OVERVIEW OF TRAFFICKING IN HUMAN BEINGS FOR LABOUR EXPLOITATION

Transcription

1 Project is financed by the European Union within the Support to Civil Society Programme The contents of this publication are the sole responsibility of ASTRA and can in no way be taken to reflect the views of the European Union OVERVIEW OF TRAFFICKING IN HUMAN BEINGS FOR LABOUR EXPLOITATION Contents Challenges for the Western Balkan countries versus global trends Challenges for the Western Balkan countries versus global trends I. Concept of trafficking in human beings for labour exploitation II Overview of regional and European policies affecting the combat of THB for labour exploitation-legal requirements III Institutional policies- key for effective THB mechanisms IV Good practices in combating THB V. Western Balkans implementing policies on THB for labour exploitation CONCLUDING REMARKS: ANNEX 1 1

2 TRAFFICKING IN HUMAN BEINGS FOR LABOUR EXPLOITATION Challenges for the Western Balkan countries versus global trends Where did we fail? When we started developing NRMs (National Referral Mechanisms) and TRMs (Transnational Referral Mechanisms) in the early years of this century, many of the stakeholders (different expert groups from Southeastern Balkans and Europe) had in mind combating the practices of the medieval torture combined with the slavery-based economies in the late 18 and 19 century. Shocking field reports, mostly issued by the relevant CSOs, that were showing terrifying practice with bloody outcomes and lost lives, had struck international community and pushed it toward the immediate and comprehensive action to suppress such practice. Very little understanding of the problem behind the practice, no relevant data and inability of the states to address such issue had locked policy designers into endless discussions on what comes first human rights or security issues, economy and poverty or suppressing trafficking in humans, prosecution and criminal investigation or assistance to victims. However, the painful process resulted in design and adoption of legal and institutional framework in most of the civilized countries with commitment to detect and suppress trafficking in humans while protecting the victims. After adoption of the UN Palermo Protocol and ECHR instruments national (NRMs), and because of the nature of the Trafficking in Humans, cross-country mechanisms (TRMs) were developed. All of them emphasized the well-being of the victims of trafficking in their declarations, and the so called victim-centred approach. The civil society organizations (mostly assistance providers and human rights defenders) were integrated in the systems of identification and protection of the victims, and societies were sensibilized toward the issue through numerous campaigns. The Stability Pact, OSCE and the Council of Europe as leading policy actors in the field were driving forces in addressing the issue and designing instruments, as well as monitoring of the implementation of the designed framework. Since 2005, an active country monitoring and capacity building programs have been initiated, especially in the SEE Europe as UN Palermo Protocol has framed THB as a problem of the organized crime and as the statistics showed that so called Balkan Route was used as one of the main transport corridors for the victims of trafficking. With all of those in place, the expectations were high and all stakeholders were eager to see the results of such complex and costly instruments. And these results still remain to be seen. The choice to analyze Balkan countries developments in the fight against trafficking, as well as Western Europe Countries in this analysis was a natural result of common knowledge on THB. SE Europe is still a high risk region in terms of recruitment and transport of victims to Western Europe, and Western Europe countries still remain as one of the world s destination regions. And what is different in 2012 in comparison to the 2001 (time of adoption of the UN Palermo Protocol), except that we have a decade of organized fight against trafficking in humans? Not much. The approximate number of victims still remains the same or similar on the year basis, the number of the registered cases and number of assisted victims is declining in the last three years. The prominent NGOs that have profiled themselves as the main actors in the victims assistance are mostly left out of the identification and assistance procedures (at least in the SE Europe) and the states are issuing reports that mostly state that there is no major problem of trafficking in humans on their territory. Just to remember, through international treaties and national instruments, we promised judicial protection to the victims, as well as assistance, reflection, legal and social protection. Efficient prosecution of traffickers, as well as seizure of illegally gained property was prescribed. Rights and instruments to effective remedy to victims were guaranteed. And most of victims are still out of reach of such instruments, waiting for rescue or at least reasonable hope in their lives. The official reports, based on approximate numbers are indicating that we have substantially failed in these efforts. ILO states that in 40% out of 155 analyzed countries, authorities did not prosecute a single person in the last 5 years. In additional 60% of countries in the last 5 years the average number of prosecutions was less than 10 and estimated number of the victims of forced labour, that is in at least 75% related to trafficking in humans, is 2.45 million victims at any given moment. Global reports still operate with the numbers of victims of trafficking of around 6 million people at any given moment. Number of identified victims per year in the Balkans varies, from a few in Croatia to a few hundreds in Serbia. And this cannot possibly reflect the real situation. If we use only rough estimations on the numbers of victims, the world wide average approximate number of victims of trafficking will be 85 victims per inhabitants ( world population/ estimate number of victims of trafficking in humans). 2

3 High risk regions may have even larger number of victims that pass their territory or that are destined in that territory. Both Western Balkans and the EU are the high risk regions (transit and destination) and number of registered victims is far less than the above-mentioned average. In Croatia in 2011, the number of identified victims per inhabitants was 0.31 (258 times less than rough estimations mentioned above), in Serbia in 2011 number of identified victims per inhabitants was 0.85 (approximately 100 times less than rough average estimation). Numbers are not better in the countries that we have targeted as EU countries with the best practices (the Netherlands and Belgium). For example, the number of identified victims in the Netherlands in 2011 was By applying the same formula, the Netherlands has identified 6,3 victims per inhabitants, leaving us with the conclusion that practices in the Netherlands and many other Western Europe countries are better, but not the best. Playing with the numbers has provided us with one of the most important challenges in addressing the problem of the fight against THB reaching and identifying victims. As rough estimations do not match whatever methodology we apply, it is obvious that this is a field that requires effort, focus and emphasis in all future actions against THB. Other approaches and attempts (such is border or migration control) obviously did not provide us with expected results. While doing so, and playing with the numbers, let s just remember that behind each number there is a terrifying and often bloody story that is worth every effort and resource, and keep in mind that we are their only hope. Munir Podumljak 3

