impact on clients’ motivation to stay there.
In 2005, a girl was identified who was exploited for begging in Bosnia and Herzegovina
when she was 12. She has participated as a victim/witness at trial for human trafficking
offence before the Pančevo District Curt. Her grandmother took custody of the girl, since
her father does not live in Serbia, while her mother, although seeing her occasionally,
refused to take care of the girl. After having been identified, the girl was placed to the
Institute for Upbringing of Children and Youth in Belgrade, but she left it after some time.
This is not surprising at all, but quite an often situation when we talk about the wards of
this institution.
In April 2006, the police informed the Agency for Coordination of Protection of Trafficking
Victims that the girl had been found, after which she was placed at the shelter for trafficking
victims in Belgrade. She stayed at the shelter for only two days. On the second night,
together with another 15-year old girl, she made a rope of the bed sheets and climbed down
the window to the balcony of a flat on the lower floor. From there, i.e. from the roof that
was at the level of the first floor, they jumped to the street. Although they did not injure
themselves, there was a great probability that something like that could have happened.
They left the shelter around midnight, but the employee who was on call that night was
sleeping at her office and did not notice that the girls disappeared until the next morning.
ASTRA database ID no. 1131
413
Guidelines for Protection Of The Rights Of Children Victims Trafficking In Southeastern Europe, UNICEF, May 2003.
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§ 967. At meetings, both the shelter staff and the officials of the Agency for Coordination
of Protection of Trafficking Victims often explain such situations by the fact that children
are “not adjusted”, that they are “not ready to cooperate and accept assistance that is
offered to them”, and well as by their “delinquent behavior and permanent urge to run”
or “poor identification by those who have brought them, i.e. the police or other NGOs,
which is only confirmed by their running away”. It has never occurred to them that the
reason why these children run away, and adult victims want to leave the Shelter as soon
as possible, lays in the trauma they survived, inappropriate programs in the Shelter and
unnatural state of isolation and restriction of movement.
In June 2005, a trafficking victim who had turned 18 only as couple of months ago insisted
on leaving the shelter.
It was her second time that she stayed at the shelter. All circumstances of her admittance
in and leaving the shelter are specific. Namely, she was identified as a trafficking victim one
year earlier, when s citizen called ASTRA to report violence and exploitation she had been
exposed to. She did not have the documents and did not want to return to her family, i.e.
to her mother who had been neglecting and physically abusing her. She complained about
gynecological and urologic problems. In communication with her, it was noticed that she
was confused, disoriented in time and space and probably mentally challenged (later it has
been established that she suffers from Turner syndrome and that she is lightly mentally
challenged). She dropped out of primary school when she was in the seventh grade.
After her first staying in the shelter in 2004, she was transferred to the Institute for
Upbringing of Children and Youth. However, she ran away very soon and there were no
information about her for a long time. ASTRA lost every trace of her.
In May 2005, ASTRA staff found the girl at the bus station in Belgrade. She mentioned
that a couple of months earlier, she was sold at the Belgrade Railway Station for a bottle of
liquor. The police helped her being placed to the shelter again. In spite of everything that
had happened before, when she asked to leave the shelter they let her go immediately
and without trying to find alternative solution. Before, nobody of the staff paid attention
to her complaints that she was bored and that there was not much going on in such
closed-type accommodation.
The third time, ASTRA staff came in contact with the girl in late 2005, after having
received the information that she ended up in the hospital. The girl was found under the
bridge on the way from Belgrade to Pančevo with frostbites (she was later diagnosed
cystitis and bronchitis, too). This could have been prevented with a different approach
to victim assistance during her staying at the shelter. When we talk about a person who
has suffered family violence for many years, who has been trafficked twice and who is in
such a poor physical and psychological state as this girl is, who was at the same time in
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the process of being deprived of her legal capacity (which she was completely deprived of
later), the principle of respect for victim’s wishes cannot be used as an alibi for the lack of
quality and dedication in work and services, whereby the principle of the best interest of
the victim is completely neglected.
Thanks to active involvement and intensive cooperation between ASTRA and competent
SWC, a long-term and satisfactory solution for the girl’s accommodation was found.
§ 698. On more than one occasion children who were not able to respect the shelter’s
rules were expelled for punishment, without being offered some alternative solution.
In February and March 2005, a 16-year old girl was placed at the Shelter for Trafficking
Victims. She was told that she would stay for only a couple of days. At a closed-type
shelter without specialized programs for children, the girl soon expressed her discontent
with such treatment and said that she would like to leave since she was promised to be
there only “for a couple of days”.
On one occasion when she went to the nearby shop – which is the only opportunity for
the residents to leave the shelter – she complained to the children from the building
that she was kept locked inside. Because she insisted on leaving the shelter and because
she revealed such information to outsiders, which was completely against the rules of
behavior there, the Coordinator of the shelter ordered the counselors to let the girl go.
Without any regard to her age and to the fact that she had nowhere to go, they simply
let her out.
However, soon after she had left, the children from the building rang at the shelter’s door
and informed the counselor on call that the girl was standing in front of the building and
crying. After she talked with the shelter staff once again, she agreed to return, and a few days
later she was transferred to the Institute for Upbringing of Children and Youth in Belgrade.
From the conversation with the then Coordinator of the Agency for Coordination of
Protection of Trafficking Victims
Belgrade, 2005
In October 2010, the shelter for victims of human trafficking in Belgrade took in a girl (17),
who was identified as a victim of human trafficking. A long time before being identified,
and after her stay in the children’s home, she lived at the traffickers’ who exploited her.
Her mother was not ready to help her, primarily because she herself lived in very poor
social circumstances, without any income and accommodation.
The girl stayed in the shelter for a little over a month. Her mother called her constantly,
which is why the girl was very upset and required special attention. Her mother invited her
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to come home because she allegedly found a man who she could marry. The authorized
CSW and the shelter did not take any steps to discontinue that communication.
Regardless of the mother’s pressure and the fact that at that moment she received therapy
because of the difficult psychological condition and drug addiction, the girl was expected
to adjust to the rules of the shelter and to not affect the work in the Shelter in any way.
At her own request, the girl was taken to the CSW, from where she left to her mother’s,
although it was clear that she cannot stay with her. Shortly after, the traffickers reached
the girl and regained control over her.
§ 699. Sometimes, children are placed at Institute for Upbringing of Children and Youth, i.e.
emergency reception unit for children (and underage foreign nationals), together with children
who are placed there for other reasons (this Institute also serves as a correctional institution
for children and youth). This institution does not have program for trafficked children, either.
III.3.2.4.4. Ensuring a Speedy and Safe Repatriation
§ 700. Like in case of the adult victims, in the majority of cases, IOM has carried out the
repatriation of child trafficking victims, too. As it was described before, information on
child’s arrival to the destination, his/her safety and further course of reintegration after
his/her repatriation to the home country are not available.
§ 701. Since procedures are lacking in all segments of the National Referral Mechanism,
this also affects the procedure of repatriation of children. This often leads to rash and
hasty acts, often only aimed at satisfying the form of the project.
In July 2006, following citizens’ report, an older man, German national, was detained
in Croatia under suspicion that he committed prohibited sexual intercourse with an
underage citizen of Serbia. With IOM’s help, the girl was returned to Serbia. She was
placed at the shelter for trafficking victims, but, with assistance of IOM and the Agency,
she was soon returned to her family, although there were unambiguous indications that
the parents were involved in her sale. The social welfare center in charge undertook the
measure of intensified supervision of the family, but this did not stop further contact
between the child and the German national. Namely, after having been released from
Croatian detention, he returned to Serbia, where he was staying at the home of this family
and had permanent access to the child. Three months later, this man was arrested under
suspicion of human trafficking. However, competent Public Prosecutor found that there
was not enough evidence for raising charges. After this, the police used their discretionary
rights and, pursuant to Article 36 of the Movement and Residence of Foreigners Act,
revoked permanent residence permit issued to this man. During the entire period, in spite
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of enormous effort, the competent social welfare center did not succeed to establish
appropriate communication with other actors in this case (the Agency, the Shelter and
IOM), who failed to timely send to the SWC their findings about the girl’s psychological
state and her reaction to the said German national during her staying in Croatia. If this
document had been timely sent to the SWC, it would have enabled social workers to
temporary separate the girl from the family. The SWC also never had opportunity to
talk with the girl alone or to win her trust, since she was always in the company of her
parents, the said man and his lawyer. It may be concluded that police activity was the
only measure taken to protect this child.
This case indicates to serious shortcomings in the work of both institutions and
international organizations, in which way the rights of the child guaranteed under
Articles 20, 34 and 35 of the Convention and of the Optional Protocol on the Sale of
Children, Child Prostitution and Child Pornography, as well as the UN Convention against
Transnational Organized Crime and the Palermo Protocol were not protected.
§ 702. As said earlier, the Palermo Protocol invites legislators to consider, in cases where
child victims are involved, not returning those child victims unless doing so is in their best
interest and, prior to the return, a suitable caregiver such as a parent, another relative,
another adult caretaker, a government agency or a childcare agency in the country of
origin has agreed and is able to take responsibility for the child and to provide him or her
with appropriate care and protection.
§ 703. The part of this Protocol which speaks of the best interest of the child is often
forgotten in practice. Also, the Protocol pays special attention to the safety of children in
all stages of victim assistance, including the process of repatriation. The closer children
are to their adult age, more often neglected these provisions are.
In April 2005, after eight months spent at the shelter for trafficking victims, a 12-year old
Iraqi national returned to Bagdad with her parents. From the moment of the first contact
with her, the girl had been insisting that she did not want to return home and that she did
not want anyone to contact her parents and inform them of her whereabouts.
During eight months at the shelter, the girl built social links and acquired certain level
of trust in people who took care of her. It is impossible here to describe her shock when
she was taken, without any prior warning or preparation, to meet her parents. She did
not know that they were looking for her and that they came to Belgrade. Completely
neglecting basic rights of the child and acting only so as to avoid international diplomatic
dispute, the child was given to the parents and returned to Iraq with them.
The coordinator of the shelter took as relevant for such action a positive opinion of the
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social welfare center regarding girl’s return to Iraq, the UNHCR representatives said that
“no human rights violations have been observed”, while the police generally could not
act outside the existing diplomatic international channels of cooperation. All competent
actors failed to follow the principle of the best interest of the child and on that grounds
consult victim assistance experts and accordingly decide on further action.
During this period, Iraq was the place of intensive armed conflict and return to such
environment was by all means risky and dangerous for the girl.
§ 704. It may be said that child protection and assistance to child trafficking victims
is one of the rare areas in which the representatives of state institutions, in particular
of the police and the judiciary, have passed more training and education programs than
anti-trafficking NGOs. Although some NGO activists in Serbia have passed trainings and
education programs about the rights of the child, there is a question of the quality of
practical implementation of what they have learned.
§ 705. On the other hand, there are many positive examples of how police officers
and judges handled trafficked children. The Juvenile Offenders and Juvenile Justice Act
actually represents the implementation of several international documents into national
legislation. It provides that juvenile offenders shall be tried by special judges, i.e. panels
for juveniles who must have special knowledge in the area of the rights of the child
and juvenile delinquency. Lawyers who defend juvenile offenders and who represent
juveniles who appear as injured parties or witnesses in the proceedings must also have
special knowledge and special certificates. This applies to the prosecutors for juveniles
and police officers who act in these cases, as well. These proceedings are run following
the principle of urgency. As far as criminal sanctions are concerned, the duration and
mechanism for control of the enforcement and effect of juvenile correctional measures
are specified. A person may be sentenced to juvenile jail only exceptionally, providing
that he/she is an “older minor person” (16-18 years of age). Before the passage of this
law, the juvenile justice system in practice suffered the problem of relatively unspecified
duration of institutional measures for juveniles and the control of the implementation of
such measures.
§ 706. In practice, the process of obtaining licenses for representing minors is rather simple
and formal. It cannot be said for sure that all licensed lawyers have sufficient expertise in
the area of the rights of the child and child protection.
§ 707. In the provision of direct assistance and reintegration for trafficked children, the
principle of participation of the child in decision making is rarely applied in practice. The
principle of the best interest of the child is mostly used as an excuse for the steps that
have been already taken and for the implementation of decisions made by the adults. As
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said in the Legal Analysis, paternalistic approach to the rights of the child is still preserved
in Serbia.
In the above described example from year 2004, an underage citizen of Iraq was identified
as a trafficking victim thanks to the successful intervention of the police at the Belgrade
airport. They stopped the girl and her uncle, who were going to Denmark, where the uncle
had been living for five years. The girl said that she wished to leave primarily in order to
avoid family violence to which she was exposed at home. She did not want to contact
her parents or to return to her home country. The coordinator of the shelter and the
UNHCR representative promised her that she was safe and that nothing would be done
against her wish. A few months later, her parents came to Serbia, insisting on seeing her.
Without any preparations, the girl was taken from the Shelter to meet her parents. This
encounter was rather disturbing and stressful for her. After a couple of days, in March
2005, the parents took her to Iraq, to Bagdad, which was in the middle of war. This was
against the girl’s will and in contrast with promises given by organizations with whom she
was in contact with. The Coordinator of the Shelter said that such action was based on a
positive opinion issued by the competent social welfare center regarding girl’s return and
the opinion of UNHCR that no human rights violations were involved in that specific case.
On the other hand, Serbia did not have reintegration programs at that moment in which
the girl could have been included, for which reason the coordinator of the Shelter thought
that there were no options for her further staying in our country. Unfortunately, there
was no will to develop an individual reintegration plan for this specific case. This would
be especially facilitated by the fact that the girl had already spent seven months in Serbia
and that she was included in some activities. Specifically, the girl was successfully learning
Serbian and generally adapted very quickly and successfully to new circumstances.
The representatives of the police, the Agency, international organizations and institutions
in Serbia saw the arrival of her parents as a solution for a situation which would otherwise
require effort and innovative approach. In general, her return home to her parents was a priori
assessed as an act in the best interest of the child. The case was run in that light, completely
neglecting a whole range of specific circumstances and child’s right to participation.
III.3.2.4.5. Children Who Live and/or Work on the Streets
§ 708. UNICEF has defined three categories of street children: street living children, street
working children and children from street families. Street living children are children who ran
away from their families and live alone on the streets. Street working children are children
who spend most of their time on the streets, fending from themselves, but returning home
on a regular basis. Children from street families are children who live on the streets with
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their families.414 Children who live and/or work on the street (like there peers who live in
children’s homes) are especially vulnerable category with regard to human trafficking.
§ 709. Since in Serbia these children have been legally almost invisible until recently,
relevant data on their actual number and on the exact degree of risk to which they are
exposed are scarce. Although some NGOs claim that there are no unidentified trafficked
persons among street children, the practice shows the opposite. Specific for street
children is the accumulation of risk factors for trafficking and exploitation: poverty, social
exclusion, limited access to education; very often, they belong to marginalized groups415.
Of the total number of trafficked children with whom ASTRA has had contact, 20.15%
(27/134) were the street children. Almost all of them come from dysfunctional families,
single parent families or have run away from children’s homes (12). These children live in
very poor conditions, which is one of the reasons why they are finding different ways to
earn their living on the streets. Most of them live in sheds and vacated buildings. They are
sometimes placed in children’s homes, from where they are often running away. Because
of inappropriate living conditions, they often change their residence. They move from one
shed to another, alone, with their families or with other children with whom they have
associated for the purpose of survival, better protection and larger income. If they have
parents, they are in the majority of cases unemployed. Most often these children have
only one parent, while the other one has deceased, is in jail, lives elsewhere or is simply
not mentioned. When they do not have parents, they often live with relatives, other
children or at children’s home. Since adults, “caregivers”, with whom the children live are
often unemployed, the only way of survival for these children is to make money on the
streets, by begging or practicing some other street activity; sometimes it is prostitution.
Very often the caregivers themselves use violence to force children into various activities
in order to make money. Parents, if they are there, are often alcoholic, persons with
psychologically changed behavior, often victims of violence themselves. To survive, these
children do different things. Besides begging and theft, they wash windshields at the
crossroads, collect paper waste and old things, play at public buses, help other people.
According to the outreach survey which ASTRA conducted in 2007, in this way children
could earn between RSD 200 and 2000 (less often)416 a day, which is often not enough
for those to whom they bring the money and who often physically punish them.
Some children work for themselves and spend their entire earnings for food, arcade games
and glue (for sniffing) or contribute to their family budgets. Life on the streets brings them
in contact with various people and various offers. Besides sexual offers, boys and girls are
414
415
416
http://www.mexico-child-link.org/street-children-definition-statistics.htm
Žegarac, N., Children Speak Out: Trafficking Risk and Resilience in South East Europe, Save the Children UK South East Europe Programme – See
Europe Child Trafficking Response Programme, Belgrade, 2007.
Between around EUR 2.5 – 25. RSD/EUR exchange rate as of 31 December 2007 – 78.9985, Source: National Bank of Serbia http://www.nbs.rs/
export/sites/default/internet/latinica/scripts/ondate.html
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often offered “protection” in exchange for sex, jobs aboard, marriage, theft, and various
kinds of “business” offers. One 17-year old girl was offered EUR 200 to bring a specific
child to agreed location. These children rarely have access to public health system or
rarely use it. They also do not go or are not regular at school. Only four children said that
they went to school regularly. Some children go to “special” schools, although they show
extraordinary resourcefulness and are highly eloquent in communication.
Children say that they are not safe on the streets, that they are often attacked, sometimes
even raped while trying to earn money, both by strangers and by parents, relatives whom
they live with or their peers, even by the educators at children’s homes and the police.
They say that they have never asked for help in the situations of violence because they
have had bad experience when complaining to the police. Besides the police, they have
not gone elsewhere for help, but “solve everything themselves”.
ASTRA Database
III.3.2.5. Physical Safety of Victims
§ 710. The protection of victims/witnesses/injured parties is one of the most sensitive
issues in the anti-trafficking field, bearing in mind the cruelty of this crime and trauma on
one side and the use of victims/witnesses often as the only source of evidence at trial on
the other. Threats that victims receive are most intensive right before and pending the
trial. Their aim is to intimidate the victims, so that they would give up testifying or at least
change their statement.
§ 711. Victims of trafficking have right to safety. It is illegal/not permitted to enforce
expulsion order the person is exposed to a serious risk in the country of origin.417
Therefore, a person can only be returned following an individual risk assessment which
takes due account of risks of stigmatization and protects the victim’s privacy. Special risk
assessment must be carried out for child victims, giving due consideration to the best
interest and the views of the child.
§ 712. Besides the necessity to apply the Law on the Protection Program for Persons Participating
in Criminal Proceedings on trafficked persons, individual risk assessment is a complex issue
which requires more serious approach and must be used in all stages of assistance.
In the mentioned case of one of the first joint actions of the Mobile Team (representatives
of ASTRA and the Agency for Coordination of Protection of Trafficking Victims), when
three Romanian nationals – victims of sexual exploitation were found in one motel 70km
east from Belgrade, local police department arranged transportation for the girls to
Belgrade in their van. The police officers who brought the girls chose to meet with the
417
The Law on Aliens, Official Gazette of RS, no. 97/08 (Prohibition of forced expulsion, Article).
According to the European Court of Human Rights case-law, under certain circumstances expulsion can be considered illegitimate when it exposes
the person to inhuman treatment in the country of origin, not only as a consequence of the behavior of public officials but also of also of private
individuals. See, in particular, Cruz Varas v Sweden – 20.3.91; Chahal v United Kingdom – Report of 15.11.96; H.R.L. v France – 29.4.97.
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representatives of the Mobile Team in a very busy parking lot. They were heavily armed.
Arousing passers-by interest, the girls went from the police vehicle to the Agency’s car.
After transferring the girls, the police officers returned to their vehicle and left the parking
lot. This lack of balance in terms of equipment and poor risk assessment, i.e. until which
moment protection was needed and when such need stopped is especially noticeable
and raises the question whom the police wanted to protect – the girls or themselves.
§ 713. NGOs that are in direct contact with victims also directly and indirectly receive
threats and “warnings” to drop everything “for their own good”. Serbia does not have well
developed mechanism of reaction of state authorities (in particular the police) to reports
about such threats. Therefore, NGOs and their clients have to use regular procedure of
reporting threats to local 911 number. Unfortunately, due to the urgency of the situation,
this is often not an adequate way of protection. In specific crisis situations, NGOs were
contacting police anti-trafficking teams with whom they regularly cooperated. Still, this
form of protection is not institutionalized, but is based on personal contacts, which is
insufficient for serious tackling of this problem. For protection, some NGOs installed
surveillance video and alarm systems, but not all of them can afford it. Individual risk
assessment for trafficked persons is not done in Serbia, but the entire protection is
reduced to victim’s placement to the Shelter before the trial. For a long time, the shelter
for trafficking victims in Belgrade did not have any protection system, but in case of
urgency, the staff would contact the nearest police station.
Sometimes, NGOs’ staff is the target of traffickers and their helpers, too. Thus, for
example, during the trial to Milivoje Zarubica and others, ASTRA’s lawyer who represented
the victims received threats several times, and her car was demolished twice. At the last
trial session, she and other ASTRA representatives left the Palace of Justice escorted by
the police.
Also, during the trial in Sremska Mitrovica in 2005 for human trafficking offence
committed against an underage girl, ASTRA staff was receiving threats on a regular
basis. It culminated when the trafficker two times sent his “deputy” to the door of
ASTRA’s office
ASTRA Database, ID no. 218 and ID no. 814
§ 714. The protection of victims most often means the protection during criminal
proceedings. It is often forgotten that the victim remains being in danger even after the
trial, but at that stage she is not “interesting” to the state authorities (the police, the
prosecutor’s office, the judiciary) any longer. She/he is mostly left to her/his own devices.
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ASTRA has seen many examples of jeopardized security of trafficked persons outside the
court proceedings.
In March 2007, Serbian citizen who was exploited in Italy for a longer period of time
returned to Serbia. After getting out of the trafficking chain, she spent one year in one of
the numerous programs available to trafficked persons in Italy.
The police officer who was in contact with her father during that period had an
interview with her in Belgrade and referred her to ASTRA for legal aid and for joining
the reintegration program. The case went on to the investigating judge of the Special
Department for Organized Crime of the Belgrade District Court, whom the police officer
who had interviewed the girl proposed to put her into the witness protection program.
The girl was sold by Milivoje Zarubica Puja. She was recruited by a police officer who
is still active in service, for which reason ASTRA was contacted by the inspector of the
Internal Control Department interested in raising charges against him. His intention was
to charge this police officer with the abuse of office. Although he said that there were
other witnesses too and that the girl’s statement was not necessary, it is still not known
what specific measures were taken in this case.
Also the proceedings for trafficking offence before the Special Department for Organized
Crime of the Belgrade District Court have not been started until December 2007.
One of the questions which ASTRA’s client was especially interested in referred to the
protection that she would have if she agreed to testify. However, besides vague hints
on the recommendation that was given for her joining the witness protection program,
without explaining her what this really meant, neither the police officer in charge of the
case not the Internal Control inspector could clarify to her in which way they would protect
her from the trafficker, the corrupt police officers or their friends. She was scared that, if
they found out that she returned, they could look for her for “preventive intimidation”.
In the example from ASTRA Database ID 814 in § 568 i § 570 you can read more about
actual risks to trafficked victims’ security.
§ 715. The issue of protection of trafficked persons was seriously approached only once
before the passage of the Law on the Protection Program for Persons Participating in
Criminal Proceedings, and this only thanks to the effort and maximum professional
commitment of the then Deputy Special Prosecutor for Organized Crime who raised
charges against the Pančevo Group before the Special Department for Organized Crime
of the Belgrade District Court.
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In September 2003, a citizen of Serbia was placed at the shelter for trafficking victims
after her repatriation from Italy. After two weeks, due to severe alcoholic crisis, she
left the shelter and returned home, where she lived with her father and a five-year old
daughter. Soon after, for the third time, she was placed at the Institute for Addiction
Diseases, where she was admitted by the doctor who had been treating her before she
ended up in the trafficking chain.
This woman was witness/victim at the trial for trafficking offence which was pending before
the Special Department of the Belgrade District Court in 2004. The two defendants were
accused of threatening the girl to withdraw her statement about one of the traffickers.
In addition to compromised security, under pressure of what was going on in court, her
psychological and physical state considerably deteriorated. During this period, she was
constantly drinking and taking tablets. She was prone to self-injuring and two times she
tried to commit suicide, last time in November 2004. One month later, because of serious
infection caused by cannula stick at the hospital, she was placed at the Military Medial
Academy in Belgrade. She had had difficult relationship with her father from before and
for everything described she was not able to take care of her daughter alone. She did not
have contact with other people and rarely left the house. She often said that she would like
to run away from everything and that she wanted to live in another country.
In January and February 2005, her psychological state was still instable and she did not
feel well physically. During that period, special safety measures were taken and police
officers were assigned to be directly in charge of their implementation.
At the end of February, the young woman was transferred to third country. Judgment at
the trial in which she testified was rendered in December that year.
The Pančevo Group sentenced to a total of 20 years in prison
BELGRADE, 28 December 2005 (Beta)
A group of ten members of the Pančevo criminal gang has been sentenced today before
the Special Court to a total of 20 years in prison for human trafficking.
As it is said in the judgment, members of this group forced XX to practice prostitution in
Italy. She was taken to Croatia first, from where she was transferred from Split to Ancona
by boat.
Since she refused to practice prostitution voluntarily, the accused Dejan Stošić, who is
sentenced to a four-year prison term, was beating her for several days, after which XX
had to agree on the requests of the accused. At the beginning of September 2003, she
ran away from Italy and reported everything to the police. The judgment also says that
several of the accused threatened her to change her statement and offered her money,
which constitute criminal offence of attempted coercion.
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The Presiding Judge of the panel Milimir Lukić said in the reasoning of the judgment that
telephone conversations between the accused were taken as evidence, as well as the
testimony of XX and the insight into false travel documents. The leader of the group Dejan
Stošić is sentenced to a four-year prison term, but he is out of access of state authorities
since he was arrested in Italy, but was not extradited to Serbia and Montenegro.
Dimče Komov is sentenced to three-year imprisonment, Miodrag Stošić to 2.5 years,
Dušan Šaponjić, Miodrag Nakomćić, Miodrag Milenković, Tiosav Vasiljević and Marko
Zemunović to two-year prison term each, Vladimir Lukić to eight months and Saša
Stojković to five months in prison.
Beta, 28 December 2005
§ 716. Physical protection of trafficked persons in Serbia is at the moment reduced to
their placement at the closed-type shelter, without expert risk assessment and without
prior expert analysis whether it is really necessary and sufficient. Since the Shelter did not
have any security (unless the rented premises had internal cameras) for the largest part
of their operation, in case of emergency, either caused by the trafficker or regarding other
conflicts between the residents of the Shelter or caused by their psychological state, the
staff would call the police, i.e. the anti-trafficking unit of the Belgrade Police Department.
III.3.2.6. Possibility of Obtaining Compensation
§ 717. Proceeds of crime, i.e. assets obtained by committing a criminal offence represent
any property derived from or obtained, directly or indirectly, through the commission of
the criminal offence418. Moreover, the laundering of criminal proceeds for the purpose of
concealing their illicit origin shall also be criminalized419. There is a difference between
the freezing and confiscation of proceeds. Freezing of the assets of criminal origin is a
temporary prohibition of transfer, conversion and use based on the order by court or
some other competent authority. On the other hand, confiscation is permanent seizure
of property ordered by court or other competent authority. In the event that proceeds
of crime have been fully or partially transformed or converted into other property of
legal origin, the freezing and confiscation shall be done up to the estimated value of the
intermingled proceeds of crime420.
