Routledge Handbook of Human Trafficking
Page 13
Country visits typically consist of meetings with relevant government ministries and agencies, as well as civil society and international organisations. Visits may also be made to shelters where trafficked people are accommodated. The aim is to obtain as comprehensive a picture as possible of the State’s compliance with the Convention. After the visit, a draft report is prepared, which must be approved by GRETA in plenary. This report is then sent to the State, which has time to respond, should it wish. GRETA will then take any response from the State into account before adopting its final report in plenary. The final report is then sent to the State, which is invited to comment. The report is then published, along with comments received from the State; although such comments do not form part of the report.
The reports aim to give as full a picture as possible. This means acknowledging good practice, as well as indicating where States could do better, or where they may even be failing to meet their obligations. The reports enjoy high credibility, and are widely cited as a source of reliable information on THB in the countries concerned.
The second pillar of the monitoring mechanism is the Committee of the Parties, composed of representatives of the parties to the Convention. When GRETA adopts a report, it is sent to the relevant country and to the Committee of the Parties. The Committee may then adopt, based on the report, recommendations addressed to the State concerned regarding the measures to be taken to implement GRETA’s conclusions, as well as aiming at co-operation with that State for the “proper implementation” of the Convention (Article 38.7).
What this means is that GRETA’s reports cannot bind a State to take, or desist from, any particular action. However, they serve a very important role in highlighting what a State is doing well (this sometimes tends to get overlooked, although it is important also as a means of encouraging other States to consider how they might better meet their obligations), but also indicating where GRETA considers that a State could do better, or may even not be in compliance. There is little doubt that GRETA now plays a core role in promoting the well-being of trafficked people and encouraging effective action against traffickers.
Trafficking in organs
The Council of Europe also adopted a treaty specifically addressing trafficking in human organs. The Council of Europe Convention against Trafficking in Human Organs was adopted in 2014.12
European Union
The EU has also been very active with regard to THB. There are several instruments relevant to THB, although not concerned exclusively with that crime, including: Directive 2012/29/EU establishing minimum standards on the rights, support, and protection of victims of crime; and Directive 2011/95/EU on qualification for refugee status or subsidiary protection. However, most important here are the Residence Permit Directive13 and the Anti-Trafficking Directive.14
The Residence Permit Directive aimed to improve law enforcement against traffickers by providing a temporary residence permit for victims of transnational trafficking, who were not EU nationals, so that they could remain in the relevant EU country in order to “cooperate in the fight against trafficking in human beings” (Article 1).15 While it did provide for a reflection period (the duration to be decided by the authorities) –expressly stated to allow trafficked people time to decide whether to co-operate with the authorities (Article 6.1) –there is little in the Directive that could be said to be motivated by a desire to support and assist trafficked people as victims of THB rather than as components of a prosecution case. They may not be deported during the reflection period, but the reflection period can be terminated if they, by their choice and initiative, resume contact with the traffickers. The Directive contains a variety of measures relating to support and assistance, including subsistence level support and emergency medical treatment before the issue of a residence permit (Article 7). Once a permit has been issued, those persons with “special needs, such as pregnant women, the disabled or victims of sexual violence or other forms of violence” are to be provided with “necessary medical or other assistance” (Article 9.2). While many victims of THB will have been subjected to violence, the provision could have gone further in guaranteeing access to medical treatment and other assistance to all trafficked people.
The Residence Permit Directive arguably demands too much for what it offers: a limited stay in the destination State in return for co-operation with the authorities, which could include the giving of evidence in court. Once the proceedings are over, the residence permit is not to be renewed (Article 13.1); the trafficked person could be required to leave the State unless they applied for, and were granted, some form of international protection. Potentially, a person could give evidence in good faith in court, then be required to leave the country and return to the country from which they were trafficked, where the traffickers or their associates might be at large.
This situation has been changed to some extent by the entry into force of the 2011 Anti-Trafficking Directive, which purported to adopt “an integrated, holistic, and human rights approach to the fight against trafficking in human beings” (Preamble, Recital 7). This is a wide-ranging instrument that to some extent overlaps with the CoE Convention. All EU Member States are parties to the latter instrument, but Denmark is not bound by the Directive.
