Document - Kosovo (Serbia and Montenegro): "So does it mean that we have the rights?" Protecting the human rights of women and girls trafficked for forced prostitution in Kosovo

"A friend introduced me to a woman in Chiinu, she offered me a job abroad and said she would prepare a passport for me, for free. I asked if the job was sex related and she promised that it was not."(1)

"I was beaten and I was forced to have sexual intercourse... if we were not willing, they just beat us and raped us."(2)

"Even in cold weather I had to wear thin dresses ... I was forced by the boss to serve international soldiers and police officers ... I have never had a chance of running away and leaving that miserable life, because I was observed every moment by a woman."(3)

Trafficking of women for forced prostitution is an abuse of human rights, not least the right to physical and mental integrity. It violates the rights of women and girls to liberty and security of person, and may even violate their right to life. It exposes women and girls to a series of human rights abuses at the hands of traffickers, and of those who buy their services. It also renders them vulnerable to violations by governments which fail to protect the human rights of trafficked women.(4)

Amnesty International considers the trafficking of women for the purposes of forced prostitution to be a widespread and systematic violation of the human rights of women.(5)

Since the deployment in July 1999 of an international peacekeeping force (KFOR) and the establishment of the United Nations Interim Administration Mission in Kosovo (UNMIK) civilian administration, Kosovo(6) has become a major destination country for women and girls trafficked into forced prostitution. Women are trafficked into Kosovo predominantly from Moldova, Bulgaria and Ukraine, the majority of them via Serbia. At the same time, increasing numbers of local women and girls are being internally trafficked, and trafficked out of Kosovo.

Less than three months after the deployment of international forces and police officers to Kosovo,

trafficking had been identified as a problem by the Organization for Security and Cooperation in Europe (OSCE); and by January 2000, UNMIK’s Gender Advisor had acknowledged, but not yet acted on, the problem. (7) Despite subsequent measures taken by UNMIK and others to combat trafficking, by July 2003 there were over 200 bars, restaurants, clubs and cafes in Kosovo where trafficked women were believed to be working in forced prostitution.(8)

Although some women are abducted or coerced, many start their journeys from their home countries voluntarily, believing that the work they are offered - usually in western Europe - will enable them to break out of poverty or escape violence or abuse. Often, as soon as their journey begins, so does the systematic abuse of their rights, in a strategy that reduces them to dependency on their trafficker, and later their "owner". As their journey continues, the realization grows that the work they have been offered is not what was promised; their documents are taken away from them; they may be beaten; they will - almost certainly if they start to protest - be raped.

When they reach Kosovo, they are beaten and they are raped - by clients, by "owners" and by other staff. Many are virtually imprisoned, locked into an apartment or room or a cellar. Some become slaves, working in bars and cafes during the day and locked into a room servicing 10 to 15 clients a night by the man they refer to as their "owner". Some find that their wages - the reason they were willing to leave their homes - are never paid, but are withheld to pay off their "debt", to pay arbitrary fines, or to pay for food and accommodation. If they are sick, they may be denied access to health care. They have no legal status and are denied their basic rights. Some of them are girls as young as 12 years old.

Even if they escape their traffickers or are "rescued" by the police, some women suffer human rights violations by officials. Some are arrested and imprisoned for prostitution or immigration offences, without being afforded the basic rights of detainees. Those recognized as victims of trafficking are denied rights to reparation and redress, and few receive appropriate protection, support and services. Some find that they have little or no protection from their traffickers if they testify in court. Throughout the process, women face discrimination on the basis of their gender, ethnic origin and/or their perceived occupation.

Research

Amnesty International has conducted research into the human rights abuses experienced by women trafficked into Kosovo since early 2000. Interviews were conducted with a wide range of international and local staff employed by UNMIK, including UNMIK police and the Kosovo Police Service (KPS); the OSCE; the International Organization for Migration (IOM); officers and staff of Ministries within the Provisional Institutions of Self-Government (PISG); members of international and local non-governmental organizations (NGOs), in particular the Centre for the Protection of Women and Children (CPWC) (9) and the Centre to Protect Victims and to Prevent Trafficking of Human Beings in Kosovo (CPVPT)(10) and an NGO providing shelter for minors which wishes to remain anonymous; international prosecutors, members of the local judiciary in Kosovo and members of NGOs working in source countries with trafficked women.

Amnesty International also conducted interviews with women who identified themselves as being trafficked.(11) In order to protect the rights of trafficked women, Amnesty International has throughout the report observed the confidentiality requested by those women, or by organizations working with trafficked women; no citations have been given that could assist in their identification.

The illegal, organized and clandestine nature of trafficking, along with the silencing of trafficked women through coercion, violence and fear, make it impossible to accurately estimate the full extent of the trafficking industry in Kosovo.

What is trafficking?

"It’s something to do with cars, isn’t it?" - trafficked girl, interviewed by an NGO in Kosovo.

The gravity of the crime of trafficking is reflected in the fact that, in some circumstances, it may constitute a crime against humanity or a war crime. Trafficking in persons, in particular women and children, that amounts to enslavement has been included among the most serious crimes of international concern in the Rome Statute of the International Criminal Court (ICC).(12)

For the purposes of this report, Amnesty International uses the definition of trafficking set out in Article 3 of the UN Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children, (the Trafficking Protocol), supplementary to the UN Convention against Transnational Organized Crime. (13) Article 3 provides that:

"(a) Trafficking in persons shall mean the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs".(14)

(b) The consent of a victim of trafficking in persons to the intended exploitation set forth in subparagraph (a) of this article shall be irrelevant where any of the means set forth in subparagraph (a) have been used.

(c) The recruitment, transportation, transfer, harbouring or receipt of a child for the purpose of exploitation shall be considered "trafficking in persons", even if this does not involve any of the means set forth in subparagraph (a) of this article.

(d)"Child" shall mean any person under eighteen years of age.

Amnesty International is applying this definition to women who are trafficked into Kosovo from foreign countries, and to those who are internally trafficked(15), including from Serbia, and irrespective of whether their traffickers are participants in an organized criminal group.

Although the majority of women, including those whose testimonies are included in this report, may have begun their journeys as smuggled migrants, in the course of their journey, or following their arrival in Kosovo, they find themselves forced into exploitative prostitution. Amnesty International considers these women to be trafficked.

A human rights perspective

In this report, Amnesty International highlights the human rights abuses to which trafficked women are exposed, and advocates that respect for, and protection of, the rights of trafficked women must be central to the action of all authorities in their responses to trafficking.

The obligation of states to prevent trafficking - recognized as a form of discriminatory gender-based violence against women (16) - is set out in Article 6 of the UN Convention on the Elimination of All Forms of Discrimination Against Women (the Women’s Convention) and in the Convention of the Rights of the Child (Children’s Convention). (17)

Applicable law in Kosovo includes international treaties which require the authorities to act with due diligence to prevent, investigate and prosecute all human rights abuses, including trafficking, and the other human rights abuses to which trafficked women and girls are subjected including acts of torture, such as rape. They also require the authorities to ensure effective redress and adequate reparation to those who have been subjected to such crimes. These international treaties include the European Convention for the Protection of Human Rights and Fundamental Freedoms and the Protocols thereto (ECHR); the International Covenant on Civil and Political Rights and the Protocols thereto (ICCPR); the International Covenant on Economic, Social and Cultural Rights (ICESCR); the Convention on the Elimination of All Forms of Racial Discrimination (the Convention against Racial Discrimination); The Convention on the Elimination of All Forms of Discrimination Against Women (the Women’s Convention); the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Convention against Torture); and the International Convention on the Rights of the Child (the Children’s Convention).

Even before they enter the trafficking process, many women and girls have already suffered violations of their rights in their home countries, guaranteed under the ICCPR, ICESCR and the Women’s Convention. Many trafficked women and girls have been denied access to education, access to employment or to social welfare or have suffered discrimination - on the basis of their gender - in gaining access to these rights. Many of them have already been subject to abuses of their right to physical and mental integrity, through domestic violence and other forms of physical and sexual abuse at the hands of their parents or their partners.

In the process of trafficking, women may be abducted; they will be unlawfully deprived of their liberty, in violation of their rights to liberty and security of their person, enshrined in Article 9 of the ICCPR and Article 5 of the ECHR. Their rights to freedom of movement, guaranteed under article 12 of the ICCPR, are curtailed or denied. Their rights to privacy and to family life, under Article 8 of the ECHR and Article 17 of the ICCPR, are further denied.

They are subjected to torture, including rape, (18) and other forms of cruel, inhuman or degrading treatment, such as the repeated use of psychological threats, physical beatings and degrading sexual acts. These acts violate the rights of women and girls under Article 7 of the ICCPR and Article 3 of the ECHR, and Article 37 of the Children’s Convention, and may even violate their right to life. Trafficked women may also be denied access to health-care guaranteed under Article 12 of the ICESCR and Article 12 of the Women’s Convention.

In addition to the abuses perpetrated by traffickers, trafficked women often find their rights violated within the criminal justice system. As detainees, they are not informed of their rights or how to access them. Their rights to the presumption of innocence, to a lawyer and to an interpreter are denied in violation of their rights under Articles 9 and 14 of the ICCPR, Articles 5 and 6 of the ECHR and Articles 37 and 40 of the Children’s Convention.

As victims of human rights abuses, they do not routinely receive information about their rights to reparation, including compensation, or how to access them through administrative bodies or the courts.(19) The majority of women will not see those responsible for the abuses of their rights brought to justice.

Some trafficked women have not been protected from forcible return to a country where they would face grave human rights abuses, in violation of Articles 3 of the ECHR and of the Convention against Torture, Article 33 of the 1951 Convention relating to the Status of Refugees, and principles of customary international law.

Respect for the rights of women and girls in Kosovo who have been subjected to trafficking not only requires the authorities to investigate the abuses highlighted above, to bring to justice those responsible for those abuses, and to ensure the victims of such abuses effective redress, including reparation. It also requires the authorities in Kosovo - as well as in their countries of their origin and other countries to which they may be resettled - to ensure respect for the full range of their rights including their rights to dignity, security, privacy, the highest attainable standard of health, an adequate standard of living, safe and secure housing, work, education and social security.

In addition to the legal standards set out above, Amnesty International refers to the Office of the UN High Commissioner for Human Rights (UNHCHR) Recommended Principles and Guidelines on Human Rights and Human Trafficking (UNHCHR Recommended Principles and Guidelines). The protection of the human rights of trafficked persons lies at the heart of the UNHCHR Recommended Principles and Guidelines, which are directed at states, intergovernmental organizations and non-governmental organizations; they are comprised of 17 basic Principles - based in international human rights law - and 11 detailed Guidelines, which set out practical measures for their implementation. (20)

Amnesty International also notes that the UN Commission on Human Rights has recently established a new mandate for a Special Rapporteur on trafficking.(21)

Another important tool to ensure the protection of women’s human rights, in particular in the context of armed conflict and post-conflict situations, is Resolution 1325 on women, peace and security, adopted by the UN Security Council on 31 October 2000.(22) This landmark resolution calls on a range of actors - the UN Secretary-General, the UN Security Council, UN Member States, all parties to armed conflict, and those involved in negotiating and implementing peace agreements - to ensure increased representation of women at all levels of decision-making concerning the prevention, management and resolution of conflict; to include more women in peace-keeping and other field operations and to provide training for field staff on the protection of women’s human rights; to adopt a gender perspective when negotiating and implementing peace agreements; and to take special measures to protect women and girls from gender-based violence, particularly rape and other forms of sexual abuse.

