CENTER FOR LEGAL CIVIC INITIATIVES

SURVEY Monitoring of courts’ decisions on trafficking Monitored bodies: District Courts of Tirana, Shkodra and Vlora Period of monitoring:

The main issues 1. Statistics resulting from the monitoring 2. The effect of legislative improvement on the investigation and judicial practice 3. The evolution of the notion of trafficking in Albanian criminal legislation 4. Improvements in Albanian legislation in compliance with international conventions 5. Issues in qualifying the criminal offence of trafficking 6. Issues of finding facts 7. Issues on treating the victim 8. Conclusions and recommendations

THE GOALS OF THE SURVEY Offering a review of trial fairness in trafficking offences; Offering a review of victim’s position during the procedures; Offering a review of impact and effects of legislative improvements on the investigation and judicial practice; The improvement of court procedures;

STATISTICS RESULTING FROM THE MONITORING Out of 77 tried defendants tried for criminal offences who were monitored in this survey, 48 were male and 29 females.

Age of defendants Criminality is most prevalent in among 18 to 25 year olds followed by 26 to 35 year olds.

Residence of defendants Most of defendants are residents of urban areas

Education of defendants Criminality most prevalent in the group of defendants with 8 year education.

KIND OF CRIMINAL OFFENCES

Final Sentences The courts have issued verdicts of not guilty in 11 cases, have dismissed in 6 cases and returned acts back to the prosecution office in 1 case. In other cases, defendants have been declared guilty.

The effect of legislative improvement on the investigation and judicial practice The number of legal provisions against trafficking, has grown, including provisions for new criminal offences. The Albanian law has made qualitative changes improving the structure of legal provisions, in order better to combat particular criminal offences. More attention has been paid to minors and women. Specific figures exist for crimes committed against them. The status of traffickers is better clarified by sanctions of criminal offences and by increasing the ability to combat trafficking. The law does not yet pay the necessary attention to clarifying position of the victim, which remains undefined in the law.

The evolution of the notion of trafficking in Albanian criminal legislation The criminal offence of trafficking was not included in “Criminal Code of the Republic of Albania” (1995). Phenomenon of trafficking was punished through other criminal offences, such as: Favouring prostitution, Holding premises for prostitution, Illegal border crossing etc. By the law “On some Changes and Amendments in the law “For Criminal Code of the Republic of Albania” (1998), the criminal offences changed and new criminal offences have been included, such as: Exploitation of prostitution in aggravating circumstances, Exploitation of prostitution by criminal organisations etc. We believe that the impotence of law had its impact on the fight against trafficking.

Improvements of the Albanian legislation in compliance with international conventions The law of 24 January 2001 provides for the first time in the Criminal Code the criminal offence of trafficking. Quite important amendments have been made in 2004 in line with international conventions and in particular with the Convention against Transnational Organised Crime and its two additional protocols (Protocol of Palermo), ratified in The establishment of the Court of Serious Crimes (2004), has had a positive impact on the fight against of trafficking. The approval of the law “On protection of the Witness”, “On prevention and fighting the organised Crime”, On some changes in the criminal procedure Code”, etc. Only after the ratification of Palermo protocol, it became possible to correctly understand the nature of criminal offences of trafficking. This is evidently reflected in court decisions maken after that period.

Issues in qualifying the criminal offence of trafficking The problem faced most frequently is the legal definition of the criminal offence, whether it is traffic or Assistance in illegal border crossing. In a number of judicial decisions we notice that the defendant has been sentenced for the criminal offence of Trafficking in women for prostitution, and the victim is also sentenced for the Exercise of prostitution, while these two offences exclude each other. In some other cases, the procedure and judgement for attempted trafficking have been accepted, while it appeared that the penal offence of trafficking objectively has been fully consumed and should not have been considered an attempt. The main problem we face is: In various decisions similar criminal facts have been treated differently by judges.

Issues of finding facts In some judicial decisions courts have not properly ascertained facts about trafficked victims. In some cases interrogation of foreign citizens was not done as provided by the Code of Criminal Procedure. Victims were not asked in their own language and records were not kept in that language as well. All these procedural violations have led to the invalidity of the act. There are also some decisions where the position of the defendant is unjustly burdened and where the court considers elements of the penal offence of assistance in illegal border crossing as trafficking in persons. In some cases courts have taken decisions that defendants are not guilty, arguing that the prosecutor did not bring sufficient facts.

Continuation From the content of the decisions, one cannot determine anything about the questioning or the nature of questions to the defendant or injured witnesses. In some cases, the prosecutor or the court have not investigated or inquired whether incomes (profits) have been assured from the criminal activity, despite the legal basis to that existed.

Issues on treating the victim Victims of trafficking frequently have to refrain from filing criminal charges because their life or that of other members of the family has been threatened. The new Law on protection of victims (2004), has been difficult to implement. In some cases persons guilty of procurement of prostitution are sentenced for holding premises for prostitution and victims are punished for false denunciation or testimony. In general there is civil suit during criminal procedures. Even in few cases such civil suits were brought, they were isolated, making it impossible for the victim to bring the suit in front of the civil judgement. In general the personality of the victim was not treated psychologically or psychological assistance was not provided.

Conclusions and recommendations The situation requires further institutional, structural and organisational changes in order to increase the efficiency of the fight against trafficking. Further training of prosecutors and judges, including the appropriate doctrinal approach, is needed. The High Court should play a more active role taking unified decisions for the unification of judicial practice. Greater attention should be paid to victims. More attention must be paid to civil suit in such proceedings for this way an economic blow against traffickers can be achieved and a good economic basis can be established for the re-integration of victims.