More specifically, the non-punishment provision establishes that victims of trafficking shall not be punished for offences they committed as a consequence, or in the course, of their having been trafficked. This provision does not provide blanket impunity for trafficking victims, but it recognises that trafficking victims lack real choice in a trafficking situation – having no autonomy because of the abusive and coercive means used by their traffickers to control and exploit them – and thus should not be held liable for violations of the law they committed as a result of their trafficking.
It is unjust that victims of trafficking be arrested, detained, charged, and prosecuted because of their irregular status; or because they possess forged documents; or because they made false declarations; or because they were compelled to steal or commit other violations of the law by their traffickers; and/or because of their trafficking situation. It is, rather, their trafficking that is the real and serious crime – which should be investigated and prosecuted, while ensuring that victims receive adequate care and support, are not re-victimised or re-traumatised, and have access to an effective remedy. This in turn will contribute to enabling victims to properly explain the circumstances of the crime, and to provide their evidence and testimony in the prosecution of offenders in a manner that is understandable to the competent authorities.
The punishment of victims not only detracts from fully and effectively prosecuting the true crime, but it also amounts to a denial of justice.
Every legal system includes general provisions of defence for duress-based or causation-based offences, or general clauses of ‘irresistible force’ or ‘extreme necessity’, which exclude responsibility and accountability when the offence has been committed under those circumstances. It is a basic principle of law that victims should not be punished for unlawful acts they committed as a direct consequence of their situation as trafficked persons.
The international standards
Over recent years, the international legal framework around the non-punishment provision with regard to victims of trafficking in human beings has been rapidly evolving from a soft law standard to a legally binding rule.
While the Palermo Protocol (Protocol to Prevent, Suppress and Punish Trafficking in Persons, in Particular Women and Children) does not contain a specific non-punishment provision, already in 2002 the principle was affirmed in the UN Recommended Principles and Guidelines on Human Rights and Human Trafficking, which state that:
Trafficked persons shall not be detained, charged or prosecuted for the illegality of their entry into or residence in countries of transit and destination, or for their involvement in unlawful activities to the extent that such involvement is a direct consequence of their situation as trafficked persons.4
With regards to children, UN OHCR Guideline 8.3 adopts a broader approach, which refers to offences related to the trafficking situation of children, and in particular requires States to consider:
Ensuring that children who are victims of trafficking are not subjected to criminal procedures or sanctions for offences related to their situation as trafficked persons.5
General Principle 2.1 of the UNICEF Guidelines on the Protection of Child Victims of Trafficking further asserts that:
The involvement of child victims in criminal activities shall not undermine their status as both a child and a victim, or their related rights to special protection.6
In the early 2000s, other soft law instruments reiterated the non-punishment principle; for example, the OSCE Vienna Ministerial Council Decision No.1 called on States to adopt anti-trafficking legislation, and specified that:
Such legislation should take into account a human rights approach to the problem of trafficking, and include a provision for the protection of the human rights of victims, ensuring that victims of trafficking do not face prosecution solely because they have been trafficked.7
The 2005 Council of Europe Convention on Action against Trafficking in Human Beings for the first time introduced a legally binding non-punishment provision. Article 26 of the Convention requires that:
Each Party shall, in accordance with the basic principles of its legal system, 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.8
The Explanatory Report to the Convention clarifies that:
Each Party can comply with the obligation established in Article 26, by providing for a substantive criminal or procedural criminal law provision, or any other measure, allowing for the possibility of not punishing victims when the above mentioned legal requirements are met, in accordance with the basic principles of every national legal system.9
GRETA, i.e., the Council of Europe’s Group of Experts on Action against Trafficking in Human Beings, which acts as independent monitoring mechanism for this convention, has also routinely examined the implementation of this provision, and has stressed that:
[T]he criminalisation of victims of THB not only contravenes the state’s obligation to provide services and assistance to victims, but also discourages victims from coming forward and co-operating with law enforcement agencies, thereby also interfering with the state’s obligation to investigate and prosecute those responsible for THB.10
In 2011, the EU Anti-Trafficking Directive reaffirmed the non-punishment principle, and seems to broaden its scope by establishing a legal obligation of non-prosecution in addition to the non-imposition of penalties. Pursuant to Article 8:
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 [THB acts].11
A growing recognition and affirmation of the non-punishment principle at the global level is also evident in the deliberations of the UN General Assembly and of the Working Group on Trafficking in Persons assisting the Conference of State Parties to the UN Convention against Transnational Organized Crime. In 2009, in its Resolution A/RES/63/156 (para 12), the General Assembly:
Urges Governments to take all appropriate measures to ensure that victims of trafficking are not penalized for being trafficked and that they do not suffer from revictimization as a result of actions taken by government authorities, and encourages Governments to prevent, within their legal framework and in accordance with national policies, victims of trafficking in persons from being prosecuted for their illegal entry or residence.