Resolution 1325 also requested the UN Secretary-General to carry out a study on women, peace and security. The outcome of this study was reported to the Security Council in October 2002 and expanded upon the recommendations contained in resolution 1325.(23) At the same time, UNIFEM (United Nations Development Fund for Women) commissioned an expert study on women, war and peace which further elaborated on measures to further implement resolution 1325.(24) In October 2004, the UN Secretary-General will submit the first report on the implementation of resolution 1325.

Due diligence

Where abuses have been perpetrated by organized criminals or private individuals, and where a state has failed to take effective action or bring those responsible to justice, then the authorities - in this case, UNMIK - may be held responsible for those abuses of human rights. With respect to violence against women, the UN Committee on the Elimination of Discrimination against Women (CEDAW) notes that states should exercise due diligence to prevent, investigate and, in accordance with national legislation, punish acts of violence against women, whether those acts are perpetrated by the state or by private persons.(25) Application of this standard in practice may therefore require states to, for example, introduce measures to criminalize trafficking (as UNMIK has done in Kosovo), effectively enforce this prohibition, provide legal assistance and remedies for victims, and take preventative action to address the underlying causes of trafficking.(26)

Applicable law in Kosovo

In addition to the human rights standards outlined above, applicable law in Kosovo consists of regulations promulgated by the Special Representative of the UN Secretary General (SRSG) and the law in force in Kosovo on 22 March 1989. (27) Until January 2001, prosecutions in trafficking cases were conducted under the Criminal Code of the former Socialist Federal Republic of Yugoslavia (SFRY) and the Serbian Criminal Codes, including under Article 251 of the Serbian Criminal Code for "intermediation in the exercise of prostitution", and under Article 18 (8) of the Kosovo Law on Public Peace and Order, which creates a minor offence out of the act of mediating in or forcing another into prostitution; women were convicted of prostitution under the same law.

On 12 January 2001, the SRSG promulgated UNMIK Regulation 2001/4, On the Prohibition of Trafficking in Persons in Kosovo (see Chapter 3, below).

Chapter 1: Background

In July 1999, following UN Security Council Resolution (UNSCR) 1244/99 of 10 June 1999 an international peacekeeping force (KFOR) and a UN civilian administration known as UNMIK were established in Kosovo.(28) This saw the removal of the Serbian authorities which had governed the province since 1990, when the authorities under President Slobodan Miloevi stripped Kosovo of the autonomy it had been granted in 1974.(29)

From 1990, members of the majority ethnic Albanian population were subjected to a decade of human rights violations perpetrated by the Federal Republic of Yugoslavia (FRY) authorities and the Serbian police.(30) By 1998, an internal armed conflict was being fought in Kosovo between FRY forces, Serb police and paramilitaries the on one side and the Kosovo Liberation Army (KLA) on the other. From 24 March to 10 June 1999, with the declared aim of preventing a human rights catastrophe, the North Atlantic Treaty Organization (NATO) conducted an air campaign against the FRY, codenamed Operation Allied Force. (31) In June 1999, after the conclusion of an agreement with the FRY authorities, NATO ceased its bombing campaign, and by the end of July Serbian police, paramilitaries and the Yugoslav Army had withdrawn from Kosovo.(32)

Under UNSCR 1244/99, UNMIK was mandated with the task of providing an interim administration for Kosovo, and charged in Article 11 (j) with the duty of "Protecting and promoting human rights". Article 9 also provided a mandate for the international NATO-led security presence (KFOR).

International presence generates sex trade

In the second half of 1999, 40,000 KFOR troops were deployed and hundreds of UNMIK personnel arrived along with staff from more than 250 international NGOs. Within months of KFOR’s arrival, brothels were reported around the military bases occupied by international peace-keepers. Kosovo soon became a major destination country for women trafficked into forced prostitution. A small-scale local market for prostitution was transformed into a large-scale industry based on trafficking predominantly run by organized criminal networks.

Some sectors of the economy grew rapidly, through increased prices paid by international personnel for rented property and services, resulting in an increase in disposable income in certain sections of the population.

By late 1999 the United Nations Development Fund for Women (UNIFEM) had reported on significant organized prostitution in four locations close to major concentrations of KFOR troops. Most of the clients were reported to be members of the international military presence, while some KFOR soldiers were allegedly also involved in the trafficking process itself. Eighteen premises were identified, including in the Gnjilane/Gjilan area, where clients included US military personnel; in Prizren, where users reportedly included German KFOR soldiers and other internationals; in Pejë/Peæ, where residents reported Italian KFOR soldiers as clients; and in Mitrovicë/a, where French KFOR reportedly patronized make-shift brothels.(33)

Since then, there has been an unprecedented escalation in trafficking in Kosovo. From the 18 establishments identified in late 1999, by January 2001, some 75 such premises were listed in the first "off-limits list" issued to UNMIK staff. This listed bars, clubs and restaurants where trafficked women were thought to work, and which had been declared "off-limits" to UNMIK and KFOR personnel (see Chapter 6). By 1 January 2004, there were 200 bars, restaurants and cafes on the "off-limits list".(34)

KFOR and UNMIK were publicly identified in early 2000 as a factor in the increase in trafficking for prostitution by the International Organization for Migration (IOM).(35) In May 2000, Pasquale Lupoli, IOM’s Chief of Mission in Kosovo, alleged that KFOR troops and UN staff in Kosovo had fed a "mushrooming of night clubs" in which young girls were being forced into prostitution by criminal gangs. "The large international presence in Kosovo itself makes this trafficking possible."(36)

Nevertheless, in February 2001 the IOM had cautioned, "[t]he fact that you have 45,000 foreigners in Kosovo could be one element in the equation, but it is definitely not the whole equation."(37) The trafficking industry was also assisted by Kosovo’s proximity to source countries and well-established trafficking routes via Albania to the European Union (EU), as well as cooperation between Serbian, Albanian, Kosovo Albanian and Macedonian organized criminal networks. A lack of sufficient and experienced police officers and a weak criminal justice system also enabled the development of trafficking.

Although the development of trafficking can be attributed to the presence of the international community, the sex industry has subsequently developed to serve a wider client-base. Over the past three years it has increasingly served the local community, which both the IOM and the CPWC estimate now make up around 80 per cent of the clientele.

Given low levels of prostitution and trafficking of women prior to July 1999, all the available evidence suggests that without the presence of the international community and an influx of ready-made western consumers, Kosovo would have remained a relative backwater in the Balkan trafficking industry.

Responsibility and accountability in Kosovo

Following the establishment of UNMIK, a transitional government was also established in 1999 by the ethnic Albanian population. Notwithstanding the establishment of the Provisional Institutions of Self-Government (PISG) in 2001, UNMIK continues to administer Kosovo under UNSCR 1244/99, despite the gradual transfer of certain powers to the PISG. The Special Representative of the UN Secretary-General (SRSG) still retains executive powers, most notably over the international judiciary, law enforcement, minorities and refugees, defence and security - in conjunction with KFOR - and external relations. Since 2002, the Department of Justice has taken the lead role on trafficking.(38)

An international police force - UNMIK police or CIVPOL (civilian police) - carries out law enforcement functions, in conjunction with the Kosovo Police Service (KPS). As of 31 March 2004, there were 3455 international police in Kosovo. The UNMIK Police Trafficking and Prostitution Unit (TPIU) was established in November 2000, with the aim of gathering evidence to assist in gathering evidence to assist in the prosecution of those believed to be responsible for trafficking. The TPIU is staffed by both international police officers and members of the KPS.

The PISG was established by UNMIK Regulation 2001/9 in May 2001.(39) The Kosovo Assembly was elected in November 2001 and Ibrahim Rugova became President in March 2002. Government ministers with responsibilities related to both the prevention of trafficking and the protection and support of trafficked women include the Minister of Education, Science and Technology, the Minister of Labour and Social Welfare, the Minister of Health and the Minister of Public Services.

Within the Office of the Prime Minister, the Office for Good Governance, Human Rights, Equal Opportunities and Gender Issues has particular responsibility for trafficking, and for the coordination of the PISG’s role in the Kosovo National Plan of Action on Trafficking - as required by the Stability Pact Task Force on Trafficking in Human Beings (SPTF).(40)

The mandate of KFOR continues to be unaffected by the gradual transfer of responsibilities from UNMIK to the PISG. Originally over 50,000 strong and composed of soldiers from more than 30 countries, by March 2004, it comprised four multi-national battalions totalling 17,000 troops but was subsequently reinforced by some 3,500 extra troops following widespread inter-ethnic violence that month. KFOR personnel are not accountable to either UNMIK or the PISG.

Both UNMIK and KFOR personnel, and contractors working for UNMIK and KFOR, are protected from prosecution in Kosovo by immunity granted under UNMIK Regulation 2000/47.(41) Civilians, including UNMIK police, may therefore only be prosecuted if a waiver is granted by the UN Secretary-General; immunity for KFOR personnel may be waived by the head of their national battalion.

Chapter 2: Trafficking of Women and Girls in Kosovo

"Eventually I arrived in a bar in Kosovo, [and was] locked inside and forced into prostitution. In the bar I was never paid, I could not go out by myself, the owner became more and more violent as the weeks went by; he was beating me and raping me and the other girls. We were his ‘property’, he said. By buying us, he had bought the right to beat us, rape us, starve us, force us to have sex with clients."(42)

"If I refused [to have sex with clients] I was threatened. He was pointing the gun to my head, and he was saying.. ‘If you don’t do this in the next minute, you will be dead’. He has the gun, he was just saying do this or you will be dead."(43)

Some women are trafficked into Kosovo from abroad, some from within Kosovo itself. There are no accurate estimates of the numbers, but certainly many hundreds of women have been trafficked from their homes and forced to work as prostitutes.(44)

The statistics used in this report relate only to the women assisted by organizations working with trafficked women. Therefore they do not reflect the overall numbers who may have been trafficked into and within Kosovo, but rather the experience of individuals who have, through police raids or other methods of referral, received assistance. Although the TPIU have estimated that around 90 per cent of women working in the sex-industry in Kosovo have been trafficked, international organizations estimate that only one-third of trafficked women ever receive assistance.(45)

Women and girls trafficked into Kosovo

Some 406 foreign women were assisted by the IOM in Kosovo between December 2000 and December 2003. According to the IOM, 48 per cent of women who have entered its repatriation program - enabling them to return to their home country - originated from Moldova. Of the remainder, 21 per cent came from Romania, 14 per cent from Ukraine, six per cent from Bulgaria, three per cent from Albania and the remainder from Russia and Serbia proper.

The origins of women registered by the TPIU in 2003 show a different profile, and indicate that women and girls from Albania (few of whom are assisted by the IOM) and internally, trafficked Kosovar Albanians comprise 36 per cent of women registered by the TPIU as working in bars and other premises suspected of involvement in trafficking. Of the women from other countries, 27 per cent were from Moldova; 45 per cent from Bulgaria; nine per cent from Romania and almost seven per cent from Ukraine.(46)

Women trafficked into Kosovo come from some of the poorest countries in eastern Europe. They have suffered more than a decade of economic dislocation, exacerbated by gender discrimination, in countries which have seen dramatic rises in poverty and unemployment.

