How Courts Treat Vulnerability in Cases of Slavery and Human Trafficking

AuthorBruno Lasserre
PositionVice-Président of the Conseil d'Etat
[2019] Irish Judicial Studies Journal Vol 3(2)
Author: Bruno Lasserre, Vice-Président of the Conseil d’Etat.
I have been asked to introduce an important and sensitive subject. Sensitive, because
although we have been talking since this morning of how the law treats human trafficking
and modern slavery, this afternoon’s topic asks us to look more closely at the judge’s role
in dealing with these phenomena, and the vulnerability of the individual victims. In such a
context, the judge has a special role to play, partly because his primary task is to ensure that
justice applies to all, and that everyone can exercise their legal rights, but also because a
judge, whatever issue with which he is presented, is the guardian of ‘judicial ritual’,
in the
course of which, conflicting points of view are presented and explanations given, with the
aims of revealing the truth, disposing of the case, but also of soothing the parties. Now, in
order that judicial ritual should succeed and catharsis work, the judge must keep in mind
the specific facts of the case before him, and in particular, the vulnerability of the parties.
Such vulnerability is often reflected in difficulties both in bringing the matter before the
court and in the vulnerable party presenting their case effectively, once the proceedings
have begun. From that, situations can arise where, by reason of the vulnerability of one of
the parties, the legal process is distorted, and the effectiveness of that party’s rights
diminished. That is why it is up to the judge to act in a way which goes beyond the
adversarial process.
This differentiated approach is particularly necessary when dealing with victims of
trafficking or slavery, who are often reduced to slavery going beyond the physical and
extending to coercive control. When such persons appear before a judge, either as
witnesses or victims, they are particularly affected by the violence they have suffered, such
that their fear and the internalisation of certain behaviours can place them at a disadvantage
in seeking justice. A criminal judge knows something of this, dealing as he does every day
with confrontations between victims and their alleged attackers. But, although an
administrative judge may be less expert on that particular subject, he or she is in the habit
of dealing with vulnerable people asylum seekers, detainees, and individuals who are
socially or economically precarious and consequently, he or she will have developed a
balanced approach, taking account of the normal requirements in the exercise of the right
to a fair trial and of the fragility of the individual, so as to guarantee effective access to
Without resorting to equity, two responses are open to a judge dealing with vulnerable
litigants: the first is to ensure that the legal provision in question, and its interpretation,
guarantees the effectiveness of the legal rights of vulnerable persons (see below); the
second is less obvious to the untrained eye, but is just as important, if not more so: the
Written in collaboration with Sarah Houllier, administrative judge and judicial assistant to the Vice-Président of the
Conseil d’Etat.
Antoine Garapon, Bien juger: essai sur le rituel judiciaire (Odile Jacob 1997) (Good judging : an essay on the ‘judicial ritual’).

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