Routledge Handbook of Human Trafficking

by Piotrowicz, Ryszard; Rijken, Conny; Uhl, Baerbel Heide

  4

  The European legal regime on trafficking in human beings

  Ryszard Piotrowicz

  Introduction

  The law on THB in Europe co-exists with the Palermo Protocol but goes significantly further, both in terms of law enforcement and in victim protection and assistance. This chapter discusses the principal instruments on THB adopted by the Council of Europe and the European Union, the ‘hard law’, as it were. All EU Member States are parties to the Council of Europe Convention, and the two instruments are linked. Reference is made also to non-binding measures, including those adopted by the OSCE.

  Council of Europe

  The Council of Europe Convention on Action against Trafficking in Human Beings1 was adopted in 2005. By June 2017, it had 47 parties, including one State that is not a member of the Council, Belarus. It entered into force on 1 February 2008.

  The CoE Convention is significant not only for its contribution to the rights of victims of THB and the fight against traffickers, but particularly for its independent monitoring mechanism, which aims to evaluate on a regular basis the parties’ compliance with their obligations. Article 1 states that the purposes of the Convention are:

  to prevent and combat [THB], while guaranteeing gender equality;

  to protect the human rights of victims of [THB], design a comprehensive framework for the protection and assistance of victims and witnesses, while guaranteeing gender equality, as well as to ensure effective investigation and prosecution;

  to promote international co-operation on action against [THB].

  This is significantly different to the Palermo Protocol. That instrument has been criticised, rightly or wrongly, as focussing too much on law enforcement, and paying insufficient attention to the needs of trafficked persons. In the CoE Convention, both of these purposes are central.

  The Convention, at Article 4, defines THB almost word-for-word as in the Palermo Protocol. It refers to “human beings”, rather than “persons”. Notable, however, is the addition of para (e), which defines ‘victim’ as “any natural person who is subject to” THB as defined in Article 4.2 Thus, three elements are required to establish THB: the act, the means, and the purpose. As with the Palermo Protocol, examples are given of the types of exploitation for which people may be trafficked, but these are only examples. This is crucial, because an open formulation enables the inclusion of other types of exploitation, such as forced begging and forced criminality.

  The requirement to prove that one of the means has been used is important. In its evaluation of compliance with the Convention, the monitoring body, GRETA (Group of Experts on Action against Trafficking in Human Beings)3 has noted that in some States, national legislation defines THB without the requirement to demonstrate that the means have been used. This might be seen as beneficial in that, on the face of it, it might be easier to secure convictions. However, it is suggested that the inclusion of the means, as specified in the Convention, is very important in overcoming arguments that the trafficked person actually consented to their exploitation. Article 4(b) stresses that the victim’s consent to the intended exploitation “shall be irrelevant where any of the means set forth [in the definition] have been used”. Accordingly, by including the means in the definition, one possible defence argument – consent – is excluded. One cannot consent to be trafficked.

  Chapter II deals with prevention, co-operation, and “other measures”. These include measures to prevent THB (Article 5), measures to discourage demand (Article 6), border measures (Article 7), security and control of documents (Article 8), and legitimacy and validity of documents (Article 9). This is the first pillar of the prevention, protection and prosecution mantra so frequently cited in anti-trafficking activities. The practice of States in giving effect to these duties is extremely variable, as can be seen from the country evaluation reports produced by GRETA. That is not to say that some countries are necessarily in violation of the treaty; but some do more than others.

  Significantly, Article 5.3 requires States to promote a “Human Rights-based approach”, and to use gender mainstreaming and “a child-sensitive approach” in the development of prevention measures.

  Chapter III contains measures to protect and promote the rights of victims. This is a major advance on the rights regime in the Palermo Protocol. These measures include having in place persons trained and qualified in preventing and combating THB, and in identifying and helping victims (Article 10.1). Identification is crucial, particularly as trafficked persons may have been forcibly engaged in what is prima facie illegal activity. In such cases, failure to identify may result in the individual being treated as a suspected criminal, or being returned to their own country despite possibly having an entitlement to international protection.

  Children are to be provided with special help. Under Article 10.4, unaccompanied children who have been identified as victims of THB are to be provided with a guardian or other authority, which must act in “the best interests of the child”. States must also establish the identity and nationality of the child, and make every effort to locate the child’s family, so long as this is in the best interests of the child.

  States are obliged to protect the private life and identity of victims (Article 11). This includes the safe storage of data, as well as taking measures to ensure that the identities of child victims are not made publicly known (except, exceptionally, to facilitate the tracing of family members, or where necessary to secure the well-being of the child).

  Assistance for victims is regulated by Article 12. The overall purpose of assistance measures is to help victims “in their physical, psychological, and social recovery”, and the minimum required is to ensure:

  standards of living capable of ensuring their subsistence, through such measures as: appropriate and secure accommodation, psychological and material assistance;

  access to emergency medical treatment;

  translation and interpretation services, when appropriate;

  advice and information in a language the person understands, especially regarding their rights and the services available to them;

  assistance in ensuring consideration of their interests and rights during criminal proceedings;

  access to education for children.