"I was desperate, and not because I was having problems with my parents as I heard from other girls, but because we were so poor... My grandmother had a very small allowance, and my mother has only the state allowance for my three brothers. We should have the alimony that my father is supposed to give us, but he is just ignoring us and not helping us at all.... I couldn’t live any longer on my grandmother’s pension, so I said that I’d better go somewhere else where I could work hard and earn some money to help my family and my brothers."(47)

In September 2002, the IOM published an analysis of the social profile of 168 women and girls from Moldova, for whom they had provided assistance, six per cent of whom were girls under the age of 18.(48) The IOM found that the majority of women and girls (57 per cent) had only received a basic primary education, 24 per cent had received secondary education, 15 per cent had been educated to the age of 18 and four per cent had attended university. Over 70 per cent defined themselves as poor or very poor, those that were employed earning less than $30US (€30) a month. Some 88 per cent of these women and girls told the IOM that their main reason for leaving Moldova was to find work.

Some 37 per cent of these women and girls were mothers - often separated or divorced; some were single mothers or widowed; less than 10 per cent were reportedly married or living in a stable relationship.

Many trafficked women have already suffered violations of their physical and mental integrity in their home countries. Based on interviews with 105 trafficked women, IOM found that some 22 per cent had been physically or psychologically abused within their family; another 15 per cent reported physical and sexual violence; seven per cent reported physical or psychological abuse by a husband or partner.(49)

Based on these interviews, IOM suggests that many women’s final decision to leave home was precipitated by an argument with their parents or partner, or an episode of domestic violence, as in the following case:

"Following repeated abuse by her husband, culminating in threats to stab and kill her, a Romanian woman with three children fled her husband, and temporarily took her children to her parents’ house. Her husband’s cousin - who was aware of her situation - told her that he knew someone who was organizing trips to Germany. Hoping that she might be able to find a job in Germany with the help of an aunt living there, she agreed to go. En route, she found that she had been sold, and was trafficked to Kosovo."

In cases where women are unable to enjoy their social and economic rights and their vulnerability is exacerbated by abuse and ill-treatment within their families, many women in countries such as Bulgaria, Moldova, Romania and Ukraine may see the opportunity to work abroad as a positive choice, offering them a way out and the chance to earn what they expect to be many times what they can earn at home.

Recruitment

"...in any capital, be it Tirana or Budapest, Prague or Warsaw... somewhere there will be a hotel, a cinema, a bar, a restaurant, a café ... named, for our desire, Europa. ... Europe is plenitude: food, cars, light, everything ... It is a promised land, a new Utopia...".(50)

Relatively few women are abducted, bundled into the back of a car and driven off to be sold. According to the IOM, just over eight per cent of women trafficked from Moldova to Kosovo reported being forcibly abducted; most had chosen to work abroad - almost 60 per cent having been promised work in Italy - although the work and location they were promised was very different from what awaited them.(51)

According to the IOM, 80 per cent of women report that they are recruited by a relative, friend or an acquaintance. In nearly half the cases, this person is a woman, often a friend:

"I am three years here. I was 17 years old when I came here. My friend said, ‘Do you want to go and work in Kosovo?’ I said no. ... At home I was bored. I had nothing to do, so I called her. I came to work for DM10 - 15, which is 5 - 7 Euros as a waitress. That was payment per day. I spent two weeks in Belgrade with one good family there - very good people.... Then they got a false passport and I was brought by one man to the Kosovo border... Me and my friend crossed the border, just us. We stayed in a hotel, then one day later we came to Prizren. Two weeks in a hotel in Prizren and at that time my friend paid everything. She brought me to a bar in a village near Prizren. My friend then left me and I haven’t seen her since."(52)

These friends and acquaintances may promise jobs in Italy or elsewhere in western Europe - as waitresses, domestic workers, nannies, dancers, au pairs - telling them that they will earn up to €1,000 or €1,500 a month.(53) Women are also recruited by travel agencies or newspapers, advertising for dancers, models, waitresses, hostesses or strippers. Many promises are more banal: a single mother who was earning €30 a month working in a bar in her home country was promised €300 a month as a waitress in Kosovo:

"I had a friend who worked here. She is not pretty. Her boss asked if she had a pretty friend. She contacted me and proposed me as a waitress." (54)

Some 22 per cent of Moldovan women interviewed by IOM were at least partially aware that they might work in some sector of the sex industry. (55) However, they still expected to be legitimately employed.

This young woman, for example, was initially employed as a stripper:

"I have a female friend who worked here. When she came back she told me that there is a job. She said she would organize for a contract, and then we can go together. Three of us went together. The contract was in Albanian and English. It was translated into Russian. It was to earn €300 per month, and then 50% off for drinks. We booked a flight from Kiev to Istanbul to Pristina. I also proposed to my other friends to come together. We came as three. When we came in Ðakovica we went to a lawyer to sign a contract and for a medical check, and registered in the police station that we would work".(56)

She was subsequently picked up in a police raid, following reports that several other women employed in this club had been transferred to other establishments and forced into prostitution.

Increasingly, recruiters are issuing women with apparently lawful contracts of employment. This aims both to circumvent the law and to allay women’s fears that they will be subjected to exploitation. Some contracts often explicitly state that prostitution is excluded from the contract, or is prohibited on the premises in which they will work.(57)

Some women - IOM estimates just under three per cent - are aware that they will work as prostitutes. A woman, her arms covered in bruises, who had escaped by jumping through a window, said:

"Yes, of course I knew... I have five brothers and sisters... none of us are working at home... but for me, this is not what I expected - I thought I would be paid ...I would get to choose my clients - this is not prostitution."(58)

The journey

Trafficking routes

"That night two Serbian men came there and took two other girls and me away. All of us entered [Yugoslavia] illegally firstly by car, and then crossing a river on foot, until we met two other men who were waiting for us. These men took us to a house to spend the night, and the next day somebody else took us to a different house. I do not know the name of the city where we were staying. It was a woman that took us away this time."(59)

More than half (52 per cent) of women who come to Kosovo are trafficked via Serbia, with 22 per cent coming via Macedonia.(60) Women are also trafficked into Kosovo from Albania. According to the UNMIK Border Police, around 10 women a week are trafficked through Prishtinë/Priština airport, all of whom have apparently lawful contracts of employment.(61)

Serbia’s geographical location, a decade of war and sanctions and the flourishing of organized crime(62) has made Serbia a central hub in the trafficking of women from central and eastern Europe into Kosovo, Bosnia-Herzegovina, Albania and onward into western Europe via Italy or Greece.

Sold "just like a cloth"

Women are taken, usually in small groups, to "trading houses" in hotels and private apartments around Belgrade, Panèevo and Novi Sad, and also in Montenegro. There they are paraded in front of potential buyers, often being forced to strip before being sold to their new "owner".

"First they would put us to get undressed, and to be only in underwear, to look at us and see how we are looking. If you are looking OK, and they [like you], they will buy you. We were like a rag, just like a cloth."(63)

"They put us in a line, standing up, and then they sit in an armchair and look at us, choosing one of us."

"You will not know who bought you. They will just come and tell you that you must get ready because you [have to] leave."(64)

A journalist who visited a "trading house" near Belgrade confirmed these reports. He also observed a man bidding for a woman while talking to the purchaser via mobile phone. (65)

From here, women may be trafficked to a range of destinations, including Kosovo. Other networks operate within and between Albanian communities in southern Serbia, Kosovo and Macedonia.(66)

Some women may find themselves held in Kosovo only briefly before they are sent on to other destinations. Like many other Balkan countries with porous borders, no visa regimes and weak legal and economic systems, Kosovo is also a transit country. It may be a matter of chance whether a woman finds herself trafficked to Italy or Kosovo.

In transit

Many women are aware that their journeys across transit countries are not completely lawful. Sometimes their suspicions are raised while still in their home country. Women may be kept in a locked room, or moved only at night by a succession of different individuals, sometimes including law enforcement officers. By the time they have been taken to another country, most begin to understand what is happening or are told that they have been trafficked.

These women are unlawfully deprived of their liberty, in violation of their rights to liberty and security of their person, enshrined in Article 9 of the ICCPR and Article 5 of the ECHR. Few of them try to escape. Their travel documents have usually been taken away, and they have been told that if they do escape, they are unlikely to reach or cross the border without being arrested.(67) Some traffickers seek to reassure them, suggesting that by the time they reach their destination, everything will be fine. Other women have reported that they had been drugged or sedated. Women who protest are subjected to violent threats and abuse - described as the "breaking" process - often including beatings and rape. This abuse is deliberately designed to instil fear in women and create dependency on their trafficker.

From this point, women are effectively enslaved or "owned" by their traffickers, by the middlemen, and eventually by the owner of the premises where they will work. Although some women are not aware until they reach Kosovo that they have been sold, others have seen money change hands, or have been raped by buyers when they "try the merchandise".

Women are often sold several times over even before reaching Kosovo. According to the IOM, women may be sold for between €50 and €3500, depending on her country of origin. By the time she gets to Kosovo she may have been bought and sold several times, her price rising every time she is re-sold.(68)

Into Kosovo

"I can never get enough sleep. I always go to bed around 4 or 5 o’clock in the morning, after cleaning up all the tables, dishes, glasses and floors and broken glasses all over the café. I am exhausted when I go to bed and cannot sleep immediately. At 10 or 11 o’clock in the morning I can hear them shouting at us to wake up and we have to do the cleaning of the rooms and beds, and all the sheets. Clients come early at the café and we have to serve them. We are given food like we were animals, very often we have to eat leftovers; we have to serve clients until evening and around 11 o’clock we have to go to serve [have sex with] clients in their rooms. Sometimes this service may start earlier."(69)

Once they get to Kosovo, women are taken to bars, restaurants or clubs, where they are either sold to a new owner, or work for the trafficker. Some women begin by working as waitresses, serving meals or drinks.(70) Others are forced into prostitution immediately, often expected to work as waitresses during the day, and as prostitutes at night.

Evidence at a trial at Prishtinë/Priština District Court demonstrated how women contracted to work as dancers at the Miami Beach Club in Prishtinë/Priština were required to work as prostitutes - despite claims by the defence that prostitution was forbidden according to house rules, and that the women were merely encouraged to "provide the atmosphere".(71) The women described how they were told to tell potential clients that if they wished to be alone with them, then they had to buy a bottle of champagne. Depending on how much the client paid - ranging from DM50 to DM2,400 a bottle - he was entitled to a period of time with the woman in one of the booths or cabins which surrounded the dance floor. An even larger and more expensive bottle entitled the client to sex with the woman in a hotel or a private apartment. Similar systems operate in other establishments.

Deprivation of liberty

Restrictions on the woman’s freedom of movement start early in the trafficking process, when her passport or travel documents are taken away from her. Without such papers, a woman is likely to be arrested for immigration or other offences. Deprivation of their liberty continues throughout the process:

"..the majority of women are held against their will in conditions you wouldn’t keep an animal in", former Head of TPIU.(72)

Trafficked women are seldom allowed any freedom of movement outside the establishments in which they work. They are confined either by threats and coercion, or by being locked in.