4 TRAFFICKING IN HUMAN BEINGS FOR LABOUR EXPLOITATION Challenges for the Western Balkan countries versus global trends Sadly, we know that this evil persists in the world today. We see people bought and sold in prostitution; held in involuntary servitude in factories, farms, fishing vessels, and homes; and captured to serve as child soldiers. This crime persists because it is a fluid phenomenon that responds to market demand and operates in zones of impunity that are created by vulnerabilities in laws, natural disasters, and economic instability. It is a crime that impairs human rights, degrades public health, corrupts government officials, and weakens rule of law. And it seems that each generation needs to fight back against this ancient scourge. 1 *Speech at the University of Luxembourg by Luis CdeBaca, Ambassador-at-Large, Office To Monitor and Combat Trafficking in Persons, October 14, I. Concept of trafficking in human beings for labour exploitation The universal concern over addressing trafficking in human beings (THB: hereinafter) is moving towards developing mechanisms for prevention, detection and prosecution which are the indispensable mechanisms when talking about THB for labour exploitation. The notion of forced labour, migration and border management, crime and human rights, international trade are all part of the puzzle of trafficking as such, especially in its labour exploitation appearance. As a solution, when tackling trafficking in human beings, the holistic approach is being recommended by different institutions and experts. It was extensively described in UNODC International Framework for Action to implement the Protocol to Prevent, Suppress, and Punish Trafficking in Persons, Especially Women and Children supplementing the UN Convention against Transnational Crime(2003) 2 (hereinafter: UN Trafficking Protocol), defining the trafficking in human beings as a multidisciplinary problem, which needs comprehensive international approach based on evidence and sustainable actions. Respectively, numerous UN Conventions cover certain aspects of the THB for labour exploitation. The particular attention shall be drawn to two main aspects; labour exploitation definition and human rights protection. The human dimension of THB entails a broad scope of human rights violations and covers the work of numerous UN Agencies 3, dealing with right to life through freedom from slavery and torture, to effective remedy for suffered violations of these rights. The right to effective remedy and redress of the victims was guaranteed under different conventions embracing different aspects of it. The UNODC imposes an obligation to the States in the Article 14 to compensate the damages to the victims of transnational organized crime, which refers to the victims defined in UN Trafficking Protocol, as THB is considered to be a crime against a person. This first global legally binding instrument with an agreed definition on trafficking in persons, facilitated national approaches with regard to the establishment of domestic criminal offences that would support efficient international cooperation in investigating and prosecuting the cases of trafficking in persons. 4 It imposes a thorough framework for obligations to the Parties to the Convention and the Protocol, following the process of prosecution of traffickers, protection of victims of THB and prevention, including cooperation and coordination on international and national level, acknowledging the changing nature of the THB by providing mutatis mutandis principle. Even though it is a significant step towards proper and adequate combat against THB, the harmonized approach is lacking the sustainable 1 Luis CdeBaca, The Global Fight Against Human Trafficking: Ten Years After Palermo, University of Luxembourg, October 14, 2010, 2 So-called Palermo Protocol. 3 E.g. UN Office of the High Commissioner for Human Rights (OHCHR), the UN High Commissioner for Refugees (UNHCR), the UN Children s Fund (UNICEF), and the UN Entity for Gender Equality and the Empowerment of Women (UN Women) 4 Art. 3, Para. (a) Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children (UN Protocol), Supplementing the United Nations Convention Against Transnational Organized Crime (UNCTOC), G.A. res. 55/25, annex II, 55 U.N.GAOR Supp. (No. 49) at 60, UN Doc. A/45/49 (Vol. I) (2001). 4

5 mechanism for evaluating the fulfilment of the States obligations with adequate sanctions thereof. Numerous Reports and Toolkits 5 for implementation of the Protocol and relevant conventions are being developed in order to ensure uniformed implementation, monitoring and evaluation of efficiency of the measures prescribed. In order to further elaborate on the elements of the THB, it is important to make a distinction between smuggling and trafficking, thus clearly targeting the trafficking for labour exploitation based on the definitions in UN Trafficking Protocol 6, due to more comprehensive understanding of the status of THB victims and rights guaranteed thereof. While trafficking is a crime against a person, the smuggling is targeting the sovereignty of the state. The purpose of combating THB lies in protection of a person against human rights violations and obligation of the State to provide adequate protection to its citizens, due to exploitative relationship between the victim and the perpetrator of a crime, preceded by organized recruitment/ movement and continuous exploitation of the victim for profit. In the case of cross-border THB, purpose is the exploitation and not border crossing itself (unlike in smuggling cases), which requires exceptional non-application of the national border management legislation and exclusion of crime. As noted in the UN Trafficking Protocol, the consent of the victim subjected to means of use of force, abduction, coercion or fraud is irrelevant for the proceedings combating THB 7. According to the ILO Convention 8, definition of forced labour, considered as exploitative in nature, constitutes of two elements: the work or service exacted under the menace of penalty and involuntarily undertaking of that work of service. In what manner this interacts with trafficking in human beings? When movement of persons internally or cross-border evolves into forced labour or recruitment, the trafficking in human beings for labour exploitation occurs. 9 In industrialized countries, including Europe, ILO experts estimated that out of 360,000 forced labour victims, three out of four were trafficked. 10 This explains the reason for shifting the focus on labour exploitation. Even though the sexual exploitation is not the main focus of this research, it is covered in the statistics and data by the various bodies examining the forced labour, as commercial sexual exploitation. Global Report following the Declaration of Fundamental Principles called Global Alliance against Forced Labour 11 addressed the global problems in fight against forced labour in all of its appearances and progressive forms, further to policies shortcomings all over the world knitted with same features as impunity, insufficient institutional capacity, poverty, discrimination and fast economic demand development. ILO Special Action Programme to Combat Forced Labour estimated 2.45 million of THB victims of forced labour, out of which 32% per cent is for economic exploitation and 43% for commercial sexual exploitation. As noticed in ILO Global Report 2005, there is insufficient knowledge of the broader dimension of the problem due to low priority given by the policy-makers and law enforcement agents, and inadequate amount of resources to investigate the labour dimension. The above-mentioned emphasizes the problem of efficient identification of THB for labour exploitation, thus 5 For instance :International Framework for Action to implement the Trafficking in Person Protocol Article 3 Para(a) of the UN Trafficking Protocols read: Trafficking in persons shall mean the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs. 7 Source-International Center for Migration Policy Development, 8 Forced Labour Convention, 1930 (No. 29) 9 B. Andrees and P. Belser (ed), Forced labour: coercion and exploitation in the private economy (ILO, Geneva 2009) p. 180.in Berinaert Jeroen A Trade Union Perspective on Combating Trafficking and Forced Labour in Europe in Combating Trafficking in Human Beings for labour exploitation Conny Rijken ed.,wolflegal Publisher the Netherlands P. Belser, M. de Cock, F. Mehran, Minimum Estimate of Forced Labour in the World (ILO, Geneva 2005) in Berinaert Jeroen A Trade Union Perspective on Combating Trafficking and Forced Labour in Europe in Combating Trafficking in Human Beings for labour exploitation Conny Rijken ed.,wolflegal Publisher the Netherlands Available at: 5

6 its progress in number and forms. The profit of 32 billion 12 US Dollars was confirmed in Global Report in February , pointing out at potential of growing trends after global economic crisis. The element of coercion was observed in the 2009 Global ILO report, which recognized difficulties to prosecute and penalize of THB for labour exploitation due to its inconsistent form and definition. Data collection for closer observation of the phenomena used the bottom-up approach by various agencies in collecting data on national and regional level and then incorporating it in the international figures. The margin of error in estimates is always present due to sensitivity and complexity of the problem, as well as fast development into new forms, as a fluid phenomena. This underpins the importance of more coherent and effective national reporting of trafficking in human beings (THB) for labour exploitation, thus also the need for more effective identification of THB for labour exploitation. In this respect, non-governmental organizations working with trafficked persons are reliable partners in monitoring and evaluating the human rights impact of anti-trafficking measures. 14 The UNODC underlines ineffective actions against the THB due to minimal legislative and institutional framework to ensure such implementation. 15 The same conclusion can be drawn from the results of the UN.GIFT data collection published in the UNODC Global Report on Trafficking in Persons, which demonstrates that, as of November 2008, 80 per cent of the 155 countries and territories covered by the report had legislation comprising a specific offence on trafficking in persons in place. However, 40 per cent of the 155 countries covered by the Global Report did not record a single conviction for trafficking in persons from 2003 until The remaining 60 per cent recorded less than 10 convictions per year from 2003 to The latest statistics reveals that only 1 person is prosecuted on 800 THB victims, estimating the cost of one person of 1488 US Dollars. 17 Consequently, the challenges for the States increased nationally, regionally and internationally 12 years after THB has been recognized as international phenomena and 82 years after recognizing the shift of slavery into forced and compulsory labour. The institutional capacities of the four Western Balkan States shall be assessed in terms of meeting the needs to respond the roots of this highly profitable crime, taking into account identification and prosecution effectiveness, while protection of the rights of THB victims, in comparison to two EU Member States pointed as good practices, in that respect. II Overview of regional and European policies affecting the combat of THB for labour exploitation-legal requirements 1. Pan-European policies the Council of Europe Trafficking in human beings has become a major problem in Europe at unprecedented levels, to the extent that a new form of slavery appeared (ECtHR case-siliadin v. France), even though the sexual exploitation served as impetus for establishing a legal framework to fight this phenomenon 18. One of the primary concerns of the Council of Europe is to safeguard and protect human rights - THB directly 12 Patrick Besler, Forced Labour and Human Trafficking: Estimating the Profits, working paper (Geneva, International Labour Office, 2005) 13 available at: :// declaration/documents/publication/wcms_ pdf International Framework for Action to implement the Trafficking in Persons Protocol; 2009;UNODC 16 Ibid. 17 Human Rights Review Recommendation No. R (2000) 11 of the Committee of Ministers to Member States on action against trafficking in human beings for the purpose of sexual exploitation and Declaration of Strasbourg Summit on sexual exploitation as a threat to democracy in Europe 6