The Directive’s definition of THB, at Article 2, is essentially the same as in the CoE Convention. One slight difference is with regard to the means used to traffic people. The term ‘abuse of a position of vulnerability’ is defined as: “a situation in which the person concerned has no real or acceptable alternative but to submit to the abuse involved” (Article 2.2).16
The Directive sets out ‘minimum maximum’ penalties for THB (five years; or ten years for aggravated THB: Article 4). It also requires Member States to take the necessary measures to allow for seizure and confiscation of the instrumentalities and proceeds of THB (Article 7). There is a non-punishment provision (Article 8), which is arguably stronger than its equivalent in the CoE Convention, in that it obligates States to “take the necessary measures to ensure that [the authorities] are entitled not to prosecute or impose penalties on [trafficked people]”.17
In terms of protection and assistance, it should be noted that, under Article 11, assistance and support is to be provided to victims, “before, during and for an appropriate period of time after the conclusion of criminal proceedings”.18 This starts as soon as the authorities have a reasonable-grounds indication that the person might have been trafficked. This assistance and support may not be made conditional on the victim’s willingness to co-operate in a criminal investigation, prosecution, or trial. The actual measures are to include at least:
[S]tandards of living capable of ensuring victims’ subsistence through measures such as the provision of appropriate and safe accommodation and material assistance, as well as necessary medical treatment including psychological assistance, counselling and information, and translation and interpretation services where appropriate.
(Article 11.5)
There are substantial provisions on the support of child victims and their protection in criminal investigations and proceedings (Articles 13–16). In general, the child’s best interests are to be “a primary consideration”.
The Directive does provide for compensation, but it is narrow. The duty is to ensure access to “existing schemes of compensation to victims of violent crimes of intent” (Article 17). There are three problems with this. First, there is no provision for establishing some compensation scheme specifically for victims that would recognise their particular needs and (potentially) draw on assets confiscated from traffickers; second, if there is no existing scheme, the Directive does not establish a duty to create one; third, the reference to “violent crimes of intent” will exclude those persons, including children, who have been subjected to kinds of pressure other than violence to facilitate their exploitation. This is much weaker than the equivalent provision in the CoE Convention.
Article 18 requires Member States to take prevention
measures, including with regard to raising awareness and training of relevant professionals, so as to reduce the demand that encourages THB.
The Directive also requires, under Article 19, the establishment of national rapporteurs or equivalent mechanisms, whose functions include carrying out of assessments of trends in THB, evaluation of the results of anti-trafficking actions in co-operation with relevant civil society organisations, and reporting on this. It is not stated whether this function should be exercised by a person or body independent of the State. However, it should not be forgotten that independent monitoring and evaluation is carried out by GRETA in all Member States, since they have all ratified or acceded to the CoE Convention.
Linked to this is the duty of Member States, under Article 20, to facilitate the work of the anti-trafficking coordinator (ATC), a position created in 2011 to co-ordinate the anti-THB efforts of the various EU bodies by providing the information acquired in fulfilment of Article 18, so that the ATC could, “contribute to [the] reporting carried out by the Commission every two years on the progress made in the fight against [THB]”. Such a report was first published in 2016.19
The Commission has, however, failed to meet reporting obligations under Article 23. This required it to submit, by 6 April 2015, a report to the European Parliament and the Council, assessing Member States’ compliance with the Directive; and by 6 April 2016, a report, “assessing the impact of existing national law, establishing as a criminal offence the use of services which are the objects of exploitation of [THB], on the prevention of [THB]”. At time of writing, no such reports have been produced; or if they have, they have not been published.
Given the similarities of scope between the Directive and the Convention, the question arises as to what happens in the event of a possible conflict of obligations. Article 40.3 of the Convention provides:
Parties which are members of the European Union shall, in their mutual relations, apply Community and European Union rules in so far as there are Community or European Union rules governing the particular subject concerned and applicable to the specific case, without prejudice to the object and purpose of the present Convention and without prejudice to its full application with other Parties.
The effect is to create two regimes: one between Convention parties which are also EU members; and another between EU members and non-EU members, as well as between non-EU members. This could have ramifications in several areas, including (but not only):
Residence permit issues;
Recovery and reflection period;
Identification (and non-removal);
Entitlement to international protection;
Compensation for victims of trafficking;
Penalties;
Protection of child victims of trafficking.
It cannot be assumed that compliance with relevant EU law equals compliance with the Convention; nor can compliance with the Convention be assumed to equal compliance with EU law. GRETA has a legitimate interest in the compliance by EU Member States with their obligations under the Convention. In particular, where a State argues that compliance with the Directive is sufficient to meet its Convention obligations, it is necessary to evaluate the precise scope of EU obligations which address matters dealt with in the Convention. Of course, there would be much scope to argue about whether, in the event of a conflict, EU rules actually govern the particular subject concerned and are applicable to the specific case.