"We worked from 9am to 11pm. After that he said, ‘You do what you like’, but we were locked. When we asked to go out he said, no, that we had to be here. We slept in a room together, me and another girl. All the windows had bars. He didn’t ever beat me; it was just psychological threats. We were coerced in that way; I couldn’t go out."(73)

One woman reported to the CPWC that she had been locked into a room, and kept in darkness, unable even to see the men who entered the room to have sex with her. Another NGO working with trafficked women in Kosovo reported that many of the young women they worked with had been similarly detained, and were so disoriented that they had no idea how many men they had been forced to have sex with.(74)

At a trial in Gnjilane/Gjilan in 2002, a trafficked woman testified that she had been kept in a cellar, where she slept at night and serviced clients during the day. Food, drink and a bucket for use as a lavatory were brought down to her. She only left the cellar when she was driven by the defendant to meet clients.(75)

Some women have been locked into hotel rooms, not even being allowed to go out to buy sanitary protection.(76) Other women have been allowed out to go shopping, but under escort, and without their passports or other travel documents. Some women, however, do manage to escape:

"I was constantly thinking of a way to escape. When one client took me to the next town with his car, I took the chance and escaped. After hours of hiding in the bushes I knocked on doors asking for help. A young man opened the door, and told me to wait: I was afraid he would sell me, but I knew that nothing can be worse than going back to the bar. He called the police."(77)

Following raids on bars and restaurants by the TPIU, traffickers have removed many women to other premises - most often rooms in private apartments. Here they receive clients directed from the bars or via telephone. Almost all these women are locked in, with no freedom of movement whatsoever, and levels of violence, including rape, are reportedly much higher than in the bars.(78)

Torture and other forms of cruel, inhuman and degrading treatment

"Before I was sold to the bar in Prizren, I was held in an apartment in Gjilan for four days and I was raped by the guards several times."(79)

Trafficked women and girls are systematically subjected to torture, including rape and other forms of cruel, inhuman and degrading treatment which violate their rights under Article 7 of the ICCPR, Article 3 of the ECHR and Article 37 of the Children’s Convention. More than half of the women interviewed by IOM reported that they had been physically abused by the bar owner. A further 25 per cent said that they had also been beaten by bar staff, clients or other people.

Shelters working with trafficked women in Kosovo report that around 40 per cent of women bore signs of physical abuse on entering the shelters; they were predominantly bruised, but some also had broken bones. One woman had been beaten so severely that she was immediately repatriated for surgery to save her eyesight.(80)

In one case, it is suspected that an 18-year-old Moldovan woman, whose body was found in a river near Prizren on 19 February 2001, may have been murdered. The woman, who was found with her purse and documents, had apparently died from drowning. According to UNMIK Police, because the river was very shallow at this point, they suspected that she may have been forcibly drowned or dumped into the river while still alive and drowned while unconscious. A murder investigation was subsequently opened. However, although the police reported allegations and strong suspicions of involvement of traffickers, no direct evidence was found and no suspects were identified. The case was subsequently closed on 4 April 2001 by the Prosecutor, but the case was reportedly being reviewed in March 2004, because of new information which "has come to light over the past two years".(81)

In court proceedings against suspected traffickers, trafficked women routinely testify that violence was used as a means of coercion and control. For example, the Prishtinë/Priština District Court heard testimony that 11 women, contracted to work as dancers at the Miami Beach Club in Prishtinë/Priština, had been subjected to forced prostitution and, over a period of at least six months, to a range of other human rights abuses. Seven of the women testified(82) that the defendant wore a gun on his hip which he used to threaten them with, in order to coerce them into providing sex for clients. One woman had been beaten with a crutch the defendant kept in his office.(83)

The women’s families are also threatened. L.J., for example, was told by her owners that if she refused to provide sexual services, they would kill her three-year-old daughter who remained at home in her country of origin. According to evidence presented at trial, the girl had subsequently been abducted.(84)

Trafficked women and girls may be raped in transit and many are then subsequently repeatedly raped by their owners, who use rape as a means of control and coercion.(85) A Moldovan woman trafficked to Pejë/Peæ testified in investigative proceedings that when she had refused to work as a prostitute, the defendant beat and raped her, reportedly to teach her what would happen if she did not do what she was told.(86)

The coercive circumstances of trafficked women also make it impossible for them to give genuine consent to sex with "clients". Amnesty International notes that the ICC's Elements of Crimes do not require force as an element of rape: in this sense it is possible that 'clients' of brothels, who are aware of the coercive environment in which trafficked women are held, may be committing rape. (87)

"She had sex 2,700 times in less than one year; she was subjected to group sex; sex at gunpoint;[she] earned 200,000 Deutschmarks [for the traffickers], she was truly victimised."(88)

Violence is part of the process of coercion. Sometimes only one woman is beaten, to demonstrate the consequences of non-cooperation to others, and to reinforce the power relationship between the trafficker/owner and the trafficked women.(89) When women are trafficked by men who claim to be their "lovers", a mixture of generosity and violence may be used to reinforce the dependency of the trafficked woman on her trafficker.

Trafficked women are repeatedly subjected to psychological abuse. This can include intimidation and threats, lies and deception, emotional manipulation and blackmail, in particular threatening to tell their family back home about the true nature of their work.

Traffickers keep women perpetually insecure by creating an unpredictable and unsafe environment,(90) including moving women from place to place, as described by many trafficked women in Kosovo. It also includes holding them in conditions which Amnesty International considers may amount to inhuman or degrading treatment:

"We lived on the second floor, [all the] girls in one room. The bar was situated on the first floor. Our owner fed us with liver sausage, fish and bread. We didn’t get money. They didn’t buy us any clothes. If I refused to work they beat me. When I was ill, I got no help. It was very cold there."(91)

Trafficked women in Kosovo reported being held in unhygienic, overcrowded and stressful conditions, with no opportunity for privacy. Many women have to sleep and live in the same room in which they work, often with others. Physically exhausted by the long hours and the number of clients they are forced to have sex with, women also report being deprived of food:

"We received one hamburger and one yoghurt a day"; "We had to share four hamburgers and a packet of cigarettes between eight girls".(92)

An NGO working with trafficked women described how difficult it was for women to regain their sense of self-esteem after their trafficking experience, having been subjected to such humiliating and degrading treatment.(93)

Right to health

"I felt sick, and was coughing a lot. I had a terrible headache and fever. ... I was lying in bed and almost fading, when the owner’s son came into my room and I was beaten badly by him. As a result, I suffered grave bodily injuries. I stayed in bed for three months. Except for other injuries, he broke my hand too. All the time I spent in bed, he repeatedly exploited me."(94)

Amnesty International considers that trafficked women are denied their right to health guaranteed under Article 12 of the ICESCR and Article 12 of CEDAW, in being denied access to health care by their traffickers, and by being forced to engage in unprotected sex. In 2002, it was reported that 36 per cent of trafficked women in Kosovo reported being denied any medical care, while only 10 per cent were provided with access to regular health care; the majority of trafficked women were forced to have unprotected sex, with only 40 per cent "occasionally" using condoms.(95) Amnesty International is also aware of reports that trafficked women have been subjected to enforced abortions.(96)

An NGO working with trafficked women reported that some traffickers escort the women to private doctors, whose bills are then paid from the women’s earnings. By the time women were taken to such clinics, their condition was usually quite serious, but most women were unable to return to the clinic to get the results of tests and receive appropriate treatment.(97) Many trafficked women suffer long-term damage because of the failure to receive timely and appropriate treatment.(98) The organization notes that, although shelters are able to provide presumptive treatment for sexually transmitted diseases to trafficked women, no voluntary HIV testing is available to them.

Women who have been trafficked also suffer from long-term stress, exhaustion and anxiety, as well as damage to their self-esteem and feelings of self-worth. An IOM study found that a significant number of trafficked women also developed conditions including acute stress reaction, post-traumatic stress disorder and depression.(99)

Young women, in particular, often show signs of self-harm, including cuts or cigarette burns on their arms. One witness described how she saw a girl "voluntarily burning herself on several occasions with cigarettes on multiple places on her arms ...it was a desperate cry for help".(100) Amnesty International delegates met two young trafficked women who clearly showed similar signs of self-harm.

Slavery and debt bondage

The Trafficking Protocol includes within its definition of trafficking, slavery and slave-like practices. These are expressly prohibited in Article 8 (1) of the ICCPR,(101) Article 4 of the ECHR, the ILO Convention (105) on the Abolition of Forced Labour, and in Article 1(a) of the Convention Supplementary to the Slavery Convention which prohibits specific slavery-like practices, including debt bondage.(102)

Women trafficked into Kosovo are sold into slavery. Each of the trafficked women interviewed by Amnesty International referred to the man to whom they had been sold as their "owner"; NGOs working with trafficked women report the same.

Although women may have previously agreed to repay, from their wages, the person arranging, for example, the costs of their supposed journey to Italy, few of them understood or expected that they had in fact been purchased, and that they would have to repay their "owner" the amount he had paid for them. Neither did they expect to pay additional sums, regularly added to their debt, often apparently for the costs of their food and accommodation.

A young woman who thought she was going to work in a legitimate job in a bar in Kosovo, and who, in addition to bar-work, found herself forced into prostitution, told Amnesty International:

"I signed a contract for a monthly salary for €100, because of the tax that would be taken out of my salary. However, I had a verbal agreement in my country to work for €300 per month. The owner of the bar said ‘I bought you for €200; you have to pay that back’, and he told me that I had negative €4. Then one day he said, ‘You owe me €80’ and I had to pay with my time. Every three or four days he would say to me, ‘You are minus €20’ or whatever. For three months I earned just €300 - 350 but I should have had €900... When I was in my country they said I would have food, cigarettes etc. There was nothing of that agreement. I paid for my uniform, I paid for medical checks, I paid for my contract, I paid for my trip, everything. I paid €16 for my T-shirt. It had my name on the front and the company’s name on the back."(103)

Women at the Miami Beach Club, who under their contracts were supposed to receive a commission on drinks sold, testified in proceedings at Prishtinë/Priština District Court that they rarely received this money. Instead they were regularly "fined" for various reasons: including having sex outside the hotel with clients who had not paid the requisite amount; refusing to have sex with a client who had taken drugs; getting drunk - even though drinking large quantities of alcohol was part of their work; or for arriving late to work.(104)

Other women report paying off one debt, only to be faced with another, in a cycle of debt-bondage from which it is almost impossible to escape.

"I learned that I was sold to a pimp for 2200 DM (€955). The money he had spent on me I had to work off. When I worked the sum, the pimp sold me to Kosovo for 1750 DM. I never went to anyone for help because I had no opportunity to move. I worked at night with a [guard] only 15 feet away at all times. I was locked up in a room during the day. If I had had the chance, I would have tried to find the Red Cross for help."(105)

Internally trafficked women and girls

"Before they were victims of trafficking, they were victims of domestic violence or of rape in [the] war or poor education - they all have some reasons to be victims of trafficking."(106)

As well as those who are trafficked into Kosovo from abroad, increasing numbers of local women and girls are also being trafficked into the domestic sex-industry. According to the CPWC, the number of internally trafficked women has recently increased dramatically, with over twice the number of girls and women assisted in 2002 as in 2000. Of 253 internally trafficked women and girls supported by CPWC during this period, the majority - some 81 per cent - were under the age of 18. Almost one-third, 32 per cent, were between 11 and 14 years of age.(107) In 2003, the CPWC assisted an additional 92 cases, 79 per cent of whom were under 18 years old.(108)

Economic conditions in Kosovo, especially in rural areas where the majority of these young women come from, have failed to recover after the war, and unemployment, though less than in 2000, is still running at almost 60 per cent.