7 undermines the values on which the Council of Europe is based. In spite of declarative intention to combat trafficking in human beings by the European Community (former Framework Decision against Trafficking and Directive on the residence permit issued to third-country nationals who are victims of trafficking in human beings or who have been subject of an action to facilitate illegal immigration who cooperate with the competent authorities), there is a necessity of extension of minimum requirements for more efficient combat against trafficking on European soil. Attention of the Council focused on countries of origin and transit in South and South-eastern Europe with particular attention to legislative reform. 19 The Council of Europe adopted the Convention on Action against Trafficking in Human Beings (Warsaw, 16 May 2005) (hereinafter: European Convention), focused on protection of victims of trafficking and the safeguard of their rights and offered its effective judicial protection under the European Convention of Human Rights and Fundamental Freedoms (hereinafter: ECHR). Based on violations of rights and freedoms under the ECHR (Article 4 20 and Article 2 - Right to live; Article 3 - the right not to be tortured, and subjected to inhumane and degrading treatment; Article 5 - the right not to be kept in illegal imprisonment and Article 6 - the right to a fair trial, referred for THB cases), the victims of THB are provided with the right to effective remedy and redress for pecuniary and non-pecuniary damages within limits of just satisfaction under Article 41 of the ECHR. A deeper review of the case-law shows that ECtHR uses extensive interpretation of the scope of protected rights, thus the human trafficking has been also handled under prohibition of torture in a broader context. 21 The European Convention also provides the setting up of effective and independent monitoring mechanisms for controlling the implementation of the obligations contained in the Convention. On the eve of the adoption of the European Convention, the Parliamentary Assembly developed a much more specific Recommendation on the subject of a future convention which referred specifically to the need to ensure that this instrument will bring added value to other international instruments. The spirit of the European Convention rests on the UN Trafficking Protocol goals and recognition for added value of its commitments in supporting 3Ps (prevent the trafficking, protect the human rights of victims and prosecute the traffickers). Thus, the Recommendation 22 contained explicit instructions on what the Assembly considered to be important provisions, related to penalization and harmonization of penalties and introduction of the extradite or prosecute rule to ensure prosecutions. Besides criminalization requirement of THB, the European Convention requires criminalization of associated trafficking actions, taking into account the changing nature of THB and actions towards trafficking. The European Convention goes beyond the organized crime component necessary by the UN Trafficking Protocol. It also claims that the prosecution is required once trafficking is being discovered and abuse of position of vulnerability even if the exploitation did not take place. On the legal side, the Convention provides the legal basis for considering the previous convictions on THB as aggravating element in judicial proceedings, though the means of implementation are not clearly defined. Provision of liability of legal persons have been included due to the need of addressing the roots of THB, by prohibition of use of services outcome of THB (and associated penalized actions). The added value of the Convention is the fact that it is not related to organized crime, unlike the UN Trafficking Protocol, extending its protection over cases of trafficking by individuals, such as family members. Further on, the European Convention emphasized the importance of avoiding criminalization of victims of 19 Explanatory Report to the European Convention, Galagher Anne, Recent Legal Developments in the field of Human Trafficking: A critical review of the 2005 European Convention and related instruments, European Journal of Migration and Law 8: ,2006 Koninklijke Brill NV.,Netherlands No one shall be held in slavery or servitude.2. No one shall be required to perform forced or compulsory labour.3. For the purpose of this Article the term forced or compulsory labour shall not include: (a) any work required to be done in the ordinary course of detention imposed according to the provisions of Article 5 of this Convention or during conditional release from such detention; (b) any service of a military character or, in case of conscientious objectors in countries where they are recognised, service exacted instead of compulsory military service; c) any service exacted in case of an emergency or calamity threatening the life or well-being of the community; (d) any work or service which forms part of normal civic obligations. 21 ECrtHR, Ould Barar v. Sweden, Application No /98, 19 January Recommendation 1610(2003) 7

8 trafficking, due to regular practice of detention, prosecution and deportation of trafficked persons in Europe, usually for offences related to their immigration status. Therefore, States Parties are required, in accordance with the basic principles of their legal systems, to provide for the possibility of not imposing penalties on victims for their involvement in unlawful activities, to the extent that they have been compelled to do so, which refers to taxatively listing of form of exploitation they have suffered and irrelevance of their actions, accordingly. In general, the European Convention is implementing in a more focused way requirements by the UN Trafficking Protocol in order to improve the ability to identify victims, refer them to adequate support and bring more cases to justice. The provisions include mechanisms for early identification of victims, national referral schemes, and the granting of recovery, medical and social assistance, as well as reflection periods and renewable residence permits to victims. In light of criminal justice concept of fight against trafficking for labour exploitation, the Council of Europe s following recommendations should be taken into account: CoE Recommendations R(97) 13 of the Commission of Ministers of the Member Countries Regarding Intimidation of Witnesses and the Right to Defence, 10th September 1997; and CoE Recommendations R(85) 11 of the Commission of Ministers of the Member Countries on the Position of Victims within the Criminal Law and Procedure, 25th June The European Convention established new monitoring mechanism GRETA (groups of independent experts), aiming at evaluation of measures by each Party signature to the Convention. This was envisaged through regular reports identifying insufficient measures by the State Party and provision of improving the actions. In this respect, the state of play in Croatia shall be examined based on the GRETA Report findings. In addition, a Committee composed of representatives of the Parties (political monitoring body) has been established, which may also, on the basis of GRETA s report, make recommendations to a State Party. Once again role of the civil society has been emphasized through cooperation and sharing information and data between GRETA and CSOs, but no legal requirement has been made in that respect. Taking into account, role of ECtHR case-law relevant for protection of victims of THB for labour exploitation and obligations for the State Parties, two cases shall be closely observed. In 2010 in Rantsev v. Cyprus and Russia case on trafficked person for commercial sexual exploitation, the Court based its decision on application of two crucial legal instruments; ECHR and European Convention and determined obligation for the country of origin and for the country of destination to investigate alleged trafficking in human beings. The case concerns the death of a twenty year old Russian woman, Oxana Rantseva, who was trafficked from Russia to Cyprus, a destination country for women trafficked from Eastern and Central Europe for the purpose of sexual exploitation, under the 'artiste' visa scheme. She was subjected to sexual exploitation in a cabaret in the island s largest coastal resort, Limassol, before she was found dead in March 2001 below the balcony of an apartment belonging to an employee of the cabaret, having been taken there from a police station by the cabaret s owner. The police found a bedspread tied to the railing of the balcony on the upper floor of the apartment. An inquest in Cyprus found she had died as a result of injuries sustained when she jumped from the balcony. Respectively, the ECrtHR while adopting the obligation of due diligence in its judgment on Rantsev v. Cyprus and Russia, it ordered Cyprus and Russia respectively to pay compensation to the family of a victim of trafficking for the failure to provide for an appropriate legal and administrative framework to combat trafficking and to properly investigate how and where the victim was recruited. Referring to the trafficking element, the Court found that: The absence of an express reference to trafficking in the Convention is unsurprising. The Convention was inspired by the Universal Declaration of Human Rights which itself made no express mention of trafficking in assessing the scope of Article 4 of the Convention, sight should not be lost of the Convention s special features or of the fact that it is a living instrument which must be interpreted in the light of present-day conditions. The increasingly high standards required in the area of the protection of human rights and fundamental liberties correspondingly and inevitably require greater firmness in assessing breaches of the fundamental values of democratic societies. The Council of Europe Commissioner for Human Rights repeatedly criticized the visa and temporary work permit regime used in Cyprus for artistes (dancers and entertainers) in 2006, noting that the system whereby cabaret managers were required to make the application for an entry permit for the artiste as rendering the artiste dependent on her employer or agent and increasing the risk of her falling into the hands 8

