The challenges of bringing human traffickers to justice: a study from Kyrgyzstan
We look at the conclusions to be drawn from the International Development Law Organization’s (IDLO) recent research into the criminal justice response to human trafficking in Kyrgyzstan, a landlocked country in the heart of Central Asia, and consider how a new initiative could help to tackle some of the barriers to effective prosecution of traffickers identified in this research.
With a lively parliamentary democracy and relatively free press, Kyrgyzstan has successfully sloughed off some of the more autocratic habits of its Soviet past. But it remains one of the poorest of the states which gained independence in 1991 with the break-up of the Soviet Union. Approximately 22% of its population live below the poverty threshold, and widespread corruption continues to stymie economic growth. Many Kyrgyzstanis seek work abroad, most commonly in Russia and Kazakhstan, and remittances from migrant workers make up more than a quarter of Kyrgyzstan’s GDP.
These factors all contribute to the incidence of exploitation and human trafficking in Kyrgyzstan. Kyrgyzstani nationals are reported to be trafficked to neighboring Kazakhstan, Russia, and to countries further afield in Europe, the Middle East and Asia, for the purposes of forced labor and forced prostitution. In recent years, Non-Governmental Organizations (NGOs) have reported Kyrgyzstani adults and children being exploited by extremist groups in Syria.1 There are also increasing reports of trafficking of persons into the country from Uzbekistan and Tajikistan for the purposes of sexual exploitation and forced labor.
With the unwelcome advent of COVID-19, it seems almost inevitable that the economic damage inflicted by the disease will increase levels of human trafficking in Kygyzstan. The country has, at the time of writing, managed to avoid the epidemic levels of infection seen in many other states, but its close trading ties with Russia and reliance on remittances from migrant workers abroad mean that it will be susceptible to any global economic downturn. This in turn will mean higher unemployment and job insecurity, and increased vulnerability to traffickers.
There is thus more than ever a need for strong coordination between police, prosecutors and other stakeholders, to ensure an effective response to trafficking. Understandably however, the criminal justice sector in Kyrgyzstan (as in many other countries around the world) has been preoccupied with COVID-19, having been tasked with enforcement of state of emergency measures announced on March 22. With limited resources, police and prosecutors have been unable to prioritize investigation and prosecution of trafficking offences. All this comes at a crucial moment, as the country was beginning the mammoth task of implementing its National Referral Mechanism, an extensive array of counter-trafficking protocols spanning protection, prosecution and prevention measures.
The state response to human trafficking in Kyrgyzstan
Kyrgyzstan has now legislated to criminalize all forms of trafficking, and has a legal and policy framework which is broadly in line with international counter-trafficking standards. Despite this, 2019 was the second year running in which the country languished in the “Tier 2 Watch List” category of the US State Department’s annual Trafficking in Persons (TiP) report.
The reasons for this poor ranking? Number one on the US State Department’s list was the lack of implementation of counter trafficking measures: the 2019 TiP report referred to systemic failures in the identification, support and protection of survivors, and scant public funding for these crucial processes and safeguards. Lack of training of law enforcement officers and widespread failures to follow a victim-centered approach in criminal investigations were identified as factors weakening the criminal justice response, while the failure to coordinate both within government and externally with NGO stakeholders was also highlighted. Since the TiP report’s publication, the country’s long delayed National Referral Mechanism has been approved, on 19 September 2019. But putting the National Referral Mechanism into practice comes with its own challenges2, and without coordinated implementation it seems likely that its impact may be felt on paper only.
When it comes to states’ responses to human trafficking, Kyrgyzstan is hardly unique in the disconnect between theory and practice. The same problem can be seen in many countries which have signed up to the relevant international agreements and have passed the requisite legislation. Often, the reasons for this implementation deficit start at the top and run deep, and include lack of political will, institutional resistance, and limited resources. “Turning the tanker around” on these macro-level issues can be a lengthy process. But, as we found in our research, closer analysis of specific agencies with a counter-trafficking remit can yield insights into factors which may be inhibiting an effective response at the level of the individual organization.