§. 718. One of the mandatory requirements set forth in Article 15 of the CoE Convention
on Action against Trafficking in Human Beings relates to the requirement to State Parties
to ensure that their legal systems contain measures that allow trafficking victims the
opportunity to seek compensation for the damages suffered.
§ 719. International documents set out a broad range of measures and modalities for
418
419
.420
Article 2 (e) of the UN Convention against Transnational Organized Crime.
Article 6, Paragraph 1, Item a(i) f the UN Convention against Transnational Organized Crime.
Article 12 (5) f the UN Convention against Transnational Organized Crime.
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ARTICLE 6
seizure and confiscation of assets, and foresee special techniques that would enable
state authorities be more efficient in enforcement. Regardless of the system for seizing
proceeds of crime which national legislation decides for – seizure and confiscation by
court in criminal and civil proceedings or administrative seizure and confiscation – the fact
is that confiscated assets may be used for the indemnification of victims, for financing
victim assistance and prevention programs, as well as for covering the costs of state
agencies that work on combating this crime.421
§ 720. Victims of trafficking should be considered victims of a violent intentional crime
for the purpose of the access to compensation in cross-border situations, according to
Article 1 of the Council of Europe’s Convention on Compensation of Victims of Violent
Crimes. In particular, the State where the crime was committed is responsible for paying
compensation and is obliged to provide for a national scheme on compensation that
guarantees fair and appropriate compensation to victims. However, in reality in most of the
cases victims still do not receive compensation. Therefore the establishment of national
funds for compensation is recommended. The right to compensation and labor law rights
must be guaranteed even if criminal proceedings are terminated or discontinued for
whatever reason. Therefore residence status and legal assistance to presumed trafficked
persons should be extended until civil proceedings have been completed.422
§ 721. Compensation for trafficked persons is not usual in the Republic of Serbia. As it
is said in the US State Department TIP Report for 2003: “Victims may file civil suits and
seek compensation, but […] there is no victim compensation fund”. Actually, since the
criminalization of trafficking offences until 31 December 2010, no trafficked person in
Serbia was awarded compensation of damages. ASTRA has filed several compensation
claims on behalf of its clients. The judgment was made only in one case, but until
December 2010 it did not become final.
The civil action for the compensation of damages was initiated by ASTRA on behalf of
victim from Ukraine. In September 2007, civil judgment was made ordering the defendant
to pay an amount of RSD 400,000; however, this judgment has not become final yet.
The victim had to come again to Serbia and give a statement in civil proceedings in June
2006. In cooperation with Ukrainian NGO “Women’s Center”, all preparations for her
arrival were made. OSCE Mission to Ukraine covered the costs of air transport. At this
point of preparation process it was especially uncertain whether we would be able to
provide funds, since travel costs were initially to be paid by IOM Ukraine, but it turned out
later that they did not have resources.
ASTRA informed the Ukrainian Embassy about the arrival of their citizen and prepared the
invitation letter for visa purposes which was sent through the Agency for Coordination of
421
422
Ilić G., Oduzimanje imovine stečene kriminalom, Revija za bezbednost, br. 5, Centar za bezbedonosne studije, Beograd 2008.
258
Protection of Trafficking Victims. It was agreed that the victim would be at the shelter for
trafficking victims during her staying in Belgrade.
The representatives of ASTRA and the police picked the victim up at the airport and her
entire staying was in accordance with the plan.
However, her giving of statement did not go smoothly as planned. Because of constant
inappropriate comments, the judge warned the defendant that he would be removed
from the courtroom and fined. He said that he could not listen to lies any more and asked
himself to leave the courtroom, but returned after five minutes. At the moment when the
victim in her statement came to the moment when she was talking about how she was
exploited, the defendant started interrupting, saying that everything was a lie. The judge
warned him again, but he did not stop, for which reason he was fined with RSD 30,000.
After that, the defendant requested a change of the judge, accusing her of being biased
and left the courtroom. However, such course of the court session did not have adverse
impact on the further course of the process.
The request for the change of the judge was dismissed and, with psychological finding
that were submitted, additional testifying of the victim was not required.
§ 722. In criminal proceedings, the court usually does not make decision on victim’s
compensation claim, but refers them to litigation, which is, as a rule, lengthy, requires
victim’s presence and implies high costs (for court fees, lawyer, etc.). This means that, in
a way, the victim must go through what have happened to her/him and face the persons
who sold and exploited her all over again. Litigation judges have not passed any human
trafficking training and they often have difficulty understanding the extent of trauma
and the danger of the new encounter between the victim and the trafficker. The problem
is even worse when we talk about foreign victims who testify in criminal trials in Serbia
and who are repatriated to their country of origin, because of which they are exposed
to additional travel and accommodation costs if they wish to claim for compensation.
The issue of their safety when they return to the country where they testified and their
possible encounter with traffickers opens up again. The existing education programs for
judges and prosecutors should be by all means continued, but an idea which should be
taken into consideration is to include civil judges into these programs, as well, so as to
reduce as much as possible the revictimization of the victim in court. It is to be seen in
future how efficient the process of enforcement of final judgments will be in these cases.
In April 2006, the Pančevo District Court in case no. 1351/05 agreed with the settlement
proposed by the representatives of litigation parties. The proposal specified the amount
which the defendants undertook to pay to ASTRA’s client on the account of non-material
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ARTICLE 6
damage and litigation costs. As of the day of the signing, the settlement has become
final and enforceable. However, until the end of 2007, ASTRA’s client did not receive the
compensation. The defendants are in prison serving the sentence for a violent murder of
her daughter, for which both of them are sentenced to a 12.5-year prison term. They do
not have property based on which this payment could be collected, while the institution
of the enforcement procedure would mean new costs for our client, who is now primarily
focused on her deteriorating health. For all these reasons, the case has been in status quo
for four years and there is no hint of efficient legal solution.
III.3.2.7. Financing Victim Assistance Programs
§ 723 In conclusion, it can be said that comprehensive assistance and protection of
trafficked persons is possible only with maximum involvement of state actors and with
the usage of resources and experiences of NGOs. It requires greater political will and
budget allocations for combating human trafficking. “Fight against organized crime is in
that respect specific, since it represents a long-term process – no country in the world has
succeeded to fully eradicate organized crime. The success of its prevention and eradication
will depend on numerous other factors, but also on resources which the government
earmarks for this purpose. In the Law on the Budget of the Republic of Serbia, there is no
explicit budget item under which resources are allocated for combating human trafficking.
How is it than that the state complies with the obligations accepted by signing the UN
Convention against Transnational Organized Crime? Does this mean that the state has not
allocated any funds for this purpose? On the other hand, if it has, to whom are such funds
given and how are they spent? If one dinar is allocated from the Serbian treasury for this
purpose, how much money reaches the final beneficiary? One dinar? 0.10 dinars? Or less?
Are there adequate supervising mechanisms for that? To what extent is it possible for the
citizens or civil society organizations to take part in the activities related to the allocation
and control of spending of budgetary assets for combating human trafficking?”423
§ 724. One of the strategic goals of the National Action Plan to Combat Human
Trafficking for the period 2009-2011 is the enhancement of the national mechanism
for identification, assistance and protection of victims. That strategic goal also implies
managing financial resources in the budget of the Republic of Serbia for a continuous
support to the shelters for victims of human trafficking. For now, there is no special
budget line for helping victims of human trafficking, and the help the state provides for
these purposes was on a one-off basis.
423
Marković A., Milutinović D., Ima li novca za borbu protiv trgovine ljudskim bićima? – istraživanje o mogućnostima finansiranja i kontroli trošenja
sredstava iz budžeta Republike Srbije namenjenih borbi protiv trgovine ljudima, Centar za ljudska prava, CRS, Beograd 2004. (unpublished
document in the author’s possession).
260
§ 725. The Agency for Coordination of Protection of Trafficking Victims obtained
significant financial resources collected from the citizens of Serbia through selling of
charity stamps which contained motives from the most successful children’s drawings
from the art contest “Modern Slavery” which the Ministry of the Interior launched in
October 2007424. In accordance with the Conclusion of the Government of the Republic
of Serbia, the charity stamp was sold from 21 to 26 January 2008, which resulted in
raising 4,600,000 RSD (around 50.000 EUR) which were referred through the Agency to
directly help the victims of human trafficking. Until now, fifty victims of human trafficking
received help from that fund425.
§ 726. The US State Department strongly supported the activities aimed at suppressing
human trafficking and since 2001, 2009 inclusive, the American agencies awarded
about 686 million USD for the international activities in the field of combating human
trafficking426. In the period 2008-2010 only, the Office for Monitoring and Combating
Human Trafficking of the US State Department awarded 59 million USD for the realization
of the bilateral, regional and international projects427.
§ 727. They supported United Nations (UN) and other international agencies and offices,
including the UN Office on Drugs and Crime (UNODC), International Labor Organization
(ILO), International Organization for Migration (IOM), United Nations Children’s Fund
(UNICEF), and UN High Commissioner for Refugees (UNHCR), Organization for Security
and Cooperation in Europe (OSCE), the Coordinated Mekong Ministerial Initiative Against
Trafficking (COMMIT), and the Regional Conference on Migration.428
424
http://www.mup.gov.rs/domino/arh2007.nsf/11oktp07likkonl
http://www.seio.gov.rs/code/navigate.asp?Id=2
http://www.legalrightsinstitute.org/images/CRS_Report.pdf
427
http://www.state.gov/g/tip/intprog/index.htm
428
United States Government Accountability Office, Report to Congressional Requesters, July 2007, Human Trafficking - Monitoring and Evaluation
of International Projects Are Limited, but Experts Suggest Improvements (GAO-07-1034).
425
426
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ARTICLE 7
Women and Children, Article 7 – Status of victims of trafficking in persons in
receiving states
CoE Convention on Action against Trafficking in Human Beings, Article 8 Security and control of documents and Article, Article 14 – Residence permit
Palermo Protocol
Article 7
Status of victims of trafficking in persons in receiving States
1. In addition to taking measures pursuant to article 6 of this Protocol, each State Party
shall consider adopting legislative or other appropriate measures that permit victims
of trafficking in persons to remain in its territory, temporarily or permanently, in
appropriate cases.
2. In implementing the provision contained in paragraph 1 of this article, each State Party
shall give appropriate consideration to humanitarian and compassionate factors.
CoE
Article 14
Residence permit
1. Each Party shall issue a renewable residence permit to victims, in one or other of the two
following situations or in both:
a. the competent authority considers that their stay is necessary owing to their
personal situation;
b. the competent authority considers that their stay is necessary for the purpose of their
co-operation with the competent authorities in investigation or criminal proceedings.
2. The residence permit for child victims, when legally necessary, shall be issued in
accordance with the best interests of the child and, where appropriate, renewed under the
same conditions.
3. The non-renewal or withdrawal of a residence permit is subject to the conditions provided
for by the internal law of the Party.
4. If a victim submits an application for another kind of residence permit, the Party concerned
shall take into account that he or she holds, or has held, a residence permit in conformity
with paragraph 1.
5. Having regard to the obligations of Parties to which Article 40 of this Convention refers,
each Party shall ensure that granting of a permit according to this provision shall be without
prejudice to the right to seek and enjoy asylum.
262
§ 728. Palermo Protocol makes no obligation for State Parties to legislate measures
relating to the status of victims. However, it recommends adopting measures for the
temporary or permanent residence of victims of trafficking having in mind that this may
encourage victims to report incidents and testify against traffickers. Unlike the Protocol,
the CoE Convention in Article 14 requires that State Parties issue residence permits for
trafficking victims. Two conditions stipulated in Article 14 (1) for issuing residence permit
are that the victim’s stay is either “needed for his/her own personal situation“ or that
it is “necessary for his/her cooperation with the authorities in investigation or criminal
proceedings.“ The aim of these conditions is to enable the States to choose whether they
will approve residence permits in exchange for cooperation with judicial authorities, or
they will issue a residence permit on the basis of the victim’s needs, or both of these
conditions will be adopted concurrently. The Convention is left to the discretion of a
State Party to determine the length of the residence permit, although the States have to
determine the length in accordance with the aim of the provision. For example, the Council
of Europe’s Directive dated 29 April 2004 on the residence permit issued to third-country
nationals stipulates a minimal period of 6 months to those who are victims of human
trafficking or who have been the subject of an action to facilitate illegal immigration and
who cooperate with the competent authorities. The CoE Convention also stipulates the
possibility to renew the permit.
§ 729. We shall start our analysis with the conclusion that the Republic of Serbia has
joined countries which have adopted legislative measures concerning the status of
§ 730. Namely, pursuant to Article 28 (1) of the Law on Aliens429, as well as according
to obligations undertaken upon signing international conventions, primarily the UN
Convention against Transnational Organized Crime and Recommendation of the UN High
Commissioner for human rights “Principles on Human Rights and Trafficking in Human
Beings”, a victim of human trafficking shall be granted a temporary residence permit on
humanitarian grounds. The permit shall be issued by the law enforcement authority with
jurisdiction in the victim’s place of residence.
§ 731. Conditions for issuing residence permits to foreigners in Serbia are regulated by
the Law on Aliens applied since April 2009. The question of residence of foreign citizens
identified as trafficking victim in the territory of Serbia is for the first time mentioned in
this Law. Namely, this Law stipulates that, if it is in the interest of criminal proceedings for
the criminal act of human trafficking, the alien citizen who was the victim of the criminal
act shall be granted a temporary residence permit in the Republic of Serbia if this does
not oppose reasons of public order protection or the security of the Republic of Serbia
and its citizens, or if there is justifiable doubt that the residence will not be used for the
429
263
ARTICLE 7
purpose intended {Article 28 (5) of the Law on Aliens}. Therefore, trafficking victims will
be granted temporary residence only if it is in the interest of criminal proceedings and
cooperation with judicial authorities and not based on their personal situations.
§ 732. During their temporary stay in the Republic of Serbia, trafficking victims not having
enough financial assets shall be provided adequate accommodation, food and basic living
conditions {Article 28 (6) of the Law on Aliens}.
§ 733. The Law sets forth that the temporary residence lasts as long as it is in the
interest of the persons in criminal proceedings. Approving temporary residence to foreign
nationals is entered into the travel document and (as it often happens) if the trafficked
person does not have the passport, his/her temporary residence shall be approved and
extended by the formal decision issued by the authority in charge {Article 29 (3), (4) and
(5) of the Law on Aliens.
§ 734. For the purpose of this report it should be noted that the procedure of approving
temporary residence permits to foreign citizens who are trafficking victims is specified
by the bylaw of the Ministry of the Interior, more specifically the Instruction for the
enforcement of the Law on Aliens430, which has taken over the provisions of the former
Instruction on Conditions for Approving Temporary Residence to Foreign Nationals
Trafficking Victims and parts of the former Instruction on the Procedure for Approving
Temporary Residence to Foreign Nationals Trafficking Victims.
§ 735. The Instruction for the enforcement of the Law on Aliens gives a detailed outline
of the procedure, necessary documents and conditions needed for the issuance of a
temporary residence permit. Accordingly, based on the Law on Aliens, the victim may
be issued a temporary residence permit on humanitarian grounds with the validity of 3
months, for the purpose of providing protection and assistance in the recovery and return
to the country of origin or previous residence. In that period, the victim should recover
and reflect on whether he/she wants to go back home or to testify against the traffickers.
§ 736. If, after the expiry of the recovery period, the victim decides to cooperate with the
authorities in identification of criminal acts and their perpetrators, he/she may be granted
a temporary residence lasting for 6 months, which can, to a certain extent, be perceived
as conditioning of the victim to participate in the court proceedings.
§ 737. If the victim of human trafficking actively participates in the court proceedings
(criminal and civil) as a witness or injured party, he/she may be granted temporary
residence for a year.
§ 738. Procedure for applying is relatively simple, while the documents required are only
those accessible to victim and to competent authorities, i.e. Agency for Coordination of
Protection of Trafficking Victims that applies in the name of the victim for the issuance of
temporary residence permit431. Application is submitted to the authorized law enforcement
430
431
The Instruction was issued by the Minister of the Interior of Serbia, filed under no. 1089/09-11 of 14 July 2009.
Apart from request for approval of temporary residence, the needed documents include: a photograph; travel document or some other document
264
secretariat according to the place of residence of the victim, within seven days after the
placement of a foreign national in a shelter for trafficking victims or some other type of
placement, or within three days before the expiry of the temporary residence permit. For
the victims placed in the shelter in Belgrade, the address of residence submitted is the
address of the Agency, in order to keep secret the location of the shelter.
§ 739. Here we want to point out to some aspects of the implementation for the
Instruction for the enforcement of the Law on Aliens. This Instruction covers all foreign
nationals regardless of their gender: temporary residence may also be granted to male
victims of human trafficking, who according to the assessment of the Agency, need
protection and assistance. Likewise, temporary residence permit cannot be revoked
automatically upon finalization of the court proceedings. Finally, temporary residence
granted to the trafficking victims under this Instruction, assumes freedom of movement
and right to work in the country, as well as possibility of prolonging the stay based on the
findings of the Agency.
§ 740. Trafficking victims are granted temporary residence by urgent procedure, lasting
only 3 days instead of the regular 30 days. During that period, the trained police officers
will conduct an interview, trying to avoid secondary victimization of the victim.
§ 741. Having in mind that trafficking victims often do not possess travel documents or
they used counterfeited documents, temporary residence may be approved in the form
of a certificate.
§ 742. Trafficking victims are issued temporary residence permits free of charge.
§ 743. Finally, temporary residence in the cases of trafficking may be prolonged if the
reasons for its approval are still present.
§ 744. In a nutshell, the Aliens Law explicitly regulates issues of approving residence
permits to foreigners who have been trafficking victims. Unlike the solution previously
valid, in this case residence is secured as a reward for testifying; more concretely, it is
approved only if it is in the interest of the criminal proceedings taken for the criminal act
of human trafficking. Serbia has also obliged that in such cases persons in question should
be supplied with adequate accommodation, food and basic living conditions. Although
the above stated generally fulfils the obligations from Article 14 of the CoE Convention
and recommendations from Article 7 of the Palermo Protocol, we have to say regretfully
that the possibility to approve residence to trafficking victims out of humanitarian and
charity reasons has been given up, i.e. this issue is not regulated by the Law, but only
through the implementation of the Instruction for the Enforcement of the Law on Aliens.
that verifies the identity of the holder; report letter of the Agency; letter of a relevant organization that verifies that the victim is included into
a reintegration program; if appropriate, a request for the issuance of entry/exit visa; letter of the competent authority that confirms the victim’s
participation in identification of criminal acts; letter of the authorized court or prosecutor’s office that confirms the victim’s active involvement in
the court procedure, as a witness/injured party; letter of the police that confirms that the victim’s personal safety is jeopardized.
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ARTICLE 7
III.4.2. Practice Analysis
§. 745. Until the passage of the first Interior Ministry’s Instruction on Conditions for
Approving Temporary Residence to Foreign Nationals Trafficking Victims in 2004 (now
incorporated, together with the Instruction on the Procedure for Approving Temporary
Residence, into the Instruction for the enforcement of the Law on Aliens), foreign
nationals – trafficking victims were treated as illegal migrants. Most often, following the
decision of city petty offence authority, or even without such decisions, victims were sent
to the Detention Center for Illegal Migrants in Padinska Skela432. This is a closed-type
institution, where they were waiting for return, which was most often organized by IOM
within their other programs.
§ 746. Even today, in certain situations, the police themselves did the return of these
persons to the border of the country from which they entered the territory of the then
Federal Republic of Yugoslavia, regardless of whether they were the citizens of that country
or not. This was convenient to traffickers, who were often organizing the “reception” of
victims on the other side of the border and, through the same or some other channels,
returning them to the trafficking chain.
In November 2010, a police officer working on the border crossing to the Republic of
Srpska near Loznica contacted ASTRA for the matter concerning A.J (25) whom he
believed to be a human trafficking victim. The girl had been recruited in the Republic of
Srpska and taken to Serbia, where she was exploited and forced to prostitution. The girl
expressed her wish to return to Srpska, where she has two underage children and she did
not want to stay in the shelter in Serbia. After the police officer made phone call to the
representative of the Agency, he decided to hand over A.J. to the police of Bosnia and
Herzegovina, after which every contact with the victim was lost. It was not established
whether A.J. was placed into some of the safe houses in Bosnia and Herzegovina, or was
she returned to the trafficking chain.
§ 747. When the institutions started recognizing human trafficking problem and
trafficking victims, foreign citizens were, together with domestic nationals, placed at the
only shelter for trafficked persons that existed at that time. This Shelter was supported
by IOM. Victims would stay there until their travel and other necessary documents had
been prepared.
§ 748. However, since their status was not regulated, victims were often kept locked at
the Shelter for several months. The most widely used excuse by both the shelter staff and
432
Since 2002 until the adoption of the Instruction, the police officers of the Border Police Directorate were “tolerating” illegal status of foreign
citizens who were identified as trafficked persons. Such practice of “tolerating” is not mentioned in any document, as well as the criteria regarding
who exactly and in what situations would be tolerated. Namely, in all cases where the police failed to recognize and identify the victim, he/she
could have been deported, i.e. denied of the rights guaranteed by the Protocol.
266
the police for such situation was that they could not have been responsible if something
had happened to them and that they did not have necessary documents that would
enable them free movement.
In the course of 2003 and 2004, two Ukrainian nationals, who were witnesses in the
process against Milivoje Zarubica and his helpers, were placed at the shelter for trafficking
victims. At the same time, the shelter provided accommodation for a girl from Moldova,
arrested during the “Saber” operation together with Zarubica’s cousin and collaborator
Milovan Miletić while he was hiding from the police to avoid arrest. All three victims
spent more than six months at the shelter, waiting for the trial, when they were supposed
to give their statements and return to their countries. During this period, their movement
was completely restricted to the Shelter. Such situation caused indignation, apathy and
numerous other changes in victims’ psychological state.
Another girl, also from Moldova, found herself in similar situation. She gave birth to a child
during her transit across Serbia, before the exploitation phase started. She spent almost
one year with her baby at the Shelter. In addition to not having personal documents, the
procedure for getting the permit to take out the baby who was not Serbian national was
rather long, which was in this case the main reason for their long staying in Serbia.
§ 749. The third Regional Ministerial Forum of the Stability Pact held in Tirana on
December 11, 2002, resulted in the signing of the Statement of Commitment, by which
all SEE Interior Ministers committed to legalize the status and grant residence to the
victims of trafficking until the completion of their rehabilitation, all of these aimed at
enabling their testifying against traffickers, and consequently, more efficient breakage of
this form of organized crime.
§ 750. The Instruction of the Interior Minister of 2004 described in the Legal Analysis has
certainly excluded the possibility of the violation of victims’ human rights, in particular
the right to free movement. However, it may still happen in practice that trafficked
persons – both foreign and domestic nationals – are denied the freedom of movement
outside the closed-type shelter, at least in the first period, until they win the trust of
persons in charge of taking care of them433.
§ 751. The Instruction reads: “If after the recovery period of three months a trafficked
person decides to cooperate with the authorities in the investigation of criminal offences
and perpetrators, she/he may be approved temporary residence of six months.” The
Agency officer said that the residence permit had been extended in one case, although
the victim had not taken part in court proceedings. This was done for safety reasons,
because it was believed that it would not safe for her to return to her home country.
433
The only closed-type shelter for trafficking victims ran by the Counseling Center against Family Violence was closed in October 2010.
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ARTICLE 7
§ 752. Moreover, “if there is a need for the victim to leave the country and return later,
she/he may be issued exit/entry visa in the same way as to any other foreign national
who has approved temporary residence.” If the victim does not have a passport, which is
often the case with regard to persons who have survived human trafficking, she/he will be
issued emergency travel document and exit visa.
§ 753. According to the Instruction for the enforcement of the Law on Aliens, when
applying for temporary residence, “trained police officers will conduct an interview, trying
to avoid secondary victimization”. This means that sensitized and trained workers of the
Serbian Interior Ministry shall conduct basic interview with the victim, trying to avoid
any unnecessary contacts between the victim and other police officers in uniform, i.e.
it should not take place at the police buildings. The Agency officer said that the police
most often did not make an interview or contact with the victim at all with regard to the
issuance of humanitarian residence permit, and that, in her opinion, it is enough for them
to have the contact only with the Agency.
§ 754. Further, the Instruction reads: “When the trafficked persons do not possess any
travel documents at the moment of applying for temporary residence, temporary residence
may be approved based on the decision of competent law enforcement authority.” In
practice, this means that the victim may obtain written decision on temporary residence
instead of a stamp in the passport which she/he does not have.
§. 755. It is also said in the Instruction that, “the address of the Agency shall be stated as
the address of reported residence”. Departures from this rule have been made twice so
far, because the victims were accommodated in other towns under jurisdiction of other
law enforcement authorities.
§ 756. The request for temporary residence should be filed together with the evidence
of the paid administrative fee. However, in practice, persons identified as trafficking
victims do not have to pay this fee. This benefit has been achieved only thanks to the
engagement of IOM office in Serbia.
§ 757. The instruction should have contributed to the respect for reflection period, which
is in literature defined as a period necessary for the first stabilization of a trafficking victim
after her/him having suffered traumatic experience. Still, this stage in the treatment of
victims is not recognized as significant, but the period of three months specified in the
Instruction is used for direct or indirect persuading the victim that it is important for her/
him to testify “for his/her own good”.
§ 758. In such or similar situations, victims are often suspicious of actual reasons for their
long staying at the shelter. It seems to them that they are kept there on purpose for the
needs of the police or court, while their own needs are not important. What especially
bothers them is that they know that traffickers, or some of them, are not in jail, while
they are kept at the shelter, where, because of restricted movement, they feel like in
268
jail. Consequently, they keep their distance from the staff of the Shelter, insist on quick
return, want to give up testifying or become uncommunicative. In the majority of cases,
neither their legal representatives not the shelter staff can tell them precisely when they
will be summoned to court. Therefore, it is necessary to speed up as much as possible
the procedure related to testifying, especially bearing in mind that the law provides for
the possibility to record the statement. Such a solution would speed up the repatriation,
while the usage of a recorded statement from the investigation would eliminate the need
for victims’ presence at the trial and thus prevent their revictimization.
Besides numerous negative examples, there is an increasing number of the examples of
good practice. In the case of Bulgarian citizen described in the previous sections of this
Report, in a record period of four days the victim was questioned in the investigating
process and did the identification of the perpetrators, after which he could return to his
country. Such a prompt reaction was significant especially with regard to the fact that the
victim was a 16-year old boy with disability.
§ 759. Reflection and recovery period is a period of time granted to a person who is
presumed to be trafficking victim to take a rest, break free from traffickers’ influence,
understand her/his current situation and consider future steps, including the decision to
testify against the perpetrator.
§ 760. In our opinion, reflection and recovery period is for no good reason discussed only
in the context of foreign and domestic nationals who have been placed at the shelter
after they got out of the trafficking chain. It is forgotten that domestic nationals who are
not at the Shelter, but live in some other sort of accommodation, have the same or at
least similar problems and needs (health, legal, psychological), and that they also need
reflection and recovery period.
§ 761. At the conclusion of this chapter, we note that since the introduction of the
Instruction until the end of 2010, 30 humanitarian residence permits were issued to the
same number of foreign nationals that were the victims of trafficking. For nine victims,
the permits were subsequently extended. According to the Agency officer, the procedure
indicated in the Instruction for the enforcement of the Law is applied in practice. The
cases of breaching the procedure also occurred, but only in situations when in favour of
the trafficking victims.
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Women and Children, Article 8 - Repatriation of victims of trafficking in persons
CoE Convention on Action against Trafficking in Human Beings, Article 16 Repatriation and return of victims
Palermo Protocol
Article 8
Repatriation of victims of trafficking in persons
1. The State Party of which a victim of trafficking in persons is a national or in which the person
had the right of permanent residence at the time of entry into the territory of the receiving
State Party shall facilitate and accept, with due regard for the safety of that person, the
return of that person without undue or unreasonable delay.