According to the CPWC, 84 per cent of internally trafficked women with whom they worked had only received a basic level of education. Some had not completed primary education and five per cent were illiterate. Only 10 per cent had attended secondary school, and only one per cent had received any form of higher education. In 2002, the World Bank reported that only 56 per cent of 15 to 18-year-old girls, the group most vulnerable to trafficking, were enrolled in full-time education. But even girls with some education are not immune.

"I used to be an excellent student in primary school. One day I met a girlfriend of another class in the same school. She invited me to go out together. She introduced me to some people that liked me and seemed to be very pleasant....I was driven in a room and raped ... since then I’m not free any longer ..."(109)

Staff at the CPWC told Amnesty International that the majority of young women come from poor backgrounds, often from dysfunctional families with high levels of domestic violence and alcoholism. Many families had also been through several years of displacement, war and trauma:

"We suffered very much during the war. Our house was burned. We have experienced so much terror in [R.] during the deportation too. Immediately after the war ended, my father married me to my sister's brother-in-law. I didn't love him. After some time there, I left his house, beaten up and mutilated. It was dark. I asked for help in the asphalted street in the village. A driver stopped by, he took me in his car, and he promised to help me and then drove me to the city ... I was sent to a café bar and handed over to the owner of that place. All the time I was there, I was repeatedly exploited and raped. Afterwards, the owner sold me to the place where I was later rescued by the police, seven months after. Every time I asked to be freed, the owner used to tell me that I didn’t work enough, claiming that I could only earn DM300 for my services, while he bought me for the price of DM1,500."(110)

Although a majority of internally trafficked girls and women are recruited in similar ways to women from abroad, including by being offered work in western Europe, a higher percentage are reportedly abducted by force. Poor economic conditions also make young women more susceptible to the "lover-boy" trafficker:

".. he offers to take her out of that. He promises to love her, he promises her marriage; he promises her a job; he promises to take her out of Kosovo".(111)

Internally trafficked women generally face the same conditions as those from outside Kosovo, although the numbers reporting that they receive any form of payment are extremely few. Both foreign and local women and girls have been found in the same bars, and on the whole report being treated in the same way by bar owners and other workers, although some internally trafficked women are held in much worse conditions. Many reported that they slept for only three or four hours a night, servicing between 10 and 15 clients each day, and were given "high-energy" drinks to keep them awake.

Most of the young women counselled by the CPWC reported that they had worked for between eight months and two years before they escaped or were "rescued" by the police. In contrast to externally trafficked women,(112) only 24 per cent are referred directly by the TPIU or other law-enforcement officers, with the majority of women being referred by other agencies or seeking assistance themselves after managing to escape.

Some young women are sold by members of their own families. One 14-year-old was married to a local bar owner who physically abused her and forced her into prostitution, eventually selling her to three brothers who took her to Prishtinë/Priština, where they forced her to have sex with them and other men.(113) In another case reported to Amnesty International, a 13-year-old Romani girl was initially sold for €500 in marriage to a 40-year-old man, who beat and raped her. When she escaped from him, she went back home: in order to recoup the marriage payment, her mother prostituted her in local shops. The child now has to be protected from her own family. In February, UNMIK police reported the arrest of a man who raped a young member of his own family, and then sold her to another man for €100; he was charged with the rape of a minor and with trafficking.(114)

But without family support, young women are even more vulnerable:

"My parents are divorced. I live anywhere I can, with my uncle’s family, neighbours and cousins. An old man has noticed that I am alone and started to caress me. He invited me to go to his house. He kept saying that he loved me very much. He touched my body and even gave me money for clothes and other things. But there were other men that took me too ... he knew them, but never stopped them ... among other services I had to do striptease on the table in an apartment, a large room and with plenty of people around watching me dance; there were international visitors too, once, I have seen international soldiers ... ." (115)

Proceedings are currently in progress in the case of five children found locked into a room where it was suspected that they were being abused by both homosexual and heterosexual men. It is not known whether they were orphaned or abandoned. When the children were found, they were malnourished, they had head lice and they were severely traumatized.(116) Other vulnerable children are reportedly initially recruited to sell gum or beg in the streets; while the boys move on to selling cigarettes or phone cards, the girls are forced into prostitution.

Amnesty International has also received reports that young women in Kosovo are vulnerable to a further form of sexual exploitation which Amnesty International considers falls within the definition of trafficking as cited in the Trafficking Protocol. These are cases in which although abusive sexual exploitation has taken place, it is not entirely clear that an economic motive exists. In this form of trafficking, young girls are abducted and subsequently subjected to repeated rape, sometimes by the same group of men, or repeatedly abducted and forced to have sex with different men over a period of several months. After their initial ordeal, sometimes lasting for up to a month, the young women are released, often dumped outside their home or their school; a few weeks or months later, they are abducted again. On 14 February 2004 UNMIK police received a report that a 14-year-old girl was missing; following an investigation, she was rescued by the police on 1 March: over a period of 20 days, she had been repeatedly raped by eight adult men.(117) In a similar case:

"I was going to school. I noticed that a young woman near the schoolyard was watching me. I stopped by a burek(118) place and took a look inside. The strange woman approached me and offered me a burek. She paid for it. This lasted for some days, until we became friends. One day she suggested we have a ride with her in her car. I went with her. The car didn’t stop in the neighbourhood I live, but they continued to drive the car in a road unknown to me. Driver was a man. When I asked about the place we were going to, they told me that we are visiting an old city, where I’ve never been before. Indeed, I was sent there and kept in a motel for three weeks in a row. Four men raped me. I was yelling, but no one could hear me since my mouth was closed. Other men came too. After three weeks they sent me to another city. There, too, I was forced to have sex with anyone who visited that private house. After some time they set me free and I came back home. They wouldn’t leave me alone. They came to the door, threatening that they will go to my school and tell everybody what has happened. They even threatened that they will say to my parents that it was me that decided freely to go with them. I was forced to go with them time after time, week after week and sometimes even for three months. I couldn’t continue with school, since some months had already passed and I was absent since the beginning of October ... I feel ashamed and I feel like everyone is watching me as though I am a criminal, and I am so scared of ... I was never paid. They gave me food and dressed me in bridal clothes. I used to shiver from cold when in wintertime I had to wear mini skirts and stay almost naked. When having a cold, I couldn’t go to the doctor. I was given some pills and a juice prepared only for me. Even when I was brought back to my home, I couldn’t go out, and I never told my parents of what has happened to me, because I was scared and ashamed, until it became too much for me, and too late."(119)

Trafficking from Kosovo

Kosovar Albanian, Serb and Romani women and girls also face a growing risk of being trafficked abroad. At the time of writing, their main destination is the predominantly ethnic Albanian areas of Macedonia, where the TPIU, IOM and CPWC report young women being transferred or re-trafficked from Kosovo.(120) However, internally trafficked young women also report being offered work in Italy, and it would appear that they are increasingly being trafficked, via Albania, into Italy and other parts of western Europe.

"A friend of mine, he is older than me, told me he could help me get a job in Macedonia; I had the opportunity to leave all the bad things behind [she had been raped and had reported the rape to the police, resulting in problems with her family and friends] The man drove me to a village close to Gostivar. I remember he paid DM200 (€100) to a taxi driver to bring me through the border. Once in Macedonia, I was brought to a bar and told I should work there as a waitress for DM10 (€5) a day. I was accommodated in a house together with other girls from Moldova and Russia, I think they were Russians. None of us was free to leave the house during the day, we were obliged to stay indoors until we would go to the bar. After a few weeks things changed, the owner asked me to sit with the clients of the bar and, if they would want, to accompany them upstairs to the bedrooms." (121)

By May 2003, some 17 Kosovar women had reportedly been repatriated to Kosovo. Of nine, who were assisted by the IOM, three had been trafficked to Macedonia, two to Italy, one to Belgium and one to the United Kingdom.

"After a while one of the guys [who had kidnapped and raped her] took me by car to Albania. They brought me to another motel and left me there... for another month. They... raped me several times... One night I was taken away to another city. They put me in a speed boat of desperate people and sent me to Italy... They locked me in an apartment. The next day they told me that I had to work for them - on the street. I refused, began shouting... They beat me a lot; they told me that if I refused they’d kill me and my family back in Kosovo .... I was so afraid. I was in Italy illegally. I couldn’t ask for help."(122)

Prompt and effective action is needed to minimize the risk that young women from Kosovo will be drawn into illegal migration that will in turn expose them to the risk of abuse and exploitation, including, in particular, vulnerability to trafficking and associated human rights abuses.

Such action must address the gender dimensions to increasing poverty in Kosovo, the failing education system, and high levels of family violence and widespread violence against women.

Chapter 3: Responses to trafficking - law enforcement and criminal justice

In the absence of the rule of law when UNMIK arrived in Kosovo, UNMIK’s mandate included the establishment of a police force and a functioning criminal justice system. It was faced with continuing human rights abuses, including the murder and abduction of members of minority communities, political killings within the ethnic Albanian community and other serious crimes, and the failure of UN member states to provide the resources and personnel to police Kosovo. As a result, UNMIK failed to address trafficking systematically until November 2000, when the Trafficking and Prostitution Investigation Unit (TPIU) was established within UNMIK police.

Raids, arrests and deportation

UNMIK’s initial response in the period from 1999 to 2000 appears to have been to try to control prostitution - which is illegal in Kosovo - rather than addressing the issue of trafficking. This was done predominantly through raids by UNMIK Police and KFOR on premises where trafficked women were believed to work. UNMIK police also arrested women for immigration or documentation offences at borders and within Kosovo. However, the traffickers themselves were rarely targeted.

Raids were conducted by UNMIK police in conjunction with KFOR,(123) often with the assistance of military police forces, responsible to their respective KFOR contingents, including Italian carabinieri, French gendarmerie or other specialized armed forces.

In 1999, in the absence of procedures to identify and protect victims of trafficking, women appear to have been routinely detained and subsequently charged with prostitution, or other offences. UNIFEM reported on three raids by military police or KFOR in the absence of UNMIK police, where apparently no attempt was made to establish whether the women were victims of trafficking or to determine their assistance needs. Following a raid in Mitrovicë/a, for example, two Serbian women and two Ukrainian women, all believed to have been trafficked, were detained and then released after three weeks "because no one would take responsibility for them". One was a 16-year-old girl. In Prishtinë/Priština, carabinieri raided a brothel near the airport, removed young women present but failed to take action to arrest the owners. In the third case, UK Royal Green Jackets (part of KFOR) raided a bar in Prishtinë/Priština, but apparently made no efforts to identify whether women had been trafficked until a foreign civilian present said that they should "check if they have their passports".(124)

In early 2000, following the establishment of IOM’s Counter-Trafficking Program in Kosovo, the IOM introduced procedures for the identification and protection of victims of trafficking arrested in such raids. By the end of April 2000 some 50 women had reportedly been repatriated by the IOM. However, procedures to identify trafficked women were not always routinely applied by UNMIK police, and women reasonably believed to have been trafficked continued to be charged with prostitution.

