The impact of the statute of limitations of criminal liability on the right of the human trafficking’s victims to a fair trial

Abstract

The passivity of the national legislator, which failed to correct some provisions with a particular impact on the statute of limitations of criminal liability and the less inspired interventions brought to some general provisions of the Criminal Code, in reference to the statute of limitations of certain crimes of trafficking and exploitation of vulnerable persons, can be considered as legislative events with a profound impact on the victim’s right to a fair trial.

These events can produce effects both at the criminal level, by hindering the efforts to apply effective, proportionate, and dissuasive sanctions against the perpetrators of serious crimes, and at the civil level, as a result of the difficulties of evidence generated by the passage of time.

Although, in the view of the European Court of Human Rights, the obligation of effective investigation does not necessarily imply the punishment of those guilty of committing crimes, in the case of serious acts, the conduct of national authorities may contribute to the reduction of the standards of protection of victims and may come into conflict with the norms of art. 4, art. 6 or other provisions of the Convention, as this behaviour compromises the positive obligation of the state to investigate and sanction some crimes repressed by international treaties and conventions.

The failure to fulfil this positive obligation on the part of the state and the implications of a deficient legislative policy can leave their mark not only on the way in which the rights and freedoms guaranteed to victims are respected but also on the collective security that any judicial system is required to protect. This conclusion is further strengthened by the fact that crime is no longer seen as a simple violation of laws but as a harm to individuals and the community, so that the deviation from the duty to investigate, in the case of serious acts, represents a major failure of the criminal policy of the state and an unfair signal for the victim of the crime, whose legitimate hopes depend to the most extent on the method of carrying out criminal justice.

The present work brings to the attention of legal theorists and practitioners the importance of the state’s obligation to legislate and to investigate the crimes of human trafficking and related facts, in a historical stage in which the obstruction of justice becomes fairly visible.

The passivity of some law-making and enforcement authorities raises many reservations about the effectiveness of the rights and protection of victims of human trafficking, as at least 2.4 million people are trafficked at any given time worldwide, while only a few thousand traffickers are sentenced annually.

In Europe, this risk of inactivity, noted by the various convictions of the European Court of Human Rights, seems to be fuelled by the lack of adequate operational measures, but also by the lack of determination in combating and investigating the phenomenon on the part of the host states, those in which transit takes place, or those where the recruitment of victims is carried out.

That is precisely why, being aware that our approach can generate controversies, like any other process of interpreting the law, we do not intend to express a verdict through this article, but to encourage reflection, in a period that appears to be unfavourable for the protection standards of crime victims.

This approach is added to other signals that draw attention to the failure of states to effectively protect the victims of transnational organized crime, a fact that causes concerns for the so-called "legal injustices" that the victim of the crime may face, as a result of the solutions based on the expiration of the criminal liability limitation period or on other incidents that prevent the criminal liability of the perpetrators.

From the very beginning, we make it clear that although the title of this paper suggests that the statute of limitations of criminal liability could infringe on the right of the victim of human trafficking to a fair trial, our expression only aims to simplify the message sent to readers.

Therefore, the reference we make regarding the victim’s right to a fair trial does not specifically consider the right protected by art. 6 of the Convention, but the overall fairness of the procedure, which can also be affected in the event of the violation of other rights protected by the Convention, as a result of the non-compliance with the reasonable deadline for resolving the case and the deficient way in which the state’s obligation to investigate can be fulfilled.