9 of traffickers 23 In 2008, the Cypriot authorities abolished the artiste work permit, replacing it with the one for artists and musicians. They reported that the number of people entering Cyprus with such a visa had declined by February 2010 to only one quarter (300) of the previous total. 24 Later in 2010, the Council of Europe Commissioner welcomed the abolition of the cabaret artist visa, but noted that, other types of work permits, such as the one for bar maids, might be used to circumvent the law. It can be concluded that ECtHR has found of crucial importance the linkage of labour exploitation prohibition in sense of application of Article 4 and trafficking in human beings, and addressed it properly in terms of current trends in Europe. Contemporary trends in international criminal law and human rights legislation, reflected in the work of expert groups, such as the UN Working Group on Contemporary Forms of Slavery, and the European Expert group on Trafficking in Human Beings lead to the conclusion that even today the worst type of labour exploitation that a trafficking victim can be exposed to is slavery. Such cases has been handled by the ECtHR, even though in general it does not include slave trade in the ECHR. In the first case by the Court dealing with human trafficking, the Siliadin v. France case, whereas the applicant was a fifteen year old girl who was brought from Togo to France by means of deceit for purposes of labour exploitation. The Court examined the France s failure to regulate and criminalize actions to prevent and effectively punish the perpetrators of those acts, but without addressing the positive obligations of States in relation to the protection of victims of trafficking, as in the Rantsev case. In assessing whether there has been a violation of Article 4 of the Convention, and whether slavery, servitude and forced or compulsory labour took place, held that: There can be no doubt that trafficking threatens the human dignity and fundamental freedoms of its victims and cannot be considered compatible with a democratic society and the values expounded in the Convention. In view of its obligation to interpret the Convention in light of present-day conditions, the Court considers it unnecessary to identify whether the treatment about which the applicant complains constitutes slavery, servitude or forced and compulsory labour. Instead, the Court concludes that trafficking itself, within the meaning of Article 3(a) of the UN Traffikcing Protocol and Article 4(a) of the European Convention, falls within the scope of Article 4 of the Convention. Determinative in both cases is the situation of forced labour in which the victim was not free to change his or her status. Payment of the victim is not decisive. In Siliadin this was factually substantiated by her being obliged to live on the other s property and being incapable of changing this status. She was deprived of freedom of movement relying on her employers will, due to her vulnerable position in terms of illegal entry, insufficient education, lack of familiarity with the French language, which prevented her from action against such position. Hence, this appears the last element of the first category of aggravated circumstances, which leads to the discussion of the most severe type of it: slavery. It is thought here that in the case of Siliadin the ECtHR has not taken the trading aspect into account. It might have had to conclude slavery where the girl was accompanied to France on a tourist visa at the age of fifteen years and seven months and she was also lent to those who thereafter exploited her. One can conclude that she was traded into the country or at least lent, which reduced her to an object (as is the case with buying, selling, trading or inheriting). This trading and lending combined with all the above-mentioned conditions added up to forced labour and servitude, and thus slavery within modern definition pursuant to international legislation and case law. These cases, are witnessing of the existence of most aggravating forms of trafficking in human beings for labour exploitation and commercial sexual exploitation, emerging into new modern slavery forms. They were examined against ILO Conventions prohibiting forced labour and slavery and observed the elements of vulnerable status of the victims. Even though the trafficking was not explicitly covered by ECHR, the Court made broad interpretation addressing the seriousness of the trafficking in human beings and new forms of 23 Council of Europe: Commissioner for Human Rights, Follow-Up Report on Cyprus ( ). Assessment of the Progress Made in Implementing Recommendations of the Council of Europe Commissioner for Human Rights, CommDH(2006)12 (March 2006), para Group of Experts on Action against Trafficking in Human Beings (GRETA), Report concerning the implementation of the Council of Europe Convention on Action against Trafficking in Human Beings by Cyprus, First evaluation round,greta (2011)8 (12 September 2011), para. 20 9

10 appearances EU law on THB for labour exploitation Labour exploitation, as such, is not a term used in the UN Trafficking Protocol 25 or the EU Directive on Preventing and Combating Trafficking in Human Beings and Protecting Victims. This announces the difficulties of single approach in combating human trafficking on EU level and entry to ongoing policy debates. Taking into account the multidisciplinary nature of THB and sui generis nature of the EU, it could announce both disadvantageous and advantageous aspects at the same time. It could fill the gaps in the manner no other international treaty or regional initiative could do by approaching the relevant policies tackling the problem (criminal justice, immigration policy, labour policy), instead of one policy encompassing all the aspects. From the previous chapters it has proven to be Sisyphus experience. Trends of exploitation in Europe vary from so-called modern-day slavery, to what the ILO s independent Committee of Experts has legally qualified as forced labour in the sense of ILO Convention 29, ratified by all EU Member States. The Convention was originally developed to eradicate violence of governments in overseas colonies as from the 1930s. If today, in 2012, independent legal experts indicate that emerging forms of labour exploitation technically amount to the same level, it shows the seriousness of the situation and the urgency of the need to protect in a better way the workers in our economies against modern slavery. 26 The Siliadin case is a good example of the gravity of the problem that was perceived as a matter of the past. Europol also noted progressing trends of labour exploitation and THB. 27 Brussels Declaration adopted at the European Conference on Preventing and Combating Trafficking in Human Beings and the follow-up Council s Conclusions reflected also the need for more comprehensive European policy against human trafficking, drawing the significance of the demand for cheap labour and global approach to trafficking addressing all forms of exploitation. Fighting the THB in the EU falls between the immigration policy and human dimension of THB. The Charter of Human Rights became legally binding after Lisbon, which provided the legal basis for coherent fight against THB for labour exploitation, and protection of violated human rights in THB cases. But what about forced labour in context of illegal migration? The migration policies are still within the shared competences between the EU and the Member States 28 and the cases of Belgium and the Netherlands should highlight some aspects. Since the deepening of the EU integration has started, the immigration policy caught particular attention once bringing free movement of workers right applicable for a larger population. The immigration flow increased, especially from the new EU MS, as the chart shows. 25 By Council Decision 2004/579/EC of 29 April 2004 on the conclusion, on the behalf of the European Community, EU ratified the United Nations Convention against Transnational Organised Crime. 26 Berinaert Jeroen A Trade Union Perspective on Combating Trafficking and Forced Labour in Europe in Combating Trafficking in Human Beings for labour exploitation Conny Rijken ed.,wolflegal Publisher the Netherlands Trafficking in human beings in the European Union, EUROPOL Knowledge Product, The Hague, 1 September Art.4 of the Consolidated version of the Treaty on functioning of the European Union 10