By February 2001, just four persons had been convicted under Article 251 for "intermediation into prostitution".(125)

Trafficking and Prostitution Investigation Unit

In November 2000, the Trafficking and Prostitution Investigation Unit (TPIU) was established within UNMIK police, coordinated from Prishtinë/Priština and comprised of five regional units. Its aims were to gather intelligence and construct a database of information on premises and suspects thought to be involved in trafficking, and to identify "women working in these circumstances" in order to assist in the prosecution of those believed to be responsible for trafficking. The TPIU was staffed, from its inception, by both international police officers and members of the Kosovo Police Service (KPS).

The newly formed unit rapidly launched a series of raids throughout Kosovo, in conjunction with KFOR.

The Trafficking Regulation

On 12 January 2001 the SRSG promulgated UNMIK Regulation 2001/4, On The Prohibition Of Trafficking In Persons In Kosovo. The Trafficking Regulation bases its definition of trafficking on the Trafficking Protocol.(126)

Section 2 of the Trafficking Regulation criminalizes those engaging in trafficking, and applies penalties of between two and 12 years’ imprisonment; where a minor is trafficked, the maximum penalty is set at 15 years’ imprisonment. Under the Regulation, those convicted of organizing trafficking are subject to penalties of between five and 20 years, and those facilitating trafficking are also covered. Section 3 makes provision for the conviction of those withholding the identity papers of trafficked women.

Significantly, the Regulation also addresses the issue of demand, criminalizing those who knowingly use or procure the services of a trafficked person; defendants who are convicted may be sentenced to between six months and five years’ imprisonment; where the person is a minor, the maximum penalty rises to 10 years’ imprisonment.

The Regulation also includes a number of measures intended to protect the rights of trafficked women. These include: provisions that ensure that their right to voluntary repatriation should not be delayed by the investigative process; provisions for witness protection; and a prohibition against a victim’s past history being used as evidence in court, except in camera after an application by the defence; and provisions for trafficked women to be granted residence in Kosovo. These provisions are discussed in more detail below.

Section 11 provides that trafficked persons are not criminally responsible for charges of prostitution or illegal entry into Kosovo. However, this provision places the onus on the woman to provide evidence to support a reasonable belief that she is a victim of trafficking. Further measures set out in Section 10 aim to ensure a coordinated program of assistance, but only if the woman provides sufficient evidence that she has been trafficked. Section 10 remains to be implemented.

The lack of consultation with local prosecutors and judiciary during the drafting of the Trafficking Regulation, and the failure to ensure training of all members of the judiciary have resulted in problems in both the interpretation and the implementation of this law.

After the Trafficking Regulation

"Women are treated as criminals and as prostitutes, the men don’t see them as victims," Amnesty International interview with KPS officer.

Despite the promulgation of the Trafficking Regulation, Amnesty International is concerned that neither UNMIK Police, the KPS nor the judiciary were fully informed of its provisions and consequently failed to implement its provisions, including measures for the protection of trafficked women. As a consequence, both law enforcement officers and the judiciary failed to identify women believed to have been trafficked. Section 8 of the Regulation provides that a person who supplies evidence to support a reasonable belief that they are a victim of trafficking with a defence against prosecution for prostitution or illegal entry into Kosovo. Despite this provision, trafficked women have continued to be arrested and prosecuted for border or status violations, or charged with prostitution offences following raids by UNMIK police, without what appears to have been adequate investigation into their circumstances or status. In some cases, they have subsequently been sentenced to 10-30 days’ imprisonment and deportation orders. Women arrested in routine bar inspections were also sentenced and deported.

In 20 cases monitored by OSCE Legal Systems Monitoring Services (LSMS) in 2001, LSMS observed that judges failed to respect this protection against prosecution for prostitution or status offences provided to suspected victims of trafficking. The judiciary argued that there had been no proceedings in, for example, the relevant District Court to establish that the women were victims of trafficking. In other cases they claimed that the Trafficking Regulation failed to set a standard of evidence whereby women could establish their status as a victim. Elsewhere, judges who sentenced four foreign women to 15-20 days’ imprisonment on charges of illegal border crossing from Macedonia, and a two-year deportation order, informed LSMS that they had never seen the Trafficking Regulation.(127)

In 2002, almost 100 foreign women were arrested by TPIU personnel, 20 for prostitution, 25 for possession of false documents, 22 for illegal border crossing and 10 for soliciting or procurement; Amnesty International has been unable to obtain figures for the numbers of women convicted, sentenced to a period of imprisonment and deported. (128)

However, the numbers of women arrested and deported declined from 2002,(129) a policy change driven not by the need to protect the rights of trafficked women, but according to TPIU, by a lack of enforcement powers for deportation orders made by the courts.(130)

By December 2003, some 33 women had been arrested for prostitution and six for possession of false documents, including a woman, trafficked into Kosovo, who told Amnesty International that, having left her "boyfriend":

"I went to the police station because I had a false passport, and they said, ‘Why did you not tell us this before?’ I said, ‘It’s your job, not mine’. I spent 14 days in prison in Prizren, and six days in Lipjan. After five months I had to go to court to testify about how I got the false passport."(131)

Amnesty International is concerned that in these and other cases, there appears to have been no adequate inquiry into the status of these women, despite reasonable grounds to suspect that, in many cases, they had been trafficked. As the OSCE Office for Democratic Institutions and Human Rights (ODIHR) has reported, externally trafficked women across the region tend to be recognized as victims only if they choose to participate in the IOM repatriation program; those who - for various reasons - do not wish to be so identified or who the authorities fail to identify, are subsequently either criminalized or left to return to prostitution.

The police or TPIU rarely provided these arrested women with access to a lawyer or with appropriate interpretation services. The judiciary, in convicting and sentencing these women, failed to implement the provisions of the Regulation and served to criminalize women trafficked into Kosovo. In all such cases - including those of possible prostitution or status offences - women should be guaranteed all the rights to which detainees are entitled when they are arrested, including the right to legal assistance.

Different Strategies

Since the passing of the Trafficking Regulation, the TPIU have adopted a number of different strategies to address the issue of trafficking.

In early 2001, a system of registering foreign women working in bars and suspected of prostitution was adopted throughout Kosovo by the TPIU. This strategy had been used by UNMIK police in the Gnjilane/Gjilan region from March 2000, and had resulted in their subsequent deportation.(132) Registration is conducted by TPIU officers, who ask the woman to complete - in her own language - personal details, including her name, place and date of birth, place of work, job and address in Kosovo. The link to deportation was abandoned.

Registration was designed as an investigative tool, identifying bars and other premises in which women were suspected of working in (forced) prostitution, and the identity of the traffickers who could be associated with such premises, in order to gain evidence, "so that the most prosecutable cases may be prosecuted".

The former Head of the TPIU told Amnesty International that registration also provides them with access to potential "victims of trafficking", allowing officers to explain to registered women that they "could be in danger of being forced into prostitution and the dangers of having been trafficked into the country"; and that in making regular visits to such premises, the TPIU were able to provide women with the opportunity to report criminal behaviour against them. (133)

The TPIU also uses registration to monitor the re-trafficking of women, transferred or sold by their owners to other "owners" in Kosovo, or sometimes Macedonia. The TPIU informed Amnesty International of the case of a young woman who had been able to ring them to inform them that she was just about to be sold; TPIU subsequently conducted an operation to remove her from the premises.(134)

By the end of 2001, the TPIU database included some 1028 women, some listed under the registration scheme, others identified in the course of "TPIU investigations, uniform patrol vehicle stops, KFOR patrols and border police". Another 1727 women were listed in 2002, and a further 1096 in 2003.(135)

On 6 July 2001, 11 women from Romania, Moldova and Ukraine, who were working as dancers at the Miami Beach Nightclub in Prishtinë/Priština, were interviewed by TPIU investigators and were "advised to register". UNMIK reported that: "No arrest or seizure was made in this case. Such operations will continue in future to keep tabs on the women perceived to be at a high risk for subjection to prostitution. The registration of such target groups with the TPIU would help monitor their movements and activities better and serve as an insurance against their possible exploitation."(136) In response to a complaint by two of the women, the TPIU subsequently initiated an investigation into their allegations. However, the women remained at the club for another month before the owner and his assistant were arrested.

Amnesty International considers that in some cases the registration system fails to protect the rights of trafficked women by leaving them working in bars and other premises, where they are vulnerable to further abuses of their human rights, until sufficient evidence for prosecution is gathered against their "owners".

In the Miami Beach case women were able to alert the police; however, Amnesty International was informed in 2003 by organizations working with trafficked women that an apparently "friendly" relationship between the TPIU and other police, and the bar owners made it difficult for women to trust the police. They reported that women perceived regular police visits to the bars - without any apparent action - as legitimizing their forced prostitution, and some believed that the police colluded with their trafficker in keeping them there. A trafficked woman told Amnesty International:

"Lots of police came every day and they were friends with the bar owner. UN police came twice. The rest of the time it was KPS, mostly. A police officer came and asked me to go outside. He asked me questions but I couldn’t say anything because of the owner’s threats. His girlfriend spoke my language, and the owner made me write down everything that I had said to the police. There was a registration process. The owner, the girls and the policemen all [sat] together, so that we could hear everything that everyone was saying."(137)

This woman told Amnesty International how difficult it had been to convey to a TPIU officer that she wanted to escape: "The police spoke English, then Serbian. We talked carefully and I told him to say to me, ‘You have to come with us’."

Amnesty International is particularly concerned that girls under 18 make up between 15 and 20 per cent of those registered, and that rather than removing girls suspected of being trafficked, the TPIU allowed them to remain in the bars. (138) In response to the organization’s concerns, the TPIU told Amnesty International that in some cases they did contact the IOM, but no attempt was made by the TPIU to remove them: "If you put the minor in the shelter she escapes and you find her in the bar again. They run away from home and they run away from the shelter."(139)

Amnesty International is concerned that registration, which is primarily used as an investigative tool, allows women and girls believed to have been trafficked to remain in the bars, vulnerable to further abuses, until such time as evidence is gathered against their "owners". Rather than a measure to protect the rights of trafficked women, the registration process occurs in the presence of their "owner", and is not conducive to women being safely able to identify themselves as a victim of trafficking. Further, because of the apparently friendly relations between the bar owners and the police, registration appears, in the women’s eyes, to legitimize their forced prostitution.