  Certain other duties should be stressed, most notably that States must, where appropriate, take measures to co-operate with civil society organisations engaged in helping trafficked people. Such co-operation may be very extensive in some countries, given the high level of civil society engagement in helping trafficked people.

  An issue in some countries is that the authorities sometimes link the provision of assistance to agreement by the trafficked person to act as a witness in criminal proceedings. Article 12.6 reinforces the separate legal basis for the duty to provide assistance by stipulating that it may not be made conditional upon willingness to act as a witness.

  Once a trafficked person has come to the attention of the State’s authorities, there is a certain order of events that must be followed. Under Article 13, States must provide a “recovery and reflection period” of at least 30 days to the trafficked person. This applies as soon as there are “reasonable grounds” to believe that the person has been trafficked. There are two reasons for this: to enable the trafficked person to escape the influence of traffickers; and/or to take an informed decision about co-operating with the competent authorities. Although this is not stated in the treaty itself, according to the Explanatory Report this period is supposed to be only for trafficked persons illegally present in the State, or legally resident with a short-term residence permit.4 The logic behind this is that such persons are vulnerable to removal from the State and should therefore be protected against this through the granting of a recovery and reflection period. Conversely, nationals or those with a right of residence cannot be removed, so do not require this facility. However, there is much to be said for all trafficked persons benefitting from a recovery and reflection period: even
if a person’s presence in the State is not under threat, the trauma to which she may have been subjected is such that it may be highly detrimental if she is not given help towards recovery. The Explanatory Report states that one purpose of the period is “to allow victims to recover and escape the influence of traffickers. Victims’ recovery implies, for example, healing of the wounds and recovery from the physical assault which they have suffered”.5 These factors will usually apply irrespective of whether the victim is a citizen or on the territory irregularly.

  Article 14 provides for the issue of residence permits to trafficked persons who would not otherwise be entitled to remain in the State to which they have been trafficked. States must issue a renewable residence permit to victims in either or both of the following scenarios: where this is necessary due to their “personal situation”; or where it is considered “necessary for the purpose of their cooperation with the competent authorities in investigation or criminal proceedings”. The notion of “personal situation” allows for a protection-based residence permit, but the second ground is aimed at encouraging prosecutions. On the face of it, States may, therefore, issue the permit subject to the co-operation of the victim in a prosecution only, since it does not have to be issued on the basis of their personal situation. One problem with this is that, in such cases, the State may decline to issue a residence permit to someone who, despite having a very difficult personal situation, is not considered necessary to assist with an investigation or prosecution. This would be contrary to the human rights-based approach of the Convention. Practice in this area is varied. GRETA has encouraged States that link the permit to criminal proceedings to consider issuing them on the basis of the victim’s situation also,6 or – perhaps the same thing expressed differently – when the victim is unable to co-operate with the authorities.7 The right to seek asylum is specifically stated to subsist where a person has a permit.8

  Compensation is a problematic issue for trafficked people. They may have been forced to work lengthy periods for little or no money; they may have suffered physical, sexual and/or psychological violence; and their capacity to subsequently live an independent life may be significantly compromised. Article 15(3) requires each party to ensure, through their internal law, that victims have the right to compensation from the perpetrators. In addition, Article 15(4) obligates each party to “adopt such legislative or other measures as may be necessary to guarantee compensation for victims in accordance with the conditions under its internal law”. The country reports of GRETA clearly show that this is a very fraught area. With some notable exceptions, the reality is that it is very difficult for trafficked people to obtain compensation. If they do not speak the language, if they do not know the law and procedure (and who does?), or if they have no resources of their own, how are they seriously supposed to bring a claim for compensation against traffickers, who may, in any case, have hidden their assets? Most States monitored by GRETA have been unable to name any cases at all where such compensation has been even sought, let alone won. More realistic is the duty for the State to guarantee compensation, since this, at least, will not be dependent upon a successful civil action against a trafficker.

  Repatriation and return of victims have to be “with due regard for the rights, safety and dignity of that person and for the status of any legal proceedings related to the fact that the person is a victim, and shall preferably be voluntary”.9 This, of course, reflects the fact that aliens do not as such have the right to remain in another State. Trafficked people may also wish to return to their home countries. Should they wish to remain in the destination State, however, they will need to demonstrate good reason, for instance a fear for their safety in their home State. In that situation, there may well be an entitlement to international protection, which is recognised in the Convention.10

  The home State is supposed to co-operate in repatriation; for instance, by verifying if a trafficked person is its citizen, or by issuing a travel document to facilitate return. This matters, because it is not uncommon for traffickers to keep their victims’ identity documents as a means of exercising control over them.