2. When a State Party returns a victim of trafficking in persons to a State Party of which that
person is a national or in which he or she had, at the time of entry into the territory of
the receiving State Party, the right of permanent residence, such return shall be with due
regard for the safety of that person and for the status of any legal proceedings related to
the fact that the person is a victim of trafficking and shall preferably be voluntary.
3. At the request of a receiving State Party, a requested State Party shall, without undue or
unreasonable delay, verify whether a person who is a victim of trafficking in persons is its
national or had the right of permanent residence in its territory at the time of entry into the
territory of the receiving State Party.
4. In order to facilitate the return of a victim of trafficking in persons who is without proper
documentation, the State Party of which that person is a national or in which he or she had
the right of permanent residence at the time of entry into the territory of the receiving
State Party shall agree to issue, at the request of the receiving State Party, such travel
documents or other authorization as may be necessary to enable the person to travel to
and re-enter its territory.
5. This article shall be without prejudice to any right afforded to victims of trafficking in
persons by any domestic law of the receiving State Party.
6. This article shall be without prejudice to any applicable bilateral or multilateral agreement or
arrangement that governs, in whole or in part, the return of victims of trafficking in persons.
CoE
Article 16
Repatriation and return of victims
1. The Party of which a victim is a national or in which that person had the right of permanent
residence at the time of entry into the territory of the receiving Party shall, with due regard
270
for his or her rights, safety and dignity, facilitate and accept, his or her return without
undue or unreasonable delay.
2. When a Party returns a victim to another State, such return shall be with due regard for the
rights, safety and dignity of that person and for the status of any legal proceedings related
to the fact that the person is a victim, and shall preferably be voluntary.
3. At the request of a receiving Party, a requested Party shall verify whether a person is its
national or had the right of permanent residence in its territory at the time of entry into the
territory of the receiving Party.
4. In order to facilitate the return of a victim who is without proper documentation, the
Party of which that person is a national or in which he or she had the right of permanent
residence at the time of entry into the territory of the receiving Party shall agree to issue, at
the request of the receiving Party, such travel documents or other authorisation as may be
necessary to enable the person to travel to and re-enter its territory.
5. Each Party shall adopt such legislative or other measures as may be necessary to establish
repatriation programmes, involving relevant national or international institutions and non
governmental organisations. These programmes aim at avoiding re-victimisation. Each
Party should make its best effort to favour the reintegration of victims into the society
of the State of return, including reintegration into the education system and the labour
market, in particular through the acquisition and improvement of their professional skills.
With regard to children, these programmes should include enjoyment of the right to
education and measures to secure adequate care or receipt by the family or appropriate
care structures.
6. Each Party shall adopt such legislative or other measures as may be necessary to make
available to victims, where appropriate in co-operation with any other Party concerned,
contact information of structures that can assist them in the country where they are
returned or repatriated, such as law enforcement offices, non-governmental organisations,
legal professions able to provide counselling and social welfare agencies.
7. Child victims shall not be returned to a State, if there is indication, following a risk and
security assessment, that such return would not be in the best interests of the child.
§ 762. In principle, conformity with the basic requirements of Article 16 of CoE Convention
involves primarily the issuance of administrative instructions to the appropriate officials
and ensuring that the necessary resources are available to permit them to provide the
necessary assistance. Legislative amendments might be required however, to ensure that:
• Without unreasonable delay, it is verified whether a trafficking victim is a national
or has the right of permanent residence and he/she is issued the necessary travel
documents for re-entry.
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• Officials are required to act (or in appropriate cases, to consider acting) in response to
requests and that they have the necessary legal authority to issue visas or other travel
documents when a national or resident is to be returned. Thus, amendments might
be needed to laws governing the issuance of passports or other travel or identification
documents to ensure that they may lawfully be issued in repatriation cases and that the
appropriate officials have sufficient powers to issue them based on appropriate criteria.
• Those who claim to be victims have an opportunity to do so in appropriate proceedings,
including proceedings to deport them as illegal immigrants and proceedings in which
they are prosecuted for criminal offences that they are alleged to have committed
while being victims.
• Officials or tribunals responsible for matters relating to illegal immigration and
deportation do not order or carry out orders of deportation of a victim while that
person was required in criminal proceedings against alleged traffickers or in relation
to other offences covered by the Convention, or in civil proceedings against alleged
offenders. Legislation could direct such officials or tribunals to verify whether any
relevant proceedings were ongoing and, if so, to take the status of such proceedings into
consideration before deporting a victim. An important element in some countries will
be ensuring that there are adequate links between law enforcement and prosecution
officials who may be developing a criminal case against traffickers and immigration
authorities responsible for deporting and repatriating victims to ensure that victims
are not removed before they can participate effectively in the criminal process.
• Any repatriation of victims must be with due regard for the safety of that person - this
requirement also applies to victims who have not been witnesses.
• Actual repatriations are preferably, but not necessarily, voluntary, and should take
into consideration the status of any ongoing legal proceedings involving the victim
as such. Also, repatriation should not be carried out until any relevant nationality or
residency status has been ascertained.
• In addition to this, the CoE Convention demands the creation of repatriation program.
The purpose of such program is to avoid further victimization. Every State Party should
put maximum effort in (re)integration of victims into the society of the country he/she
returns to, including (re)integration into the system of education and labor market,
particularly by means of acquiring and advancing their professional qualifications.
As regards children, such programs should encompass the realization of their rights
to education and measures to provide adequate protection or acceptance by the
family or institutions responsible for child care. The child victims of human trafficking
shall not be returned to any state if, upon the assessment of risk and security, the
indications occurred that this may not be in his/her best interest.
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§ 763. We shall start this part of the Report with measures referring to trafficking victims
who are residents of the Republic of Serbia. The Travel Documents Law434 enables a
person not owning a travel document to enter the country if it is ascertained that he/she
is a Serbian national (Article 4 of the Travel Documents Law).
§ 764. Second, if a person is left without a travel document in a foreign country,
he or she is entitled to obtain an emergency travel document in order to return to
Serbia. Serbian diplomatic and consular missions abroad are empowered to issue such
documents. Accordingly, as far as Serbian citizens – trafficking victims are concerned,
Serbian diplomatic and consular missions have the necessary legal authority to issue
travel documents to them in repatriation cases, as required by the standards set forth by
international documents.
§ 765. With regard to aliens, until recently the Serbian legislator was generally not
dealing enough with repatriation, including repatriation of trafficking victims. However,
harmonization of migration and immigration policies with the EU standards and Serbian
will to join the visa-free Schengen regime have changed significantly the Serbian legislator’s
stance on this problem in a normative sense. Therefore, as we have previously pointed out,
the new Aliens Law stipulates a possibility that an alien, who is victim of human trafficking,
is approved a temporary stay and supplied with suitable accommodation, food and basic
living conditions (Article 28, Paragraph 5). We would also like to point out that an alien
for whom is impossible to be immediately banished from the territory and an alien whose
identity has not been ascertained or not owning a travel document, as well as in other
cases, will be ordered a stay by the competent authority in the Detention Centre for
Foreigners of the Ministry of the Interior (Article 49). The stay in the Centre shall last until
the alien is banished, not exceeding 90 days. Every person put in the Detention Centre
can contact representatives of diplomatic and consular missions from his/her country of
origin. Trafficking victims are put in suitable social welfare institutions and shelters of
civil society organizations. Minors are placed into a shelter with their parents, i.e. other
legal representative unless a competent guardian authority estimates that another
accommodation is more favorable for him/her (Article 52). The Aliens Law spells out
explicitly that a minor cannot be returned to his/her country of origin or any third state
ready to accept him/her until a suitable receipt has been secured (Article 5, Paragraph 2).
§ 766. Finally, during the whole procedure of banishment, the competent authority is
obliged to take care of a specific situation of the alien with disabilities belonging to any of
these categories: minors, persons fully or partially deprived of capacity to work, children
separated from their parents or guardians, persons with disabilities, senior citizens, pregnant
women, single parents with underage children and persons exposed to torture, rape and
other serious forms of psychological, physical and sexual violence (Article 58, Paragraph 1).
While exercising official duties towards these categories of aliens, the competent authority
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shall be obliged to act in accordance with regulations regulating a position of persons with
disabilities and with international agreements (Article 58, Paragraph 2).
§ 767. There is no special program on repatriation, but the issues referring to reintegration
and social inclusion of trafficking victims are spelled out in the Migration Management
Strategy, the Strategy for Suppression of Illegal Migrations for the period 2009-2014 and
in the National Action Plan to Combat Human Trafficking for the period 2009-2011.
§ 768. In the Migration Management Strategy adopted in 2009, it is stated that
conditions for the protection and social (re)integration of trafficking victims are not
sufficiently ensured. Beside the fact that special shelters for underage trafficking victims
have insufficient capacity, the operation of shelters for human victims is also not specified
by regulations. Also, the Strategy spells out that work of the Agency for Coordination of
Protection for Trafficking Victims should be improved so that the coordination of activities
and the organization of protection are separated; whereby the organization of protection
should be exercised by the existing agencies for social protection – namely, social welfare
centers which should be secured with adequate human resources and material conditions
in local communities where the biggest number of victims are identified. Additionally,
there is a problem of poor financial means for creating conditions for social integration of
victims (residence, material help and employment).
§ 769. Hence, the Strategy stipulates three important strategic aims: setting and
application of mechanisms for comprehensive and consistent monitoring of migration
flows in the Republic of Serbia; completion of strategic, legal and institutional framework
for uniform migration management; and protection of migrants’ rights, creation of
conditions for integration and social inclusion with raising awareness on the importance
of migrations. For that purpose a Coordination Body has been formed with an aim to
monitor and manage migrations, consisting of ministers competent for certain migration
aspects within their ministries, while the Commissariat for Refugees executes expert,
operative work, as well as administrative and technical tasks for the Coordination Body.
§ 770. The Strategy of Combating Illegal Migrations for the period 2009-2014435 refers
to documents on combating human trafficking among other things, its general aim being
significant improvement of effectiveness and increase of efficiency in fighting illegal
migrations. The Strategy sets forth foundation for the Government’s inter-department
advisory body which will coordinate the process of implementation, supervision, control,
evaluation and revision of the Strategy. Through the development of cooperation among
all subjects in the Strategy, the advisory body will also have a strong prevention role
in combating illegal migrations. It is important for the sake of our discussion to note
that a special aim has been set by the Strategy: development of the system of measures
towards illegal migrants – trafficking victims.
§ 771. With regard to victims’ repatriation, aims to be realized and measures to be
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adopted are specified in the National Plan of Action to Combat Human Trafficking for the
period 2009-2011436 adopted by the Serbian Government. As one of its strategic aims,
the NPA stipulates prevention of secondary victimization of victims/witnesses by the
state authorities by means of: a) consistently respecting human rights of victims and
applying international standards for protection of human rights of trafficking victims
in combating human trafficking such as UNICEF Guidelines on the Protection of Child
Victims of Trafficking in Southeast Europe and UNHCR Principles and Guidelines on
Human Rights and Human Trafficking; b) improving regulations with the aim of more
efficient protection of victim and enabling the detection, prosecution and sanctioning
of perpetrators of the crime of human trafficking; and c) providing efficient damage
compensation for trafficking victims.
§ 772. The strategic goal no.9 of the NPA envisages creation of long-term programs of
protection and reintegration of trafficking victims in order to: (a) provide psychosocial
support, protection and assistance to all trafficking victims, regardless of their willingness
to cooperate with state authorities in the procedures of investigation and evidence; (b)
enable the continuation of schooling; (c) offer professional development; (d) provide
adequate housing for trafficking victims and (e) find out the possibilities of providing a
monthly allowance during the process of (re)integration.
§ 773. In the Guidelines for standard operating procedures for dealing with victims of
human trafficking437, on pages 39-40, it is specified that the victims of human trafficking
in the process of repatriation need “to be provided with their security, as well as that
depending on the case, this is dealt with by the case manager (it is not stated from where),
the Agency for Coordination of Assistance to Trafficking Victims or in collaboration
with the Ministry of the Interior”. It is also specified that “minors should never, upon
returning, be unaccompanied”. As to the assistance to the victim upon his/her arrival to
the country of origin, it is stated that, among other things, “in order to decrease risk that
the victim should fall once again into the human trafficking chain, it is necessary that
the service provider from the country of origin welcome the victim at the land/air/port
border checkpoint”, where he/she would give the victim the details of the procedure and
that “he/she should ask the victim where he/she would like to go and if he/she needs any
kind of help”.
§ 774. In a nutshell: over the last two years the Republic of Serbia has done a lot to
establish a normative and strategic framework for regulation of issues of trafficking
victims’ repatriation according to the international standards mentioned above. We
436
437
See Strategic goal no. 8 of the National Plan of Action to Combat Trafficking in Human Beings.
The Guidelines for standard operative procedures for dealing with victims of human trafficking are located in the Annex of the Agreement on
Cooperation between the Ministry of the Interior, Ministry of Finance, Ministry of Justice, Ministry of Health, Ministry of Education and Ministry
of Labor and Social Policy in the field of fight against human trafficking, which was adopted on 12 November, 2009. The text of the Agreement,
together with the Annex, was published in Belgrade, in March 2010. Original text of the Guidelines, which is significantly different from the text
adapted into the Annex of the Agreement, was prepared within the Program for Support to the Development of Transnational Referral Mechanism
for Victims of Trafficking in Southeast Europe implemented by ICMPD in the period 2006-2009 with USAID support.
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are to see if in the near future there will be realization of measures defined within this
framework, as well as in practice, and to what extent this shall be the case.
§ 775. With regard to the repatriation of trafficked persons, it is necessary to differentiate
between procedures for domestic and for foreign nationals, as well as whether the
repatriation is organized between two countries or it is an internal return, from one Serbian
town to another. The latter has become increasingly often having in mind considerably
smaller number of identified trafficking victims who are foreign nationals.
§ 776. Until the adoption of the Instruction of the Ministry of the Interior, foreign
nationals who were trafficking victims were treated as illegal migrants. During this period,
competent law enforcement authority conducted the deportation of such persons to
the border of the country from which they entered the then FRY, regardless of whether
specific person was the citizen of that country or not.
In March 2002, a citizen of Moldova was recruited by her godmother. As a person who
“had helped” many girls, the godmother promised her job in Italy and organized the entire
trip and preparation of documents. Because of counterfeit documents, i.e. fake visa in
the passport, upon her arrival to Serbia, the police stopped the girl and deputed her to
the Romanian border. The girl was not recognized as potential trafficking victim and no
prevention effort was made in that respect. Although exploitation did not occur, which
makes any prevention much more difficult and sometimes even impossible, the process
had started, however and it was the only opportunity to help the girl and prevent her
falling victim. She returned to Bucharest, where the godmother welcomed her and for the
second time “helped” her enter Serbia. The girl was sexually exploited in Serbia, identified
and placed at the shelter in the second half of 2002.
Conversation with an employee of the shelter for trafficking victims, Belgrade, 2002
§ 777. Having in mind that human trafficking and corruption are closely connected, this
period was sometimes favorable for abuses within state institutions, where certain
officers collaborated with traffickers.
In 2002, two citizens of Romania were, together with three other foreign nationals, identified
as trafficking victims in a night bar in southern Serbia during an action of the Serbian police.
Since the two women did not have valid travel documents, but entered the country illegally,
they should have been deported to the Romanian border. Two local police officers were
supposed to transport them. However, on the way there, the police officers contacted with
the traffickers and the women were never deported, but were returned to them.
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Informal conversations with the representative of the Serbian Ministry of the
Interior, Belgrade, 2003, 2008 and 2010
Court proceedings for bribery (Article 245 (1) of the then valid CL RS) were instituted
against the two police officers in 2002, when the described events were discovered, before
the Pančevo District Court, which in April 2006 rendered the first instance judgment,
finding the accused guilty and sentencing them to 6 months in prison without obligation
to return material gain obtained by committing a crime. The judgment has been affirmed
by the court of second instance (KŽ 1958/06).
Criminal Justice System and Court Practice in the Field of Combating Human trafficking
in the Republic of Serbia / Krivičnopravni sistem i sudska praksa u oblasti borbe protiv
trgovine ljudima u Srbiji, Joint Programme UNHCR, UNODC and IOM to Combat
Human Trafficking in the Republic of Serbia
§ 778. In the first period, when the authorities in Serbia started recognizing human
trafficking problem, after the identifications, foreign nationals were placed at the
only shelter for trafficking victims that existed at that time in Serbia (established in
2002). There, they were awaiting repatriation documents. The government left to the
International Organization for Migrations, the entire process of repatriation of trafficking
victims, in organizational and financial terms. The IOM, in this way comes into direct
contact with trafficking victims, thus acting as a direct victim assistance provider.
§ 779. After repatriation, feedback information on the safety and reintegration of
trafficking victims in their country of origin were very often not available to NGOs
that had been providing assistance in the destination countries. Thus, one of the main
objections to this program is the lack of communication between NGOs in the country of
origin and destination country. It is known that this cooperation, if being good, to a great
part contributes to the successful reintegration. Institutions in charge did not conduct
risk assessment and the issue of safety of victim’s return to the environment form where
she/he had escaped, as well as the danger from traffickers or persons who worked with
them, was not given serious consideration when preparing and conducting repatriation.
In 2004, a 16-year old boy was placed at the shelter for trafficking victims. Because of
the lack of coordination between state authorities and the Agency for Coordination of
Protection of Trafficking Victims, a serious mistake was made and the minor was sent
to the country of origin by train unaccompanied. The Bulgarian border authorities were
not notified and a local NGOs was informed only subsequently. Moreover, it is relevant
in this case to mention that this boy was a person with disability. Since there was no
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further communication between state authorities of the two countries, we do not have
information whether the boy arrived safely to desired destination.
§ 780. The fact that repatriation of trafficking victims at that time carried out exclusively
by IOM438 was most often explained by the lack of state funds for this activity. However,
the experience of the first and the last repatriation carried out by the Mobile Team, which
operated within the Agency for Coordination of Protection of Trafficking Victims as a
state mechanism, has shown that this argument of lack of state funds is not valid. The
entire action, including the costs of fuel, refreshment and visa, amounted to USD 150439.
This example shows that successful repatriation of trafficked persons which enables
adequate and long-term reintegration, with security assessment and the exchange of
information between NGOs in the country of origin and destination country, does not
require great resources. Without any doubt, the state possesses necessary capacities to
take charge of this process, especially if the present trend of internal trafficking is taken
into consideration. Today, we cannot talk about enormous transportation costs from one
town to another, having in mind the total area of the Republic of Serbia.
§ 781. It is not clear why the state does not resume responsibility for trafficking victims’
return to their country/town, especially having in mind that many employees of the social
welfare centers and other institutions have passed various education programs on the
topic of human trafficking and victim assistance.
In June 2004, the Mobile Team identified a Romanian national who had been sold by
her partner for clearing of a gambling debt. She was sexually exploited and managed to
run away thanks to client’s help. She was placed at the shelter for trafficking victims in
Belgrade. This woman did not have documents and feared for her safety. She did not have
where to return in Romania, because the house in which she used to live with her partner
was lost for his gambling debts.
In July, ASTRA contacted Romanian NGO Reaching Out, which ran the shelter for trafficking
victims. They said that the woman could be accommodated there, but it was necessary
first to inform her thoroughly about how this shelter worked and then to agree on details.
She was provided with information about possibilities offered by this shelter, and their
conditions were in accordance with her needs. In mid-October, the then Coordinator of the
Agency and two ASTRA representatives carried out the repatriation. Documents necessary
for the victim to leave the country were prepared, the shelter in Romania was informed
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439
Since the number of identified foreign trafficking victims has been in considerable decline since 2005, IOM has shifted its work from repatriation
towards the reintegration of domestic nationals.
Costs of repatriation to some countries are, of course, higher, due to airplane costs. For example, the cheapest airplane one-way ticket from
Belgrade to Kiev costs EUR 400 (http://www.vizatravel.co.rs/rezervacije.html /(accessed on 8 March 2011)), depending on the carrier, season and
market conditions.
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and technical preparations for the trip were made. All of them traveled by the Agency’s car
from Belgrade to the shelter located in the vicinity of Bucharest. With breaks made along
the way and short rest upon the arrival at destination, the entire repatriation was finished
in less than 24 hours. Next year, this woman enrolled in the Faculty of Social Work.
§ 782. In addition to the mentioned problems, in the past, diplomatic staff had no
awareness of human trafficking. Namely, besides documents (which victims do not have
for well-known reasons), the girls were sometimes asked to fulfill other conditions as well.
“(…) For return from Italy, I needed documents, for which I contacted our consulate. Of
course I didn’t have any identification document, I ran away literally with nothing. When
I told everything to the consul, I couldn’t believe when he told me that if I couldn’t prove
my identity, I had to find two witnesses to confirm it! I only wanted to go home as soon
as possible. In front of the Embassy, I asked some young man and woman to help me and
they immediately agreed. We finished it relatively quickly at the Consulate (…)”
Until her return to Serbia, the Embassy did not provide any assistance to this young
woman, but she had to contact Italian immigration police.
§ 783. The situation partially changed, but the problem of funds persists. Consulates of the
Republic of Serbia, which do not have budget for the return of Serbian citizens who find
themselves in a foreign country without documents and money, have real problem with the
costs. In case of human trafficking victims, the issue of their security upon return represents
an additional problem. Because of the lack of funds, the staff of Embassies/Consulates is
often forced to use the cheapest, but not the most secure means of transportation.
§ 784. Moreover, the victim often remains invisible to the police at border checkpoint
and does not come in contact with other actors that may do the identification and
subsequently provide necessary assistance.
Since Italy is the most frequent destination country for Serbian nationals, in recent years
representatives of ASTRA were often in contact with one of the Serbian Consulates in this
country. This is way the Consul is very familiar with the procedure for the repatriation
of trafficking victims. In one conversation, he observed that the lack of available funds
often made them chose the cheapest transportation option to the home country, while
the security of victims was given only secondary importance. For this reason, the risk of
traffickers’ attempting to come in touch with the victim is greater.
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§ 785. The general absence of repatriation procedures leads to uncoordinated actions and
mistakes that aggravate victim’s situation. Such mistakes are especially impermissible
when we talk about children.
§ 786. Numerous examples of Serbian citizens who were identified as trafficking victims
in other countries but because of refusal to testify or for other administrative reasons lost
their residential status and were forced to return to Serbia, often only with emergency
travel document, show how serious the issue of repatriation is and how poorly organized
it is between different countries. More specifically, they have been treated as illegal
migrants. State authorities, NGOs and international organizations in the destination
country that were in contact with the victims were not warning either state authorities or
NGOs in Serbia on the return of such persons. After return, some of these persons called
SOS hotline for medical, legal and psychological assistance. Such return, without any
security check and without informing competent authorities, can put the victim in danger,
since traffickers are usually well informed about victim’s movement and it is very easy for
them to contact her after she has left the shelter in the destination country and bring
her back into the trafficking chain. The question is how many persons have never reached
their destination or did not manage to realize their rights guaranteed by international
documents thanks to the repatriation executed in such manner.
§ 787. Thanks to informal regional NGO network, several times ASTRA has obtained
information about victims who were coming back to Serbia and of whose arrival nobody
else was informed. Owing to this, in cooperation with the police anti-trafficking team,
we were able to timely provide safe receipt of the victim and offer her all necessary
assistance. In addition to the fact that for majority of them this is the first time to fly by
plane and that they do not know airport procedure, the victims are often scared because
they do not know what is ahead of them when they get there. Thus, it means a lot when
they have contact with an organization or individual whom they know or whom they
expect to be awaited by.
§ 788. Fear of return to the unknown may be reduced by informing the victim in advance
about the procedures which she/he would have to go through and about who is going to
wait for her/him at the destination. Moreover, of importance for winning victim’s trust
and for preparing the receipt are conversations and sharing information which she/he and
NGO in the destination country have about her/his safety and situation awaiting her/him
upon arrival in her closest environment.
On 30 April 2004, ASTRA was informed by a Slovenian NGO that an underage trafficking
victim would be deported with emergency travel document by regular flight LjubljanaBelgrade and that her mother might be waiting for her at the airport. ASTRA representative
and Coordinator of the Mobile Team, together with police officers in civilian suits (two
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men and one woman) welcomed the girl at the airport. This receipt at the airport was
the first case in which the Agency was involved and where its staff had opportunity to
conduct the interview with a victim. After the interview, the analysis of the receipt was
made in order to identify mistakes and measures that had positive effects. The girl did
not show at the exit door for a long time. It turned out later that she was stopped by
the airport police. The police officer who questioned her was not educated about human
trafficking problem; during the conversation, he was insulting her, accusing her that she
was a prostitute and that she was sold by her mother. After that, the girl was visibly
shaken and the entire situation was recognized as a mistake that should be prevented
next time. The girl’s mother was present at the airport, too. Her communication with the
girl created confusion at some points, but it was not possible to remove her. On the other
hand, at some moments her presence was welcome. Besides the mother, two cousins
unexpectedly appeared at the airport, and the Mobile Team representatives did not have
information who they were and whether they were involved in trafficking. The police
officers checked their identity and on that occasion, as well as throughout the entire
action, they acted very correctly. Conversation between the Mobile Team representative
and the girl was finished with the agreement that she would go to the shelter. However,
the Mobile Team members themselves did not fully agree regarding the accommodation,
for which reason the shelter was the only option offered to the girl. The girl was taken
to the shelter by taxi, which was not a good solution, since she had a need to talk about
what had happened to her during the ride.
§ 789. It often happens that because of the ignorance of the airport officers about human
trafficking, the victim who is traveling with emergency travel document has to go through
special administrative treatment like illegal migrant who returns to the home country.
Our citizens have experienced such situations in destination countries when returning
to Serbia.
„(…) I came to the airport440 in the company of NGO who ran the shelter in which I lived
the whole time. Our Consul was also there, who helped me a lot, as well as the person
from Greek IOM. While we were waiting for the checking of the documents, IOM person
talked with the police officer. Some time later, he called me into his office and served
me a fine of EUR 600 which I had to pay because I entered Greece illegally. The Consul
tried to explain in English that I was identified as trafficking victim, that I cooperated with
the authorities, that I lived in the shelter, but he did not understand a word. The Consul
couldn’t do anything else. Of course, I couldn’t pay the fine and I still have a five-year ban
on going into EU countries. It’s the procedure, I guess… I really don’t understand why I
440
The airport in Athens, Greek, from where the victim was returning to Serbia.
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am punished after everything that happened to me, while he441 managed to escape from
the police and stay unpunished (...)“.
§ 790. The organization of arrival and the first contact with the victim at the airport
are very important. Victims have had different experiences in returning to their home
country. Still, the greatest problem is the lack of clear procedures, the ignorance of the
airport staff and victims’ not knowing who is waiting for them, which increase uncertainty
and their fear of the unknown.
“(…) when we landed to Belgrade, I was happy, because people I loved were there and
I wasn’t alone any more. But on the other hand, I was afraid of what would happen and
how they would react… I was afraid of the unknown. The police officers at the airport
were very kind, I passed through the procedure easily and left the airport building quickly.
Now when I think about this, I think that the most important thing in such situation is
that someone strong await you there, someone who can protect you and tell you that
everything will be fine, because I know that I was confused and scared… After that, we
went to the Agency where we talked, I don’t remember what about, I only know that I
was tired of everything and that I wanted everything to finish as soon as possible, so that
I could have a rest and be alone a little. Maybe we could have talked one day later….”