Border Policing

Measures to control trafficking through the identification of trafficked women or the arrest of suspected traffickers at the borders have been relatively ineffective. Few trafficked women have been identified, either at the international borders or on the administrative boundary line between Kosovo and Serbia proper, even though they are covered by 12 police stations and regular KFOR patrols. (140)

The suspension by the Special Representative of the UN Secretary-General in 2002 of the Law on Movement and Stay of Foreigners,(141) which provided for the earlier arrests and deportation of persons found unlawfully in Kosovo, effectively prevented border police from refusing entry or making arrests, except under UNMIK Regulation 2001/10 or for document offences, without clear evidence of trafficking. However, in cases where the Border Police are able to identify women or girls who they suspect are being trafficked, they interview them separately, in order to establish where they may be travelling to, and then notify the TPIU, who may take appropriate action. On 13 May 2002, for example, two men were arrested shortly after crossing the border and handed over to the TPIU. Their two female Ukrainian passengers - who had been beaten and raped - were provided with shelter.(142)

Closure of premises

In October 2003, despite the arrest of a client and a woman (who the TPIU knew had been trafficked) in the act of sex, and the client’s testimony that his friends had purchased the woman’s sexual services for him, the investigative judge refused to issue an order to close the premises. The woman was subsequently convicted of prostitution and sentenced to 20 days’ imprisonment. When Amnesty International asked why they had brought charges against the woman for prostitution, the TPIU replied: "Some of the women have given up being victims; they just get on with it". The client was not charged under the Trafficking Regulation. (143)

Section 6.2 of the Trafficking Regulation provides an investigative judge with the power to close premises believed to be involved in or associated with trafficking; however, the numbers of premises closed has been low in comparison to the number of raids carried out: in 2002, 370 raids resulted in the closure of 61 premises, many of which later reopened; in 2003, TPIU investigations resulted in the closure of some 57 premises.(144) TPIU expressed their frustration to Amnesty International that the judiciary appeared reluctant to close premises notwithstanding their powers under applicable law.

The organization notes that applicable law in Kosovo prohibits the employment of persons under 18 years of age in "work, which by its nature, or the circumstances in which it is carried out, is likely to jeopardize the health, safety or morals of a young person".(145) The organization is only aware of one instance in which this legislation has been used as a justification for bar closure(146) and urges the authorities to make further use of these measures where there are reasonable grounds to suspect that girls working on those premises may have been trafficked into forced prostitution, or may be at risk of being trafficked.

In June 2001 the TPIU adopted a strategy of having police accompany local municipal fire-safety and health regulation inspectors in conducting random examinations of bars and cafes and questioning customers and women found at those businesses. For example, a joint Fire-Health-Police inspection team conducted examinations of several bars in Prizren suspected of being venues for prostitution, which resulted in the closure of one for health violations and the recovery of four 20-year-old Moldovan women. Although this strategy has been effective in Prizren municipality, not all municipal authorities have been so willing to collaborate with the TPIU.

However, where such premises have been closed, some owners have merely transferred their operation to a different location. Increasingly, there is evidence that in order to avoid disruption to their business, traffickers have removed women from the bars to private apartments. Clients now visit the bar, café or restaurant, buy sex (usually by purchasing an expensive item on the menu), and are then taken, or given the address, of a private house, flat or hotel room, where trafficked women are kept.

Undercover operations

Although the TPIU considers that bar raids were initially an effective strategy, frustrated by the lack of progress and the doubling of the number of premises involved in prostitution between 2002 and 2003 (147) in June 2003 TPIU decided to largely abandon raids, and to move towards an investigative strategy based on undercover operations and surveillance, conducted in conjunction with the Kosovo Organized Crime Police and the Central Criminal Investigation Unit.(148)

By July 2003, TPIU had carried out 14 undercover operations resulting in six arrests of suspected traffickers. On 17 June 2003, in an undercover operation to investigate the Restaurant California in Prizren, a plain-clothes KPS officer confirmed the suspicion that prostitution services were being offered to customers, and that restaurant staff were directly involved. Subsequently, the restaurant’s manager and two women were arrested and six other women working in the restaurant were detained for questioning. The TPIU subsequently applied for the permanent closure of the restaurant.(149)

Addressing Demand

Amnesty International notes that little has been done to address the demand for the services of trafficked women in Kosovo. The TPIU has rarely arrested men suspected of "knowingly" using the services of a trafficked woman under Section 4 of the Trafficking Regulation.

However, the TPIU indicated to Amnesty International that it intends to pursue UNMIK and KFOR personnel suspected of violating Section 10 more rigorously, and has adopted a new strategy to ensure that international civilian staff working for KFOR international contractors be included. One contractor was arrested in October 2003, but was subsequently dismissed and repatriated; criminal proceedings were not brought against him.(150)

Some Albanians suspected of knowingly using or procuring the services of trafficked women - mainly in cases involving girls - had been arrested, but the TPIU reported there had been difficulties in gathering enough evidence to bring cases to trial.

Amnesty International was informed by the TPIU that they continue to be hampered in their efforts by lack of funding and equipment, particularly for both training and equipment for undercover operations.

Although women have been enabled to leave their situation as a result of UNMIK’s anti-trafficking strategies, UNMIK police have failed to address the problem of trafficking in Kosovo satisfactorily. The number of establishments where trafficked women are thought to work (and the number of women trafficked) has increased, and the numbers of perpetrators brought to justice remains low. Despite the provisions of Section 4 of the Trafficking Regulation which criminalizes those who knowingly use or procure the services of trafficked women, UNMIK has singularly failed to address the issue of demand for the services of trafficked women. (151) Meanwhile, significant numbers of women, considered by the TPIU to have been trafficked, have been prosecuted rather than protected.

UNMIK police and the judiciary need to ensure that the rights of trafficked women are fully respected within the criminal justice system, so that having escaped one set of human rights abuses, trafficked women are not subject to a second set of violations at the hands of the authorities.

Criminal proceedings against traffickers

The number of prosecutions of men suspected of involvement in trafficking is low in comparison to the number of raids and other operations conducted by TPIU. This may, in part, be explained by the understandable reluctance of most trafficked women - borne out of the trauma they have already suffered and continued fear of their traffickers - to give evidence in criminal proceedings. There is evidence to suggest that many externally trafficked women prefer to be repatriated as quickly as possible, rather than waiting until the arrest of their trafficker and then taking part in criminal proceedings against their traffickers.

Recognizing this, Section 5.1 of the Trafficking Regulation provides that "[t]he taking of a statement by a law enforcement officer or investigating judge shall in no way inhibit or delay the voluntary repatriation of an alleged victim of trafficking". This provision is a source of tension between the IOM, as the repatriating organization, and the TPIU and the Department of Justice and, who consider that the rapid repatriation of potential witnesses provides a barrier to successful prosecutions. Given, as the TPIU acknowledge, the majority of women do not wish to take part in criminal proceedings - "they just want to get out of here" - it remains to be seen whether improved witness protection measures would encourage women to stay and testify. At the time of writing, in the absence of an adequate witness protection programme, it is safer for externally trafficked woman and girls to leave the country. For internally trafficked women, solutions are more complex.

According to the TPIU, in 2001 some 52 indictments were brought against suspected traffickers. By the end of 2001, based on reports in 25 of these cases, 15 had resulted in a conviction for trafficking offences, five in the release or acquittal of the suspect, and five proceedings were continuing. In 2002, a further 92 charges were brought to the attention of the courts. Based on reports in 68 of these cases, some 27 people had been convicted, 19 had been acquitted or released and some 22 remained before the courts. Some 60 further charges were brought in 2003; by the end of the year some 16 people had been convicted, 18 had been acquitted or released and some 26 remained before the courts.(152)

Overall figures provided to Amnesty International by the Department of Justice, however, differ. According to the Department of Justice, by December 2002, some 80 trafficking cases had been filed under the Trafficking Regulation. Of these, 45 had been completed, resulting in the conviction of some 76 suspects; a further eight were either acquitted or the charges against them dropped.

Although under the Trafficking Regulation the minimum sentence upon conviction for engaging or attempting to engage in trafficking is two years - and five years for a person convicted of organizing a group for the purpose of trafficking(153) - the sentences handed down by the courts by the end of 2002 ranged from four months to six years, with 88 per cent being between four months and three years.

Explanations for the failure to impose at least the minimum sentences set out in the Trafficking Regulation are contested. Members of the international community have alleged that Kosovar Albanian judges ruling on these cases lack understanding of the Trafficking Regulation, and of the gravity of the crime, but also acknowledge that some are subject to pressure by the traffickers. Some Albanian members of the judiciary have stated that their reluctance to impose heavier sentences is informed by concerns for their own security. Until 2003, UNMIK Department of Justice policy appeared to be that trafficking cases were, wherever possible, conducted by international prosecutors and judges, who were provided with security escorts. (154) However, the presence of an international judge in trafficking cases also did not always result in the imposition of the minimum sentence following conviction.

During sentencing hearings lawyers representing suspected traffickers often successfully argued mitigating circumstances on grounds including the age or marital status of the suspect, or the absence of any previous convictions. In one case, a man found guilty of two counts of trafficking and two counts of the withholding of identification papers, under Sections 2.1 and 3 of the Regulation, was sentenced to three years’ imprisonment, on the grounds that, "the accused supposedly has not been convicted so far, that he had a sort of simple mind, he is not well educated, lives on his own without any family left that could give him support and directions for his life, that he had a poor financial status, that he never forced T. and M.[trafficked women] to have sex with him, that he had beaten them, but not several [times]; that he had taken [their] identification papers, but not from the beginning." (155) Amnesty International notes, however, that a 17-year old girl convicted of trafficking other minors, was sentenced to serve up to five years in an educational correctional institution.(156)

Amnesty International notes that members of the international and Kosovar judiciary have failed in the majority of cases to impose sentences according to the provisions of the Regulation, and which match the gravity of the criminal offences and the human rights abuses suffered by the victims.(157)

In many of these cases, the acquittal of the accused or the imposition of a sentence below the minimum provided for in the Trafficking Regulation has been attributed to the fact that the trafficked woman was not present to testify in court trial proceedings, the majority having either been repatriated or unwilling to testify.

Those who have been prepared to give evidence were able to do so under provisions of the Criminal Procedure Code which allow for a witness or injured party to make a statement to the investigative judge.(158) Such statements may then be read into the evidence during the trial, provided that the defence counsel has been afforded the opportunity to cross-examine the witness.(159) However, according to information available to Amnesty International such statements are less likely to carry the weight of statements from defence witnesses who appear in court.(160)

Under the new criminal procedure code, which entered into force on 6 April 2004, investigations will be carried out by the police and the office of the public prosecutor, and only limited provision has been made in law for the provision of testimony before an investigative judge. (161) Amnesty International is concerned that this may mean that the statements of externally trafficked women, who do not wish to take part in trial proceedings before they are repatriated, may not be considered admissible. Consideration must therefore be given to the introduction of further special measures for the provision of testimony by victim-witnesses, which protect their rights, but do not compromise the defendant’s right to a fair trial.

Chapter 4: Protection and support for trafficked women and girls

Assistance to all trafficked women, regardless of whether they participate in criminal proceedings, is fundamental to ensuring respect for and protection of their rights, including enabling them to become active agents in determining their own future and in ensuring their access to redress, including reparation, for the human rights abuses to which they have been subjected.

The right to assistance

International standards require states to provide appropriate protection and support services for women who are victims of violence. General Recommendation 19 of the UN CEDAW requires states to provide: "Appropriate protective and support services" and "Protection Measures, including refuges, counselling, rehabilitation and support services for women who are the victims of violence or who are at risk of violence".(162) UNHCHR Guideline 4.5 counsels states to "ensure that entitlement to such information, assistance and immediate support is not discretionary but is available as a right for all persons who have been identified as trafficked".(163)

Amnesty International also notes that Articles 6 and 7 of the Trafficking Protocol make provision for the support, assistance and protection of victims of trafficking, as do Articles 24 and 25 of the Convention on Transnational Organised Crime. However, these provisions merely require state parties to "consider implementing" them "in appropriate cases". In Kosovo, provisions for both "victim protection and assistance" are set out in Section 10 of the Trafficking Regulation.

