Article 12 of the EU Human Trafficking Directive: Fulfilling Aspirations for Victim Participation in Criminal Trials?
| Date | 01 September 2016 |
| Published date | 01 September 2016 |
| DOI | 10.1177/203228441600700307 |
| Author | Julia Muraszkiewicz |
| Subject Matter | Article |
New Journal of Eu ropean Crimina l Law, Vol. 7, Issue 3, 2016 331
ARTICLE12 OF THE EU HUMAN
TRAFFICKING DIRECTIVE
Fulfi lling Aspirations for Victim Participation in
Criminal Trials?
J M*
ABSTRACT
Traditionally criminal justice has emphasised the aggrandisement of the state , leaving
victims outside the principal sphere of the criminal trial. e victim regarded as a
witness: an object of the proceedings. Over the last decade Jonathan Doak, an English
socio-legal scholar, has advocated for a shi in this paradigm, providing arguments for
a reform that would allow victims to participate actively in criminal hearings. is
article considers the standing of the victim of human tra cking in criminal trials and
argues that although Article 12 of the Directive of the European Parliament and of the
Council on Preventing and Combating Tra cking in Human Beings and Protecting its
Victims is at the forefront of policymaking on v ictims’ rights in criminal trials, it is still
hindered by limitations. It remains the case that, in England and Wales, those most
a ected by human tra cking can have their voices and needs side-lined despite an
emerging normative nature in participator y rights.
Keywords: crim inal justice; human tra cking; victim
1. INTRODUCTION
Over the past decade scholarship has increasingly tu rned attention to the heinous
nature of the crime of tra cking in human beings.1 Improving our understanding of
* A Ph.D. Candidate at Vrije Universit eit Brussel. She explores human t ra cking and human rights.
Her focus is on the non-pros ecution or non-applicat ion of penalties t o the victi ms of human tr a cking.
1 Human Tra cking is de ned by the Europe Union in Ar ticle 2 of Dire ctive 2011/36/EU on
Preventing and C ombating Tra cking in Hu man Beings and Protec ting its Victi ms, and Replacing
Council Fram ework Decision 2002/629/JHA of t he European Parlia ment and of the Counci l as: e
Julia Mu raszkie wicz
332 Intersentia
what victims have endured1 – crime s that are ‘so violent it can be better described as
atrocities’2 – wh ilst also arguing for expa nding the victims’ right s framework.3
is article explores human tra cking victims’ rights to participate in a criminal
trial as contai ned in Art.12(2) in Directive 2011/36/EU on Preventing and Combating
Tra cking in Human Beings and Protecting its Victims, and Replacing Council
Framework Decision 2002/629/JHA (the 2011 EU Directive on Human Tra cking).4
is was the rst directive to be adopted i n the Area of Freedom, Security and Justice
a er the entr y of the Lisbon treaty.
Article 12(2) advocates for a victim’s access to legal representation. Whilst this
paper champions Article12(2) of the 2011 EU Directive on Human Tra cking it also
highlights t he barriers that hinder its ful l potential.Looking at England a nd Wales as
an example it is contended that a key actor, the vict im, is still being denied t he right to
participate in a tr ial and instead he/she is reduced to the role of a witness, a n idea that
in light of numerous developments in the sphere of victimology should no longer
seem tenable.
e article begins by brie y looking at victimology from a historical context. It
then considers the role of a victi m in crimina l trial proceedings with regard to t he
context of England and Wales. It also highlights the key a rguments in literatu re
against gra nting victims a more active role and propose counter opinions. e fourth
section looks at the development of victim participatory r ights from the context of
international law and also highlights practices in civil law systems (e.g., Germany).
Subsequently, thus adding to current debates, the article describes why victims of
human t ra cking could bene t from having t heir own legal representative and thus
actively participati ng in a trial. e key ideas in this ar ticle are rooted in the work of
Jonathan Doak and we tra nscend his arguments into the context of huma n tra cking
recruitment, t ransportation, tra nsfer, harbouring or reception of per sons, including the exchange
or transfer of control ove r those persons, by means of the t hreat or use of force or other forms of
coercion, of abduction , of fraud, of deception, of th e abuse of power or of a position of vul nerability
or of the giving or re ceiving of payme nts or bene ts to achieve the consent of a person havi ng
control over another per son, for the purpose of exploit ation.
1 See e.g. A. Kuma r, ‘Sexual Exploit ation and Tra cking of Women and Gi rls in Mexico: An A nalysis
on Impact of Violence on Hea lth Status’, Journal of Int ercultural Studies 35, no. 2 , 2014, pp. 182–95;
A. A li, ‘ Huma n Tra cking: e B ahrain Ex perience’, Juridica l Current 13, no. 4, 2010, pp. 46–52; A.
Sabena, ‘How Much Are You Worth? e E ects of Human Tra cking on the Sex Trade in I llinois
and the Remedies D esigned to Elimi nate It’, Public Interest Law Rep orter 18, no. 3, 2013, pp. 191–98.
2 R. Dalvi, ‘Human Tra cking: e Angle of Victi mology’, in Veerendra Mish ra (ed.), Human
Tra cking: e St akeholders’ Perspect ive, New Delhi: Sage, 2013 p.241.
3 See e.g. A. Gal lagher and E. Pearson, ‘ e High Cost of Freedom: A Le gal and Policy Analysis of
Shelter Detention for Vict ims of Tra cking’, Human Rights Quar terly 32, no. 1, 2010, pp 73–114; D.
Baker and E. Gr over, ‘Responding to Victi ms of Human Tra cking: Interagen cy Awareness,
Housing Serv ices, and Spiritua l Care’, Social Work & Christi anity 40, no. 3, 2013, pp. 308–321.
4 Council of the Eu ropean Union, Direc tive 2011/36/EU of the European Pa rliament and of the
Council of 5Apr il 2011 on preventing and combating tr a cking in huma n beings and protecting
its victim s, and replacing Counci l Framework Decision 2002/629/JH A, 15April 2011, OJ L. 101/1–
101/11.
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