§ 791. The decreasing trend in the number of identified foreign nationals who were
exploited on the territory of Serbia appeared well before the new Law on Aliens was
adopted. According to the data of the Agency, in 2009, about 90% of all identified victims
were citizens of Serbia, while in 2010 this percentage is even higher and amounts to over
95%. As far as domestic nationals are concerned, internal trafficking was dominating in
the last couple of years. However, with an increasing number of identified victims of labor
exploitation, the number of Serbian citizens who were victims of labor exploitation abroad
also increased. The most frequent destination countries in these cases are Russia and the
countries of the Caucasus region, such as Azerbaijan. Unfortunately, often not recognized
by these countries’ officials as victims of human trafficking, the exploited workers often
returned home at their own expense or at the request of the very companies which had
exploited them previously.
(…) The workers were forced to leave Azerbaijan, without possibility to choose whether
and when they wanted to return home. They were returning in the groups of 10-45
persons, which was organized and paid for by SerbAz.
441
Trafficker who brought her to Greece and exploited her.
282
In workers’ opinion, collective return has been organized as the quickest and most
efficient way for removing evidence and covering up the facts relating to exploitation, in
which way conditions for perpetrators’ impunity have been created.
Several times a week, the company informed the workers, either by mobile phone or by
delivering the list of names to the janitor, who should report to the management building
for the purpose of returning home. On the day of return, on the company’s premises,
they were forced to sign a document stating that they were paid out in full and that
the conditions were satisfactory. Having signed that paper, they would receive a certain
amount of money (reduced in a way described in the section Agreed Wages and Their
Payment). After they left the management building, a van would wait for them to take
them to the airport, where they got their passports. Some got their passports only when
they got to the airport. Sometimes, the door of the management building was locked when
the workers got in. The workers were sometimes signing the statements and taking their
wages and passports in the van driving to the airport or when they reached the airport.
(...) Since the majority of workers stayed in Azerbaijan illegally, they had problems with
airport personnel on their departure, as well as at the airports where they landed. One
worker says that he had to pay US$ 600 to the airport officers to let him leave Baku.
The workers were returning home by plane via Vienna, Istanbul or Moscow to Belgrade,
Zagreb, Skopje or Sarajevo, without any regards to their country of origin. SerbAz
representatives were the only ones who had precise information about the flights that
were to take the workers home. On their way to the airport and at the airport, they were
surrounded by SerbAz security and could not communicate with anyone.
(…) When they landed to the airports in the countries of origin, the workers were mostly
buying their own bus tickets and organizing their own return to their places of residence…
From the report “The Case of Labor Exploitation of the Citizens of the Republic of
Serbia, the Republic of Bosnia and Herzegovina and the Republic of Macedonia in the
Republic of Azerbaijan - Country of Origin Report“, NGO ASTRA - Serbia, NGO La
Strada, Bosnia and Herzegovina, NGO PSD – Croatia, 21 December 2009
(full report could be found in Annex 4 of this Report).
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Women and Children, Article 9 – Prevention of trafficking in persons
CoE Convention on Action against Trafficking in Human Beings, Article 8 - Security and
control of documents and Article, Article 5 – Prevention of trafficking in human beings
Palermo Protocol
Article 9
Prevention of trafficking in persons
1. States Parties shall establish comprehensive policies, programmes and other measures:
a. To prevent and combat trafficking in persons; and
b. To protect victims of trafficking in persons, especially women and children, from
revictimization442.
2. States Parties shall endeavour to undertake measures such as research, information
and mass media campaigns and social and economic initiatives to prevent and combat
trafficking in persons.
3. Policies, programmes and other measures established in accordance with this article shall,
as appropriate, include cooperation with non-governmental organizations, other relevant
organizations and other elements of civil society.
4. States Parties shall take or strengthen measures, including through bilateral or multilateral
cooperation, to alleviate the factors that make persons, especially women and children,
vulnerable to trafficking, such as poverty, underdevelopment and lack of equal opportunity.
5. States Parties shall adopt or strengthen legislative or other measures, such as educational,
social or cultural measures, including through bilateral and multilateral cooperation, to
discourage the demand that fosters all forms of exploitation of persons, especially women
and children, that leads to trafficking.
CoE
Article 5
Prevention of trafficking in human beings
1. Each Party shall take measures to establish or strengthen national co-ordination between
the various bodies responsible for preventing and combating trafficking in human beings.
2. Each Party shall establish and/or strengthen effective policies and programmes to prevent
trafficking in human beings, by such means as: research, information, awareness raising
and education campaigns, social and economic initiatives and training programmes,
in particular for persons vulnerable to trafficking and for professionals concerned with
trafficking in human beings.
442
Measures that refer to the establishment of comprehensive policies, programs and measures aimed at preventing the revictimization of trafficking
victims are discussed within the analysis Article 6 of the Protocol and corresponding articles of CoE Convention.
284
3. Each Party shall promote a Human Rights-based approach and shall use gender
mainstreaming and a child-sensitive approach in the development, implementation and
assessment of all the policies and programmes referred to in paragraph 2.
4. Each Party shall take appropriate measures, as may be necessary, to enable migration to
take place legally, in particular through dissemination of accurate information by relevant
offices, on the conditions enabling the legal entry in and stay on its territory.
5. Each Party shall take specific measures to reduce children’s vulnerability to trafficking,
notably by creating a protective environment for them.
6. Measures established in accordance with this article shall involve, where appropriate,
non-governmental organisations, other relevant organisations and other elements of civil
society committed to the prevention of trafficking in human beings and victim protection
or assistance.
§ 792. A prerequisite for analyzing Article 9 of the Trafficking Protocol and Article 5 of the
CoE Convention is to define what comprehensive measures that should be established
to prevent and combat trafficking in human beings are. As said in the introduction, the
first anti-trafficking activities in Serbia were launched in 2000-2001. These activities
in the majority of cases directly resulted from the initiatives of the Stability Pact for
Southeast Europe Task Force on Trafficking in Human Beings. According to its document
“National Programmes to Combat Trafficking in Human Beings (National Plans of Action)
Background Paper”443, a broad area of human trafficking prevention should include “both
prevention and awareness raising – both of which should be understood primarily as
addressing the root causes of trafficking: Trafficking in persons has its roots in the social
and economic conditions in the countries of origin. For prevention, the emphasis needs to
be on economic regeneration and the need to reduce the numbers of persons in vulnerable
groups through economic empowerment. This requires an analysis of investment
strategies and restructuring agreements, assessment of the availability and types of
employment particularly for women, and the extent of discrimination. These factors can
then be addressed by, inter alia, establishing and implementing non-discrimination in
laws relating to education, employment, access to credit facilities, etc. Vulnerable groups
should be identified and prioritized for economic assistance, in particular unprotected
minors and women from economically impoverished areas. Additional national initiatives,
such as NAPs for women and NAPs for children should also be considered444”.
§ 793. In short, prevention can be understood as a use of appropriate measures, activities
and resources in order to tackle objective and subjective causes and conditions in the
443
444
National Programmes to Combat Trafficking in Human Beings (National Plans of Action) Background Paper. Stability Pact for South Eastern Europe,
Task Force on Trafficking in Human Beings, Vienna, 2001.
Ibid, pp.1-2.
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countries of origin, transit and destination of trafficking victims, which contribute to the
emergence and development of human trafficking.445 It can be observed in two ways: as
the prevention of crime and the prevention of risk.
§ 794. Since prevention is an organized, planned activity aimed at putting a stop to
human trafficking, prevention activities should go before the phenomenon itself and
be focused on the elimination, mitigation, neutralization or redirection of the effects of
causes, conditions and factors that lead to it. As such, these activities should be part of
a comprehensive program. Prevention program should contain the following structural
elements446: the goal of the prevention program; the focus of prevention; means, methods
and techniques; subjects – those who carry out the program; and conditions for the
prevention program447. Since the aspect of human trafficking prevention is rather broad,
it should comprise programs that directly affect causes of trafficking, safe migrations and
employment; awareness raising programs; empowerment and opportunity programs for
vulnerable groups; and finally, reintegration programs. Human trafficking prevention is in
the interest of both individuals and the state as a whole.
§ 795. For the purpose of this Report, we have tried to give an overview of official
documents that deal with human trafficking prevention or in some of their segments
address this problem in the context of prevention448. However, the issue of preventions
is directly, i.e. explicitly discussed only in the Strategy to Combat Trafficking in Human
Beings in the Republic of Serbia449 and the National Action Plan450, documents passed by
the Government of Serbia.
III.6.1.1. Startegy to Combat Trafficking in Human Beings in the Republic of Serbia
and National Plan of Action to Combat Trafficking in Human Beings
§ 796. The Strategy to Combat Trafficking in Human Beings in the Republic of Serbia
(hereinafter: the Strategy) was adopted by the Government of Serbia on 12 December
2006. The Strategy was adopted as a result of several years of work of the members
of the National Team for Combating Human Trafficking, in particular its Advisory Body,
and OSCE Mission to Serbia. As it is said in the Introduction of the Strategy, it has been
drafted in accordance with the Stability Pact Guidelines for National Plans of Action451
and in accordance with the Program for the Development and Implementation of a
445
Mijalković S., Organizovane ilegalne migracije kao savremeni bezbednosno-kriminalistički problem, doktorska disertacija, Fakultet bezbednosti,
Beograd 2006.
Milovanović M., Stakić Đ., Metode socijalnog rada, Stručna knjiga, Savez društava socijalnih radnika Srbije, Beograd 1991.
447
Necessary and sufficient material, human, spatial, normative prerequisites which every prevention program requires.
448
Here we have in mind the provisions of the Criminal Law, i.e. Code criminalizing human trafficking. Like any other criminalization, the criminalization
of human trafficking should have general preventive effect. Unfortunately, this area also faces numerous problems. For details, see the analysis of
Article 5 of the Protocol.
449
The Strategy was published in the Official Gazette of RS, no 111/2006 of 12 December 2006.
450
The National Action Plan to Combat Trafficking in Human Beings in the Republic of Serbia in the period 2009-2011 was published in the Official
gazette of RS, no. 35/09 of 12 May 2009 based on the Government’s Conclusion 05 no. 021-10196/2006-4 of 30 April 2009.
451
The Guidelines can be found at: http://www.stabilitypact.org/trafficking/default.asp
446
286
Comprehensive National Anti-Trafficking Response and Best Practices in the Region
prepared by the International Center for Migration Policy Development (ICMPD).
§ 797. The representatives of the OSCE Mission to Serbia and of the Border Police
Directorate of the Serbian Interior Ministry worked on the first draft of the Strategy. It
was then forwarded to the members of the Advisory Body452 and subsequently to the
members of the Working Groups of the National Team for Combating Human Trafficking.
The members of the National Team were rather disinterested in the entire process of
making the Strategy. However, it should be borne in mind that the process itself was
not participative or based on precise agreement of all members of the Team. The final
version of the first draft of the Strategy was finished in August 2005, at the meeting in
Novi Sad, in the presence of the coordinators of the National Team’s Working Groups and
the representatives of Interior Ministry’s Border Police Directorate and OSCE Mission to
Serbia. This text was sent to other members of the National Team for comments.
§ 798. After that, there was no word about the Strategy for more than one year. Then, in
the middle of 2006, the work on the new Strategy started within the Interior Ministry,
i.e. its Border Police Directorate and Strategic Planning Office. They did not start from
the beginning, but the text of the Strategy was adapted based on the previous draft and
considerably shortened. The new text of the Strategy did not go through the public
debate, i.e. it was not presented to the members of the National Team, but was sent
directly to government’s Anti-Trafficking Council, which adopted it and forwarded it to
the Government of Serbia.
§ 799. The Strategy can be conditionally divided into two parts. In the first part, it
contains the description of the situation in the country regarding human trafficking at
the time when it was made and the institutional framework for fighting it. Strategic goals
and overall objectives in combating human trafficking and the protection of victims are
given in the second part.
§ 800. Prevention is defined as one of Strategic Goals of the Strategy. Defined objectives
and consequent sub-objectives given in Item 5 include “raising the level of awareness on
the issue of trafficking in persons as a form of modern slavery”, specifically, the awareness
of the wider public, risk groups, clients and potential exploiters of victims of trafficking in
persons and of state and non-governmental representatives who work with groups at risk.
§ 801. Further, the objective and sub-objectives defined in Item 6 of the Strategy refer
to “reducing the factors of risks and vulnerability to the problem through: enhancing the
knowledge of groups at risk about the measures of caution that can be applied in order
to reduce the risk of trafficking in persons; improving social and economic conditions of
groups at risk, especially by implementing the Poverty Reduction Strategy; and developing
economic and social programs for empowering women and children at risk”.
§ 802. Besides objectives set in the section “Prevention”, the following objective and
452
The mechanism and coordination of the national anti-trafficking bodies discussed in detail in the introductory part of this report.
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sub-objectives defined within the “Institutional Framework” can be observed in the
context of human trafficking prevention: “training and professional enhancement of
all actors included in the process of recognizing and providing services to victims of
trafficking in persons for the purpose of better identification, assistance and protection
of victims”, including those who may establish the first contact with trafficking victims,
law enforcement professionals and professionals who provide direct victim assistance.
The goals of International Cooperation are set as a specific goal of the Strategy (Goal 10).
§ 803. In conclusion, objective set in the section “Assistance, Protection and Reintegration
of Victims” include preventive activities aimed at the prevention of recidivism, i.e. falling
victim to trafficking all over again.
§ 804. Although the very existence of the Strategy is an enormous step in anti-trafficking
policy making in the Republic of Serbia, this document has numerous shortcomings. If
we put aside the way in which the Strategy was adopted and its structural deficiencies,
its very concept does not offer any guarantees for successful implementation in practice.
§ 805. First of all, it is not specified to which period of time the Strategy should apply453.
Without a precise timeframe in which the defined goals should be attained, we are
concerned that we will have to wait long for the next revised Strategy to be passed that
would be adjusted to new trends and problems in the field.
§ 806. Also, the section “Monitoring of Implementation of Mechanism for Combating
Trafficking in Persons and Evaluation of Results” only briefly lists the responsibilities of
anti-trafficking actors in Serbia. In view of the fact that it takes very long here to pass
important document, set up relevant bodies or implement activities, it is not very likely
that the members of the National Team would regularly submit reports to the National
Coordinator who would then forward them to the Anti Trafficking Council for “analyzing
the results and submitting to the responsible bodies the recommendations for reviewing
the strategic goals and suggesting necessary measures” 454. In our opinion, an opportunity
for specifying the responsibilities and obligations of relevant actors in one such document
has been missed.
§ 807. As said before, the Strategy to Combat Trafficking in Human Beings in the
Republic of Serbia has obtained its final form at the Interior Ministry, i.e. its Border Police
Directorate and the Office for Strategic Planning. Carefully reading the Strategy, it seems
that this document is actually the Strategy of the Serbian Interior Ministry. Although it is
true that this document has come to life thanks to the commitment and determination
of the representative of the Interior Ministry’s Border Police Directorate, this cannot
be an excuse for the fact that the Strategy has been written in the style of a report,
with unnecessary pointing out to the accomplishment, in particular those of the state
authorities of the Republic of Serbia.
453
454
During work on the first draft in 2005, it was foreseen that the Strategy should have covered the period 2005-2008.
Strategy to Combat Trafficking in Human Beings in the Republic of Serbia, Goal 11
288
§ 808. The adoption of the Strategy should have created prerequisites for the elaboration
of further plans and programs for combating human trafficking in the Republic of Serbia455,
first of all annual national action plans which provide structured and comprehensive
approach to the problem. By including all international organizations and NGOs, the
state is showing a good will for cooperation in these activities and for mutual exchange of
information. Unfortunately, although the Strategy was adopted in the autumn of 2006,
the first National Plan of Action to Combat Trafficking in Human Beings was passed as
late as in the beginning of 2009, as a condition necessary for visa liberalization with EU
which occurred at the end of 2009.
Concluding comments of the Committee on the Elimination of Discrimination
against Women: Serbia. Committee on the Elimination of Discrimination against
Women, Thirty-eighth session, CEDAW/C/SCG/CO/1, 14 May-1 June 2007*
Recommendation 26. The Committee calls on the State party to adopt the draft
National Plan against Human Trafficking without delay and to establish a mechanism
to monitor and evaluate its effectiveness. The Committee further calls on the State
party to effectively apply its anti-trafficking legislation and programmes and to enhance
international, regional and bilateral cooperation in order to further curb the phenomenon.
The Committee also requests the State party to establish human rights-based protection
and long-term reintegration programmes for victims.
* Translation: ASTRA
§ 809. The Ministry of the Interior initiated the process on 12 January 2009 with the
preparatory meeting of the National Coordinator for Combating Human Trafficking and
the Advisory Boody of the National Team for Combating Human Trafficking. After that,
National Team’s working groups held meetings where a comprehensive advisory process
was instituted and an emergency drafting of the NPA Draft was arranged.
§ 810. On 23 January 2009, in the premises of the Ministry of the Interior, an all day
workshop was held for the drafting of the NPA, where the representatives of the relevant
institutions participated, as well as international and non-governmental organizations.
§ 811. As noted above, the Strategic Goals from the Strategy have been divided into
five fields: institutional framework; prevention; assistance, protection and reintegration
of victims; international cooperation; monitoring the implementation of the mechanisms
for combating human trafficking and evaluation of the results, and so, in line with the
above, the fields of activity in the NPA have also been divided.
§ 812. It is important to mention that the representatives of governmental, non455
The National Action Plan to Combat Trafficking in Human Beings in the Republic of Serbia in the period 2009-2011 was published in the Official
gazette of RS, no. 35/09 of 12 May 2009 based on the Government’s Conclusion 05 no. 021-10196/2006-4 of 30 April 2009.
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governmental and international organizations have reached an agreement with regard to
the NPA. The introduction states that “consequently, this comprehensive plan represents
an example of good practice and outstanding cooperation in the region.”456
III.6.1.2.Preventive Activities Carried Out in Serbia457
§ 813. Analyzing the activities carried out so far, it may be concluded that the majority of
them were aimed at the awareness raising - both general public and professionals – of the
problem of human trafficking, as well as at the education of professionals who may come
in contact with (potential) trafficking victims.
§ 814. However useful they may be, campaigns cannot be efficient without systematic
work on eradicating root causes that make someone fall victim to trafficking. Vulnerability
arises out of the socio-economic context in which one person lives. In the country of
origin, such context may be characterized by poverty,, unemployment, life in violence, lack
of adequate social welfare and social protection programs, lack of access to education,
discrimination, belonging to marginalized groups, lack of equal opportunities and, the most
important in the light of essential failure of campaigns, the lack of alternative458. Therefore,
essential prevention of human trafficking must be observed in the context in which this
phenomenon takes place and which made the problem possible in the first place.
§ 815. Although NGOs often warn of the emergence of some new trends, it takes long
for international and donor organizations that support anti-trafficking activities to assess,
consider and decide to support an activity designed in accordance to a newly identified
trend. Thus, when funds are finally raised, the need for that specific activity no longer
exists or is modified. Moreover, local needs and specific characteristics are neglected.
Anti-trafficking activities are most often designed in different centers and than,
unadjusted, implemented ”by force“459. Since activities are not carried out in accordance
with strategic objectives, priorities do not exist in some countries and local communities.
§ 816. Measures focused on the eradication of causes460 that make people, especially women
456
The National Action Plan for Combating Human Trafficking for the period from 2009 to 2011, the RS Official Gazette no. 35/09 of 12 May 2009,
p. 8.
More information on prevention activities available at http://www.astra.rs/?page_id=67, as well as at the websites of organizations/institutions
that are mentioned further in the text. ASTRA E-Newsletter was launched in 2004 to provide domestic and international public with regular
insight into activities that relevant actors carry out in the area of prevention, suppression and prosecution of human trafficking in Serbia and
regional cooperation in that area, hoping that regular access to information would contribute to the coordination of work. ASTRA E-Newsletter is
released quarterly in Serbian and English and is distributed to more than 1000 e-mail addresses
458
In the document Introduction to Human Trafficking: Vulnerability, Impact and Action. Background paper from the Vienna Forum to Fight Human
Trafficking, it is said that in spite of numerous awareness raising campaigns and considerable funding invested in this type of prevention, human
trafficking is still referred to as a growing phenomenon. Although the research shows that citizens know more about this problem, it does not
affect their choices. This is because such understanding of prevention provides potential victims only with information, but not with sustainable
alternatives.
459
Thus, for example, the same campaign is conducted in all countries in the region, without prior country assessment. In the area of direct victim
assistance, the same projects are implemented without specification with regard to the victims’ needs and circumstances in specific countries.
Thus, some international organizations reduced funds for shelters that they had supported earlier and redirected their support to reintegration
shelters, which starting up they supported in all countries in the regions.
460
In literature about human trafficking problem, terms „push and pull factors” are most often used to designate social, political, economic and
environmental factors that push people to migrate from one country/region to another. Push factors are linked to the country of origin and pull
factors to the country of destination.
457
290
and children, vulnerable to trafficking are described within the analysis of Paragraph 4 of
this Article of the Palermo Protocol. These are measures taken above all by government
authorities which are not directly aimed at the prevention of human trafficking, but at
socio-economic recovery of the country in transition. Since human trafficking is one of
the gravest forms of human rights violation and is linked to the problems of gender-based
violence, forced migrations, transnational and national organized crime, money laundering,
public health, etc. a holistic approach should be designed and applied in the area of
prevention, where all factors, risks groups and the like will be individually analyzed. Such
approach structured into a long-term prevention strategy still does not exist in Serbia.
§ 817. Long-term, systemic and sustainable work on human trafficking prevention would
certainly be achieved by including this topic into school curriculums and by educating
teachers and other professionals who work in schools. To ASTRA’s knowledge, such
thing has not been done yet. We cannot be certain whether this is due to the lack of
political will or education policy makers simply do not recognize this problem. However,
the following example can be used to illustrate general climate, especially in the period
2004-2008, showing on one hand the attitude towards cooperation with civil society
organizations and on the other the treatment of human trafficking as a topic in strategic
areas such as education.
§ 818. Although ASTRA representatives and associates carried out a great number of
workshops for children and youth461, which were attended by 13,000-15,000 participants,
this is still insufficient with regard to the total population of youth, and is certainly not
sustainable in the long run, because workshops need to be held for the coming generations,
too. For this reason, ASTRA has attempted to formalize cooperation with schools and increase
the sustainability of preventive and educational activities intended for pupils and teachers.
To add formal weight to trainings which are organized for teachers, ASTRA applied with its
professional development program for teachers on the basic terms of human trafficking
problem for the accreditation at the Institute for the Advancement of Education and
Upbringing (hereinafter: the Institute). The program and accompanying documentation
were submitted on 31 March 2004 (no. 267/2004). The Center for Professional
Development of Education Workers, organizational unit of the Institute in charge of
accreditation, was obliged to inform the participants on the results in writing by May 24,
2004. However, ASTRA received the first specific information (e-mail) on 22 May 2006.
In the e-mail massage of 22 May 2006, ASTRA was informed that its program was
short listed for further procedure and that we had to submit additional documentation,
including a proof of the field of activity of the institution that supported the program,
which in ASTRA’s case was the Ministry of the Interior. On no occasion was it stated that
the institution that supported the program had to be an educational institution, but the
461
Between 2002 and December 2010, more than 600 workshops were held throughout Serbia.
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director of the Institute told us by telephone that this was mandatory. For this reason, it
was necessary to submit additional documentation of institutions that also supported the
program and which field of activity was education. However, having received additional
documentation, Institute’s staff informed ASTRA’s team member not to worry if they
did not get accreditation, because program approval form was changed, and the negative
response might be of procedural nature.
On 13 September 2006 ASTRA received written information that its program did not fulfill
prescribed conditions, but without mentioning what these prescribed conditions were. In
spite of numerous attempts, we never received reasoning for the negative response.
It is interesting that the Institute works with the support of the Swiss Development
Agency (SDC), which is also one of ASTRA’s major donors. Still, Institute’s staff suggested
ASTRA Team member to try to avoid mentioning the fact that ASTRA was an NGO when
talking with the Director because “the Director has a negative attitude towards local and
international NGOs”.
This problem has not been solved yet and we have to wait for the new accreditation
cycle. Currently, we cooperate with schools based on the letter of approval issued by the
Education Minister in 2005.
§ 819. Without accreditation, but with the approval of the Education Ministry462, ASTRA
carried out four basic trainings “Child Trafficking – Education and Prevention” for 100
school counselors, teachers, psychologists and pedagogues working in secondary schools
across Serbia and for the staff of the shelter for urgent protection of abused children.
Lecturers at these trainings were the representatives of the border police, international
organization Save the Children and ASTRA, while workshops were facilitated by
psychologists – ASTRA’s collaborators who had vast experience in didactical work with
the professionals of various profiles. Training participants got information on the basic
terms of human trafficking and on experiences with trafficking prevention activities
so far and with work with child trafficking victims. On the last day of the training, the
participants created action plans which they would implement in their schools, thus
ensuring the sustainability of this program.
§ 820. In the course of 2005, the International Organization for Migration, based on the
Memorandum of Cooperation with the Ministry of Education and Sport, implemented a
project within the regional education program “Prevention of Human Trafficking in the
Balkans through Educational Activities and Schools Capacity Building”. In February 2006,
initial working meeting with teachers from ten primary schools from Kragujevac and NGO
Stablo was held to discuss how to incorporate education on human trafficking issue into
regular school curriculums, on which occasion the scenario of a class in which this topic
would be discussed was worked out.
462
Approval issued under number 396-04-02-ŽM/2005-06 of 7 April 2005.
292
§ 821. After the first bad experience in the accreditation of the ASTRA training program
for teachers with Institute for the Advancement of Education and Upbringing, three
consecutive one-year accreditations of this program followed, during which nearly 150
teachers were trained. The trainings were very well received among the teachers, who,
in the evaluations of the program have declared that the work on preventing human
trafficking is extremely important and that the role of teachers in this context is very
significant. They stressed that it is necessary that, apart from working with children,
certain activities should also be directed towards educational work with parents.
§ 822. In the end, it is certainly positive that during the period covered by this Report,
national anti-trafficking bodies have been formed. Also, human trafficking has been
criminalized, in which way basic prerequisites have been created for the implementation
of prevention measures, but also for other forms of state’s response to this problem.
§ 823. Although prevention is an anti-trafficking field that is regularly addressed in US State
Department’s Trafficking in Persons Reports (TIP Reports), it still does not attract sufficient
attention. Since 2001, when the first TIP Report was published, until today, the Republic of
Serbia has made progress in combating human trafficking, for which reason it was removed
from Tier 3 – “Governments that do not fully comply with the minimum standards and
are not making significant efforts to do so” into Tier 2 – “Governments that are making
significant efforts to meet the minimum standards”. Prevention efforts were assessed as
especially weak. Namely, in TIP Reports it was stressed that preventive activities are mostly
organized and conducted by nongovernmental organizations with support of foreign donors.
The activities that were assessed as positive are mostly reduced to the establishment of the
National Team for Combating Human Trafficking, the adoption of the Strategy to Combat
Trafficking in Human Beings, participation in preventive activities carried out by NGOs,
adoption of the National Action Plan and the like. The 2007 Report463 also mentioned a
budgetary allocation of USD 100,000 for a 13-episode television series titled “Modern
Slavery” 464 aimed at popular awareness raising. In the last TIP Report published in June
2010465, in the part that addresses prevention it is said that ”The Government of Serbia
demonstrated modest progress in its efforts to prevent trafficking in 2009.”
§ 824. After the visa liberalization, the Ministry of the Interior of Serbia created a leaflet
named “Travel to Europe – Safely!”. The leaflet contains information about the necessary
documentation for the road, safety, health, etc. One paragraph was dedicated to human
trafficking. The leaflet is available to the public at border checkpoints.