Some three years after the promulgation of the Trafficking Regulation, Amnesty International is concerned that an Administrative Directive (AD), intended to provide guidance on the implementation of Section 10 of the Regulation, is yet to enter into force.(164) The organization is also concerned that the text of the draft finalized in September 2003, which had been due to enter into force on 1 October 2003,(165) failed to provide adequate recognition of the rights of victims of trafficking to assistance, and an enforceable right to compensation.

The September 2003 draft of the AD sets out the procedures by which a trafficked woman may apply for assistance and reparation. It requires a trafficked woman to make an application, providing supporting documentary evidence, to the Victim Assistance Coordinator (VAC) in order to receive the free assistance of an interpreter and legal counsel; temporary safe housing, psychological, medical and welfare assistance; assistance with reintegration and/or return; financial assistance and reparations. Decisions are to be made by the VAC within 30 days of the application.

Amnesty International is concerned that the bureaucratic layers created by this procedure, and the absence of concomitant obligations to advise a victim of her rights, may undermine her enjoyment of those rights.

The organization is particularly concerned that such procedures are creating new obstacles to the enjoyment of these rights given that, at the time of writing, all of these services, with the exception of legal advice and access to compensation, are already provided by international and domestic organizations whose work is described later in this chapter. Amnesty International believes that the introduction of an application process for such assistance may, in practice, be inconsistent with CEDAW General Recommendation 19, and with UNHCHR Guideline 9.1 which requires that: "victims of trafficking have an enforceable right to fair and adequate remedies, including the means for as full rehabilitation as possible. These remedies may be criminal, civil or administrative in nature".

The AD also places a responsibility on a trafficked woman to provide evidence "to support a reasonable belief" that she has been trafficked. Amnesty International is concerned that this imposes an unnecessary burden on a trafficked person, and notes in this regard that it is likely that a woman who is aware of the requirement to make such an application in order to access services and assistance will already have been identified by the TPIU, OSCE and either the IOM or, for example, the CPWC, as a "victim of trafficking". The previous draft AD, dated April 2002, did not include provisions requiring a trafficked woman to undergo a procedure to qualify for assistance, but rather conceived the role of the VAC as coordinating the provision of assistance by a number of different NGOs, UNMIK and the PISG; the organization recommends that the current draft be amended to reflect such provisions of the April 2002 draft.

In providing for a decision on assistance to be made within 30 days, the AD also fails to recognize that trafficked persons require immediate support following their "rescue" or escape from a trafficking situation (as is the current practice in Kosovo). Even an expedited process, in which a decision is made within three days, as envisaged in Section 7, in Amnesty International's view, may not respond adequately to the urgency of the need for assistance and services for trafficked persons. In this respect Amnesty International notes that Recommendation 13 of the Brussels Declaration recognizes that trafficked women require immediate assistance and protection.(166)

The composition of the panel envisaged in the appeals procedure raises further concerns.(167) In particular, the organization is concerned that there is a risk that the trafficked woman’s right to confidentiality will be compromised by making confidential information available to a wider audience than should be necessary, thus exposing the woman to further risk of repercussions.(168) The organization also notes that the TPIU have expressed concerns that this procedure could compromise their investigations, by making details relating to traffickers available to the panel, and placing shelter staff at even further risk.(169)

Although the organization welcomes a mechanism that makes provision for reparations outside of a judicial procedure, Amnesty International is concerned that both the awarding of assistance and the provision of reparations are not only subject to an assessment of the means of the trafficked woman - although the details of how these should be assessed are not set out in the draft - but also dependent on available resources, which the VAC has admitted are very limited.(170)

Amnesty International is also concerned that responsibility for implementation of the AD will lie with the Department of Justice, rather than, for example, with the Department of Health and Social Welfare, which would appear to be a more appropriate location for the provision of assistance and support.(171)

Following meetings with the Victim Advocates and Assistance Unit (VAAU) in March and September 2003, in which the organization raised its concerns, in a subsequent telephone conversation with the UNMIK Office of Legal Affairs in November 2003, the Senior Advisor to the Deputy SRSG indicated that Amnesty International’s concerns about the requirement that trafficked women apply assistance would be addressed, although no specific assurances were given.(172)

In light of these concerns Amnesty International urges UNMIK to amend the September 2003 AD so as to ensure that trafficked women and girls receive immediate and appropriate assistance, without having to make a formal application. The organization recognizes, however, that some coordination is necessary to enable a trafficked woman to realize her rights to reparation, given that so few trafficked women are able to do this through criminal or civil proceedings against traffickers.

Amnesty International also notes that the draft AD makes no specific provisions for children who are victims of trafficking. The organization urges that UNMIK ensure that the AD be amended to include specific measures to safeguard the best interests of trafficked children, for whom there should be an immediate enjoyment of the right to assistance and adequate compensation.

Qualifying for assistance

Approximately 50 per cent of women who access shelters have been "rescued" by the police in raids; others - through their own agency, or with the help of others - who manage to escape, or are occasionally allowed to leave by their traffickers, may be referred to shelters by other NGOs and agencies. (173) The status of women who have been "rescued" in police raids is determined in the course of a series of up to three interviews conducted at a police station. These interviews are conducted, often in the early hours of the morning, without the presence of a lawyer.

When women are removed from bars they are arrested and treated as criminal suspects until they can prove otherwise. However, they are not given the rights to which detainees are entitled under applicable law, including access to a lawyer; furthermore, children are interviewed without the presence of a legal guardian (see below). They will be deprived of their liberty unless and until they can establish that they are victims of trafficking.

A police spokesperson described the detention of women as a "soft form of arrest", claiming that a formal arrest process would traumatize them further.(174) However, local NGOs have reported to Amnesty International that the TPIU and other international police officers often failed to treat these women and girls as victims of crime, instead, for example, they have referred to internally trafficked girls as "prostitutes".(175)

Under the "Standard Operating Procedure" (SOP),(176) externally trafficked women are first interviewed by the TPIU to establish whether they have been trafficked. If a woman is identified as a trafficked woman, the TPIU then contacts the OSCE Regional Trafficking Focal Point,(177) who conducts a further interview with the woman and makes a decision as to whether she should be referred to the IOM. If so, she is taken to Prishtinë/Priština for a further interview to establish if she is eligible for IOM assistance, and willing to enter the IOM repatriation program. As noted below, there are no special procedures within the SOP for externally trafficked children.

"Sometimes the women decide [to repatriate] immediately, but in other cases we have to stay for a couple of hours to convince her."(178)

The IOM seeks to ensure that women are willing participants in the repatriation program, and understand that they will be taken to a closed shelter and effectively detained until repatriation. The IOM have, since 2000, conducted over 700 screening interviews, but have observed in 2003 that fewer women wished to accept their services. (179)

Some women do not wish to be repatriated: some are afraid that by being repatriated by the IOM they will be too easily identified as victims of trafficking when they return home, fearing reprisals from their traffickers, their family or their community. For women who do not want to enter the repatriation program but wish to return to their home country, IOM provides a limited mini-program, assisting women in obtaining the necessary travel documents.(180)

Trafficked women who choose not to identify themselves as victims of trafficking or who cannot at the time of interview decide whether they wish to be repatriated are excluded from the IOM assistance program, although they are given a telephone number to ring if they change their minds. Some provision is made at the Interim Secure Facility (ISF, see below) shelter for externally trafficked women who do not immediately wish to be repatriated.

For those unable or unwilling to be identified as victims of trafficking, there is little protection, counselling or other services, since the demise of the mobile health-clinics run by the United Methodist Committee on Relief (UMCOR, see below). If they are arrested, they have little option following their release but to return to the bars. For example, the TPIU informed Amnesty International of a woman who was sentenced to four months’ imprisonment for prostitution.(181) After her release, she wanted to return to her home country, but was unable to get a passport, nor did the police have powers to deport her.

"She is now trapped in a vicious circle. There is no possibility for her to leave Kosovo and she remains working here in a bar. There are no embassies or offices of other countries in Pristina, and although there are such things in Belgrade, they are not allowed to go across the border in order to access their embassies, so they just go back to the bars." (182)

Amnesty International has several concerns about this process. Women face interviews by the police and others in unfamiliar surroundings, often shortly after raids and arrest, often without any female police officers present, and without any legal representation. Within hours of their arrest, they have to decide whether to enter a repatriation program. Furthermore, there are no special procedures for girls under 18.

Internally trafficked women are similarly interviewed by the TPIU, then caseworkers from a local NGO and then referred to a shelter for assistance. At the end of March 2004, a Standard Operational Procedure for internally trafficked women and girls had not yet been agreed.

Support and assistance for girls

"Children who are victims of trafficking shall be identified as such. Their best interests shall be considered paramount at all times. Child victims of trafficking shall be provided with appropriate assistance and protection. Full account shall be taken of their special vulnerabilities, rights and needs". Principle 10, UNHCHR Principles and Guidelines.

International standards call for measures additional to those identified for adults to protect the rights of children who are trafficked, and ensuring in accordance with Article 3(1) of the Children’s Convention that "the best interests of the child shall be a primary consideration".(183)

Under applicable law in Kosovo responsibility for the protection of all children - including trafficked girls - lies with the PISG Ministry of Labour and Social Welfare.(184) A model agreement exists between the Ministry of Labour and Social Welfare and the child protection shelters in Prishtinë/Priština and Prizren (see below), which specifies procedures to be undertaken and criteria to be applied in cases of emergency and planned admissions these shelters.(185) Further procedures developed in 2003 by the Ministry to identify and protect internally trafficked girls, including some very young children, are not yet adequately defined or fully operational.

Until early 2003, internally trafficked girls were taken directly into the care of the CPWC. The new procedures, initiated by the Department of Social Work, involved the assignment of a case-worker, and where necessary a legal guardian, for each child. A 24-hour "on-call" system was established, so that social workers might be called out to police stations to conduct an assessment, and to refer girls to an appropriate shelter.(186) However, according to the TPIU and shelter NGOs, social workers have not always been available, an allegation accepted by the Department of Social Welfare. In some cases girls have been detained overnight at police stations as a result, including in November 2002, when several Kosovar Albanian girls were detained without even their parents being notified.(187) The organization notes that the capacity of the regional Centres for Social Work (CSW)(188) to address cases of trafficked girls has been called into question by the OSCE.(189)

These still limited provisions apply only to internally trafficked children, and there are no specific procedures for externally trafficked girls within the IOM program, as recommended by the United Nations Children’s Fund (UNICEF). (190)

Shelters

States shall ensure that trafficked persons are protected from further exploitation and harm and have access to adequate physical and psychological care. Such protection and care shall not be made conditional upon the capacity or willingness of the trafficked person to cooperate in legal proceedings." Paragraph 8, UNHCHR Recommended Principles and Guidelines.

In Kosovo, provision is made, under Section 10.1 (c) of the Trafficking Regulation, for trafficked women to receive temporary safe housing, psychological, medical and social welfare. Until June 2003, this was provided by shelters run in cooperation with the IOM, the CPWC and other NGOs in Kosovo. In June 2003, under a Memorandum of Agreement between OSCE and UNMIK, and pursuant to the Regulation, the Interim Secure Facility (ISF) was opened, and is run by the Department of Justice VA