11 Source: Migrants in Europe: Statistical portrait of the fist and second generation, Eurostat, 2011 Furthermore, all EU MS nationals needed to have equal treatment in the EU MS regarding the entry, movement and residence, while the EU MS needed to protect its internal market and 4 freedoms in respect to third country nationals. First attempt was with the Palma document in 1989 proposing measures to combat clandestine immigration, thus creation of specialized corps. Today, as EU is in the process of creation of enhanced judicial and police cooperation with EUROPOL and EUROJUST, it becomes less difficult institutionally, on the EU level, to combat the labour exploitation. 29 The Schengen Agreement, falling outside the scope of the EU legal framework, turned the focus from the labour markets and placed it on border controls and security aspects, which on many occasions in Brussels was underlined as additional steaming the roots for trafficking and irregular migration. In UNHCR Report from 2009, asylum systems in the EU MS do not support the process of identifying, referring and protecting trafficked persons, including under the protection regime the refugees and other persons in need of international protection. 30 In order to take a closer look into the EU law on combating THB in line with 3Ps, the overview of the most important EU legislation acts follows. The result of the EU policies on THB are enshrined in the recently adopted Directive 2011/36/EU by the European Parliament and the Council of the European Union on preventing and combating trafficking in human beings and protecting its victims, repealing the 2002 Council Framework Decision (which was fully implemented by Belgium and the Netherlands). It is a first single legally binding framework on THB, setting minimum standards for the EU MS, to be implemented by The consistency in actions among the EU MS, thus coordinated EU action is expected to come from newly introduced Anti-trafficking coordinator. The instrument also introduces the requirements for more efficient prosecution and adjudication of the THB, right to remedy and redress, and mandatory requirements for national monitoring of the THB. It contains the internationally known requirements for THB preventing, prosecuting and protecting, as part of the EU law: the gender perspective, the non-application of penalties to victims, the protection of and assistance to victims, examining the concept of due diligence and the principles of non-refoulement and nonrevictimization, the role of national referral mechanisms, the protection of victims in criminal proceedings and prevention activities, such as continuous training requirement. The core of the Directive is the criminalization of different forms of forced labour or any exploitation as the main goal of trafficking, irrespective of related areas which could be covered by the EU MS on national level. The notion of exploitation of labour or services inherent in this definition allows for a link to be established between the UN Trafficking Protocol and ILO Convention No. 29, according to Article 2, paragraph 1 of the Convention 29. This conjecture between those two instruments aims at their adequate implementation on national level in 29 Jill E.B. Coster van Voorhout, Human trafficking for labour exploitation-interpreting the crime Volume 3, Issue 2 (December) UNHCR, The Identification and Referral of Trafficked Persons to Procedures for Determining International Protection Needs, October 2009, PPLAS/2009/03. 11

12 a complementary manner. 31 THB for forced labour and slavery-like practices, are crimes and violations of human rights at the same time, which should be reinforced on national level. At the same time, the prosecution office should refrain from prosecution of alleged victims 32 and related penalties and sanctions which are mandatory under the existing criminal justice system. In legal terms, this is a challenging task for the judicial authorities, even the Model Law was proposed by the UNODC. Another weak point of the Directive is the failure of setting the minimum reflection period, maybe drawn from good European practice by some MS. 33 The coordination of investigations and prosecutions of THB cases should be facilitated by enhanced cooperation with Europol and Eurojust 34, joint investigation teams should be established, as well as the implementation of the Council Framework Decision 2009/948/JHA of 30 November 2009 on prevention and settlement of conflict of jurisdiction in criminal proceedings. Directive 2009/52/EC providing for minimum standards on sanctions and measures against employers of illegally staying third-country nationals harmonizing the criminal sanctions within the EU MS for employers who employed illegally third country nationals, sets the minimum standards for treatment of the third country nationals and guarantees the right to wage, as right to compensation for the pecuniary damages. The protection element of THB is regulated in Directive 2008/115 on common standards and procedures in Member States for returning illegally staying third-country nationals, known as the Returns Directive. It applies once the procedures on national level are completed for the victim (TCN). However, there is not a clear mechanism set for this. This is first legislative act adopted by codecision procedure. It bounds 24 Member States (the UK, Ireland and Denmark are not subject to its application) which should have implemented it by 24 December 2010, although most of them have yet to completely integrated it into national legislation. If an irregular migrant cannot be expelled, for whatever reason, Member States should make use of the possibility provided by Article 6 of the Returns Directive of granting an autonomous residence permit or other authorization offering a right to stay for compassionate, humanitarian or other reasons. The European Commission and the Court of Justice are in charge of monitoring the situation and should pay special attention to the incorrect or incomplete implementation of these key EU measures. There is a debate over the returning policy of the EU, which shed the light over the complexity of the issue and individual characteristics per case mainly referring on asylum cases, but the same concerns are applicable for THB cases. Namely, repatriation for the victim in some cases is seen as ineffective by simply returning the victim to the country of origin, especially if the victim s community is in the host country and return is involuntarily. Complementary to this, the Council Directive 2004/81 regulates the issuance of residence permit for victims of THB who cooperate with the police, prosecution service and other competent authorities. This means that every victim of human trafficking who is not an EU national and is staying illegally, should be offered a so-called reflection period. During this period, the victim can make a decision on whether to 31 UN Commentary on Directive2011/36/EU adopted by the European Parliament and the Council the European Union on preventing and combating trafficking in human beings and protecting its victims, available at: documents/human-trafficking/2011/un_commentary_eu_trafficking_directive_2011.pdf 32 Victims also have rights in criminal proceedings under Directive 2001/220/JHA, which is expected to be replaced by new set of victims rights following the European Commission Proposal for a Directive establishing minimum standards on the rights, support and protection of Victims of Crime. 33 In the Netherlands, under the B9 procedure, (presumed) victims of trafficking are granted a reflection period of three months at the slightest indication that he or she might be a victim of trafficking, with access to safe housing, psychological, medical, material and legal aid. It is the responsibility of the police to inform the victim about the B9 procedure. After granting temporary residence (bases on cooperation with prosecution authorities), the THB victims are equal as national and entitled to free access to the labour market and to social welfare, legal, medical assistance. 34 Eurojust established a THB project with the aim of increasing the total number of prosecutions of THB cases and improving Eurojust performance towards prosecution services in Member States; id=e8b f95-45c0-a807-d64bff0cf89a 12

