How Courts Treat Vulnerability in Cases of Slavery and Human Trafficking

• Author: Bruno Lasserre
• Position: Vice-Président of the Conseil d'Etat
• Pages: 1-7

IRISH JUDICIAL STUDIES JOURNAL

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[2019] Irish Judicial Studies Journal Vol 3(2)

HOW COURTS TREAT VULNERABILITY IN

CASES OF SLAVERY AND HUMAN TRAFFICKING

Author: Bruno Lasserre, Vice-Président of the Conseil d’Etat.

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Introduction

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’,

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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

justice.

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

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Written in collaboration with Sarah Houllier, administrative judge and judicial assistant to the Vice-Président of the

Conseil d’Etat.

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Antoine Garapon, Bien juger: essai sur le rituel judiciaire (Odile Jacob 1997) (Good judging : an essay on the ‘judicial ritual’).