§ 825. Since mid 2010, activities were initiated within the Joint Programme466 of the United
Nations High Commissioner for Refugees (UNHCR), the United Nations Office on Drugs
and Crime (UNODC) and the International Organization for Migration (IOM), which also
463
Trafficking in Persons Report-Country: Serbia, State Department 2001-2007.
For details see § 836.
Trafficking in Persons Report – 10th Edition – Country: Serbia, State Department 2010.
466
For more information about the program, see http://www.ungiftserbia.org/srp/?page_id=40
464
465
293
ARTICLE 9
envisages different prevention activities. The Programme is being realized with the support
of the relevant ministries of the Republic of Serbia. There will be more information about
the results and effects of this program in the report for the period after 2010.
§ 826. When we talk about prevention and education in the field of trafficking in human
beings in Serbia, we may distinguish two periods. The first period covers the second half
of the 1990s, when NGOs were implementing the main portion of activities (education of
NGO activists and the first analyses of the human trafficking situation in Serbia). Some
of the activities carried out in this period are the following:
• A group of Serbian activists attended an international seminar on trafficking in
women in Budapest in 1998 organized by NGO “La Strada” and in Driebergenu in
2000 organized by STV La Strada Netherlands.
• The activists of NGO Association for Women’s Initiative, within its ASTRA project,
translated the movie “Bought and Sold” into Serbian. Video tapes with this movie
were distributed to the majority of women’s NGOs in Serbia467, while public screenings
were organized in several schools and on local TV stations.
• In 1999, NGO Beosupport published a brochure addressing the problem of sexual
exploitation and trafficking in youth.
• ASTRA Network of women’s NGOs which covers the entire territory of Serbia was
established in 2000468. The first activity carried out by the Network was a survey
conducted in order to collect all available data on trafficking in women in Serbia and
to see to what extent the citizens of our country were aware of the problem
§ 827. The second period, starting from 2001 until today has been marked by the
establishment of the Yugoslav Team, and later Serbia’s National Team for Combating
Trafficking of Human Beings and by increase in the number of anti-trafficking actors,
both governmental and nongovernmental (OSCE, IOM, ASTRA, Child Rights Center,
Save the Children, Beosupport, Judges’ Association of Serbia etc.). These actors were
mostly involved in the implementation of educational and preventive activities aimed
at professional and general public awareness raising of the problem of human trafficking.
III.6.1.3. Media Campaigns
§ 828. Media campaigns are one of the most effective means of public awareness raising of
some problem, including human trafficking. Thanks to anti-trafficking media campaigns,
the citizens of Serbia obtained first information about what human trafficking was and
how much it was present in our country.
§ 829. So far, five large scale media campaigns have been run in Serbia, the first one “Open
Your Eyes” being conducted by ASTRA in 2002/2003. This campaign sought to make the
problem of human trafficking visible and to raise the awareness of professionals and lay
467
468
Activists of women’s NGOs that were dealing with the improvement of the position of women and combating gender-based violence.
ASTRA Networks gathers 11 organizations that meet several times a year to exchange experiences and discuss future joint activities.
294
public, at the same time calling on state institutions to give adequate systemic response.
§ 830. NGO Beosupport, which is the coordinator of National Team’s Working Group for
combating child trafficking, with IOM’s support, launched an anti-trafficking awareness
raising campaign under the title “Take Care”. It was accompanied by a media campaign
on TV and radio stations, as well as the organization of public sessions in schools, which
were attended by police officers and where promotional materials were disseminated.
§ 831. ASTRA, in cooperation with UNODC, conducted media campaign “There Is a
Way Out” in the course of 2004 and 2005. The campaign sought to encourage victims,
potential victims and people around them to search for help and information, to motivate
citizens to help trafficked victims and to inform public on all aspects of human trafficking.
§ 832. In 2005, international organization Save the Children ran a campaign “Save the
Children from Human Trafficking”, calling on the joint action and inclusion of all services in
charge of children protection. Besides the broadcasting of spots which contained ASTRA
SOS Hotline number, posters and brochures, the campaign also included a research into
the risk factors that may lead to child trafficking.
§ 833. Campaign “Child Trafficking – Our Reality” was done by ASTRA in cooperation
with Save the Children during 2006. Since the aim of this campaign was to reach out to
the widest population and especially teenagers of 14-18 years of age, ten video spots
were shot featuring celebrities, actors, singers and athletes.
§ 834. Together with National Television RTS, the Interior Ministry realized two special
broadcasts dedicated to the problem of human trafficking in 2004: the first one addressed
the problem of people smuggling and the second one, with the great contribution of
many members of the National Team for Combating Human Trafficking, the problem of
trafficking in women and efforts which our country made in fighting this form of organized
crime. The documentary on trafficking in women won in 2006 an ERNO award and,
what is especially important, it is used in education programs in FBI Los Angeles469. With
financial support of the US State Department, parts three and four of special broadcasts
have been shot addressing the issues of child trafficking and the missing babies’ scandal.
§ 835. During World Cup 2006 which took place in June and July in Germany, a spot
calling for the prevention of trafficking in women for the purpose of sexual exploitation,
which targeted potential clients, was made at the initiative of National Television
journalist Dušan Vojvodić and the representative of the Interior Ministry’s Border Police
Directorate representative. Campaigns focused on demand for the services of victims
of sexual exploitation seek to sensitize potential clients, help them recognize trafficking
victims and motivate them to contact to institutions/organizations that may provide
assistance. This spot was signed by the National Team for Combating Human Trafficking.
It is interesting that Serbia was the only country in the region to broadcast this kind of
spots, while the police introduced special intensified measures at that time.
469
Human Trafficking in Serbia, HERA Project, European Public Law Center and Hellenic Aid, 2007
295
ARTICLE 9
§ 836. In December 2006, the Ministry of Labor, Employment and Social Policy signed
an agreement on financial support of the Government of Serbia with the production
company Monte Royal Pictures for the needs of shooting a series “Modern Slavery” that
would be inspired by actual events and experiences of trafficked victims.470 The series is
planned to have 13 episodes and its screening was announced for one year later. For this
purpose, the Government of Serbia has allocated RSD 72 million471. Due to the lack of
money, the work on the series was stopped in the second half of 2007. In the meantime,
the idea of shooting a series was gien up, but the authors and producers decided to shoot
a featured movie titled ”Sisters“. The premiere of the movie is expected in 2011.
§ 837. In the autumn of 2007, the Interior Ministry in cooperation with the office of the
Council of Europe in Belgrade472 and the Anti Trafficking Council announced a painting
competition with the theme “Modern Slavery”473. Eligible for the competition were all
primary and secondary school pupils in Serbia, whose task was to express their view on
the problem of human trafficking, i.e. to condemn this “form of modern slavery”. The
best work was printed on the charity postage stamp which was mandatory during one
period. It was planned to direct all resources collected through the sale of this postage
stamp into direct assistance to trafficking victims.
§ 838. Although government’s initiative to collect funds for the assistance to trafficking
victims is generally praiseworthy, in our opinion this was not the best approach and in no
way represented direct financial support from the state through budgetary allocations for
this purpose. Moreover, having in mind some of previous actions that were accompanied by
the sale of mandatory charity stamp, which arose negative public reaction474 due to their
mandatory nature, such initiative could have brought more harm than benefit to the antitrafficking effort in Serbia. However, major objection is that in this way the Government
of Serbia does not take active part in combating human trafficking, but it is done by the
citizens who do not have possibility to chose, when sending their mail, whether they would
like to make donation or not, but they are forced to by Government’s Decree475.
§ 839. The majority of anti-trafficking awareness raising activities and campaigns have
been conducted by NGOs in Serbia with financial support from foreign donors and/or
international organizations. State institutions became involved or initiated these activities
only in last couple of years. However, even then prevention campaigns were not part of
a broader program designed and planned based on the analysis of needs, but these were
470
News taken from Government of Serbia’s website on June 14, 2006 http://www.srbija.gov.rs/
On December 22, official EUR/RSD exchange rate was 1/78.25.
Within Serbian Presidency in the Committee of Ministers the Council of Europe between May and November 2007, pursuant to Government’s
conclusion 05 no:018-2119/2007 of 26 April 2007, by which the Platform for Republic of Serbia’s Presidency over the Committee of Ministers of
the Council of Europe, October 2007 was designated as the months of fight against human trafficking.
473
Public competition was announced on 11 October 2007 on the website of the Ministry of the Interior of Serbia http://www.mup.sr.gov.yu/domino/
arh2007.nsf/11oktp07likkon
474
“As of New Year (1 January 2009) all citizens who are sending letters or parcels have to pay a special extra postage stamp for building the Temple”.
More about this topic at: http://www.b92.net/info/vesti/index.php?yyyy=2006&mm=01&dd=19&nav_id=185775
475
The Decree of the Government of Serbia on the issuance of charity postage stamp “Fight against Human Trafficking” (Official Gazette of RS, no.
126/2007 of 28 December 2007). The regulation was in force between 5 – 26 January 2008.
471
472
296
ad hoc activities carried out thanks to personal initiative and individual determination
and commitment. Unfortunately, this has not served as an example to higher levels of
government to take organized measures in this area, but everything stayed at the level of
what have been done as a sufficient argument that can be used for the needs of various
international documents on human trafficking situation and anti-trafficking activities
carried out in specific states.
§ 840. The last large-scale media campaign titled “Naked Facts” was conducted by ASTRA
with support of OSCE Mission to Serbia and the Austrian Development Agency (ADA) in
2008. The campaign, featured by men from public life476, provoked great attention of
both general public and professional community.
§ 841. Until ASTRA’s last campaign, campaigns were not followed by the evaluation at the
end of the campaign of effects or opinion polls on how much the public got acquainted
with this problem, how much the perception of target groups changed, whether it was
taken care to send the message to the citizens in the countries or origin, transit and
destination. An important question is whether target groups, especially groups at risk,
have been informed and empowered and not scared by the messages of the campaign477
and whether the messages have been appropriate, without containing a bunch of all the
same information.
§ 842. According to ASTRA’s experience, all actors to whom we indicated a need to
analyze implemented activities, i.e. the effects of the campaign, recognized its significance.
However, although recognized as necessary it has not been attractive enough for the
donors who would support it. Only after eight years of work, thanks to the support of
OSCE Mission to Serbia, ASTRA managed to raise fund for a comprehensive opinion poll
on this topic. The poll was conducted in the autumn of 2008. The results of this survey
are presented in Annex 5 of this Report.
III.6.1.4. Awareness Raising of Groups at Risk
§ 843. For activities carried out seeking to raise the awareness of human trafficking
problem among groups at risk, it can also be said that they have been done mostly by
NGOs or on rare occasions by international organizations. NGOs in Serbia have held
numerous workshops, lectures and public sessions for secondary school pupils and
students, where discussion centered on human/child trafficking. Although the list of
these activities is relatively long, and their implementation required great engagement
of NGO activists, the fact is that these are mostly ad hoc activities that lack systematic
long-term approach. We should stress here that these are primarily activities aimed at
476
Men who got naked for this campaign are Milutin Petrović – director, Željko Bodrožić, Dejan Atanasijević and Jugoslav Ćosić – journalists, Ivan
Tasovac – director of the Belgrade Philharmonic Orchestra, Vukašin Marković – rep musician and Branislav Lećić – actor and Monoister of Culture
Zoran Đinđić’s government.
477
For example, that traveling abroad is dangerous, that violence occurs somewhere else and similar messages on the wave of rather widespread
xenophobia among the citizens of Serbia.
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young people as one rather broad and diverse group at risk. To our knowledge, preventive
anti-trafficking activities have not targeted any other group at risk nor have the activities
been designed based on the analysis of specific elements of vulnerability.
§ 844. The defining of vulnerable groups is very important. It is necessary to keep track
of trends and look for the answer to the question: what groups are at increased risk?
What segment of population is particularly vulnerable, i.e. has specific victimological
predispositions478? In the survey “Children Speak Out” from 2007, in the consultative
process with the representatives of relevant agencies, the following categories of children
have been recognized as children at risk: children from marginalized groups (especially
Roma children), children who live in extreme poverty, children who live and work in the
streets, children who live in social welfare institutions, children who are illegal migrants
and internally displaced children from Kosovo479.
§ 845. Moreover, the analysis of both the effects and the quality of education programs
that were carried out have never been done, either. In the report Trafficking in Human
Beings in South Eastern Europe 2004 – Focus in Prevention480, it is stressed that „evaluation
of such events is usually based on the opinions of children who took part“, and that
“all NGOs claim that the children were very happy to receive the information, that
their knowledge and understanding of the problem of trafficking increased, and that
the children would like to participate in more activities of the same type in the future.
However, it is not possible to find out from the NGOs exactly what children learned and
what they understood by ‘trafficking in human beings’. Some of the answers given by
children on evaluation forms filled in following the workshops indicated that they had not
understood the differences between trafficking, prostitution and exploitation of children.”
Although this Report was produced in 2004, some of its findings and recommendations
are still topical. When designing the questionnaire, questions should be formulated in
such a way as not to lead to desirable answers or require the defining and listing what
human trafficking or its specific aspects are, but check what the child has understood
through the answers related to certain types of behavior: whether they would travel with
forged passport if they do not have the proper one, whether they would enter the country
illegally and the like.
§ 846. This is certainly an important observation when we talk about the design of evaluation
sheets and the measuring of what have been learned at the workshops and in education
programs in general. To illustrate what young people know and how they understand
478
Victimological predispositions represent specific characteristics, structure and habits of an individual or a group that make them prone to
victimization, i.e. to be potential victims of criminogenic exploitation. Nikolić, Z. Kriminologija sa socijalnom patologijom, Narodna knjiga,
Beograd, 2000.
479
480
Limanowska, B., Trafficking in Human Beings in South Eastern Europe 2004 – Focus on Prevention in Albania, Bosnia and Herzegovina, Bulgaria,
Croatia, the Former Yugoslav Republic of Macedonia, Moldova, Romania, Serbia and Montenegro, the UN Administrative Province of Kosovo, UNICEF,
UNOHCHR, ODIHR, 2004, page 45
298
this problem, we are presenting the results of a survey conducted for the purpose of the
research “Human/Child Trafficking – A Look through the Internet Window”481.
§ 847. This poll was conducted on the sample of 1,205 pupils of general (gymnasium)
and vocational secondary schools, of both genders, between 14 and 19 years old (all
four grades), who attended schools in six towns in Serbia - Šabac, Novi Sad, Novi Pazar,
Vranje, Užice and Belgrade. The findings were as follows.
§ 848. If we observe the entire sample, 98.8% of respondents have heard that human
trafficking exists, while only 1.2% has never heard of this problem. The situati on is
not much different with regard to the (in)existence of the problem in view of sociodemographic variables. Significant statistical differences have not be registered between
pupils attending different schools (general education or vocational), living in different
towns or attending different grades. However, statistically significant difference (at the
level of significance of 0.01) appears when we observe the gender of respondents – all
girls from the sample knew of the problem, while 13 boys (2.6% of all boys) have never
heard of it.
§ 849. Both boys and girls define the concept of human trafficking in the same way,
while differences in definition do not depend on age, the place of residence or the type of
school. Human trafficking is most often understood as the exploitation of people (20%),
than as the sale and purchase of people (18.5%), kidnapping (10%), sexual exploitation
(8.7%) and abuse (7%). Other categories are tautological explanations: “this is trafficking
in men and women…” (6.5%), a way to make money and deprivation of liberty (5.2%
each), someone’s taking away from the country (4.1%), something worst (2.8%), “white
slavery” (2.4%), prostitution, criminal activity, deception, violation of human rights,
crime, the sale of babies, labor exploitation, transportation, blackmail (less than 2%).
§ 850. However, there are still some stereotypes in public when we talk about human
trafficking – that human trafficking takes place somewhere else, that it involves sexual
exploitation only and the like. Often, such stereotypes are not present only among
children, common citizens, but are shared by professionals, too.
§ 851. In conclusion, the implementation of preventive activities for youth was not
accompanied by previous analysis of the needs on the field. Moreover, it is not known
who, when and where has already carried out education programs for groups at risk.
As a result, some towns are completely neglected, while in certain parts of the country
preventive anti-trafficking activities have not been organized for years. For this reason,
it is recommended to establish in the coming period a system through which it would
be possible at least to keep track of what have been done, in order to have this kind of
education equally present in the whole territory of Serbia. Also, it is important to go out
of big towns as much as possible and plan and organize education programs in smaller
communities, which has not been the case so far.
481
299
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Although not directly and exclusively aimed at trafficking victims, here we should mention
POP project (Power of Prevention), which has been carried out in the field by NGO JAZAS
since January 2005482. Namely, in Belgrade and Pančevo there are a total of six so-called
hot sports where street sex work takes place. JAZAS’ project includes outreach work and
a mobile medical unit which frequents each of the identified hot spots twice a week. The
Mobile Unit provides to sex workers basic health services and advice, HIV and HBV/HCV
testing and counseling483. Free condoms and lubricants are also distributed to sex workers
and the members of the Mobile Unit are always ready to give them preventive advice.
Such outreach work aims at reaching out to marginalized and stigmatized structures of
society and allows for their inclusion into social systems, first of all health care and social
welfare systems. The Mobile Team consists of a gynecologist, dermatovenerologist,
psychologist, GP, counselor for voluntary confidential counseling and testing and lab
technician. Although this program lacks education and informing on the problem of
human trafficking and available victim assistance mechanism in this highly vulnerable
group, in our opinion this is an example of good practice in the area of health care of
(potential) trafficking victims.
III.6.1.5. Preventive Role of SOS Hotline
§ 852. ASTRA has been running the only SOS Hotline in Serbia specialized exclusively for
the problem of human trafficking. Besides assistance targeting trafficked victims, ASTRA
SOS Hotline also plays a prevention role in terms of providing accurate information on
human trafficking. Since the field of human trafficking is closely linked with the problem
of migrations, ASTRA SOS Hotline also offers information on safe migrations through
preventive and educational telephone communication with people calling the hotline,
who want to migrate. This assistance consists of checking and giving information
regarding the visa regime of specific countries, the examination of destinations if they
are known, checking and giving information on documentation required in the country
of destination for doing a specific job (education level, qualification, diploma/degree
validation requirements and the like), checking and giving information on documentation
necessary for continuing school in the country of destination. ASTRA does the checking
of these information for each individual case.
§ 853. Because of numerous abuses, frauds and potential trafficking in human beings,
ASTRA legal counselors provide free legal aid, which includes the examination of labor
legislation of specific country, the examination of offered employment contracts, the
clarification and explanation of contract clauses, as well as help to ASTRA clients in
administrative and institutional procedures.
§ 854. Besides keeping track of trends in human trafficking, SOS hotline also serves
482
483
http://www.jazas.net/projekti.html#rez
Voluntary confidential counseling and testing concept
300
for monitoring the effects of anti-trafficking campaigns. This is done in two ways: by
comparing the number of calls received during the campaign and outside this period, as
well as by comparing the number of newly identified victims. In that respect, ASTRA has
had the following experience. In the course of the campaign and short after it, the number
of calls received to ASTRA SOS Hotline significantly grows, and, more importantly, through
increased number of calls, considerably larger number of trafficking victims is identified.
ASTRA SOS Hotline database indicate that, depending on the campaign, this number used
to increase by 70-100%, and the number of identified victims grew accordingly.
§ 855. In addition to these short-term effects that are registered in the peak of the
campaign, every campaign as a rule brings a long-term raise in the number of calls (of
course, smaller than during the campaign) which continue into the following months.
§ 856. Professional awareness raising and specialist trainings will be separately addressed
within the analysis of Article 10 of the Trafficking Protocol and complementary articles
of the CoE Convention.
III.6.1.6. Long-Term Preventive Activities
§ 857. Besides numerous anti-trafficking activities that have been carried out, only a few
of them have a long-term preventive impact. Government’s effort to eradicate root causes
that contribute to the vulnerability of women and children to trafficking, including poverty,
discrimination, inequality and demand for the services of trafficked women and children,
will be discussed in the analysis of Paragraph 4 of this Article of the Palermo Protocol.
§ 858. The major portion of activities aimed directly at trafficked persons, i.e. at the
prevention of recidivism, has been taken by NGOs. For example, within the Temporary
Home, shelter for trafficked persons run by NGO Atina, various activities are carried out
for the purpose of successful social inclusion of the beneficiaries of this NGO’s program.
§ 859. NGO Women-to-Work from the UK, in cooperation with ASTRA, carried out in
Belgrade a pilot project “Training for Economic Empowerment of Women Victims of
Human Trafficking”. The project sought to provide the girls – victims of human trafficking
with necessary knowledge to start up their business, i.e. find a job. An active role in that
respect was played by mentors, whose task was to monitor the girls in their business
ventures one year following the completion of the training and provide them with
adequate professional and emotional support. The training in which the girls acquired
basic knowledge of economics which they used to draw up their business plans took place
in April 2005 and September 2006.
§ 860. Having in mind that prevention also includes the prevention of recidivism, in view
of the small number of identified trafficked persons484 on one hand and the absence
of long-term (re)integration programs which are supported by the state on the other,
484
Limanowska B., Trafficking in Human Beings in South Eastern Europe 2002 – Current Situation and Responses to Trafficking in Human Beings in
Albania, Bosnia and Herzegovina, Bulgaria, Croatia, The Federal Republic of Yugoslavia, the Former Yugoslav Republic of Macedonia, Moldova,
Romania, UNICEF, UNOHCHR, ODIGHR, 2004.
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significant progress and more serious fight against this problem do not seem likely to
happen in the near future.
III.6.1.7. Analyses, Research and Reports
§ 861. Besides the above-mentioned prevention/education activities, numerous analyses
and surveys into human trafficking in the territory of the Republic of Serbia have been
conducted during the period covered by this Report. In addition to analyzing the situation
in this area, these researches were aimed at drawing up recommendations and guidelines
for future work, both in the area of victim protection and the prosecution of crime, and in
the area of human trafficking prevention.
§ 862. The first more comprehensive research into the human trafficking problem in
Serbia was conducted by NGO Victimology Society of Serbia in cooperation with OSCE
Mission to Serbia. The research titled “Human Trafficking in Serbia” 485 was released in
June 2004. It included data on the size, structure and characteristics of human trafficking
in Serbia and gave an overview of available mechanisms for combating and preventing
this problem and for assisting trafficked persons.
§ 863. Other researches followed soon, e.g. the Second Annual Report on Victims of
Trafficking in South-Eastern Europe by Rebecca Surtees486; the survey “Human (Child)
Trafficking – A Look through the Internet Window” 487, which examines the recruitment
of trafficking victims over the Internet (December 2006, ASTRA with the support of OSCE
Mission to Serbia); “Children Speak Out”488 by Nevenka Žegarac published in 2007 in
cooperation with Save the Children UK South East Europe Programme – See Europe Child
Trafficking Response Programme, “Trafficking in Men in Serbia”489 conducted by NGO
Victimology Society of Serbia with support of US State Department’s Office to Monitor
and Combat Trafficking in Persons in 2009 and others490.
485
Nikolić Ristanović V. (et al), Human Trafficking in Serbia, Victimology Society of Serbia, OEBS Mission to Serbia and Montenegro, Belgrade, 2004.
Surtees R., Annual Report on Victims of Trafficking in Sourth-Eastern Europe, Regional Clearing Point, IOM, 2005.
487
488
489
Nikolić-Ristanović V. [et. al.], Trafficking in Men in Serbia, Victimology Society of Serbia, Belgrade, 2009.
490
Factors of Risk and Protection – Trafficking in Roma Women and Children (October 2002, CRS); State Violence in Serbia and Montenegro. Alternative
Report to the UN Human Rights Committee (July 2004, NGOs Humanitarian Law Center, ASTRA and Child Rights Center); Posledice viktimizacije
na konkretne žrtve, potrebe žrtava i mogućnosti rehabilitacije (September 2003, NGO Victimology Society of Serbia, Faculty of Health Care and
Social Professions, Dept. of Social Work and Fafo Institute for Applied International Studies, Oslo, Norway); Trafficking in Women – Manual for
Journalists (December 2003, NGO ASTRA); Alternative Report on the Implementation of International Covenant on Economic, Social and Cultural
Rights in Serbia and Montenegro (May 2005, NGO coalition – Child Rights Center, Belgrade Center for Human Rights, Group 484 and ASTRA);
A Life of One’s Own: Rehabilitation of Victims of Trafficking for Sexual Exploitation (June 2005, Fafo Institute for Applied International Studies,
Norway and NGO Victimology Society of Serbia with support of Research Council of Norway); Nobody’s Children (September 2005, Save the
Children and Centre for Testing, Evaluation and Research); Eksploatacija dece sa posebnim osvrtom na Fakultativni protokol uz Konvenciju o pracima
deteta (Nevena Vučković Šahović); Dečji rad u Srbiji: Analiza zakonodavstva, prakse i pojavnih oblika dečjeg rada (March 2006, Ministry of Labor,
Employment and Social Policy and NGO Child Rights Center); Mechanism for the Monitoring of Trafficking in Human Beings in BH, Croatia and
Serbia (June 2006, IOM Belgrade), Protection of Trafficking Victims – National Referral Mechanism in the Republic of Serbia (February 2006, NGO
Atina with support of IOM and Belgium King Baudouin Foundation); Human Trafficking – Peer Education Manual with the analysis of hood practice
of preventive-educational workshops (September 2008, ASTRA); Human Trafficking – Manual for Journalists (January 2008, ASTRA); Social Inclusion
of Trafficking Victims (May 2009, IOM Mission to Belgrade, Republican Institute for Social Protection and NGO Atina with financial support of
USAID, SIDA and IOM); Research of the existing capacities and needs of teachers in the territory of Vojvodina in the field of human trafficking (April
486
302
§ 864. Researches were often of explorative nature491 and in that respect they gave
significant contribution to the understanding of this problem in our country. They were
mostly focused on the phenomenon of human trafficking and its different manifestations,
but rarely and/or only fragmentary examined the etiology, i.e. causes, the analysis of
different factors conducive to human trafficking, their correlation and the like. Also, state
authorities most often failed to implement in practice the findings of these researches
and recommendations they brought.
III.6.1.8. Cooperation with the Nongovernmental Sector
§ 865. The issues of status, role and place of nongovernmental organizations that operate
in Serbia are discussed in detail in the Introduction and in the analyses of other articles, as
well as in Annex no. 6. Observed in the context of the implementation of anti-trafficking
preventive activities, the situation today is similar. However, here we could also distinguish
several phases in cooperation of state institutions and nongovernmental organizations.
§ 866. In the first phase, since the 1990s until 2001, activities aimed at human trafficking
prevention were scarce and were carried out by NGOs only, without participation of
state institutions.
§ 867. The period between 2001 and 2004 was marked by the first contacts and establishing
cooperation between civil society and state authorities, which would result in, inter alia,
multisectoral bodies. This particularly refers to the establishment of the National Team for
Combating Human Trafficking, which is still composed of the representatives of government
agencies, nongovernmental and international organizations. When the National Team was
founded, it was decided that NGOs should coordinate two Working Groups; specifically,
ASTRA was appointed the coordinator of the Working Group for Prevention and Education
and NGO Beosupport the coordinator of the Working Group for Child Trafficking.
§ 768. Since the mid-2004, institutions have started slowly closing the door for
cooperation with NGOs. During this period cooperation between NGOs and institutions
has been more of declarative nature. After the parliamentary election in 2008, the
situation was gradually improving, but not quickly enough and not in a way envisaged in
the Parlemo Protocol and CoE Convention.
§ 769. Having an objective look at the implementation of preventive anti-trafficking activities
in our country, it cannot be denied that cooperation between the governmental sector
2009, NGO Cube), Research/Mapping of the cases of human trafficking and level of awareness of the problem of human trafficking (May 2009, NGO
Cube with support of the Vojvodina Executive Council and Provincial Secretariat for Social Protection and Demography with the recommendation
of the Provincial Secretariat for Education on the importance of implementation of preventive and educational programs on the problem of human
trafficking); Assistance and Support to Women Victims of Trafficking in Serbia (January 2010, NGO Victimology Society of Serbia within a UNDP
program and in cooperation with the Gender Equality Directorate of the Ministry of Labor and Social Policy of Serbia and with EU’s financial
support) i etc.