13 cooperate with the authorities in criminal proceedings. Taking into consideration different concepts for THB for labour exploitation throughout the EU MS, the EU intervened in ILO indicators which would assist the countries for more uniform approach when applying measures for combating the problem. The indicators developed were designed upon methodology framework called the Delphi methodology 35, annexed to this Assessment. The EU law has established the minimum requirements for combating THB (urging for effective prosecution and efficient adjudication of THB, national monitoring and rights to remedy and redress to the victims) and labour exploitation element. The progressing trends remain to be tackled in the new Strategy for combating THB expected for adoption in Considerably, in the light of their prospective EU accession, this assessment should highlight areas for improvement of the observed Western Balkan countries in terms of fulfilling obligations under the EU law. III Institutional policies- key for effective THB mechanisms Following the coming into force of the UN trafficking Protocol, a National Referral Mechanism (hereinafter: the NRM) was set up as a concept for identification and protection of victims of trafficking. This concept shall be closely examined through national policies review below, even though it was found as inefficient in the OSCE reports, establisher of the NRM. National Referral Mechanism (NRM) 36 as a single framework centered on victim identification and referral to appropriate support aimed at assisting the countries with the complex set of commitments for proper fight against THB. The NRM established the principles to be followed in creation of national infrastructure for implementing anti-trafficking policies. In its sixth principle, it confirms the multidisciplinary nature of the trafficking in human beings and the need for cross-sectored approach, by pointing out in my opinion the crucial problem, on this issue, concluded by Wijers: From the array of current strategies six main approaches can be separated: trafficking as a moral problem, as a problem of organized crime, a migration problem, a public order problem, a labour problem and as a human rights problem. Within each approach, two models of strategies can be distinguished: repressive strategies aimed at suppressing undesirable behaviour, such as criminality or illegal migration; and empowering strategies used primarily by NGOs and geared towards supporting women and strengthening their position. 37 Both strategies are acknowledging its interconnection, drawn from the international and regional instruments. Also NRM in its efforts addresses the lack of national and local ownership over the problem. Nevertheless, some European countries, such as the Netherlands, noticed positive experience. It should encounter another problem shaping national policies, and that is the failure of distinction of the economic migration and trafficking for labour exploitation, disregarding the element of force by coercion and deception. 38 In this sense, a research conducted in 2002 on victim-support programmes in South-Eastern Europe highlighted the following results: only a third of all presumed trafficked women were identified by law enforcement agencies. The majority of victims, instead of referral to support programmes and shelters, were sent to detention centres and prisons in order to be subsequently deported. 39 Using the analogy, the forced labourers would be subjected to this treatment even more than sexually exploited, due to the nature of the service users, very often within legalized sectors and undertakings. In terms of successfulness of prosecution, it is perceived in the NRM practical handbook that established 35 ILO Special Action Programme to Combat Forced Labour, Indicators of trafficking of adults for labour exploitation (28 October, 2009), available at: 36 Established by OSCE Ministerial Council Decision No. 2/03, Combating Trafficking in Human Beings (December 2003). 37 Marjan Wijers, Lin Lap-Chew, Trafficking in Women, Forced Labour and Slavery-like Practices in Marriage, Domestic Labour and Prostitution (Utrecht, 1997), pp Note 11, UNHCHR Recommended Principles and Guidelines, p Limanowska Barbara, Trafficking in Human Beings in Southeastern Europe: Current Situation and Responses to Trafficking in Human Beings in Albania, Bosnia, Bulgaria, Croatia, the Federal Republic of Yugoslavia, the Former Yugoslav Republic of Macedonia, Moldova, Romania(ODIHR?UNICEF/UNOHCHR,2002), p.xiii, in the National Referral Mechanisms Joint efforts to protect the rights of trafficked persons, A Practical Handbook by OSCE/ODIHR,

14 cooperation between different national sectors, based on cooperation agreements effectuates in more prosecutions. 40 In that respect the following countries shall be contested whereas such figures exist. Nonetheless, a concern whether it is enough and it is following proportionally the rapid progress of trafficked persons remains. Witness-Victim support, in terms of protection, is also envisaged as requirement under the NRM and its effectiveness by the law enforcement agencies should be viewed in the context of new changes of the Criminal Proceedings legislation enabling their social and psychological support throughout the judicial proceedings. The OSCE in its decisive attention given to this problem goes beyond. In its Action Plan to Combat Trafficking in Human Beings, underlined the invisibility of the exploitation, and recommended an action on the national level in social and economic policies in terms of exploitation as informal problem, seeking for economic balance in demand for inexpensive labour. 41 The solution is sought in economic and social policies contributing to trafficking in all countries of origin, destination and transit. OSCE Special representative for trafficking in human beings in the Agenda for Prevention of Labour 42 exploitation moves further on, from concept of a victim of trafficking to the concept of right holders. 43 Consequently, the OSCE with its 56 Member States undertook numerous actions and initiatives for better institutional application of international law for fight against trafficking for labour exploitation. However, LaStrada experts in their Report concluded: Although the issue of NRM has been given far more attention in particular since the OSCE elaborated its handbook on NRM, so far European countries have not a fully working NRM in place. In many European Union countries and to a lower extent in SEE countries there are national systems & models, infrastructures and referral mechanisms in place but they differ from each other. There are different co-operation agreements of each country but there no common agreements, models and standards at European level. What we notice is that at the national and international level there is no common understanding on what a NRM means in fact. 44 In my opinion, the identification of THB victims subjected to labour exploitation and prosecution of perpetrators, hinge on effective institutional infrastructure. The importance for the observed Western Balkan countries is even greater, due to the process of institutional building in a very demanding environment. IV Good practices in combating THB 4.1. Kingdom of Belgium social criminal justice strengths and identification of labour exploitation trends Kingdom of Belgium, with its 10,8 million inhabitants on a territory of 30,528 sq km, has ratified the international conventions dealing with THB for labour exploitation, the UN Convention on transnational organized crime and its Trafficking Protocol, and the CoE Convention was ratified in 2009 and entered into force on 1 st August The mere fact that the Belgium is a founding State of the EU, makes it subject to implementation of the EU law and policies. The Belgium social welfares system attracts number of migrants, especially the migrants from the new EU MS, due to exercise the mobility of workers provided in the EU 40 Experience shows that co-operation agreements between state and non-state actors raise the rate of successful prosecutions of human traffickers. This is attributed to the victim s increased readiness to co-operate and testify because of conditions resulting from the agreement, NRM Handbook based on recommendations of the European Conference on Prevention and Combating Trafficking in Human Beings Global Challenges for the 21st Century, September 2002, Brussels Declaration on Preventing and Combating Trafficking in Human Beings: Protocols of minimum standards should be drawn up between law enforcement services and IOs and NGOs on the immediate treatment of trafficked victims, Article OSCE Action Plan to Combat Trafficking in Human Beings(2003) PC.DEC/ OSCE An Agenda for Prevention: Trafficking for labour exploitation, Unprotected Work, Invisible Exploitation: Trafficking for the Purpose of Domestic Servitude, Occasional Paper Series no. 4 in 2010; OSR/CTHB, A Summary of Challenges on Addressing Human Trafficking for Labour Exploitation in the Agricultural Sector in the OSCE Region, Occasional Paper Series no. 3 in April 2009; OSR/CTHB, Human Trafficking for Labour Exploitation/Forced and Bonded Labour: Prosecution of Offenders, Justice for Victims, Occasional Paper Series no. 2 in National Referral Mechanisms for the assistance and protection of trafficked persons theory and practice Report of the International Conference;21-22 October 2008, Chisinau R. Moldova 14

