An Overview of the UK s Obligations. Sarah St Vincent The AIRE Centre

Transcription

1 An Overview of the UK s Obligations Sarah St Vincent The AIRE Centre 1

2 Topics We Will Cover 1. The Directive: What does it add to existing law? 2. Specific obligations placed upon the UK 2

3 TOPIC 1: The Directive: What does it add to existing law?

4 State of the Law Before the Council of Europe Convention on Action against Trafficking in Human Beings The UK signed and ratified this convention, so it was bound by it at the international level. Directive European Convention on Human Rights European Court of Human Rights had found that Article 4 of the Convention prohibits trafficking and places some positive obligations on the Contracting States, including the UK (see, e.g., Siliadin, Rantsev). However, the UK never adopted legislation incorporating the Convention into domestic law. This meant that the Convention s provisions were not enforceable in domestic courts or tribunals; it was not possible to rely upon them directly. In particular, the UK is obligated under Article 4 to criminalise acts of trafficking and servitude, investigate potential or alleged violations, prosecute where appropriate, protect individuals in its territory from trafficking and adopt legislative measures capable of preventing trafficking. 4

5 The Directive: Direct Effect Under EU law, a directive s provisions are binding upon the UK and enforceable in its courts and tribunals if: The provision in question imposes an obligation that is precise, clear and unconditional; It does not call for additional national or EU measures in order to become effective; and The deadline for Member States to transpose the directive (i.e. adopt national legislation giving effect to it) has passed. The deadline for the Member States to transpose Directive 2011/36 passed on 6 April

6 The Directive: Direct Effect (cont d) As the deadline for the transposition of the Directive has now passed: The UK must comply with those provisions that are precise, clear and unconditional. It is possible for UK courts and tribunals to refer questions concerning the meaning and implementation of the Directive to the CJEU. In theory, it is possible to seek Francovich damages if the UK breaches its obligations under the Directive. 6

7 The Directive: Indirect Effect A provision of the Directive that does not have direct effect, but which the UK has not adequately implemented, will still have indirect effect. This means that the UK courts and tribunals must interpret national law in line with the provision. In EU law, there are often disputes as to whether a provision of a directive has direct, or only indirect, effect. 7

8 The Directive and the Charter When implementing the Directive, the UK is obligated to comply with the Charter of Fundamental Rights of the European Union. The Charter guarantees, inter alia: The right to life The right to physical and mental integrity The right to freedom from torture and inhuman or degrading treatment or punishment Freedom from slavery, servitude, forced or compulsory labour and human trafficking The right to respect for private and family life The right to protection of personal data The right to asylum Freedom from discrimination on grounds such as sex, race, religion, disability, age, etc. Children s right to have their best interests be a primary consideration in all decisions taken by public or private authorities The right of the elderly to lead a life of dignity and independence 8

9 TOPIC 2: Specific obligations placed upon the UK

10 Trafficking in Human Beings: A Punishable Offence The UK must take the necessary measures to ensure that the following acts, when intentional, are punishable: [1]The recruitment, transportation, transfer, harbouring or reception of persons, including the exchange or transfer of control over those persons, [2]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, [3] for the purpose of exploitation. Where the victim is a child under 18, only the first and third elements are required. The Directive provides that certain behaviours necessarily constitute exploitation (e.g. sexual exploitation and forced labour). 10

11 A Punishable Offence (cont d) These acts must be punishable by at least five years in prison, or at least ten years if certain aggravating circumstances are present (e.g. if the victim was a child or was committed by use of serious violence ). It must be possible to hold legal persons (in addition to natural persons) liable for these offences. Additionally, it must be possible for the UK to seize/confiscate the instrumentalities and proceeds of these offences. 11

12 A Punishable Offence (cont d) The UK must further ensure that inciting, aiding and abetting or attempting to commit a trafficking offence (as defined in the Directive) are all punishable offences. They must be punishable by effective, proportionate and dissuasive penalties. Proceeds are liable to confiscation/seizure. 12

13 Non-prosecution of the Victim Member States shall, in accordance with the basic principles of their legal systems, take the necessary measures to ensure that competent national authorities are entitled not to prosecute or impose penalties on victims of trafficking in human beings for their involvement in criminal activities which they have been compelled to commit as a direct consequence of being subjected to [trafficking]. Note that the Directive does not say that victims cannot or should not be prosecuted. 13

14 Jurisdiction The UK must take the necessary measures to establish its jurisdiction over trafficking offences where: The offence is committed wholly or partly in UK territory (NB: it s unclear exactly what that territory might include); or The offender is a UK national. (It is unclear whether this applies where an individual has British nationality but is not a British Citizen, although presumably it does.) 14

15 Investigation and Prosecution Investigation and prosecution must not be dependent upon reporting by the victim. Criminal proceedings must be able to continue even if the victim withdraws his/her statement. The UK must take the necessary measures to ensure that persons, units and services responsible for investigating or prosecuting trafficking are adequately trained and have access to effective investigative tools. 15

16 Assistance, Support and Protection for Adult Victims The UK must Take the necessary measures to ensure that assistance and support are provided to victims before, during and for an appropriate period of time after criminal proceedings Provide assistance and support as soon as the competent authorities have a reasonable-grounds indication that an individual is a victim of trafficking Ensure that assistance and support are not conditional on the victim s willingness to cooperate in criminal investigations or proceedings Take the necessary measures to establish appropriate mechanisms to identify and assist victims Ensure that the assistance and support provided are sufficient to ensure a standard of living that will at least enable the victim to subsist 16

17 Prevention The UK must Take appropriate measures to discourage and reduce the demand that leads to trafficking Take appropriate action to raise awareness of trafficking and reduce the risk thereof (especially for children) Promote regular training for officials who are likely to come into contact with victims or potential victims of trafficking 17