491
Unlike repetitive researches, which have been used for the purpose of confirming or denying different hypotheses within frequently examined
social phenomena, explorative researches, when human trafficking is concerned, are still dominant. Since the phenomenon is heterogeneous and
that researches are done sporadically – when there are available funds for that – and unsystematically, explorative character of responding to
certain problems and tasks (instead to hypotheses based on previous empirical or theoretical knowledge) is still, with regard to human trafficking,
the so-called character of choice.
303
ARTICLE 9
and NGOs exists492. However, since NGOs have initiated and carried out the majority of
preventive activities, this cooperation mostly has a form of readiness of the representatives
of state agencies to take part in such activities. Since the greatest number of these activities
were education programs493, cooperation included the presence of the representatives of
institutions as participants or lecturers at the seminars organized by NGOs.
§ 870. On several occasions, the representatives of Ministries appeared as the organizers
of some seminars. Here we have in mind in particular a series of trainings for the staff of
social welfare centers and child care institutions organized first by the Ministry of Social
Policy and later by the Ministry of Labor, Employment and Social Policy between 2003
and 2005. Also regular professional development programs at the Ministry of the Interior
included modules that addressed the problem of human trafficking.
§ 871. Although ASTRA as a coordinator of the Working Group for Prevention and
Education of the National Team for Combating Human Trafficking have tried several
times to initiate work on the strategic planning of human trafficking prevention, it has
not gone further from initial enthusiasm of persons who were present at the meetings.
III.6.1.9. Mitigating Risk Factors
§ 872. The expansion of human trafficking started in early 1990s, following the opening of
borders after the disintegration of the Soviet Union. This is the moment which announced
more freedom and prospects for life in peace and security. However, these changes
brought about some negative consequences, such as the pauperization of citizens (of the
countries of former Easter block), the disintegration of political and social structures in
these countries, which created a special social state characterized by “the disturbance
or weakening of the regulatory function of the state”. In newly-formed states, the state
apparatus was not established yet, the rule of law was accompanied by numerous
weaknesses, while the civil sector was in an early stage. All of these additionally lead
to the criminalization of society. Here we should add the wars in the territory of former
Socialist Federal Republic of Yugoslavia which, inter alia, generated new demand for
sexual services of trafficking victims, thus opening even more room for criminal activities.
The first cases of forced labor were registered some time later. The described situation
resulted in the emergence and/or strengthening of organized crime.
§ 873. Human trafficking affect in particular women and children as a result of new social
and political reality. The so-called “feminization of poverty”. i.e. small presence of women
and their discrimination in the labor market is typical especially in the period of transition.
This, together with restrictive immigration policy of western countries and militarization
of the region in the previous period, is one of the most frequent causes of trafficking in
women in the Balkans.
492
493
As said before, several periods could be distinguished in terms of cooperation.
This includes both work with vulnerable groups and work with professionals who may come in contact with (potential) victims of trafficking.
304
§ 874. Further, bad economic situation in post-conflict regions has made especially
female population particularly vulnerable494.
§ 875. The Government of Serbia has initiated or is conducting, with more or less success,
various measures and activities that may have certain long-term preventive effect in
terms of combating human trafficking.
§ 876. With regard to the legal position of women, according to the 2006 Constitution
of Serbia495, the state shall guarantee equality of men and women and develop equal
opportunities policy. Any form of discrimination is prohibited, above all discrimination
based on race, sex, national background, religion etc. Discrimination is prohibited by
the Law on the Prohibition of Discrimination496 and the Labor Act497, which set out the
definition of indirect and direct discrimination. The violation of equality, not only gender
equality but equality in general, shall be considered a crime. In spite of equal opportunities
that are guaranteed by the law, women are faced with different forms of discrimination
in the labor market.
§ 877. The Poverty Reduction Strategy Paper498 from 2003 recognizes, inter alia, women,
youth, refugees, Roma and persons with disabilities as the categories of population that
are mostly affected by poverty. In the 2002-2007 Living Standards Measurement Survey
it is said that poverty reduction measures have brought results and that the number of
those living under the poverty line have decreased. Namely, in 2002 14% of population
lived under the poverty line, while in 2007 this portion stood at 6.6%, which is nearly
half million people499. Poor citizens mostly live in rural areas, in particular in Southeastern
Serbia. These are mostly uneducated and unemployed persons, the elderly, households
with three or more small children. In this five-year period, poverty was reduced most
among refugees, while Roma are still the most vulnerable. Nearly one half of Roma
people are poor, while 6.4% of them live in extreme poverty500. According to the 2002
and 2003 Living Standard Measurement Surveys, around 155,000 children in Serbia are
poor, while another 155,000 children have insufficient material resources501. Particularly
vulnerably are children of school age, children living in big families, children living in rural
areas, as well as Roma children and children with disabilities.
§ 878. According to the First National Report on Social Inclusion and Poverty Reduction
in the Republic of Serbia502, 18% of the population in Serbia has been exposed to the risk
494
More information about the position of women in Serbia in the Introduction.
496
497
Official Gazette of RS no. 24/2005 and 61/2005.
498
Project “Contact Civil Society Organizations for the Implementation of the Poverty Reduction Strategy Paper” existed since 2007. It was designed
as a project for creating the mechanism for exchange of information between government services and NGOs under the auspices of the team
of the Deputy Prime Minister for the Implementation of PRSP. Contact Civil Society Organizations were appointed for each of seven vulnerable
groups defined by this Strategy. http://www.prsp.gov.rs/aktuelno/kocd.jsp
499
B92 news of 28 May 2007 http://www.b92.net/info/vesti/index.php?yyyy=2008&mm=05&dd=28&nav_id=300867&nav_category=12
500
With less than EUR 50 per month per an adult household member.
501
Of a total of 1.47 million children who live in Serbia according to the 2002 census.
502
The First National Report on Social Inclusion and Poverty Reduction in the Republic of Serbia, overview and state of social inclusion and poverty for the
495
305
ARTICLE 9
of poverty in 2008 and 2009503. The same report further states that the group that has
been the most exposed to the risk of poverty were inactive persons, except for retired
persons (47.4%), the unemployed (30.5%), the self-employed (26.5%), persons who live
in households with three or more dependent children (32.7%), households with a single
parent with one or more dependent children (30.6%), households with one member of
old age (26.5%), as well as children up to 18 years of age (22.1%).
§ 879. What is especially worrying is that children’s poverty has been decreasing too
slowly504. Data on poverty reduction must be observed and monitored very carefully,
because poverty line is defined as a specific level of consumption per a consumption unit,
where the fact that a household spends slightly more does not mean that such household
is not poor.
§ 880. Serbia is still a country in transition, with a high level of unemployment and a
large share of illegal businesses. According to the First National Report on Social Inclusion
and Poverty Reduction in the Republic of Serbia, the number of employed people in
Serbia dropped to a minimum (2.382.000), while the number of unemployed people
of work age amounted to 566.000 persons, that is, the corresponding unemployment
rate for the population of work age amounted to 20%. Since 2008, the unemployment
rate for women is constantly increasing. In the period from 2008 to October 2010, the
unemployment rate of women grew by 5.1 percentage points (for about 40.000, that is,
the number of unemployed women increased by 15.3%).
§ 881. The National Employment Service has been implementing active labor market
measures and programs directed primarily towards unemployable population groups,
such as Roma, persons with disability, young people, long-term unemployed persons that
include a large number of the unemployed, but in the unstable economic environment,
these measures cannot yield long-term and sustainable results which would lead to
mitigation of risk factors: thus achieved employment very often lasts only until the
program or measure is in force.
§ 882. Although primary education is mandatory under Serbian Constitution, a certain
percentage of children, especially children who live in rural areas and Roma children505,
does not enroll or complete primary school. In terms of gender, equal number of boys
and girls enroll and complete primary school. This balance is maintained throughout
the schooling period. Although education is a factor that reduces likelihood of living in
poverty, poverty affects whether a child would go to school at all: around 60% of children
who live under the poverty line do not attend primary school for this very reason506.
According to the latest data from the First National Report on Social Inclusion and
period 2008 – 2010, including the priorities for the following period, The Team for Social Inclusion and Poverty Reduction with the Cabinet of the
Deputy Prime Minister for European Integration, March 2011.
According to the EUROSTAT methodology.
504
505
73.8% and 21-37% of these children respectively (see Introduction).
506
MICS3.
503
306
Poverty Reduction in the Republic of Serbia, the educational structure of the Serbian
population in unfavorable: 3.4% of the population older than 10 years is illiterate (of
these, women 5.5 times more than men); 21,9% of the population older than 15 years
has an incomplete elementary education, 23.9% has only elementary education and
41.1% of the population has only secondary education. In total 44.2% of women in the
country have not completed elementary education (Inventory from 2002). In 2002,
only 11% of the population finished college and higher education. Over 58% of Roma in
the Republic of Serbia who are older than 15 years completed less than eight grades of
elementary school. Even 71% of the poorest have not finished elementary school or has
only elementary education (Living Standards Measurement Survey, 2007).
§ 883. The problem of violence against women in children, i.e. family violence in general,
has been legally addressed only in recent years. It has been prohibited in the Family
Act and the Criminal Code. The abuse of children is explicitly prohibited by the 2006
Constitution. Family violence was criminalized for the first time in 2003.
§ 884. Although the issue of violence against women and children in Serbia is widespread,
the implementation of the laws that set forth penalties for offenders and protection of
victims was, during the entire period covered by this Report, still weak.507 Such conclusions
can also be found in the Alternative Report on the Implementation of the United Nations
Convention on the Elimination of All Forms of Discrimination against Women508.
§ 885. How important the prevention of other forms of violence is when we talk about
the prevention of trafficking in women and children is illustrated by the following
data. Namely, according to ASTRA SOS Hotline509, more than half of Serbian nationals
identified as trafficking victims in 2002-2010 had previous experience of violence510. We
have every reason to believe that this percentage is even higher since we do not have
relevant information for one third of our clients.511
507
More information about the analysis of the content of public policies in the field of violence against women and domestic violence, as well as
about the tendencies in the amendments to the legislation in the field of domestic violence can be found in the Report Gap Mapping, Independent
monitoring on implementation of Concluding comments and recommendations of the UN Committee on the Elimination of Discrimination against
Women for the Republic of Serbia – state and local level of action, Autonomous Women’s Centre, Belgrade – Good Practice Development
Programme in the Field of Domestic Violence; see report at http://www.womenngo.org.rs/images/publikacije-dp/Mapiranje_praznine.pdf
508
Report to the CEDAW Committee, The Voice of Difference, Autonomous Women’s Centre, ASTRA, Incest trauma centre, Women in Black, Belgrade,
March 2007.
509
Since March 2002 (when SOS hotline was launched) until December 2010, 351 trafficking victims were identified and/or assisted through ASTRA
SOS Hotline. Quoted data are taken from ASTRA Database.
510
Data refer to both violence in primary family and domestic violence.
511
One of the rules of ASTRA SOS Hotline is that only information directly relevant for victim assistance and recovery program are taken from
victims, while they should not be burdened with any additional questioning. Except for emergency situations, which involve acute violence,
searches and the like, data are obtained in communication with clients over longer periods of time, while topics like previous experience of violence
are initiated and handled at client’s initiative.
307
ARTICLE 9
Chart III.6.1.9.1. Previous experience of violence of trafficking victims (Serbian nationals)
Chart III.6.1.9.2. Previous experiences of violence of trafficking victims (foreign nationals)
§ 886. ASTRA does not have data on the history of family violence for 56% of foreign
nationals identified as trafficking victims during this period. However, information that out
of 44% cases for which we have this data, as much as 36% of victims had the experience
of violence in their families or from their partners illustrates the complexity of human
trafficking problem and indicates to an essential need for work on all individual causes. It
shows what consequences family violence may have if it is not addressed by competent
authorities. These data also show the size and extent of family and domestic violence.
§ 887. Permanent political tension and frequent elections512 at all levels result in many
planned and announced documents not being adopted yet, while those that have been
adopted are not consistently enforced in practice (e.g. Strategy to Combat Trafficking
in Children). For many issues, the presence of political will and long-term planning are
decisive, which is not priority for politicians and decision-makers faced with real threat
of new election cycles. This equally applies to both social and economic development.
512
Parliamentary elections; December 2000, December 2003, January 2007, May 2008; presidential elections: October 2002, December 2002,
November 2003, June 2004, January 2008.
308
III.6.1.10. Other Measures for Prevention of Human Trafficking
§ 888. Measures for effectively discouraging demand for sexual services of trafficked
persons in the sense of Article 9, Paragraph 5 of the Protocol have been introduced into the
Serbian criminal legislation by the latest amendments of the Criminal Code of Serbia513.
§ 889. In the interpretation514 of Article 9, Paragraph 5 of the Palermo Protocol, the
emphasis is put on the prevention of exploitation of (illegal) migrations and fall in demand
for foreign undocumented workers without proper documents515.
§ 890. The employment of foreign nationals in the Republic of Serbia is regulated by
the Law on Conditions for Employment of Foreign Nationals516. This Law prescribes that
a foreign citizen may be employed providing that he/she has permanent or temporary
residence permit in Serbia and that he/she obtains an approval of the competent
authority, i.e. the National Employment Service (NES)517. An employer who wants to hire
a foreign national who does not have residence permit or has only a temporary residence
permit in Serbia shall also ask for the opinion of the NES. If they have a work permit,
foreign citizens have the same rights as domestic workers in the Serbian labor market and
their employment and work is regulated by the provisions of the Labor Act.
§ 891. In order to address this matter more precisely, at the session held 31 March 2010,
NES Managing Board has adopted the Rulebook on terms and manner of issuing work
permits to foreigners and apatrides518.
§ 892. According to the National Employment Service, the number of permits issued to
foreign nationals increased many times in the period 2004-2008519:
513
514
515
516
517
518
519
Official Gazette of RS, no. 85/2005, 88/2005 - correction, 107/2005 - correction, 72/2009 i 111/2009.
“Almost all persons who are trafficked start out as migrants seeking work. They are pulled into the migration stream by the demand for labor in
other countries. This demand exists because citizens and residents of many countries refuse to take low wage jobs. Jobs exist but no one wants
them except migrants. At the same time, immigration laws in countries of destination are almost uniformly restrictive and prevent migrant
workers from entering legally to work legally. Consequently, migrants are forced to find someone to help them migrate without documents.
Often, that person is a trafficker who places the migrant into a situation of forced labor, slavery or servitude abroad. In order to reduce the ability
of traffickers to prey on migrant workers, governments should ‘adopt or strengthen legislative or other measures...to discourage the demand’ for
undocumented, vulnerable, exploitable migrant workers. They should adopt laws and measures to permit migrants to enter and work legally and
to have access to the same labor rights provided to other workers. The demand for labor exists and will be met one way or another. The question
remaining to be answered is whether the demand will be met by workers with rights or by trafficked persons.” Jordan A.D., Annotated Guide to The
Complete UN Trafficking Protocol – Initiative Against Trafficking in Persons, International Human Rights Law Group, Washington DC 2002.
More about demand in connection with sexual exploitation in the analysis of Articles 1 – 5
Official Journal of FRY, no. 11/79 i 64/89.
The Law provides for exceptions in cases when a foreign citizen may be hired by an organization, i.e. employer without the approval of the National
Employment Service and without public vacancy notice. This is possible if such foreign citizen has a temporary or permanent residence permit
and if the employment is contracted for the performance of specialist tasks specified in the agreement on technical cooperation, on long-term
production cooperation, on the transfer of technologies and on foreign investments.
The Rulebook was adopted in accordance with Article 13, Paragraph 1, point 6) of the Law on Employment and Insurance in Case of Unemployment
(Official Gazette of RS, no 36/09) and Article 14, Paragraph 1, point 11) of the Statute of the National Employment Service (Official Gazette of RS,
2/10), and with regard to Article 5, Paragraph 1 of the Law on Conditions for Employment of Foreign Nationals (Official Gazette of RS, no . 11/78
and 64/89; Official Journal of FRY, no. 42/92, 24/94 and 28/96 and Official Gazette of RS, no 101/05), and it was published in the Official Gazette
of RS, no. 22 from 9 April 2010.
E-mail between ASTRA and the National Employment Service.
309
ARTICLE 9
YEAR
NO. OF ISSUED PERMITS
2004.
2005.
2006.
2007.
2008.
670
1181
1699
1721
2.672
Table III.3.6.10.1. The number of work permits issued to foreign nationals 2004-2008
§ 893. In 2009, a first instance authority issued 2.459 work permits for foreigners and
apatrides. Of the total number of the applications filed, 19 applications have been refused,
three dismissed, and upon one application, the process was suspended. Of the refused
applications, three appeals have been referred to a second instance authority – the NES
Director. Of the appeals that were being settled by the second instance authority, two
appeals have been refused, and one was partially adopted. The parties whose appeals
have been refused in the second instance did not lodge appeals to the Administrative
Court for the purpose of conducting administrative dispute.520
§ 894. In 2010, in the branches of National Employment Service, as the first instance
authority that makes decisions on the employment of foreign nationals, a total of 2.518
approvals were given for the employment of foreign nationals who have temporary
residence permits, and 42 approvals for the employment of foreign nationals who have
permanent residence permits on the territory of the Republic of Serbia. In case of two
decisions which refused applications for issuing a work permit for foreign nationals, two
appeals were lodged which were referred to the second instance authority. The Sector for
Insurance in Case of Unemployment, as a second instance authority, refused both appeals
as unfounded.521
§ 895. As far as citizens of Serbia are concerned, and in accordance with the provisions of
the Law on Employment and on Unemployment, NES carries out job brokering services for
the employment abroad of the unemployed persons, as well as for the persons interested
in changing employment. In the job brokering process, the National Employment Service is
obliged to provide protection for those persons, which means at least the same treatment
in the industrial relations with the nationals of the state of employment during their work
and residence abroad. During 2010, two job brokering processes were conducted, one
with the Federal Republic of Germany, and one with Libya.522
§ 896. During the period covered by this Report, foreign citizens appear as unregistered
workers on seasonal jobs in Serbia. Namely, it could be often read in the newspapers that,
in spite of high unemployment rate in our country, there is a substantial demand for
520
521
522
Work Report of the National Employment Service for 2009: http://www.nsz.gov.rs/page/info/sr/izvestaj_o_radu.html
See Work Report of the National Employment Service for 2010: http://www.nsz.gov.rs/page/info/sr/izvestaj_o_radu.html
Ibid.
310
workers during the season of agricultural works, for physical labor in which our citizens
are not interested. These jobs are mostly done by undocumented workers from Romania
and Bulgaria523. However, apart from newspaper articles, it was difficult to come to a
precise data on undocumented labor of foreign nationals.
During last year, in the villages of the Braničevski Region
Romanians earned half a million euros
POŽAREVAC – Working on farms in 190 villages of the Braničevski Region, the Romanian
laborers made more than 50 thousand day-pays in last year, while their total earnings are
estimated at nearly EUR 500 thousand.
Their labor is mainly financed by our citizens who temporarily work abroad and hence do not
have possibility to work on their land and keep general care of deserted households. Instead
of them, this job was – and still is - done by imported laborers from Romania and Bulgaria,
whose daily wage is 10 euros, which can double during the season of agricultural works.
D. St.
Glas javnosti (daily), 13 January 2003
Source: http://arhiva.glas-javnosti.co.yu/arhiva/2003/01/13/srpski/RG03011212.shtml
§ 897. According to the Report on Illegal Migrations for 2005524 issued by the Interior
Ministry’s Border Police Directorate, it may be concluded that their potential number was
not insignificant. Since the state does not provide protection for unregistered workers, we
may also talk about vast possibilities for their exploitation and forced labor.
§ 898. Foreign citizens identified as trafficking victims in Serbia are entitled to temporary
residence permit, the so called humanitarian visa which, together with other rights, also
guarantee full access to the labor market. In relation to this, we can also mention the
project “Sustainable reaction of the labour market for the needs of human trafficking
victims in Serbia” financed by the International Organization for Migration (Relief 1035),
and implemented by IOM Belgrade, NGO Atina, Coordinating Agency for the Protection
of Trafficking Victims of the Ministry of Labor and Social Policy of the Republic of Serbia
and NES. The Project was implemented from May 2009 to May 2010. The purpose of the
Project was the inclusion of 20 victims of human trafficking in the labor market and their
employment.525
§ 899. Forced labor in Serbia is prohibited by Article 26 of the Constitution526 (“Prohibition
of slavery, servitude and forced labor”), which is not a novelty, but the definition of forced
labor is given527 for the first time. According to ASTRA’s data, the majority of trafficked
523
For example http://www.blic.co.yu/temadana.php?id=6741 or http://arhiva.glas-javnosti.co.yu/arhiva/2003/01/13/srpski/RG03011212.shtml
The Report on Illegal Migrations for 2005, Ministry of the Interior of the Republic of Serbia, Department for Public Safety – Border Police
Directorate, Belgrade, February 2006.
525
http://www.nsz.gov.rs/page/about/sr/aktprojekti/odrzivi_odgovor.html
526
527
Labor or service of persons serving sentence of imprisonment if their labor is based on the principle of voluntarity with financial compensation,
524
311
ARTICLE 9
persons whom we identified in 2002-2010 were exposed to sexual exploitation – 69.6%,
followed by labor exploitation – 11.6%, forced begging – 7.3% and forced marriage –
5.6%. Moreover, six cases of combined sexual and labor exploitation were registered,
as well as five cases of simultaneous sexual exploitation and forced begging, two cases
of sexual exploitation in combination with forced marriage and four cases of trafficking
for the purpose of illegal adoption. Serbia has ratified ILO Convention no. 105528 from
1957 which provides for the abolition of forced labor and ILO Convention no. 182529 from
1999 on the worst forms of child labor. The worst forms of child labor comprise all forms
of slavery, including trafficking in children, as well as forced or compulsory recruitment
of children for the used in armed conflict; the abuse of children for prostitution and
pornography; the abuse of children for illicit activities; and any work which is likely to
harm the health, safety or morals of children. Every State Party is obliged, inter alia, to
establish appropriate mechanisms for monitoring the implementation of its provisions.
Moreover, State Parties shall also take effective and time-bound measures to prevent the
engagement of children in the worst forms of child labor, including the identification and
reaching out to children at special risks of forced labor, taking into account the special
situation of girls.
§ 900. If we take a look at the forms of exploitation to which children identified by
ASTRA530 in 2002-2010 were exposed, it was sexual exploitation in 61.5% cases. Other
forms of exploitation for which the children were trafficked were: forced begging (20 –
16.4%), forced marriage (14 – 11.5%), labor exploitation (2 – 1.6%), combination of sexual
exploitation and forced begging (4 – 3.3%) and illegal adoption (4 – 3.3%).
§ 901. Although acts defined as forced labor are prohibited in Serbia, we do not have
data on forced labor in practice. Namely, the National Employment Service does not have
data on the cases of forced labor531. The Ministry of the Interior of Serbia is responsible
for enforcing regulations.
§ 902. With regard to the fact that our country is still a significant transit territory for
illegal migrations, and it is known that illegal migrants are at risk of falling victim to
trafficking, it is not unlikely that some of them could be exposed to labor exploitation in
Serbia as a country of temporary destination, although their planned and final destination
is some other country.
§ 903. With regard to Article 5, Paragraph 4 of the CoE Convention, it should be mentioned
that the majority of reports point out that Serbia has made a certain progress in the
labor or service of military persons, nor labor or services during war or state of emergency in accordance with measures prescribed on the
declaration of war or state of emergency, shall not be considered forced labor.
Official Journal of FRY – International Treaties, no. 13/2002.
529
Official Journal of FRY – International Treaties, no. 2/2003
530
ASTRA, Biannual Report 2006 – 2007, page 51.
531
According to Article 2 of the ILO Convention no. 29 from 1930, a key element of forced labor is the absence of assent of the person in question. In
that respect, “forced or compulsory labor” shall mean “all work or service which is exacted from any person under the menace of any penalty and
for which the said person has not offered himself voluntarily”.
528
312
field of migration policies. Thus, for example, the European Commission Progress Report
on Serbia from November 2010532 says that in whole, Serbia is moderately advanced in
the area of asylum. There has been good progress on migration management with the
adoption of the migration management strategy in July 2009. A national strategy to fight
illegal migration was adopted in March. The Law on Aliens came into force in April 2009
and is largely in compliance with EU standards.
§ 904. Toward the end of the period this Report refers to, more precisely, on 23 July
2009, the Migration Management Strategy was adopted533, which also stipulates the
institutional framework for the development of migration policy. Recommendations and
measures envisaged by the Strategy are:
• Define the content of the migration profile of the Republic of Serbia in accordance
with the requests of the European Integration and with respect to the particularities
in the case of the Republic of Serbia;
• Update the migration profile of the Republic of Serbia regularly;
• Conform the statistics with the requests of the EU standards;
• Establish normative and technical conditions for data exchange between the relevant
institutions;
• Collect information, statistics and reports on migrations in the Republic of Serbia;
• Designate an authority for collecting data;
• Follow trends of migration courses.
§ 905. The information from the competent services about the conditions of legal entry
and residence on the territory of Serbia can be found at the official web site of the Ministry
of the Interior, Ministry of Foreign Affairs, as well as the consular offices of the Republic
of Serbia abroad. These information are given mainly in Serbian and English, with the
exceptions of certain countries, which can also find the information related to visas in
local languages. Thus, on the website of the Ministry of the Interior534 those interested
may obtain instructions and information about the Law on Aliens, closer conditions and
method of visa issuance at border checkpoints, visa expiration date extension, duration
and extension of temporary stay, terms for the issuance of authorization for temporary
stay, permanent stay, identity cards for foreign citizens. On the website of the Ministry
of Foreign Affairs one can find information about the visa regime that the Republic of
Serbia applies to foreign citizens, guidelines on how to obtain the visa for RS, terms for
the issuance of authorization for temporary stay VISA TYPE D, visa application form, list
of Border checkpoints and information on customs formalities. Similar information can
be found on the websites of the embassies of the Republic of Serbia abroad.535
532
http://ec.europa.eu/enlargement/pdf/key_documents/2010/package/sr_rapport_2010_en.pdf
http://www.mup.gov.rs/cms_eng/home.nsf/inf-for-foreigners.h
535
For the purpose of this Report, we made a haphazard choice and verification of the web pages of the consular offices of the Republic of Serbia, such
as http://www.tirana.mfa.gov.rs/ (Albania), http://www.embserbia.cn/cn/ContentList.asp?id=178 (People’s Republic of China), http://www.mfa.
gov.rs/Worldframe.htm (Russian Federation), http://www.embassyofserbiadelhi.net.in/Visa%20Information%20NEW.htm (India), http://www.
533
534
313
ARTICLE 10
§ 906. As far as Serbian nationals are concerned, in 2009, the migration balance (the
difference between the number of immigrants and emigrants) was still positive (5.4
thousand), according to the estimates of the Statistical Office of Serbia. However, that
estimate is not realistic because the official data do not include a substantial number of
the emigrants from the Republic of Serbia who leave the country with their families and
do not report their departure. In-depth non-representative research show that emigration
from the Republic of Serbia continues, and that those people who leave the country are
mostly young and educated people.536
536
mfa.gov.rs/Worldframe.htm (United States of America) etc.