15 Treaties. The Belgium with its GDP per capita of 37,600 USD, has migration rate of 1.9 migrants per 1000 population and immigrant 9,1%. Total labour force in the growing market of the Belgian economy is 4,766,300. Since the 1990s, Belgium has established a system of protection for the victims of human trafficking, whereas social institutions and three specialized anti-trafficking reception centers run by NGOs (PAG-ASA, Payoke, Sürya) are included. Data and methodology used by Belgian Social Services (Social Intelligence and Investigation Service-SIRS, National Institute of Social Security of Self-employed- NISSE, National Employment Office, National Institute for Illness and Incapacity Insurance) for efficient identification of the THB, especially for labour exploitation; labour inspectors, police and judicial authorities have been comprised in the Annual Report of the public institution, Center for Equal Opportunities and Opposition to Racism (CEOOR: hereinafter), acting and recognized as National Rapporteur on THB. Therefore, the following findings are based on the information provided in the last two reports, for 2009 and As international commitments on a state level are related to penalization with the legal framework of THB activities, in terms of prosecution, it is important to underline that the definition of trafficking in human beings, such as it was defined in the EU Framework Decision (2002) and in the UN Trafficking Protocol, is not transposed as in its entirety. Furthermore, the elements constituting the offence: the existence of an act (recruiting, harbouring, transporting) and the presence of a clearly determined exploitative objective, without elements (menace, constraint, violence, etc.), which are in the UN Trafficking Protocol and in the EU Framework Decision, are among the aggravating circumstances. Therefore the Criminal Code in the Article 433, section 5 reads: the recruiting, transportation, transfer, harbouring or reception of a person, or the passing on or transfer of control over a person for the purposes of exploitation of the person through prostitution and child pornography; begging; labour (in circumstances that are contrary to human dignity); trafficking in organs; and forced crime committal. It is important that coercion to commit offences has been criminalized as reflecting the policy and providing a legal basis for using the prosecution discretionary rights in implementing the non-prosecution requirement for the victims and issuing residence permits without specific legal basis. Implementation of the Directive 2009/52/EC of the European Parliament and of the Council of 18 June 2009, providing for minimum standards on sanctions and measures against employers of illegally staying third country nationals, comes into place as a solution to this problem. It had to be transposed by mid The employers responsibility for the legal status of their employees and sanctions prescribed thereof, should affect the principle contractors responsibility, was concluded in the Report. In a judgment of 20 April 2010, the Brussels Criminal Court even when did not found enough evidence for the charge on trafficking in human beings of Portuguese contractor, illegally employing several Brazilian workers in his renovation firm, he was found guilty for various offences under social criminal law. It found that employment in conditions contrary to human dignity was not sufficiently established. The workers made no statements about their working environment, and no evidence in the case was of such a nature as to establish that requirements relating to workers' well-being when carrying out their work had not been complied with. On the other hand, the Court found that working for 10 to 12 hours a day, five days a week and not being paid for all work done was evidence of abuse but therefore not necessarily of conditions contrary to human dignity. In such cases, Belgian social criminal justice serves as a corrective to the criminal justice. Social criminal justice in Belgium improved its legal framework and enabled social workers an access to working premises and residential areas due to the established need for more effective identification, as normally this access was related as in most of the countries to court orders, which prolong and disable discovering of excellently organized THB groups and its labour exploitation service users in different sectors, from legal to illegal ones. 45 The lack of effective compensation for the victims is noted. The legal representation of the THB for their civil claims and compensations, as prescribed in the EP Initiative, obliges EU MS to provide the access to existing schemes for compensation to victims of intentional acts of violence, which was observed by the Centres as potential obstacle for victims of labour exploitation. The mentioned Restroom Services case, was a trafficking of human beings with a huge magnitude and profit of 1,2 million EUR annually. The victims were affected by the unemployment and poor wages in their country of origin, and their vulnerable position was used by German subcontractor offering cleaning services in different EU MS. The victims were unaware of their status due to their vulnerability and refrain from cooperation with the authorities by claiming satisfaction with the remuneration offered by the perpetrator of THB, despite the indecent working conditions, long 45 Ibid. 15

16 working hours and awful living conditions. The efficiency of the institutional framework in identification is assessed through the CEOOR data gathered from police, social and labour services, immigration authorities, and reception centres. For the purposes of labour exploitation it identified 283 cases (out of 439) in 2007, 182 (out of 336) in 2008, 191 (out of 361) in 2009 and 152 (out of 313) in The data reflects the cases recorded by the Belgian police, and does not speak for sizing down the THB for labour exploitation, but for difficulties for the police to record more and more sophisticated and dynamic reorganization of the traffickers. The data on prosecution reflect the same trend; from 202 cases in 2008 to 136 in Immigration authorities came to the same conclusions; in 2007, 114 cases noted out of 178 concerning labour exploitation. The relative increase in the number of cases of labour exploitation fell slightly in 2008, and the downward trend remained in Therefore, the Belgian services has proposed new approach for more enhanced cross-sectoral cooperation, systematic IT tools in place further to creation of Social Interpol. As for judicial data, considering the fact that only specific grounds are presented, few cases shall be highlighted in order to address substantive concerns over the judicial protection in THB cases. The Charleroi Criminal Court, in a judgment of 10 December 2010, convicted the manager of a cleaning company, operating in a certain fast-food restaurants, for trafficking in human beings. The owner was exploiting two illegal workers. The latter sometimes had to work up to 7 days in a row for a fixed wage of 25 to 35 euros a night (from 10 or 11 pm until 6 or 8 am the next day). The workers received at best 250 to 300 euros per month. The accused was abusing their illegal residence status and had promised that he would sign an employment contract for them. The Court also stressed, interestingly, that the offence of trafficking in human beings may involve one person acting alone and on their own behalf, without them necessarily being part of an organised criminal network or being the last link in such a chain. This has to be observed as the achievement of the CoE Trafficking Convention, as UN Trafficking Protocol is related to organized crime activities, which proves to be insufficient, at least in Europe. The CEOOP, further focused on subcontracting element of the labour exploitations cases, states: In cases of trafficking in human beings for the purposes of labour exploitation involving subcontractors, often only the entrepreneur or subcontractor are taken to court. Whereas, whether in construction, cleaning services or other sectors (textile industry, etc.), it sometimes emerges that the principal contractor or employer could not be unaware of the deplorable working conditions in which work is carried out. This may be the case where a principal contractor accepts estimates that seem much too low or where they notice that foreign workers are on their site without making enquiries as to their status. Prevention of THB has been assessed on many levels as to satisfactory, due to regular training activities for the social and labour services. The hypothesis of the latest Annual Report by the CEOOR found the roots of labour exploitation in social benefits, thus targeted elimination of social fraud as combat against roots of THB. In the CEOOR view, it would address the roots for THB for labour exploitation. But would it be enough, taking into account that THB structures are rapidly disguising its appearances as the data shows? In this regard, what is the real rate of recorded cases not driven by social benefits? Probably it would not address the phenomena in its entirety, but it could prevent on mid-term basis the progress of THB motivated by Belgian social welfare benefits. Improving operational management capacities of the existing THB structure in Belgium has also been addressed in regard to sharing the data through one database for coordination of all inspections. It was established by SIRS 46 and shared with labour prosecutors. The above- metioned social system has developed process of identification of THB, especially THB for labour exploitation as usually it is accompanied with poor living conditions, unhealthy environment, unsafe living conditions (hangars, basements). Weaknesses summarized can point out the following: even though Belgium has developed social protection system, the victims of THB for labour exploitation have not always had access to it, because of their reluctance to cooperate with the competent institutions, fear of the traffickers, unawareness of the violation due to their vulnerable position (unemployment and low wages) prevent them to enjoy their rights protecting them from further exploitation. Also their right to fair compensation is not fully exercised as it requires evidence for intentionality of the criminal acts, which in cases of labour exploitations is difficult to prove. Nevertheless, the Belgium is certainly a good example for systematic and dynamic approach to combating THB, especially driven by labour exploitation. The incentives for THB have been addressed at all levels, while continuing implementation of the EU law 46 Belgian Social Intelligence and Investigation Service (SIRS), which supports Federal social inspectorates in combating undeclared employment and social fraud. 16