Human rights law
Trafficking had not been an issue before the European Court of Human Rights until 2010.20 It is not explicitly stated to be a violation of the European Convention on Human Rights. Article 4 of that instrument prohibits slavery, forced labour and servitude; not trafficking. But in 2010, the Court passed judgment in a case in which it held that THB could be a violation of Article 4. In Rant-sev v. Cyprus and Russia, the Court elaborated on the nature of States’ obligations to prevent THB and to support victims, and potential victims, of THB.21 The Court found that THB “threatens the human dignity and fundamental freedoms of its victims”.22 Furthermore, the obligation of States under Article 4 extends beyond the duty to prosecute and penalise traffickers; it includes having in place national legislation
adequate to ensure the practical and effective protection of the rights of victims or potential victims of trafficking. Accordingly, in addition to criminal law measures to punish traffickers, Article 4 requires member States to put in place adequate measures regulating businesses often used as a cover for human trafficking. Furthermore, a State’s immigration rules must address relevant concerns relating to encouragement, facilitation or tolerance of trafficking.23
The duty to protect could extend to include immediate practical measures where the authorities were aware, or ought to have been aware, that an identified victim “had been, or was at real and immediate risk of being, trafficked or exploited”.24 In such a situation, there would be a violation of Article 4, “where the authorities fail to take appropriate measures within the scope of their powers to remove the individual from that situation of risk”.25 The Court also noted that not only destination States but also source and transit States have obligations under Article 4 to establish their jurisdiction over THB offences committed on their territory, as well as to co-operate with the relevant authorities in other States.26
The decision demonstrates not only that THB is a serious crime, but that it raises human rights issues where States fail to take appropriate measures against THB, or fail to support victims and potential victims of THB. These include both immediate (urgent) and longer-term measures.
Conclusion
In terms of its scope, the European legal regime on THB is the most advanced regional system in the world. It is comprehensive: the CoE Convention has been ratified by nearly all member States and all EU Member States. While the EU Directives and the CoE Convention have elements in common, they are nevertheless not identical, and it is important that potential conflicts are avoided where the two regimes differ. The monitoring system operated by GRETA and the Committee of the Parties is a crucial element in holding States to account, and it is vital that it continues to function effectively. European States, such as Russia, that are not bound by either the Convention or the Anti-Trafficking Directive, remain bound by the decision of the ECtHR in the Rantsev case to implement anti-trafficking measures.
Notes
1 CETS No. 197.
2 The Explanatory Report to the Convention states: “the drafters felt it was essential to define the concept [of ‘victim’]. In particular the measures provided for in Chapter III are intended to apply to persons who are victims within the meaning of this Convention” [Council of Europe Convention on Action against Trafficking in Human beings. Explanatory Report, para 99].
3 www.coe.int/t/dghl/monitoring/trafficking/default_en.asp.
4 Para 172.
5 Para 173.
6 See, for instance, Report concerning the implementation of the Council of Europe Convention on Action against Trafficking in Human Beings by Romania, 31 May 2012, para 159: “GRETA also encourages the Romanian authorities to consider granting temporary residence permits to victims who, for various reasons, do not co-operate with the competent authorities”.
7 Report concerning the implementation of the Council of Europe Convention on Action against Trafficking in Human Beings by Finland, 4 June 2015, para 182.
8 Article 14(5).
9 Article 16(2) [emphasis added].
10 Article 40(4): “Nothing in this Convention shall affect the rights, obligations and responsibilities of States and individuals under international law, including international humanitarian law and international human rights law and, in particular, where applicable, the 1951 Convention and the 1967 Protocol relating to the Status of Refugees and the principle of non-refoulement as contained therein” [emphasis added].
11 For a more detailed discussion of the scope of this principle, see R. Piotrowicz and L. Sorrentino, “Human Trafficking and the E
mergence of the Non-Punishment Principle” (2016) 16 Human Rights Law Review 669–699; Office of the Special Representative and Co-ordinator for Combating Trafficking in Human Beings, Policy and Legislative Recommendations Towards the Effective Implementation of the Non-Punishment Provision With Regard to Victims of Trafficking (2013).
12 See López-Fraga et al., chapter 10, this volume.
13 Council Directive 2004/81/EC on the residence permit issued to third-country nationals who are victims of trafficking in human beings or who have been the subject of an action to facilitate illegal immigration, who co-operate with the competent authorities, OJ L 261/19. For detailed commentary see Piotrowicz, R., “European Initiatives in the Protection of Victims of Trafficking Who Give Evidence Against Their Traffickers” (2002) 14 International Journal of Refugee Law 263–278.
14 Directive 2011/36/EU of the European Parliament and of the Council of 5 April 2011 on preventing and combating trafficking in human beings and protecting its victims, and replacing Council Framework decision 2002/629/JHA, OJ L 101/1.
15 The Directive also applies to people who have been smuggled.
16 This does not take us much further. The complexity of this concept is discussed by Gallagher and McAdam, chapter 15.