Strategic Litigation for Protecting the Rights of Victims of Trafficking
Strategic Litigation for Protecting the Rights of Victims of Trafficking
An experience from Colombia
Carmen Cecilia Martínez López and Cristina Rosero Arteaga
Attorneys, Women’s Link Worldwide
On 31 August 2016, the Constitutional Court of Colombia struck down the legal requirement for victims of trafficking to file a criminal complaint in order to be able to access and receive assistance, after years of advocacy by civil society organizations and academics.
The decision followed a challenge to the rule brought before the Constitutional Court, which alleged that it was unconstitutional and demanded its removal. The Colombian Alliance of Civil Society Organizations against Trafficking in Persons, led by Women’s Link Worldwide, supported the claim by filing interventions (amicus curiae). Various organisations belonging to the Alliance explained the serious consequences faced by victims of trafficking due to the restriction imposed by the rule.
In its judgment, the Court recognised that the measure was disproportionate, as it implied a small benefit compared to the serious restriction it placed on victims by denying them access to comprehensive health services, education, employment opportunities, and safety measures, among others. In addition, the Court ruled that requiring victims to file a criminal complaint could lead to revictimisation, and that there were numerous reasons why they would not want to do so, particularly where treatment by the authorities was hostile and stigmatising. In the opinion of the Court, assistance for victims of trafficking must take into account the individual consequences the crime can have on each victim, and must continue beyond the initial crisis services.
The power of the law and its strategic use to create social change
Colombia is a country of origin, transit and destination for victims of trafficking. This crime is largely invisible, particularly in the case of internal trafficking, and the current measures to combat it have been insufficient. Thus the strategic use of the law has the power to create social change for the benefit of victims.
If international human rights principles are successfully applied in litigation in the national context, it is possible to use the resulting jurisprudence, and have an impact at every level for its effective implementation.
In 2005, Law 985 of 2005, adopting measures against trafficking and rules for assistance to and protection of victims, recognised for the first-time specific rights for victims of trafficking, such as access to immediate assistance, including long-term and short-term measures, and measures for restoring victims’ lives. Although this represented an important step forward, the law also established that in order to access assistance, victims were required to file a criminal complaint against their traffickers. This limitation implied a significant obstacle for victims, who generally fear reprisals, re-victimisation, and stigmatisation, or do not fulfil the requirements to make a claim.
As Women’s Link argued before the Court, the requirement to file a criminal complaint in order to be able to access assistance is a disproportionate measure which prioritised the prosecution of crime over the rights of victims. This punitive focus also ignores the fact that trafficking in persons is above all a human rights violation, and precludes the state from guaranteeing of the rights of victims as a fundamental pillar.
The recent Judgment C-470 of the Constitutional Court of Colombia is a step in the right direction for the safeguarding of the dignity of victims of trafficking, and has the potential to impact their lives substantially.
The road ahead
The challenge now is to ensure that the decision is implemented in practice, and that victims can effectively access protection and rehabilitation measures for at least six months, as provided by the regulation on subsequent assistance. In order to achieve this, there are several important tasks. The first is for the responsible authorities to ensure the implementation of the judgment by harmonising the current legislation, removing the requirement from all by-laws, and ensuring that officials do not continue to require a criminal complaint as a precondition to providing assistance to victims of trafficking.
Secondly, victim identification must be urgently improved through the adoption of clear protocols and guidelines for identification and assistance which ensure the protection of and respect for victims’ rights.
Thirdly, the government needs to allocate adequate resources for comprehensive and effective assistance to victims who have already been identified, which includes access to decent accommodation, physical and mental health services, safe return after risk assessment, regularisation of immigration status including asylum (in the case of foreign victims), opportunities for education and work, legal assistance, and all other measures necessary to protect victims’ rights. Government officials responsible for the identification of and assistance to victims need to receive ongoing and tailor-made training.
The judgement of the Constitutional Court sets important standards with respect to the protection of the life and integrity of victims of trafficking, which have been lacking in Colombia and the rest of the region, and confirms the importance of and the need for public interest litigation. It is now up to the responsible authorities to remove the remaining legal, cultural, and social barriers which stand in the way of comprehensive assistance for victims of trafficking.
Judgment C-470 of 2016 has been nominated for a Gavel Award at the 2017 Gender Justice Uncovered Awards, an initiative which seeks to create social monitoring of the role of judges in the advancement of the rights of women and girls.
.pdf - Adobe Acrobat Pro 2_8_2021 4_36_32 PM.png)