  Chapter IV contains measures on criminal law. Parties are obliged to criminalise THB (Article 18). More problematic is the duty, under Article 19, to “consider” adopting measures to criminalise the use of services of a trafficked person “with the knowledge that the person is a victim of trafficking in human beings”. If one knows that a person has been trafficked, then it may, in any case, be a criminal offence to use their services. For instance, if the client in a brothel is informed by a woman that she is being forced to work there and nevertheless proceeds, that will be rape, because there is no real consent to engage in sex. A more difficult scenario arises where a person is staying at the home of someone who lets the guest know that the live-in cleaner has been trafficked there, but they still allow the cleaner to tidy up their room.

  The Convention also contains measures on criminalisation of acts relating to travel or identity documents, such as forging them (Article 20), aiding and abetting (Article 21), corporate liability (Article 22), and “effective, proportionate and dissuasive sanctions” for trafficking offences (Article 23). Article 24 provides for circumstances that must be treated as aggravating the offence: where the offence deliberately or by gross negligence endangered the life of the victim; where it was committed against a child; where it was committed by a public official in the course of their duties; and where it was committed within the framework of a criminal organisation.

  Article 26 contains a non-punishment provision: based on the fact that a trafficked person may have been compelled to commit an offence in the course, or as a consequence, of being trafficked (and for which they should therefore not be held accountable to the extent that they were not acting as free agents), States are required to provide for the possibility of not imposing penalties for such offences.11

  Chapter V contains measures on investigation, prosecution, and procedural law. It is significant that States have a duty to investigate and prosecute THB even if no complaint has been made by the victim (Article 27). This obligation of pro-activity is important, because there may be situations where the victims are simply afraid to complain, or even unaware that they are being exploited or treated illegally.

  Articles 27 to 31 contain detailed provisions on protection of victims and witnesses, as well as the conduct of court proceedings. The Convention provides for the establishment of rather wide jurisdictional competence in an attempt to expand the scope for prosecutions. Under Article 31, in addition to the standard territorial jurisdiction over THB offences, parties must (although they can exclude this through reservation) establish jurisdiction where the offence is committed by one of their nationals or by a stateless person having their habitual residence on its territory, so long as the offence is punishable under the law of the country where it was committed, or if the offence was committed outside the jurisdiction of any State. The treaty does not demand that jurisdiction be assumed over foreign nationals having their habitual residence in a State but who commit an offence elsewhere (i.e., X, a national of State A, resident in State B, commits an offence in State C), but there is nothing to stop States doing so; furthermore, Article 31.3 requires States to establish jurisdiction over foreigners in their territory concerning whom they have declined a request for extradition. States must also establish jurisdiction where the offence is committed against their nationals (the passive personality principle; again subject to reservation).

  Chapter VI addresses international co-operation and co-operation with civil society. Given the transnational nature of much THB, co-operation between States is obviously crucial. This can take many forms, both with regard to law enforcement and assistance to victims. With the former, States may co-operate informally though practical mutual assistance and exchange of information by police forces. More formally, some countries may establish joint investigation teams, where police from each country work together in a team to inves
tigate THB from one country to the other. With regard to assistance measures, effective co-operation is necessary, for instance, to ensure safe repatriation of trafficked persons, who need to be safely received and given help with reintegration. This requires effective communication between the different authorities.

  Article 32 requires States to co-operate “to the widest extent possible” to prevent and combat THB, to protect and provide assistance to victims of THB, and in investigations or proceedings concerning THB offences. There are also obligations regarding missing or endangered persons, and exchange of information.

  Article 35 requires the parties to encourage State bodies and officials to co-operate with civil society, with the aim of achieving the purposes of the Convention. This can work in different ways. In some countries, the State actually pays particular bodies, such as NGOs, to perform certain functions which are State obligations, such as running shelters or providing assistance and advice to trafficked people. In all countries, there are civil society organisations engaged, some more usefully and effectively than others, in helping trafficked people, supporting them, and advocating their rights, which may entail pointing out alleged deficiencies of the State. There is much to be gained by the State and civil society working effectively together.

  One of the most distinctive features of the Convention is the monitoring mechanism established under Chapter VII: the group of experts on action against trafficking in human beings (GRETA). GRETA consists of 15 members, elected for four-year terms (renewable once), from amongst the parties. They sit independently, and do not represent the States from which they come. They must be of “high moral character” (Article 36.3). It is supported by a secretariat, based in Strasbourg.

  Monitoring takes place through country visits. Currently, each country is monitored once every four years. The procedure is that each country is sent a questionnaire regarding aspects of its compliance with the Convention. This is a standard questionnaire, the same for each country. There is a timetable for the country to respond. These responses are taken into account in the preparation of GRETA’s reports, which are published. The reports are drafted after a country visit, which normally lasts four to five days. The GRETA delegation comprises two elected members (but they never visit their own country), as well as one to two members of the Secretariat in support.