The Resolution of the Criminal Cassation Court Within the Supreme Court on the Qualification of a Person's Actions as Human Trafficking Using the Vulnerable State of Victims

The Criminal Cassation Court within the Supreme Court considered criminal proceedings against two persons charged with human trafficking (part 2, Article 149 of the Criminal Code of Ukraine) on cassation appeals lodged by one of the convicted persons and two defence lawyers. The complainants alleged, inter alia, that the vulnerability of the victims had not been established and that comprehensive psychological and psychiatric assessments had not been conducted to confirm that condition.

The SC Criminal Cassation Court dismissed the cassation appeals stating the following.

The courts of the first and appeal instances comprehensively and thoroughly examined the arguments of the defenсe that the actions of the persons did not contain the elements of the crime they were accused of, namely, the use by them of the vulnerable state of the victims. To refute these arguments, the courts referred to the victim's testimony at the hearing that she had agreed to travel abroad to provide sexual services because of her vulnerable state due to financial problems; written evidence, in particular, materials confirming that the victims had a loan debt, data from operational-search measures, which established that the accused were aware of the existence of the victims' debts under a loan obligation.

The definition of a vulnerable state of a person is of two types: 1) the state of a person that deprives or limits his ability to be aware of his actions (inaction) or control them, to make independent decisions of his own free will, to resist violent or other illegal actions; 2) the coincidence of grave personal, family or other circumstances.

Given this, the conclusion about the presence or absence of such a condition of the victim and its use by the accused in the commission of a crime can be based both on the results of a medical, psychological, psychiatric or comprehensive examination of the victim which will confirm that the person has a physical disease or physical disability, a special psychological condition or a mental disorder, and on the combination of evidence of grave personal family or other circumstances.

At the same time, the vulnerable state of a victim is an evaluative concept, its presence is determined by the pre-trial investigation bodies and the court on the basis of analysis of specific circumstances of criminal proceedings.

On the basis of the evidence examined, the courts reached the correct conclusion that the accused were aware of the purpose of their actions and acted to achieve it - the sexual exploitation of women in the UAE, whom they sought out and facilitated their departure for that purpose, by engaging in these activities to recruit victims, they had no knowledge of the material condition of these persons other than that provided to them by the victims themselves, and therefore perceived their condition as vulnerable and suitable for recruitment.

At the same time, the allegations in the defence lawyer's cassation appeal about the need for a comprehensive psychological and psychiatric examination to confirm the vulnerable state of victims are groundless, as such a state that deprived or limited their ability to be aware of their actions (inaction) or control them, to make independent decisions of their own free will, to resist violent or other illegal actions was not due to physical or mental characteristics or external circumstances.

Resolution of the Criminal Cassation Court within the Supreme Court in case No. 750/5031/18 (proceedings No. 51-2761км21) – https://reyestr.court.gov.ua/Review/100919043.

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