The British Institute of Comparative Law and the International Bar Association published a new report on the non-punishment principle. This report, Human trafficking and the rights of trafficked persons – an exploratory analysis on the application of the non-punishment principle, aims to provide guidance to better understand the structural, legal and practical barriers to the implementation of the principle, and to contribute to the ongoing conversation among judges, lawyers, legislators and policymakers on the protection of trafficked persons and the application of the non-punishment principle.
The key findings of the report include:
- There are significant discrepancies among the thresholds contained in international instruments for the application of the principle. Generally, hard law instruments understand non-punishment and apply a compulsion criterion (similar to the criterion of a defence of duress), whereas soft law instruments apply a direct consequence (or causation) threshold;
- There is quite some variation in how the case study countries identify individuals as trafficked and who the burden of proof falls on, as well as a large divergence on whether the non-punishment principle can apply ex post – meaning whether (an unfair) conviction can be later vacated and/or records expunged;
- There are barriers to the application of the non-punishment principle such as: lack of awareness and training, systemic issues of identification of trafficked persons, the presence of impeding procedural requirements and processes and the thresholds and limitations placed on statutory protections;
The report recommends that a specific provision or guidance addressing trafficking victims is needed, which should be broader than the duress defence. La Strada International has been lobbying in the framework of the revision of the EU Anti Trafficking Directive for more guidance and separate provisions at national EU level to ensure a better application of the non-punishment principle. However EU Member States seem reluctant to strengthen article 8 of the EU THB Directive that deals with the principle. La Strada International has also set up a working group that aims to raise further awareness among relevant stakeholders about the NP principle to enhance its application.