Trafficking in Human Beings Dr. Vladislava Stoyanova vladislava.stoyanova@jur.lu.se
1) What is human trafficking (definitional issues)? 2) What do states have to do about it (the obligations undertaken by states under the Council of Europe Convention on Action against Trafficking in Human Beings?)
Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children, Supplementing the UN Convention against Transnational Organized Crime, in force since 2003, status as of Jan 2017: 170 State Parties https://treaties.un.org/pages/viewdetails.aspx?src=treaty&mtdsg _no=xviii-12-a&chapter=18&clang=_en 2005 Council of Europe Convention on Action against Trafficking in Human Beings EU Directive of 5 April 2011 on preventing and combating trafficking in human beings and protecting its victims http://eurlex.europa.eu/lexuriserv/lexuriserv.do?uri=oj:l:2011:101:0001 :0011:EN:PDF EU Directive of 29 April 2004 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 http://eur-
What are the objectives of the CoE Trafficking Convention? Definition of human trafficking Obligation to criminalize trafficking in the national law Victim protection and assistance - min level of assistance - limited circumstances in which the victim can stay - preference to repatriation - human rights based approach Cooperation among states to fight trafficking (border control, quality of travel/identity documents etc.)
ACTION What is Human Trafficking? (Art.4(a)CoE) Recruitment Transportation Transfer Harboring or Receipt of persons MEANS PURPOSE treat or use of force or EXPLOITATION other forms of coercion, of abduction, of fraud, of deception, of Exploitation the shall include, at a abuse of power minimum, or of a the exploitation of position of vulnerability the prostitution of others or or of the giving other or forms of sexual receiving of payments exploitation, forced labor or or benefits to achieve services, slavery or practices the consent of a similar person to slavery, servitude or having control over the removal of organs. another person
What if the trafficked person consents to be transported or transferred to his/her exploitation? (Art. 4(b) CoE) The consent of a victim of trafficking in persons to the intended exploitation set forth in subparagraph (a) of this article shall be irrelevant where any of the means set forth in subparagraph (a) have been used. The recruitment, transportation, transfer, harboring or receipt of a child for the purpose of exploitation shall be considered trafficking in persons even it this does not involved any of the means set forth in subparagraph (a) of this article.
but what is exploitation??? - moral repugnancy? - failure to remunerate sufficiently? - working conditions in discrepancy to the established standards?
but what is exploitation??? Forced Labor Slavery Practices similar to slavery Servitude For the purposes of this ILO Forced Labor Convention 1939 Convention the term forced or (No.29) Slavery is Convention compulsory the status or of labour condition 1926 shall of mean all a person over work whom or service any or which all of is exacted 1957 fromsupplementary any person under Convention the menace on the powers attaching to the right of the of Abolition any penalty of Slavery, ownership are exercised. and for which the Slave the ECtHR s judgments: Trade, saidand person (i) Institutions particular has notserious offered and Practices form himself of denial of freedom, Similar voluntarily. to (ii) Slavery obligation to perform certain services, -Debt(iii) bondage obligation - Servile to livemarriages on another person s property, - Serfdom which -Child is an example transfer of a way for of isolatingexploitation the victim from the outside world, and (iv) feeling of the victim that the situation will not change and improve supported by objective factors.
The Smuggling Protocol and the Distinction between Trafficking and Smuggling Article 3 (a) of the 2000 UN Smuggling Protocol: "Smuggling of migrants" shall mean the procurement, in order to obtain, directly or indirectly, a financial or other material benefit, of the illegal entry of a person into a State Party of which the person is not a national or a permanent resident Is it possible to distinguish in reality? Why do we need to distinguish? Any advantages?
Victim Protection in the CoE Trafficking Convention??? 1) Identification of migrants as victims of human trafficking. 2) Assistance for victims of human trafficking. 3) Prevention of deportation. Immigration status in the country of destination. 4) Return to the country of origin 5) Non-punishment 6) Compensation
Identification of migrants as victims of human trafficking - Article 10(1) of the CoE Trafficking Convention)
Stages of victim identification - Article 10(2) of the CoE Trafficking Convention) Conclusive decision stage reasonable grounds to believe Preliminary stage stay of deportation provision of assistance (see Article 12(1))
Recovery and Reflection Period - Article 13 of the CoE Trafficking Convention Each party shall provide in its internal law a recovery and reflection period of at least 30 days, when there are reasonable grounds to believe that the person concerned is a victim. Such a period shall be sufficient for the person concerned to recover and escape the influence of traffickers and/or to take an informed decision on cooperating with the competent authorities. During this period it shall not be possible to enforce any expulsion order against him or her. [ ]
Conclusive decision stage: if the migrant is indeed a victim of human trafficking The value of the positive decision The victim as a witness (See Article 14 of the CoE Trafficking Convention ) Double exploitation?
Exploited Twice: The Victim as a Witness Victims are needed as witnesses in criminal prosecution of traffickers, but states are unwilling to let them stay beyond the conclusion of the criminal prosecution. States fear a new pull factor if victims are allowed to stay permanently Yet it is difficult to guarantee the safety of victims in the country of origin Risk of a second exploitation of the victim by the state of destination.
Social assistance for victim of human trafficking - Trafficked victims and presumed victims irrespective of their migration status are entitled to minimum assistance as described in Article 12(1) and (2) of the CoE Trafficking Convention - Persons in regard to whom a conclusive decision has been taken that they are victims of human trafficking and in case they have or are granted legal migration status, are entitled to additional assistance as described in Article 12 (3) and (4) of the CoE Trafficking.
Return to country of origin: the standard resolution of the victim s case Article 16(1) and (4) of the CoE Trafficking Convention How to assess Article 16? It looks like a readmission agreement!
Non-punishment - Article 26 of the CoE Trafficking Convention It is necessary to focus upon what Article 26 does and does not say. It does not say that no trafficked victims should be prosecuted, whatever offence has been committed. It does not say that no trafficked victim should be prosecuted when the offence is in some way connected with or arises out of trafficking. It does not provide a defence which may be advanced before a jury. What is says is no more, but no less, than that careful consideration must be given to whether public policy calls for a prosecution and punishment when the defendant is a trafficked victim and the crime has been committed when he or she was in some manner compelled (in the broad sense) to commit it. Article 26 does not require a blanket immunity from prosecution Faculty of Law, Lund for University trafficked / Vladislava Stoyanova/ victims 30/01/2017
Compensation - Article 15 of the CoE Trafficking Convention (1) Each Party shall ensure that victims have access, as from their first contact with the competent authorities, to information on relevant judicial and administrative proceedings in a language which they can understand. (2) Each Party shall provide, in its internal law, for the right to legal assistance and to free legal aid for victims under the conditions provided by its internal law. (3) Each Party shall provide, in its internal law, for the right of victims to compensation from the perpetrators. (cont, to the next slide)
Compensation Article 15 of the CoE Trafficking Convention (4) Each Party shall adopt such legislative or other measures as may be necessary to guarantee compensation for victims in accordance with the conditions under its internal law, for instance through the establishment of a fund for victim compensation or measures or programmes aimed at social assistance and social integration of victims, which could be funded by the assets resulting from the application of measures provided in Article 23.
What is the value of the trafficking in human beings legal framework from the perspective of the individual migrant???
Thank you! Vladislava Stoyanova vladislava.stoyanova@jur.lu.se