Bolčić, S. (2002): „Labor Force Migration and Brain Drain in Serbia”, Serbia at the end of Millennium: destruction of society, changes and everyday life,
the Faculty of Philosophy, Belgrade. Penev, G. (2008): „Educational level of the Serbian Nationals Abroad”, Regional development and demographic
courses in the countries of South-eastern Europe, the Faculty of Economy, Niš; Predojević-Despić (2010). „Main territorial characteristics of
emigration from Serbia to EU: from guest workers to chain migration”, 7th IMISCOE Annual Conference, 13-14 September 2010, Liege, Belgium.
Taken from The First National Report on Social Inclusion and Poverty Reduction in the Republic of Serbia, overview and state of social inclusion and
poverty for the period 2008 – 2010, including the priorities for the following period, The Team for Social Inclusion and Poverty Reduction with the
Cabinet of the Deputy Prime Minister for European Integration, March 2011.
314
Women and Children, Article 10 – Information exchange and training
CoE Convention on Action against Trafficking in Human Beings, Article 29,
paragraph 3 - Specialised authorities and coordinating bodies, Article 32 General principles and measures for international co-operation, Article 33 Measures relating to endangered or missing persons, Article 34 - Information,
Article 35 – Cooperation with civil society
Palermo Protocol
Article 10
Information exchange and training
1. Law enforcement, immigration or other relevant authorities of States Parties shall, as
appropriate, cooperate with one another by exchanging information, in accordance with
their domestic law, to enable them to determine:
a. Whether individuals crossing or attempting to cross an international border with travel
documents belonging to other persons or without travel documents are perpetrators or
victims of trafficking in persons;
b. The types of travel document that individuals have used or attempted to use to cross
an international border for the purpose of trafficking in persons; and (c) The means and
methods used by organized criminal groups for the purpose of trafficking in persons,
including the recruitment and transportation of victims, routes and links between and
among individuals and groups engaged in such trafficking, and possible measures for
detecting them.
2. States Parties shall provide or strengthen training for law enforcement, immigration and
other relevant officials in the prevention of trafficking in persons. The training should
focus on methods used in preventing such trafficking, prosecuting the traffickers and
protecting the rights of the victims, including protecting the victims from the traffickers.
The training should also take into account the need to consider human rights and child
and gender-sensitive issues and it should encourage cooperation with non--governmental
organization, other relevant organizations and other elements of civil society.
3. A State Party that receives information shall comply with any request by the State Party
that transmitted the information that places restrictions on its use.
315
ARTICLE 10
CoE
Article 29
Specialised authorities and co-ordinating bodies
3. Each Party shall provide or strengthen training for relevant officials in the prevention of and
fight against trafficking in human beings, including Human Rights training. The training
may be agency-specific and shall, as appropriate, focus on: methods used in preventing
such trafficking, prosecuting the traffickers and protecting the rights of the victims,
including protecting the victims from the traffickers.
Article 32
General principles and measures for international co-operation
The Parties shall cooperate with each other, in accordance with the provisions of this
Convention, and through application of relevant applicable international and regional
instruments, arrangements agreed on the basis of uniform or reciprocal legislation and
internal laws, to the widest extent possible, for the purpose of:
• preventing and combating trafficking in human beings;
• protecting and providing assistance to victims;
• investigations or proceedings concerning criminal offences established in accordance
with this Convention.
Article 33
Measures relating to endangered or missing persons
1. When a Party, on the basis of the information at its disposal has reasonable grounds to
believe that the life, the freedom or the physical integrity of a person referred to in Article
28, paragraph 1, is in immediate danger on the territory of another Party, the Party that has
the information shall, in such a case of emergency, transmit it without delay to the latter so
as to take the appropriate protection measures.
2. The Parties to this Convention may consider reinforcing their cooperation in the search for
missing people, in particular for missing children, if the information available leads them to
believe that she/he is a victim of trafficking in human beings. To this end, the Parties may
conclude bilateral or multilateral treaties with each other.
Article 34
Information
1. The requested Party shall promptly inform the requesting Party of the final result of
the action taken under this chapter. The requested Party shall also promptly inform the
requesting Party of any circumstances which render impossible the carrying out of the
action sought or are likely to delay it significantly.
316
2. A Party may, within the limits of its internal law, without prior request, forward to another
Party information obtained within the framework of its own investigations when it considers
that the disclosure of such information might assist the receiving Party in initiating or
carrying out investigations or proceedings concerning criminal offences established in
accordance with this Convention or might lead to a request for co-operation by that Party
under this chapter.
3. Prior to providing such information, the providing Party may request that it be kept
confidential or used subject to conditions. If the receiving Party cannot comply with
such request, it shall notify the providing Party, which shall then determine whether the
information should nevertheless be provided. If the receiving Party accepts the information
subject to the conditions, it shall be bound by them.
4. All information requested concerning Articles 13, 14 and 16, necessary to provide the rights
conferred by these Articles, shall be transmitted at the request of the Party concerned
without delay with due respect to Article 11 of the present Convention.
Article 35
Co-operation with civil society
Each Party shall encourage state authorities and public officials, to co-operate with nongovernmental organisations, other relevant organisations and members of civil society, in
establishing strategic partnerships with the aim of achieving the purpose of this Convention.
III.7.1. Cooperation, information and other measures
§ 907. Simultaneously with the first anti-trafficking initiatives in SEE Region, the Stability
Pact for South Eastern Europe, Task Force on Trafficking in Human Beings launched numerous
activities aimed at establishing cooperation among law enforcement in the region. Cross-border
cooperation was recognized as a necessary prerequisite for successful fight against human
trafficking and as such, it was incorporated into the Strategy to Combat Trafficking in Human
Beings in the Republic of Serbia. The Strategy in Article 10 recognizes the necessity of international
cooperation aimed at the legal aid procedure and implementing more comprehensive financial
investigation. In accordance with the Strategy, international cooperation is defined in the
Strategic goal 10 of the NAP for the period 2009-2001 as “establishing continual international
and regional cooperation with other services, institutions and organizations dealing with this
issue striving to achieve higher level of efficiency in prosecuting persons who have committed
the crime of trafficking in human beings and other crimes containing the elements of human
exploitation“537.
537
National Plan of Action to Combat Trafficking in Human Beings:
http://www.astra.org.rs/eng/wp-content/uploads/2008/07/NPA-2009-2011.eng_.pdf
317
ARTICLE 10
Strategy to Combat Trafficking in Human Beings in the Republic of Serbia
International Cooperation:
10. Establishing continuous international and regional cooperation with other services,
institutions, organizations that work on this issue, with the purpose of more efficient
prosecution of perpetrators for committing a crime of trafficking in persons and other
crimes with the elements of exploitation of persons, through:
10.1 signing and implementing adequate legal instruments for joint recognition of
evidence and joint investigation in cooperation with the prosecution, police and
courts from other countries, including the cooperation with Interpol, Europol,
SECI Centre, SEEPAG and other organizations;
10.2 improving the system of exchanging data with other countries;
10.3 accelerating the legal aid procedure, especially the extradition of perpetrators in
cases of criminal prosecution for trafficking in persons;
10.4 performing comprehensive financial investigation in order to find out and
confiscate the assets gained by committing a crime of trafficking in persons and
related crimes with the elements of exploitation of persons.
§ 908. The beginning of work on the suppression of human trafficking was marked by
the absence of networking modalities between state authorities. This was an important
obstacle to the efficient combating of this form of organized crime. The closeness of state
institutions, in particular of the police, in the previous period, was not without impact.
It took some time to build trust and gradually establish cooperation with professionals
from other countries. This was contributed by numerous regional seminars and trainings
that the representatives of institutions attended, above all thanks to foreign donors and
funds, where direct contacts were established and made later cooperation easier. Also,
the progress in inter-state cooperation appeared with regard to donations which foreign
governments or their embassies were giving Serbia in the form of technical assistance and
equipment for institutions, above all the police. Technical assistance included renewing the
fleet, technical equipment and organizing professional development trainings for the staff.
§ 909. However, the slowness of the state apparatus, enormous red tape, complicated
procedures, and strict hierarchy of specific authorities make efficient work on combating
human trafficking significantly difficult, even when there is a good will on the part of
individuals who work in these institutions. This gives advantage to criminals who do
not have these obstacles and successfully cooperate in their fields of activity. On
the other hand, there are many examples where due to the lack of cooperation or
slow administration some cases need to be stopped due to the statute of limitation.
The situation is much more serious when search for persons who went missing in the
trafficking chain is concerned and where the passage of time is in reverse proportion to
the successfulness in solving the case.
318
On 19 June 2007, father of a girl who was kept locked by the trafficker in a bar in
Montenegro called ASTRA SOS Hotline. She contacted her father through SMS and told
him to urgently send the police, because she was afraid that she would be sold in the
following four days to another trafficker who would take her to Albania. On the same
day, ASTRA contacted Serbian Ministry of the Interior and their representative asked a
memo with all the details to be brought to him the following day on the basis of which
they would take future steps.
On 20 June 2007 ASTRA sent the memo, but got information that, since this involved
human trafficking in the territory of another state and regardless of the fact that the
victim was a Serbian national, these information need to go through administrative
procedure which would take at least ten days before it got back to the operational level.
It was impossible to officially send this memo on time and the police representative told
ASTRA to contact a NGO in Montenegro with whom ASTRA already cooperated. Only
that way their police could be alarmed quickly enough.
The same day ASTRA contacted Safe Women’s House in Podgorica, a NGO for trafficking
victim assistance, and the first contact with the girl was made on June 21.
§ 910. While NGOs have a considerable advantage in that respect since they are not
bound by any formal and administrative obstacles, and the exchange of information
is possible by telephone or e-mail, state institutions have a formalized framework of
cooperation they need strictly to comply with.
§ 911. Some of the initiatives aimed at establishing cooperation of relevant institutions
in this part of Europe are elaborated further in this text.
§ 912. One of the earliest initiatives is certainly the first regional Romanian-Yugoslav
forum on cooperation in combating human trafficking that was held in Bucharest on 21
June 2001. The representatives of the public prosecution, the judiciary and the police from
Serbia had an active role in this forum together with the representatives of other state
authorities and NGOs.
§ 913. On 29 November 2001, under the auspices of the Stability Pact, the second regional
Ministerial forum on human trafficking took place in Zagreb, where the Interior Ministers
of countries of the region signed a statement on commitment to the mechanisms for
exchange of information on human trafficking.
§ 914. In the course of 2004, National Coordinators for combating human trafficking
of the Republic of Serbia and the Republic of Montenegro (i.e. their representatives)
had three meetings in addition to several working meetings and regional gatherings
which they jointly attended. On 21 April 2004, National Coordinators released a joint
statement calling on comprehensive cooperation between the National Teams, especially
through joint projects on prevention, education and protection of trafficking victims.
319
ARTICLE 10
Special attention was paid to the enhancement of cooperation of the two Ministries of
the Interior, as well as of other state authorities in the cases of discovering, prosecuting
and preventing human trafficking. Joint actions and investigations into human trafficking
were recommended. Special focus was put on the need for synchronized activities in
combating child trafficking in line with the priorities of the Stability Pact and Guidelines
for Protection of the Rights of Child Victims of Trafficking in South Eastern Europe.
National Coordinators called on the development of a regional concept of cooperation in
combating human trafficking.
§ 915. For the sake of better cooperation in fighting organized crime, the Interior Ministers
of the Republic of Serbia and the Republic of Montenegro signed an agreement which
inter alia concerned combating human trafficking.
§ 916. At the beginning of November 2001, a Joint Document was signed with UNMIK,
which, inter alia, envisaged the establishment of joint working bodies and committees,
which task would be to improve security protection of non-Albanian population, the
creation of security conditions for the return of displaced persons from Kosovo, the
solution of missing person cases, as well as the establishment of police cooperation in
the area of drug trafficking, human trafficking, money laundering, armament smuggling
and fight against terrorism.
§ 917. Within the joint committee for police cooperation of UNMIK, FRY and the Republic
of Serbia a sub-committee for combating human trafficking and people smuggling
was established. Several joint meetings took place in Kuršumlija and Priština and
several coordinated activities were organized. A joint conclusion was that the situation
considerably improved in the area of combating human trafficking and people smuggling.
§ 918. After that, bilateral cooperation continued at certain pace, which certainly left
room for permanent improvement. Among other things, in the course of the past few
years, data and information pertaining to persons involved in bringing, engaging and the
sale of the nationals of East European countries in Serbia and pertaining to persons who
recruit and organize transfer of girls from Serbia to Western European countries have
been exchanged through the National Central Bureau of Interpol in Belgrade with the
police of other countries. Generally speaking, in the last few years, Serbian Ministry of the
Interior participated in all international police actions organized in our region.
§ 919. The improvement of the police work in the Republic of Serbia has been contributed
by foreign governments and international organizations. Thus, for example, the donation
by the Norwegian Government in the amount of EUR 60,000 was realized through OSCE,
while US State Department donation in the amount of USD 110,000 was realized through
SECI Center Bucharest and FBI delegate in Belgrade. With IOM’s support and within
regional project of approving temporary residence permits to the victims of trafficking,
the Belgrade Police Department - Alien Department received a donation in the amount
320
of EUR 20,000 intended for equipping services which participate in issuing humanitarian
residence to victims of trafficking.
§ 920. Joint police actions, especially “Mirage” and “Leda”, had an important role in the
establishment of police cooperation. These actions were coordinated by SECI Center
for Combating Cross Border Crime in Bucharest. Namely, in May 1999, Albania, Bosnia
and Herzegovina, Bulgaria, Greece, Hungary, Macedonia, Moldova, Romania and Turkey
signed the agreement on cooperation in combating and eliminating cross-border crime
- SECI538. Croatia joined this agreement in November 1999 and Slovenia in August 2000.
SECI Agreement came into force in February 2000, while SECI became operational in
November 2000. Serbia (then FRY) officially became the member of the Regional Center
by the decision of the Federal Government of 23 August 2001.
§ 921. In late July 2002, a joint regional police action was carried out aimed at combating
human trafficking, organized and coordinated by Regional Task Force (RTF), based on the
Agreement of Ministers of the Interior of Bosnia and Herzegovina, Croatia and FRY signed
in 2002. Also, within regional police cooperation, on 7-16 September 2002, the Ministry
of the Interior of the Republic of Serbia carried out an action called “Mirage”. It was aimed
at preventing people smuggling and human trafficking, especially trafficking in women
and children for prostitution or other illegal activities.
§ 922. In continuation of regional cooperation within the “Mirage” action of 2002, SECI
Center organized the action “Mirage 2003” with the same goals as one year earlier. The
action was carried out in two phases, on 1-5 September and on 15-19 September 2003,
on which occasion 1,869 night clubs, restaurants and other places where prostitution
was taking place and where trafficked victims could have been found were checked and
784 females were identified (592 SCG, 103 Romania, 27 Bulgaria, 8 Russia, 9 Moldova, 8
Ukraine, 8 Austria, etc.).
§ 923. On 5-12 May 2003, in the territory under the jurisdiction of the Novi Sad, Pančevo
and Vranje Police Departments, operation “Leda” was carried out exclusively dedicated
to the suppression of human trafficking. This was the first operation at European level;
it was carried out through a coordinated action of Interpol and the Ministries of the
Interior of the EU and SECI member states. Checks were done in hotels, motels, night
bars, establishments known as the meeting places of foreign nationals and other persons
involved in human trafficking, including routes used for the transportation of trafficked
persons. In the territories under the jurisdiction of the Novi Sad, Pančevo and Vranje Police
Departments the following results were achieved: 63 persons (44 SCG nationals and 19
foreigners) were questioned in detail, for whom there were indications that they might be
the victims of trafficking. Two criminal reports against three persons were filed for human
trafficking and mediation in conducting prostitution. States-participants presented the
results achieved during police action “Leda” action at the final meeting in Athens.
538
http://www.secicenter.org/p193/
321
ARTICLE 10
§ 924. Between 28 May and 6 June 2004, the Ministry of the Interior of Serbia carried out
action “Mirage 2004” aimed at regional fight against human trafficking and discovering
victims, which SECI Center initiated and coordinated in 12 countries. During this action,
1,473 establishments (night clubs, bars, etc.) and the identity of 1,078 persons were
checked, on which occasion three Romanian nationals and two SCG nationals were found
and as potential trafficked victims accommodated in the shelter for trafficked victims.
§ 925. Although NGO representatives objected that a very small number of victims
had been identified in these actions and that they actually had served for “practicing
cooperation” as a part of a regional project, these actions had significant general
prevention impact539 on potential perpetrators. They were significant also with regard
to the prevention of individual trafficking cases which must be preceded by timely
identification of routes, perpetrators, transit points, all of these with a view to identifying
victims before they reach exploitation phase.
The example of one such police action is the case of two Ukrainian citizens, which had
its epilogue on 30 September 2005 before the Special Department for Organized Crime
of the Belgrade District Court, when the panel composed of judges Dičić, Albijanić and
Tatalović announced their judgment for the offence of human trafficking from Article
111b, Paragraph 2 in connection with Paragraph 1 of the Criminal Law of Serbia and
sentenced the perpetrators to the prison term of between three and eight years.
The trial was proceeded by a successful action of the Ministry of the Interior and the
Organized Crime Directorate. Thanks to cooperation with the police of other countries
and using new police techniques, they managed to stop the transit of Ukrainian citizens
to Italy before their exploitation started.
§ 926. In addition, there is also an example of police cooperation which was not directly
coordinated by SECI Center. Namely, within action “Saber” in 2003, the Belgrade Police
Department arrested Milivoje Zarubica, head of the criminal group in the chain of human
trafficking, with its base both in neighboring countries where foreign nationals were most
often recruited, and in Western Europe countries, which were their final destination.
Criminal report against Milivoje Zarubica included 16 persons charged with various
offences in connection with human trafficking.
§ 927. However, the initial enthusiasm and good cooperation with SECI Center have
not maintained the same intensity to date. Joint activities aimed at combating human
trafficking, similar to these first ones, have not been organized any longer.
§ 928. Besides cooperation within SECI Center, other agreements which regulated
539
PRAZAN I OVDE I U PDFu. srpski kaže “Naravno, polazimo od pretpostavke da tokom racija nije dolazilo do prekomerne upotrebe sile, o čemu
nemamo podatke.”
322
international police cooperation were signed during the period covered by this Report, as
well. One of the most important events was certainly the signing of the Police Cooperation
Convention for Southeast Europe.540 This Convention was signed on 5 May 2006 in Vienna.
The signatories are the then State Union Serbia and Montenegro (whose legal successor is
Serbia), Bosnia and Herzegovina, Albania, Macedonia, Moldova and Romania. Serbia ratified
the Convention on 23 July 2007541 This Convention envisages the provision of cross-border
police cooperation and the exchange of experts, crossing to another’s territory, the exchange
of data and mixed border control. Moreover, the Convention provides for the exchange of
police information and liaison officers, as well as cooperation in witness protection. State
parties shall enhance their cooperation in fighting threats to public security and/or peace,
and in preventing, discovering and police investigation of criminal offences.
§ 929. Of great importance for police cooperation, and law enforcement cooperation in
general, are bilateral and multilateral agreements between countries542. Thus, for example,
the Agreement on Fight against Organized Crime was signed with Hungary, Slovenia
and Croatia on 8 May 2002. Further, the Agreement of Governmental Cooperation of
Serbia and Romania in combating organized crime, drugs trafficking and international
terrorism543 was signed at an informal conference of Interior Ministers of SEE countries in
Bucharest on 5 July 2007. Serbia has also signed a bilateral treaty on combating organized
crime with Slovenia544, as well as other treaties. During 2009 Agreement on Strategic
Cooperation between Republic of Serbia and European Police Office545 was signed and
ratified. Other important bilateral agreements on police cooperation were also signed, for
example with France, Switzerland and Israel during 2009.
Yugoslavia and Croatia signed an agreement on fight against organized crime BELGRADE—
Interior Ministers of Yugoslavia and Croatia signed in Belgrade on 8 May an agreement on
cooperation in fight against organized crime. The two Ministries will cooperate by exchanging
information on illegal drugs trafficking, terrorism and other cross-border criminal activities.
Interior Ministers also proposed the introduction of a more liberal visa regime that would
include tourist passes. Croatian-Yugoslav relations have registered significant progress
lately, after serious deterioration during the war in Croatia at the beginning of the 1990s.
9 May 2002
http://www.setimes.com/cocoon/setimes/xhtml/sr_Latn/feat ures/setimes/
newsbriefs/2002/05/020509-GEORGI-014
540
http://www.parlament.gov.rs/content/lat/akta/akta_detalji.asp?Id=412&t=Z#
http://www.mfa.gov.rs/Srpski/Foreinframe.htm
543
Source: http://www.mfa.gov.rs/Srpski/Bilteni/Srpski/b060707_s.html
544
The Law ratifying Agreement between the Federal Government of the Federal Republic of Yugoslavia and the Government of the Republic of
Slovenia on Cooperation in Fight against Organized Crime, Traffic in Illegal Narcotics and Psychotropic Substances, Terrorism and Other Graver
Criminal Offences, Official Journal of FRY - International Treaties, no.4/2001.
545
541
542
323
ARTICLE 10
§ 930. Police cooperation in connection with the examination of validity of documents
is conditioned by the very nature of their work. Border police officers are in contact on a
daily basis, especially if they suspect in the validity of a travel document or with regard
to fight against transnational crime or the identification of victims. In presentations they
make at various training seminars, the representatives of the police stress that in case of
suspicion, potential victims are returned to the authorities of the neighboring country,
who are notified what arouse suspicion in human trafficking546. Daily contacts also exist
for the purpose of implementing measures related to missing persons. More specifically,
the police is authorized to conduct a search for persons and objects based on the Police
Act547. Search for missing persons is announced by a search announcement.
The Ministers of SEE countries agreed to enhance cooperation against organized crime
and human trafficking
ATHENS, Greece - The Ministers of the Interior and Justice of ten SEE countries agreed on
Wednesday (8 February) to enhance cooperation in fight against organized crime, human
trafficking and terrorism. Albania, Bosnia and Herzegovina, Bulgaria, Croatia, Greece,
Macedonia, Moldova, Romania, Serbia and Montenegro and Turkey will adjust their
legislation to comply with EU and Council of Europe’s standards. Ministers also agreed
that the task forces of prosecutors and police officers who investigated organized crime
should be established at national and regional level.
During the forum, B&H and Greece concluded bilateral agreements on readmission and
joint fight against crime. Moreover, Albania and Serbia and Montenegro signed a bilateral
agreement on judicial cooperation.
9 February 2006
http://www.setimes.com/cocoon/setimes/xhtml/sr_Latn/feat ures/setimes/
newsbriefs/2006/02/09/nb-03
§ 931. An initiative with a great potential is MARRI548 - Migration, Asylum, Refugees Regional
Initiative of the Stability Pact. MARRI Initiative emerged in 2003 by merging the Regional
Return Initiative (RRI) and the Migration and Asylum Initiative (MAI), both of which were
created within the Stability Pact for South Eastern Europe. Participating states of this
initiative are Albania, Bosnia and Herzegovina, Croatia, Montenegro, Macedonia and Serbia.
The overall idea of MARRI was that the Western Balkan countries take ownership of the
initiatives within the regional cooperation in order to prove the capability of the countries
in the region to cooperate on their own, to align their own policies and to contribute to the
development, stabilization and improvement of the situation in the region.
546
547
548
ASTRA does not have information on the exact number of these interventions.
http://www.mfa.gov.rs/Srpski/spopol/Multilaterala/reg/index_s.html. For details about this regional initiative, please visit its official website
www.marri-rc.org
324
§ 932. MARRI Regional Forum provides political support to the Initiative. It comprises
Ministers and High Representatives in charge of the issues of asylum, migrations, border
management, visa regime and return of displaced persons. The Forum serves for the
exchange of information and experiences and for making decisions of common interest
of participating countries.
§ 933. The MARRI Regional Centre was opened in Skopje on 18 November 2004 to
serve as a secretariat to the MARRI Regional Forum. The representatives of Western
Balkan countries participate in the work of the Center. At the beginning of July 2004,
a Memorandum of Understanding was signed in Skopje on the occasion of establishing
the MARRI Center. In this way MARRI Forum Member States have undertaken rights and
obligations for the establishment and work of the Center. The Center is envisaged to serve
as a liaison office for the fields of migrations, asylum and refugees. Data from these fields
are collected and kept here; in addition, the Center serves for liaisoning with Presidency
of the Regional Forum and MARRI Member States.
§ 934. With regard to cooperation of judicial authorities, according to the Criminal
Procedure Act, domestic courts shall provide international legal assistance and execute
international treaties in criminal justice matters. International cooperation shall be
provided according to the provisions of an international treaty or under the provisions
of the Criminal Procedure Act549 if such treaty does not exist or if certain issues are not
regulated by the treaty. The Criminal Procedure Act, for example, lists that international
legal cooperation includes special execution of some procedural actions, such as the
examination of defendant, witness, expert witness, investigation, the searching of
dwellings and persons, the seizure of objects, the handing over of files, written materials
and other objects pertaining to the criminal proceedings in the requesting country.
Domestic courts and public prosecutor’s offices may ask for international cooperation
through the Ministry of Justice, and in emergency cases, when there is reciprocity with
the country from which cooperation is requested, through the Ministry of Foreign
Affairs. Domestic courts do the requested actions applying domestic procedural rules.
The Serbian legislation provides for the possibility that prosecution may be left to a
foreign country if the offence has been committed in Serbia by a foreign national who has
residence in that foreign country if the foreign country does not object. This is possible
providing that criminal offences for which sentence is set at up to ten years in prison or
traffic offences are concerned. This particularly means that the prosecution of human
trafficking as specified in Article 388, Paragraph 1 and 2 of the Criminal Code may be left
to a foreign country. However, if the victim is a domestic national, this is not possible if
such victim objects, unless guarantees have been given for the acceptance of motion for
the compensation of damages.
549
Criminal Procedure Act, Official Journal of FRY, no. 70/2001 and 68/2002; Official Gazette of RS, no. 58/2004, 85/2005, 115/2005, 85/2005 –
other law, 49/2007, 20/2009 – other law, 72/2009 and 76/2010.
325
ARTICLE 10
In 2005, proceedings for the criminal offence of human trafficking committed against
ASTRA’s client who, at the time of the offence was 15 years old, was started before
the Sremska Mitrovica District Court. She gave her statement in May 2005 and March
2006. After her last appearance before the court, two foreign witnesses were questioned.
Before rendering the judgment, the court was waiting only for the original passports of
the trafficker and the victim to be sent from Germany, passports which the traffickers
obtained for the two of them to cross international borders on their way to the destination
country. These documents should have been sent by official diplomatic channels, through
embassies and Justice Ministries. However, after almost two years, the judge has not
received these passports, for which reason the entire case is on halt.
At the same time, making use of this situation, the trafficker started paternity procedure
for the child born in the period when the victim was exposed to exploitation, in order to
be able to require custody of that child later. The judgment, i.e. conviction in the case
of human trafficking offence would have great impact on the outcome of paternity, i.e.
custody procedure.
In the meantime, ASTRA’s client and her five-year old daughter are permanently exposed
to his threats and are forced to be on their guard all the time and in fear that these threats
could be realized.
§ 935. With regard to judicial cooperation in connection with the protection of victims/
witnesses, until 2006, our legislation did not envisage any special witness protection
programs. Special protection could have been provided to witnesses and victims pursuant
to the provisions of Article 109 of the Criminal Procedure Act550, according to which the
court shall protect the witness/victim from offence, threat and any other assault, i.e. upon
the proposal of investigating judge or the presiding judge of the panel, the president of
the court or public prosecutor may require from the police to take special measures to
protect the witness/victim.
In that respect, in cooperation with SECI Center Bucharest and the Moldova police, the
visit of witnesses from Moldova was organized, including their protection during their
staying and testifying in Belgrade.