A focus on the criminal justice response to human trafficking in Kyrgyzstan
In late 2019 IDLO’s Kyrgyzstan team conducted an analysis of how the Kyrgyz state has been investigating and prosecuting trafficking offences, gathering data on relevant criminal investigations opened from the start of 2018 until 1 October 2019.
Consistent with the findings of the 2019 TiP report, we found the number of criminal investigations into human trafficking, forced prostitution and forced labour3 remained low in both years: in 2018 13 cases were initiated, with 2 convictions secured as at the date that our research concluded. In the first nine months of 2019, 37 cases were opened, but 15 of these were then discontinued at the investigation stage. Of the remaining cases opened in 2019, 2 had resulted in convictions and the remaining 20 cases were either under police investigation or with trial pending as at the date that our research concluded.
These low rates of investigation and prosecution can be attributed, as the 2019 TiP report concluded, to the Kyrgyz state’s failure to implement a comprehensive counter trafficking response, encompassing prevention, protection, and prosecution. Effective identification of survivors, and protection for them during the criminal justice process, are essential prerequisites for effective prosecutions: survivors may be vulnerable, and they may require support and security in order to cooperate with investigative authorities and testify against their alleged traffickers. Victim-witness testimony is often crucial to a prosecution case because of the covert nature of much human trafficking. Put simply, if there is inadequate protection for survivors, there will be fewer prosecutions of traffickers.
Besides this wider point however, a review of the national register of criminal investigations indicate that investigative authorities may be failing to identify trafficking situations and are instead “mischarging” potential traffickers with lesser offences that do not address the exploitation of their victims. Mischarging of traffickers by prosecuting authorities is not uncommon, and has had a demonstrable negative impact on the criminal justice response to trafficking in other jurisdictions: traffickers will receive a more lenient sentence if convicted of a lesser offence, the deterrent effect of punishment is diminished, and victims may be denied redress for the exploitation they have suffered.4
In the Kyrgyz context, it appears that the investigative authorities are mischarging some potential traffickers with “organizing illegal immigration” under Article 122 of the Code of Misconduct. Because this is classified as a misdemeanor under Kyrgyz law, no custodial sentence can be imposed if a person is found guilty of it; instead they may only receive a lesser penalty such as a fine. IDLO’s research identified cases where, despite indicators that the complainant had been subject to forced labour, the defendant was only charged with “organizing illegal immigration”, and had not been investigated for suspected human trafficking and/or forced labor offences.
As at the date our research concluded on 1 October 2019, 141 cases of “organizing illegal immigration” were under current investigation by the Kyrgyz criminal justice agencies. Given the country’s trafficking profile, we consider there is a risk that a potentially significant number of these current investigations concern cases in which migrant workers have been subject to exploitation: as noted in the 2019 TiP report, the Kyrgyz Republic is increasingly a destination country for trafficking for the purposes of forced labor, and migrants without lawful status in the country are at high risk of exploitation. We identified similar concerns regarding other categories of criminal casework in which potential exploitation of victims may have been overlooked by the investigative authorities.
Analysis of the offences relating to exploitation recorded in the national register of criminal investigations revealed that some prosecutors were acting in breach of the revised Criminal Code (which came into force in January 2019), incorrectly treating human trafficking offences as suitable for “private” prosecution instead of “public” prosecution. Under Kyrgyz law, a private prosecution may only be investigated once the victim has made a complaint, and the case may be discontinued if the victim decides to withdraw his/her complaint; whereas in a public prosecution, the investigative authority does not need a complaint from a victim to start an investigation.5 The distinction is crucial because of the highly vulnerable position in which survivors of trafficking may find themselves during the criminal justice process. At the initial point of contact with the police, a survivor may be reluctant to engage with an investigation, due to fear of their traffickers, trauma, or distrust of the authorities.6 Furthermore, private prosecutions place survivors at risk of intimidation and pressure from their traffickers to withdraw from engagement with the investigative authorities. This downgrading of the status of human trafficking charges is a potential chilling factor, inhibiting survivor engagement with the criminal justice process.