17 and international obligations. Even though no resources are available as to what amount Belgian economy relies on sectors most affected by THB for labour exploitation, it is certainly a good practice of implementing international and EU policies, through its effective institutional network, early identification of THB, effective national monitoring by existing institutions (the CEOOR experienced not only on THB but related issues, as discrimination, racism, etc.), multidisciplinary approach and coherent exchange of information between different sectors Kingdom of Netherlands global player sniffing locally for THB The Kingdom of Netherlands with its 16,7 million inhabitants on a territory of 41,864 sq km, has ratified the international conventions dealing with THB for labour exploitation, the UN Convention on transnational organized crime and its Trafficking Protocol on 27 July 2005, which was perceived as a late arrival, due to already established pioneered mechanisms. The European Convention was ratified in 2005 and entered into force on 1 August 2010 as a result of extensive legislative amendments. Alike Belgium, the Netherlands is a founding State of the EU, subject to implementation of the EU law and policies. The Netherlands prostitution regulations contributed to specific state of play concerning the THB and focused on sexual exploitation of the THB. This has reflected on the insufficiency of legal basis for prosecution of the THB offences, which was remedied with intervention into Criminal Code in The offence was recognized as a Serious Offence against Personal Liberty, in comparisons to previous Serious Offence against Public Morals. The gravity of the THB was addressed in 2009 with the Criminal Code amendments ensuring more rigorous penalties for the perpetrators of THB. The Netherlands is the first country establishing a National Rapporteur as a national monitoring mechanism for overseeing the nature and scale of THB, the developments and report on policy impact. The National Trafficking Action Plan was adopted in 2004 and amended in The institutional framework that entails Human Trafficking Task Force consists of police, Public Prosecutors Office, relevant Ministries, and local authorities for the large cities. It is in charge of identifying the policy shortcomings and proposing an intervention upon them, taking into account all the relevant stakeholders for implementing the THB policies. The NGO sector plays an important role in the Netherlands; CoMENSHA is a state funded NGO for keeping the national register of presumed trafficked persons. Therefore, the following findings are based on the information provided by the CoMENSHA Report for 2010 and the 8 th National Rapporteur Report for The referent case called Chinese restaurant case, dealt by the Supreme Court provided Dutch legal system with clear definitions of the means of coercion, abuse of a vulnerable position and abuse of authority arising from the actual state of affairs. In that judgment, the Supreme Court also provided guidance on the interpretation of exploitation, or the intention to exploit, as an element of the offence. The number of prosecutions and convictions 47 for other forms of exploitation has risen steeply in the Netherlands since the Supreme Court s judgment. That judgment, and the latter case-law, has confirmed that the scope of the prohibition on THB for the purpose of other forms of exploitation is becoming steadily clearer. 48 Nevertheless, the level of prosecution is low recording 136 cases for The local approach by the Dutch criminal justice has enabled overview of the harmonization in implementing the policy on THB and its legal requirements, the country map of the THB deployment and local/regional capacities to combat the crime. Thus, the Rapporteur collects data using the local approach when reporting on the THB cases, as shown in the Figure below on distribution of THB cases resulted in initiation of criminal proceedings. 47 Problematic convictions were addressed in Speech by National Rapporteur of the Kingdom of the Netherlands, Prague 30 March 2009; available at: 48 Trafficking in Human Beings Ten years of independent monitoring,8 th Annual Report of the National Rapporteur for Trafficking in Human beings, 2010, The Hague(BNRM) 17

18 Pie chart showing registered cases, by court district (total from ) 49 The institutional framework in the Netherlands, and the involvement of local authorities in this combat has been widely acknowledged and presented as a good model by the Belgian National Rapporteur. It is introduced by the BIBOP law (Bevordering integriteitsbeoordeling door het openbaar bestuur - advanced integrity check by the public authorities) since 1 June 2003, granting the local units, municipalities or provinces to carry out investigations of persons or firms making applications for subsidies, permits and/or tender bids, and refusal, due to founded allegations of criminal activities or dubious financial arrangements. This law has the aim of ensuring that the public administration does not facilitate criminal activities and as a model could contribute to early identification of the THB for labour exploitation. The so-called programmatic approach (administrative, criminal and fiscal measures), has been applied and exchange system created for sharing information between local authorities and investigation units. It also uses the socalled barrier model to prevent the criminal organisations in their capacities to exercise rights as legal entities. The Belgian Rapporteur pointed this model as effective for combating THB using an integrated approach, thus combination of criminal instruments (investigation and prosecution) and preventive and administrative measures. It is based on the assessment of four obstacles for the cross-border THB: entering the country, accommodation, identity and employment, accompanied with adequate measures, upgraded throughout the years. It helps to identify the potential collaborators during the investigation and prosecution and identify the actions leading to establishing of THB for labour exploitation. Namely, the mentioned obstacles can be surpassed both illegally and legally, such as the identity barrier. It shall be legally through marriage, or illegally through a marriage of convenience. Through using the service provider inventory, the degree of dependency of aliens of one or more providers in overcoming the obstacles can be identified. Multiple dependency of one service provider is an indicator for high risk of exploitation. The overview of legal or illegal facilitators of criminal behaviour, as presented in the barrier models, enables criminal and administrative measures to be taken to counter such procedures as well as to take preventive actions. In the meantime, these models have been considerably extended, and are much more used in the Netherlands, including for the trafficking and smuggling of human beings, thus providing a very practical approach by the administrative measures and criminal means. Protection of the identified victims in the Netherlands territory embeds legal, financial, and psychological assistance, including shelter (in facilities that also use the victims of domestic violence), medical care, social security benefits, and education financing. As far as the collection of data, CoMENSHA (LaStrada) has been legally entitled to keep the national register of all trafficked persons in Netherlands, thus the Police and Social Information and Investigation Service are obliged to provide CoMENSHA with the data on presumed 49 Source: Human Trafficking ten years of independent monitoring, National Rapporteur on Trafficking in Human Beings (2010), The Hague (BNRM), pp