to solicit expert opinion on the next steps for the Database. The Expert Group Meeting, bringing together human traficking practitioners from government and civil society organiza-
tions, academics, and law irms, recommended the development of several secondary products, including a case digest of traficking cases.
UNODC then convened, from 6-8 May 2014 at its HQs in Vienna, a dedicated Expert Group Meeting to develop the Digest. The meeting included experts from Argentina, Australia,
Austria, Azerbaijan, Belgium, Canada, Colombia, Egypt, Finland, France, Germany, Japan, Kenya, the Netherlands, Nigeria, the Philippines, Serbia, Thailand, the United Kingdom and
the United States of America.
The meeting allowed the expert participants to provide UNODC with additional cases, present in-depth analyses of selected cases and provide comments on the Case Digest in
terms of format, organization, issues addressed, nature of cases used and their geographical ambit. Several experts from India, Israel, Norway, Russian Federation, Swaziland and Tonga
who were unfortunately unable to attend the Expert Group Meeting also kindly agreed to review the Draft Digest and furnished UNODC with comments and additional cases.
1.3 Challenges in developing this Case Digest on evidential matters
A digest of evidential cases may face particular dificulties in its effort to provide a practical tool for practitioners. In order to enable practitioners to evaluate the advantages and limitations
of the Case Digest, this section focuses on a number of typical problems, some of which were touched upon in the introduction above. There are a number of natural obstacles which
may impede learning among national jurisdictions.
Firstly, case law follows upon legislation, which may vary among States, thus imposing natural limits on what can be directly learned from jurisdiction to jurisdiction. National laws may
differ regarding elements of the offence, evidential rules in general,
10
special evidential rules in traficking cases,
11
and different substantive criminal law principles and procedural law. Moreover, legal systems may differ in ways which impact upon evidence, such as common
law and civil law systems. These differences may relate for example to the role of the judge the role of exclusionary rules which limit the admissibility of evidence, and while both systems
rely upon both oral and written evidence, the common law has a clear preference for oral testimony, whereas the civil law systems exhibit a preference for written documents. Moreover,
whereas in common law systems, as a rule, evidence gathering takes place before a trial, in
10
Examples include the following: Are persons permitted to testify against family members? Is the testimony of one person suficient to convict the defendant and if so under what conditions? Can women or children testify,
and if so, under what conditions?
11
Some national laws include explicit provisions on evidential matters in traficking in persons cases such as the irrelevance of past sexual behaviour see the Philippines Republic Act No. 10364, section 17-B; express
statements by which it is irrelevant to certain crimes whether or not escape is possible or whether or not the victim attempted to escape See Australia Criminal Code, sections 270.43 and 270.63; what evidence is relevant in
cases of slavery or traficking See Australian Criminal Code sections 270.10 and 271.11A or what evidence is relevant to ascertaining if exploitation has taken place See Canadian Criminal Code, section 279.042. The Kenyan
Counter Traficking in Persons Act No. 8 of 2010, for sexual exploitation refers back to offences under the Sexual Offences Act 2006, which in section 34 provides that no evidence of character and previous sexual history of the
victim other than evidence relating to sexual experience or conduct in respect of the offence which is being tried, shall be adduced unless upon an application to court.
civil law systems, evidence gathering can extend to the period during the trial process, as the judge is the main evidence gatherer; and whereas common law systems rely on a system
of precedents to maintain uniformity, civil law jurisdictions do not view precedents as conclusive.
12
This complexity is heightened by the existence of mixed systems, which espouse elements of common law and civil law, as, for example, those in Finland, Japan or
the Philippines. These differences may limit what one system can learn from another. Thus, if a victim is too
fearful to testify, a solution espoused by a civil law jurisdiction, whereby written statements are admissible instead of testimony, might be unacceptable in a common law system unless
it conforms to an accepted evidentiary exception.
13
By the same token, a solution adopted by a civil law system, whereby the judge may undertake the questioning of a fearful witness
himself in order to encourage him or her to be more cooperative—might be unacceptable in a common law system. On the other hand, the creative solution of a common law court in
order to admit hearsay evidence may be wholly unnecessary in a civil law court in which the judge may freely evaluate evidence.
Common law and civil law systems are not the only cohesive systems of law worldwide. Further examples can be found in countries which adopt religious laws or recognize certain
forms of customary law.
14
National systems may also differ in the adjudicative apparatus they choose, with some jurisdictions relegating this to a judge, whereas others rely upon a jury to
rule on facts while the judge gives the jury instructions on law. This too may impact upon evidential issues and especially in jurisdictions which require the jury verdict to be unanimous.
Juries may also be more reluctant to convict in cases where victims do not testify, even if the relevant law allows this.
National systems may also vary in their approaches towards international conventions, with “monistic systems” incorporating provisions of ratiied conventions directly without the need
for further national legislation and “dualistic systems” necessitating further national legislation even after ratiication.
15
Despite these obstacles, as mentioned before, the common normative framework provided by the Traficking i n P ersons P rotocol a ims t o a ssist S tates t o b ridge a t l east s ome o f t he
gaps among them by providing uniied t erminology a nd c oncepts. I n a ddition, a t l east i n regard to civil and common law systems, there seems to be a broad consensus that with
time, there has been a convergence between them, along with the development of mixed systems with elements of each.
16
Thus, a hermetically sealed distinction between the systems is not grounded in reality. For example, while civil law systems do not ascribe conclusive
force to precedent, judges and lawyers still use other cases in order to support their claims; while civil law systems do not exclude hearsay testimony, its weaknesses may be taken into
account by the judge in evaluating its weight. In addition, clearly, learning can take place
12
See Lundmark, Charting the Divide between Common and Civil Law Oxford University Press, 2012 and Capowski, “China’s Evidentiary and Procedural Reforms, the Federal Rules of Evidence and the Harmonization of
Civil and Common Law”, 47 Texas International Law Journal 2012, 455, 459-466.
13
Mixed systems like Kenya may allow admission of witness statements according to the Kenyan Criminal Procedure Code sections 154 and 156, in conjunction with section 34 of the Evidence Act.
14
An example is Nigeria, which in addition to common law, civil law and sharia law, includes as a source, customary law, which is derived from indigenous traditional norms and practice, including dispute resolution
meetings. See: http:elearning.trree.orgmodpageview.php?id=142.
15
This contrast is less clear than it appears to be, as even in monistic systems details may need to be illed in by legislation.
16
See Lundmark, ibid. p. 37.