New initiatives in the criminal justice sector and beyond
How then to address the barriers to effective prosecution of trafficking? As already mentioned, the importance of a holistic approach cannot be understated: prevention, protection and prosecution measures are mutually reinforcing, and if one pillar is weakened, the system as a whole suffers. But, based on IDLO’s analysis, we have also identified actions specific to the criminal justice sector which could target some of the problems identified in our research.
We believe that the General Prosecutor’s Office (GPO) could conduct an internal case review, focused on identifying and addressing exploitative offending in current casefiles. Utilizing the GPO’s existing mechanism for internal review of casework, this initiative would prioritize those categories of case which have been identified as being at highest risk of mischarging (including those concerning “organizing of illegal immigration”, discussed above). The review would also build the capacity of relevant prosecutors to effectively prepare and prosecute human trafficking, and enable dissemination of knowledge and skills to other investigative authority officers, including police.
We consider there can be substantial value in initiatives such as the GPO internal case review, which was developed in response to the findings of our research into the criminal justice response to trafficking. Among other initiatives developed by IDLO are victim identification training delivered to those frontline officials – police, social services, border control – working in locations where trafficking is known to be prevalent, and building coordination between law enforcement and local NGOs providing protection to potential victim-witnesses, to support them through traffickers’ prosecutions.
Targeted projects like these can complement and support macro-level initiatives. They may also have the additional benefits of having more concrete and measurable objectives, achievable over shorter time periods and at lower costs than larger projects. Most importantly, these smaller scale actions are evidence-led, built around, and responsive to, the needs of stakeholders at the local level. By building capacity within and between the organizations on the frontline of the anti-trafficking response, we aim to encourage their engagement in the wider national, and international, response to human trafficking.
For Kyrgyzstan, the political impetus needed to see through implementation of the National Referral Mechanism appears to have been diverted by COVID-19, for now at least. But targeted projects such as those outlined here can still prepare the ground within key agencies for implementation of the NRM protocols, while also developing those agencies’ ability to respond to human trafficking during a period of economic instability and thus increased risk for victims and potential victims of trafficking.
1 Trafficking in Persons Report, Kyrgyz Republic: country narrative (US State Department, June 2019)
2 For example: under the NRM protocols, responsibilities are allocated to multiple government agencies at both central and regional level; accordingly close coordination and standardized practice between agencies is required. Second, capacity building for officials from all agencies in frontline roles is required to ensure they are equipped with relevant specialized knowledge and skills.
3 Forced prostitution and forced labour are offences under the Kyrgyz Criminal Code, separate from the offence of human trafficking. The presence in a state’s criminal code of offences which criminalize exploitative behavior as standalone crimes enables prosecution of cases where the action and/or means elements of human trafficking are absent or cannot be proven to the criminal standard of proof.
4 See e.g. (i) In the Dock: Examining the UK’s Criminal Justice Response to Trafficking, The Anti-Trafficking Monitoring Group (2013) pp.40-42. (ii) Commission of Human Rights, Addendum, Integration of the Human Rights of Women and the Gender Perspective: Report on the Special Rapporteur on trafficking in persons, especially women and children, Sigma Huda, 62nd Session, E/CN.4/2006/62/Add.2, 30 Nov. 2005 (available here: https://documents-dds-ny.un.org/doc/UNDOC/GEN/G05/165/25/PDF/G0516525.pdf?OpenElement)
5 Article 23 of the Criminal Procedural Code of the Kyrgyz Republic
6 See e.g. Anti-human trafficking manual for criminal justice practitioners, UNODC (2009), Modules 3 and 8.
ABOUT THE AUTHORS
Will Russell is a human rights lawyer and specialist on the law relating to human trafficking, with a particular focus on the state response to trafficking.
Aigul K. Kasymova is a development expert working in the field of rule of law with IDLO.