ASTRA Database no. 1826
Before the same court, another case of human trafficking was prequalified into illegal
crossing of state border., where the main organizer of the smuggling of Pakistani nationals
was sentenced to four years in prison. One of the girls who testified in this case had to
be displaced from the town where she lived with her family because her testifying put
550
Ibid.
326
her in danger. Only thanks to the remarkable effort of the Deputy Public Prosecutor in
this case, who managed, in communication with third country, to ensure place in that
country’s witness protection program, the girl was timely relocated, in which way more
serious consequences have probably been avoided. After this case, no witness/victim who
appeared in human trafficking trials got this kind of protection.
ASTRA Database no. 416
§ 936. According to the Serbian legal system, international cooperation in the field of
organized crime is to be implemented according to the ratified international treaties
or domestic laws. For example, the 2005 Law on the Protection Program for Persons
Participating (Witness Protection Act) in the Criminal Proceedings envisages that the
international cooperation in implementing this act shall be afforded upon international
treaties or memorandums of cooperation (see Article 39). The Witness Protection Act
anticipates a possibility to organize a protection program for persons involved in criminal
proceedings and their families who, because of testifying or providing information
of significance for criminal proceedings, are put at risk for their life, health, physical
integrity, freedom or property. The protection may be provided not only during criminal
proceedings, but also after its final closure, for all criminal offences qualified as organized
crime. It is carried out by a specially formed Committee for implementing the protection
program and the Protection Unit. According to this Act, international cooperation is also
possible in the implementation of protection program, based on international agreement
or reciprocity. The protected person may be accepted and protected in Serbia upon the
request of a foreign country in the same way as the Protection Unit may file a petition to
a foreign country to accept the protected person.
§ 937. A good example of cooperation and networking may be the Special Department for
War Crimes of the Belgrade District Court, which has established excellent cooperation
with governmental and nongovernmental organizations both in Serbia and aboard, with
whom it is in permanent communication aimed at the exchange of information and
successful solving of cases in the war crimes area.
§ 938. In order to facilitate the international cooperation the Law on International Legal
in Criminal Matters entrusted certain parts of work such as execution of the decision on
extradition to the ministry in charge for internal affairs.551
§ 939. When cooperation in judiciary is concerned it is important to mention two
agreements signed during 2010. Agreement on extradition between Republic of Croatia
and Republic of Serbia552 as well as the Agreement on extradition between Republic
of Serbia and Republic of Montenegro553. The Law says that state parties, wishing to
551
See Art. 37 of this Law.
Law on ratification of the Agreement on extradition between Republic of Serbia and Republic of Croatia, Official Gazette of RS. – International
Treaties, no. 13/2010.
553
Law on ratification of the Agreement on extradition between Republic of Serbia and Republic of Montenegro, Official Gazette of RS – International
552
327
ARTICLE 10
strengthen further cooperation in the field of legal aid in criminal matters, and especially
aiming to regulate cooperation regarding extradition of the accused and convicted persons
and by this facilitate mutual legal traffic in this field, agreed to conclude this Agreement.
III.7.2. Education of the professionals
§ 940. After the establishment first of the Yugoslav and than the National Team for
Combating Human Trafficking, in the course of 2002, first training programs were
organized for the representatives of institutions, above all the police, on trafficking in
human beings. After that, training programs were organized for staff in social services,
education and the judiciary.
III.7.2.1. Law Enforcement Training
§ 941. An important segment in fight against human trafficking is the education of the
police. To that end, international organizations (OSCE, IOM, UNDP, ICMPD etc.), often in
cooperation with local NGOs (ASTRA, Belgrade Center For Human Rights, Beosupport,
Atin etc.) have carried out seminars, lectures and training courses554.
§ 942. In addition to the education of regular police officers, special programs were
organized for the students of the Police College555 and the Police Academy556.
Convention on the Elimination of All Forms of Discrimination against Women
Distr.: General
17 October 2006
Original: English
CEDAW/C/SCG/1
06-58482 35
Committee on the Elimination of Discrimination against Women Consideration of reports
submitted by States parties under article 18 of the Convention on the Elimination of All
Forms of Discrimination against Women Initial report of States parties
Serbia*
189. Special attention has been devoted to the training of members of the MUP RS and
to their inclusion into integrative European and world police processes. The participation
of representatives of the MUP RS at the meetings with senior representatives of OSCE
Treaties, no. 1/2010.
For example, in the organization of OSCE Mission to Serbia, a series of trainings was organized for the representatives of special police forces for
combating human trafficking on the basis of ICMPD Manual. The training for the first group of police officers was held in June and for the second
group in October 2004, involving 114 police officers from 14 towns throughout Serbia. The training was based on ICMPD module, while the
lecturers were the representatives of ASTRA, UBPOK, Department for Aliens, the Agency for Coordination of Protection of Trafficking Victims.
In 2006, OSCE Mission to Serbia and Montenegro organized a training “Simulation of a Trafficking Case in the Field for Police Officers” aimed at
achieving more efficient police investigation in human trafficking cases etc.
555
ASTRA has built cooperation with the Police College, where ASTRA Team held a series of lectures on the problem of human trafficking and the role
of NGOs in its elimination. These lectures were attended by more than 300 students.
556
These two institutions have been integrated into the Academy for Criminalistic and Police Studies.
554
328
and UNICEF devoted to trafficking in human beings was marked. At these meetings the
Yugoslav model of the fight against trade in people was commended. It was pointed out
that the OSCE will use this comprehensive way of organization and functioning of the
MUP RS as a good model that should be applied in all South Eastern European countries.
The members of the border police force took part in the projects of the International
Organization for Migration (IOM) related to illegal migrations, human trafficking and
reception centers for victims of traffickers.
III.7.2.2. Judicial Trainings
§ 943. Besides the trainings for police officers, several trainings and seminars have
been organized for the judiciary. The significance of specialization and special training
for persons who would conduct proceedings in human trafficking cases was observed
immediately after the signing of the Organized Crime Protocol, that is, much earlier than
human trafficking was introduced in our criminal legislation as a criminal offence. NGOs
had a pioneer role in this job, organizing trainings for police officers. Since 2002, a great
number of judges and prosecutors have been trained to proceed in human trafficking
cases. International organizations supported these training.
§ 944. In October 2004, the convention of magistrates of the Republic of Serbia was
held in Kopaonik. Some 500 magistrates (petty offence judges) from throughout Serbia
attended this event. One of the topics discussed was the problem of human trafficking.
This was another in the series of educational activities, after trainings that were held
Belgrade in June and September and two trainings in Zrenjanin in August the same year.
Within the same project, a manual on human trafficking for magistrates was drawn in
Serbian and English language. These activities were carried out by the Association of
Magistrates of the Republic of Serbia in cooperation with ABA CEELI. In addition, in
December 2004, a training was organized for the judiciary and police addressing human
trafficking, on which occasion the results of the project for the education of magistrates
were presented. In February 2006, basic training “How to Recognize Trafficked Victims,
People Smuggling and Petty Offence Legislation” was held in Morović for municipal
magistrates, NGOs, the police, health institutions and the media. This training was also
organized by the Association of Magistrates of the Republic of Serbia, with support of
ABA CELLI. OSCE Mission to Serbia has played an important role in the area of specialized
education of the police and judiciary.
§ 945. During 2005, 2006 and 2007, within the project “Efficiency Improvement of
the Judiciary and Police in Combating Human Trafficking”, the Judges’ Association
of Serbia, with support of OSCE Mission to Serbia, carried out 20 trainings targeting
judges, prosecutors and law enforcement. The lecturers were professionals from the
Serbian Interior Ministry, the Police College and the judiciary. During 2009 and 2010, the
329
ARTICLE 10
section for Criminal Law of the Judges’ Association of Serbia has carried out a total of 22
trainings on the territory of the Republic of Serbia, within the project “Initiative Against
Trafficking in Women and Girls in Southeast Europe”, and with the financial support of
OSCE Mission to Serbia and Austrian Development Agency – ADA. Over 500 members
of the judiciary and the police participated in these activities of the Judges’ Association
of Serbia. Trainers at these training seminars were judges, prosecutors and police officers,
who have experience in prosecuting trafficking offences.
§ 946. Moreover, during 2010, within the project “Fight Against Human Trafficking,
Strengthening of the Role of Public Prosecutor and Improvement of Human Rights of
Trafficked Persons”, carried out by the Association of Public Prosecutor and Deputy Public
Prosecutors of Serbia in collaboration with OSCE Mission to Serbia, a conference was held
in Belgrade, as well as seven roundtable discussions throughout Serbia.
§ 947. The Juvenile Offenders and Juvenile Justice Act envisages special training for
judges, prosecutors and police officers. The Act specifies that the training shall be done
by the Judicial Education Center. Namely, according to the Act, in case where a juvenile
appears as the victim of a criminal offence, including the situation when a juvenile is
the victim of human trafficking, the presiding judge of the panel, public prosecutor, the
lawyer appointed to the juvenile, as well as the chosen authorized representative and
police officers, need to possess specialized knowledge in the area of children’s rights and
criminal justice protection of minors.
III.7.2.3. Trainings for Peacekeeping Officers
§ 948. In conclusion, we would like to mention trainings for peacekeeping officers that
were organized for the first time in Serbia in 2006. Namely, in October 2006, at the
Peacekeeping Operation Center (PKOC) in Belgrade, a three-week course was organized
for military observers as a part of the Nordic Initiative, which is aimed at helping countries
in successful implementation of reforms in the security sector. This was one of the first
trainings intended for peacekeeping forces. Attendants were the officers from five partner
countries of the Nordic Initiative: Albania, Bosnia and Herzegovina, Croatia, Macedonia and
Serbia and Montenegro. The course sought to prepare officers for military observers in all
peacekeeping missions, especially in current UN operations. One of the topics discussed
at the course was fight against human trafficking with lectures being given by ASTRA
representative. The course was organized by the Finnish Defense Forces International
Center (FINCENT) in cooperation with the Peacekeeping Operation Center of the Armed
Forces of Serbia and Montenegro and with the support of the Finnish Ministry of Foreign
Affairs and Ministry of Defense.
§ 949. In the next two years, international courses for civil-military cooperation at tactical
level (CIMIC) were organized at the Peacekeeping Operation Center in Belgrade. These
330
courses were also organized within NORDCAPS - Nordic Coordinated Arrangement for
Military Peace Support and in cooperation with Danish Army Logistics School. ASTRA
representative held lectures about human trafficking at both of these trainings.
III.7.2.4. Other Trainings
§ 950. Although Article 10 of the Protocol and Article 29 (3) of the CoE Convention
are focused on law enforcement training, it is important to mention that during the
period covered by this Report, numerous intersectoral trainings were organized, with the
participation of not only the police and the judiciary, but also the representatives of the
Ministry of Labor, Employment and Social Policy, the Ministry of Health, the Ministry of
Education etc. Here too, the majority of education sessions was organized and carried out by
international (OSCE, IOM, Red Cross) and nongovernmental organizations (ASTRA, Child
Rights Center, Victimology Society of Serbia, Beosupport, etc.). These programs mostly
focused on cooperation and developing procedures in victim assistance mechanisms.
§ 951. As we already mentioned in the analysis of Article 9 of the Protocol and Article 5 of
the CoE Convention, the Ministry of Labor, Employment and Social Policy held a series of
trainings on fighting human trafficking for social welfare professionals. Lecturers at these
seminars were the representatives of institutions, NGOs and international organizations.
In the course of 2003, four educational seminars were organized, which covered 46 social
welfare center (director and one social worker from each center), all shelters for children
without parental care and Belgrade-based Institute for Upbringing of Children and Youth,
with an aim to make them acquainted with the problem of human trafficking. With USAID’s
support, the same Ministry organized another four seminars for social welfare professionals in
2004. Training programs for social welfare professionals were not organized at all for several
years. Since 2007, NGO Atina, with OSCE’s support, has organized several roundtables and
seminars for this target group. In June 2010, ASTRA’s program “Support to Trafficking Victims
in the Social Welfare System – Detection, Needs Assessment and Planning of Support” was
accredited by the Republican Institute for Social Protection as the optional professional
development program. Trainings are being carried out in the whole territory of Serbia.
§ 952. Here we should add that certain activities in the area of prevention and education
have been carried out by numerous other organizations, both international such as
UNHCR and local NGOs, such as Velika Plana-based Women in Action, Human Rights
Committee Vranje, Center for Girls Užice, Group 484 and others.
§ 953. As shown in the above paragraphs, the majority of trainings and education activities
were organized by international and nongovernmental organizations with financial
support of foreign governments or donor organizations. Although the government did not
fund these activities, political will for the presence of the representatives of institutions
existed over a long period of time.
331
ARTICLE 10
§ 954. One objection that can be made is that most often persons in charge in institutions
send the same persons to trainings. Although it is said that great number of police officers
have taken part in various anti-trafficking education programs, in reality it is most often
much smaller circle of people who attended more than one program. The organizers of
these events also failed to follow the structure of participants through several cycles of
trainings. Consequently, on more than one occasion, highly educated representatives of
one institutions were sent to attend basic trainings several times.
§ 955. Besides obviously poor coordination of these programs, in some cases they were
not adjusted to local needs. Namely, the manuals or parts of the manuals published
around the works were translated, which in some segments did not correspond to the
situation in Serbia. Discussing migrations’ control, in 2004 Barbara Limanowska557, said
“Special training for border police is very popular in South Eastern Europe. Training courses
generally provide information about trafficking and sensitizes law enforcement agencies
to the needs and rights of victims. However, few training sessions address the issue of
how to recognise victims before they themselves know that they have been trafficked”.
The question remains to what extent modules for the education of professionals from
different institutions have developed in the meantime, i.e. how much progress has been
made from initially designed trainings, where the participants were mostly informed
about the existence of human trafficking. A need for further specialization is evident,
because it is a prerequisite for more rapid and more adequate response to human
trafficking, whose manifestations have become increasingly complex, especially in terms
of permanent changes in traffickers’ modus operandi.
§ 956. In conclusion, in practice we have seen programs that neglected the existence
of relevant mechanisms in Serbia, the existing practice and what had been done thus
far. This was especially noticeable in case of various international organizations, which
appeared ad hoc in Serbia and tried to impose their programs.
III.7.3. Cooperation with the Nongovernmental Organizations
§ 957. Current Law on Association558 was passed in August 2009. Until that moment, the
work of nongovernmental organizations was governed by the Law on the Association of
Citizens into Associations, Social and Political Organizations Established in the Territory
of the Socialist Federative Republic of Yugoslavia559, which outlived for nearly twenty
years the state mentioned in its title. This very fact speaks enough of how the Republic of
Serbia treats the work and resources of its civil society sector.
§ 958. It was NGOs that launched the first anti-trafficking activities in Serbia in the
557
Limanowska, B., Trafficking in Human Beings in South Eastern Europe 2004 - Focus in Prevention in Albania, Bosnia and Herzegovina, Bulgaria,
Croatia, the Former Yugoslav Republic of Macedonia, Moldova, Romania, Serbia and Montenegro, The UN Administered Province of Kosovo, UNICEF,
UNOHCHR, OSCE/ODHIR, 2004, page. 22-23.
558
559
Official Journal of SFRY, no. 42/90 and Official Journal of FRY no. 16/93, 31/93, 41/93, 50/93, 24/94, 28/96 i 73/2000 – other law.
332
late 1990s and, together with international organizations and bodies, put pressure on
the state to start building adequate anti-trafficking response. After 2001, following the
democratic changes in Serbia, the first multi-sectoral bodies were formed, above all the
National Team for Combating Human Trafficking that has been mentioned ever since as an
example of good practice in cooperation between governmental institutions and NGOs.
§ 959. Cooperation between government institutions and NGOs in the area of
combating human trafficking has gone through different phases. Cooperation exists up
to a certain extent, especially in regards to either declarative or actual involvement of
NGOs in the design of strategic, operating or other documents560 or the implementation
of educational and preventive activities. Since NGOs have initiated and organized the
majority of preventive and educational activities in Serbia, cooperation in this field means
that the representatives of government institutions readily join these activities, i.e. attend
trainings and seminars as either participants or lecturers.
§ 960. First trainings for police officers, judges, prosecutors, social workers, journalists,
medical doctors etc. on the different aspects of human trafficking of relevance for specific
groups were delivered by or in cooperation with NGOs. The state has recognized the
significance of NGOs’ role in this area by giving the possibility of accreditation of their
trainings within the existing professional development programs. Although it was not
easy at first to tackle prejudice towards NGOs, since 2007 ASTRA has been successfully
applying at the Institute for the Advancement of Education and Upbringing for annual
accreditation of its seminar “Human (Child) Trafficking – Prevention and Education”
intended for teachers. Moreover, since 2010, two specialized programs addressing the
problem of trafficking in human beings have been developed by the NGOs and accredited
within the Program of Measures and Activities for Continuous Professional Training of the
Professionals Working in the Institutions of Social Protection561: “Support to the Victims of
Human Trafficking within the System of Social Protection: Discovering, Needs Assessment
and Planning of Support” by ASTRA and “Identification, Assistance and Protection of Male
Victims of Trafficking in Human Beings” by NGO Victimology Society of Serbia.
§ 961. The existing forms of cooperation between NGOs and government institutions are
not formalized. Although the National Team for Combating Human Trafficking exists for
nearly ten years, there are no formal documents that would define its mandate, roles and
responsibilities or the roles and responsibilities of its members.
§ 962. In 2005, the Agency for Coordination of Protection of Trafficking Victims signed
Memorandums of Understanding with NGOs that were providing direct assistance to
trafficking victims at that time (ASTRA, Atina and Counseling Center against Family
Violence). These memorandums are bilateral, of internal nature and to our knowledge
560
561
According to ASTRA’s experience, for example, NGOs were actively involved in the creation of the NAP for the Implementation of the Strategy
to Combat Trafficking in Human Beings, while in adopting the Strategy itself, the draft made with the participation of NGOs was not taken into
consideration at all, but a completely different text was adopted.
Republican Institute for Social Protection.
333
ARTICLE 11
all three differ by their content that is known only to the Agency and organizationsignatory. There is no standardized form of the Memorandum that would consistently
define cooperation between the Agency and all the actors whose activities it is supposed
to coordinate and which would clearly specify responsibilities and scope of work of the
Agency and nongovernmental organizations it directly cooperates with. Because of the
lack of transparency in signing these documents, an opportunity was missed to precisely
define the procedure in the process of identification of and assistance to trafficking victims
in which all relevant civil society organizations would be included. Only in that context,
memorandums could be expected to reach their goal, i.e. to be tools for strengthening
protection and assistance mechanism.
§ 963. As far as specialized direct victim assistance in Serbia is concerned, the state
fully relies on NGOs’ expertise and resources. Still, according to ASTRA’s experience,
cooperation is the weakest in this area, i.e. the consequences of inexistence of defined
roles and responsibilities and formalized cooperation are the most visible. This especially
refers to the police, which have a major role in the anti-trafficking field in the practice of
the Republic of Serbia562. ASTRA is faced with enormous difficulties in particular when it
is necessary to obtain official feedback information on the cases which ASTRA reported
on behalf of its clients, although police officers are generally ready to share information
informally. It often seems as if they see support which NGOs provide to trafficking
victims as an obstruction of their work. Illustrative of the tension and gap that sometimes
appears between prosecuting the criminals and victim assistance is that on more than one
occasion police brought up the possibility of prosecution for the failure to report criminal
offence of NGO representatives who do not put pressure on victims to report their case
to the police.
§ 964. Currently, direct assistance to trafficking victims is provided by two NGOs – ASTRA
and Atina, primarily thanks to financial support from foreign donors.
562
Ministry of the Interior’s Border Police Directorate and local police teams for combating illegal migrations and trafficking in human beings which
should exist in every police administration.
334
Women and Children, Article 11 – Border Measures
CoE Convention on Action against Trafficking in Human Beings, Article 7 - Border
Measures
Palermo Protocol
Article 11
Border measures
1. Without prejudice to international commitments in relation to the free movement of
people, States Parties shall strengthen, to the extent possible, such border controls as may
be necessary to prevent and detect trafficking in persons.
2. Each State Party shall adopt legislative or other appropriate measures to prevent, to the
extent possible, means of transport operated by commercial carriers from being used in
the commission of offences established in accordance with article 5 of this Protocol.
3. Where appropriate, and without prejudice to applicable international conventions, such
measures shall include establishing the obligation of commercial carriers, including any
transportation company or the owner or operator of any means of transport, to ascertain that all
passengers are in possession of the travel documents required for entry into the receiving State.
4. Each State Party shall take the necessary measures, in accordance with its domestic law,
to provide for sanctions in cases of violation of the obligation set forth in paragraph 3 of
this article.
5. Each State Party shall consider taking measures that permit, in accordance with its domestic
law, the denial of entry or revocation of visas of persons implicated in the commission of
offences established in accordance with this Protocol.
6. Without prejudice to article 27 of the Convention, States Parties shall consider
strengthening cooperation among border control agencies by, inter alia, establishing and
maintaining direct channels of communication.
CoE
Article 7
Border measures
1. Without prejudice to international commitments in relation to the free movement of
persons, Parties shall strengthen, to the extent possible, such border controls as may be
necessary to prevent and detect trafficking in human beings.
2. Each Party shall adopt legislative or other appropriate measures to prevent, to the extent
possible, means of transport operated by commercial carriers from being used in the
commission of offences established in accordance with this Convention.
335
ARTICLE 11
3. Where appropriate, and without prejudice to applicable international conventions, such
measures shall include establishing the obligation of commercial carriers, including any
transportation company or the owner or operator of any means of transport, to ascertain
that all passengers are in possession of the travel documents required for entry into the
receiving State.
4. Each Party shall take the necessary measures, in accordance with its internal law, to provide
for sanctions in cases of violation of the obligation set forth in paragraph 3 of this article.
5. Each Party shall adopt such legislative or other measures as may be necessary to permit,
in accordance with its internal law, the denial of entry or revocation of visas of persons
implicated in the commission of offences established in accordance with this Convention.
6. Parties shall strengthen co-operation among border control agencies by, inter alia,
establishing and maintaining direct channels of communication.
§. 965. Article 11 of The Palermo Protocol and Article 7 of the CoE Convention regulate
issues of strengthening border control in order to prevent human trafficking. Firstly, these
documents require the State Parties to strengthen border control and adopt measures to
prevent commercial carriers from being used to commit trafficking offences and require
commercial transportation carriers to ascertain that all passengers have the required
travel documents, including sanctions for failure to do so. The first obligation implies
strengthening cooperation between border control agencies, including the establishment
of direct channels of communication. As a rule, this will not include legislative measures
except when it is necessary to emphasize that the agencies concerned have the authority
to cooperate and to allow the sharing of information which might otherwise be protected
by confidentiality laws. Secondly, the State Parties have to adopt legislative or other
measures to prevent (to the extent possible) commercial carriers from being used by
traffickers. The exact nature of such measures may imply the obligation of cross border
carriers to check the travel documents of passengers and be subjected to appropriate
sanctions if that is not done. Note that this would not imply obligation to assess the
authenticity or validity of the documents or whether they have been validly issued to
the person who possesses them. As to the nature of liability of the carriers for not having
checked the documents as required, the nature of such liability is not imposed by the
Protocol. Yet, if criminal liability is to be provided for, it is suggested that the State Parties
should consider the liability of legal persons such as corporations.563 The CoE Convention
requires that the State Parties consider denying visas to perpetrators of criminal acts
envisaged by the Convention.
§ 966. In the Republic of Serbia, the police authorities are responsible to secure and
control the borders. This was responsibility of the Yugoslav Army until 2005, when the
563
See Legislative Guides, supra note 12, p 298.
336
process of state border demilitarization started. Today, the borders of the Republic of
Serbia are secured by the Ministry of the Interior, i.e. Border Police Directorate.
§ 967. The police authorities are empowered to supervise and secure the state borders, to
control border crossing, implement border regime and determine and resolve all kinds of
border incidents (Article 10 of the Police Act).
§ 968. In order to prevent and reveal offenders of criminal acts, the police cooperate with
all who can provide information and help, including state institutions, local authorities,
NGOs, civic and minority associations and individuals. In addition, the Police Law regulates
the issue of international cooperation and establishes that this cooperation will be
based on reciprocity and implemented in accordance with the international treaties and
agreements {Article 19 (2) of the Police Law}. Thus, in the course of cooperation, the police
with its foreign police partners may exchange data and information, implement common
anti-terrorist measures, measures against organized crime, illegal immigrations or against
other forms of international criminal activities and border incidents {Article 19 (3) of the
Police Act}. Finally, the Police Act allows personal data to be shared with a foreign police
authority or international organization that requests them, according to the established
principles of international police cooperation {Article 77 (4) of the Police Act}.
§ 969. Nevertheless, certainly the most important step when fulfilling cooperation
requirements in the prevention of human trafficking is the Agreement on Strategic
Cooperation between the Republic of Serbia and the European Police Office, ratified
in 2009564, which regulates issues of exchange of strategic and technical information
regarding prevention, disclosure, prosecution and investigation of serious forms of
international crime including human trafficking.
§ 970. The major legislative requirement set out in Article 11 of the Palermo Protocol
and Article 7 of the CoE Convention refers to the obligation of State Parties to adopt
legislative or other measures to prevent, to the extent possible, commercial carriers from
being used by traffickers.
§ 971. In this respect, we want to emphasize the following. Firstly, the Law on the Protection
of State Border565 adopted in 2008 regulates the issues related to border crossing. This
Law forbids the captain of a vessel in international transport to embark or disembark from
the vessel without a valid travel document (Article 41 of the mentioned act). Moreover,
the captain of a vessel in international transport must submit to the relevant border
authorities the list of the passengers on board as well as their travel documents (Article
42, Paragraph 1). After the ship docks into a harbor or a seaport the captain of a vessel is
liable to report to the Border Police any person in the vessel without a valid document
for border crossing and persons embarking the vessel without his/her consent. He/she
also cannot allow such person or the person forbidden to enter the Republic of Serbia
564
565
The Law ratifying the Agreement on Strategic Cooperation between the Republic of Serbia and the European Police Office, Official Gazette of RS,
no. 38/9.
Official Gazette of RS, No. 97/08.
337
ARTICLE 11
to disembark to a harbor or a seaport without consent of the Border Police. If not, the
expenses of stay and banishment of the alien disembarking off the vessel to a harbor or
a seaport without the Border Police’s consent shall be borne by the captain of the vessel
(Article 42, Paragraphs 2, 3 and 4).
§ 972. If the captain fails to fulfill these obligations, he/she will be responsible for a
misdemeanor and can be punished by imprisonment not exceeding 15 days or fine of
up to RSD 30,000.00 (approximately EUR 300.00) (Article 66, Paragraph 7). In that
case the legal person owning the vessel, i.e. the captain of the vessel acting contrary to
legal provisions on embarking and disembarking of passengers (Article 64, Paragraphs 13
and 14) bears liability for misdemeanor. Fine for such misdemeanor can amount to RSD
1,000,000.00 (EUR 10,000.00).
§ 973. The Aliens Law566, adopted in 2008, has significantly regulated international
liabilities stated herein. In the first place, this Law sets forth issues of aliens entering
Serbia including reasons for denying aliens to enter the state. We should point out that
in the last two years Serbia fulfilled to a great extent requirements prescribed by suitable
EU acquis on immigration policy and border control. By adopting the Aliens Law, Serbia
has established a visa regime almost identical to the system of Schengen. Types, issuing
conditions, the procedure and reasons for denying visa requests are identical to Schengen
standards. Reasons for denying visa requests are (among others): a lack of a valid travel
document or a visa if needed, as well as a lack of financial means of living needed for a
temporary residence or transit in the Republic of Serbia (Article 11, Paragraphs 1 and 2,
Article 21). The alien shall also be denied a visa in case he/she has been registere

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