In the Pearce case, the suspect faces charges of, inter alia, human smuggling. Under Dutch law, prosecutors may bring charges for human smuggling (mensensmokkel, art. 197a DCC), human trafficking (mensenhandel, art. 273f DCC), offenses based on international criminal law, or combinations thereof. While any prosecution for serious human rights violations contributes to accountability, the choice of offense has important implications for victims’ rights. This memo outlines the theoretical and practical differences in victims’ rights in Dutch criminal proceedings concerning human smuggling and human trafficking.
Procedural rights
The legal standing of victims in human smuggling and human trafficking cases is largely similar. In both contexts, victims have the right to:
- Submit a victim impact statement
- Receive information about the case
- Be represented by counsel
- Access interpretation and translation services
- Access and add documents to the case file
However, victims of human trafficking benefit from European legislation that reaffirms and slightly broadens their procedural rights, providing, for instance, access to witness protection, and safeguards aimed at preventing secondary victimization. No comparable legal framework exists for victims of human smuggling.
Reparations and compensation
Victims of both human trafficking and human smuggling can seek financial redress within criminal proceedings. However, the practical success of such claims is closely tied to the conviction of the perpetrator. While a direct comparison between smuggling and trafficking victims is not possible, victims of trafficking generally have a tangible, though limited, prospect of obtaining financial redress through the criminal justice process, which vary depending on the type of exploitation experienced. In addition, victims of human trafficking who were exploited in the Netherlands and may be eligible for compensation through the Schadefonds Geweldsmisdrijven, a state-funded scheme for victims of violent offenses, a pathway that is largely unavailable to victims of human smuggling.
Immigration and Residence Implications
Victims of human trafficking may be eligible for protections-based residence schemes that are inaccessible to victims of human smuggling.
- Human Trafficking Residence Scheme (Verblijfsregeling Mensenhandel)
Non-European victims or witnesses of human trafficking may be eligible for a temporary residence permit if they report trafficking or cooperate with criminal investigations. This permit is dependent on the criminal proceedings. Approval rates which have varied between 42% in 2020 and 68% in 2023.
- Humanitarian extensions (Humanitair Niet-Tijdelijk)
If an individual has received a Human Trafficking Permit, this permit may be extended on humanitarian grounds. Approval rates for such extensions fluctuate between 37% (2021) and 83.33% (2023).
- ‘Urgent Path’ Residence Permit (Schrijnend Pad)
Vulnerable victims who cannot or do not wish to report trafficking may qualify for a temporary residence permit under the ‘Urgent Path.’ This applies to individuals facing serious threats, medical or psychological issues, or minors. However, this permit is rarely granted, with fewer than ten issued per year since 2019.
Victims of human smuggling must rely on standard migration procedures, and those without valid residence permits formally risk return orders, irrespective of their cooperation with authorities or the harms they have suffered. While EU and UN standards require that all victims be able to exercise their rights, including participation in criminal proceedings, the treatment of smuggling victims appears to depend on whether migration law or criminal law is dominant in practice.
Victims of human trafficking are thus generally in a more favorable legal position than victims of human smuggling, in terms of their procedural rights, access to reparations, and residence prospects. This difference is due to the fact that human trafficking is considered a crime against a person, whereas human smuggling is viewed as a crime against the state, with the ‘consent’ of the smuggled individual. This advantage is, however, more limited than the legal framework implies and is highly case-specific, depending on factors such as the type of exploitation, the location of the crime, and the availability of evidence to substantiate victimhood.