In 2010, the Working Group on Trafficking in Persons recommended that:
State parties should ensure that provisions for the non-punishment and non-prosecution of trafficked persons contained in domestic legislation, guidelines, regulations, preambles or other instruments are clearly stated. In doing so, States parties are encouraged to make use of technical assistance tools such as the UNODC Model Law against Trafficking in Persons and principles and guidelines such as the Recommended Principles and Guidelines on Human Rights and Human Trafficking of the Office of the United Nations High Commissioner for Human Rights, as well as any other regional standards and guidelines.12
In 2014, the newly adopted ILO Forced Labour Protocol also introduced a non-punishment clause in its Article 4:
Each Member shall, in accordance with the basic principles of its legal system, take the necessary measures to ensure that competent authorities are entitled not to prosecute or impose penalties on victims of forced or compulsory labour for their involvement in unlawful activities which they have been compelled to commit as a direct consequence of being subjected to forced or compulsory labour.13
The new Protocol addresses the connections between THB and Forced Labour, and strengthens the protection of victims – including by introducing such a specific clause which explicitly acknowledges that victims of forced labour may involuntari
ly commit a range of offences as a direct result of their forced labour status.14 This clause is also important from the perspective of avoiding discriminatory treatment of victims of forced labour versus victims of trafficking – effectively prescribing equality of treatment for both.
Overall, these legal developments indicate awareness and understanding of the specific features and issues related to THB victims; of the necessity to tailor responses to better protect their rights as victims of a serious crime and violation of human rights; of ensuring a consistent use of the non-punishment clause; as well as reflecting the purpose of encouraging the co-operation of victims in legal proceedings against perpetrators.
The scope of the non-punishment clause
The non-punishment provision applies to offences committed by victims of trafficking under compulsion: i.e., which they were compelled to commit because of their trafficking situation. The requirement of compulsion is to be understood in light of the illicit means referred to in the definition of trafficking in human beings: i.e., threat/use of force, other forms of coercion, abduction, fraud, deception, abuse of power, or of a position of vulnerability.15 In this regard, the OSCE notes that:
Being “compelled” to commit a crime thus includes the full array of factual circumstances in which victims of trafficking lose the possibility to act with free will; not only under the threat of physical violence or emotional abuse, but also in the devastatingly prevalent scenarios wherein traffickers exploit victims by abuse of a position of vulnerability.16
This means that the non-punishment rule applies to all victims, regardless of the type of abusive and coercive means traffickers use to control them and compel them to commit the offence. In other words, it applies not only in cases where victims were compelled through physical coercion, but also when victims were compelled through deception, abuse of a position of vulnerability, or other more subtle means of coercion, including, for example, through debt-bondage. Indeed, there are many ways through which traffickers achieve control over their victims, and these do not necessarily imply that victims are locked up; for example, “repetitive abuse gives the perpetrator regular control and makes the victim feel helpless”.17 Victims are often manipulated through threats of reporting them to police who would then arrest and detain them. Traffickers abuse the victim’s position of vulnerability; and they have no real and acceptable alternative but to submit to the abuse.18
The non-punishment clause under Article 26 of the Council of Europe Convention entails an obligation on States to adopt and/or implement a substantive criminal or procedural criminal law provision, or other measure, allowing for the possibility of not punishing victims “when the … legal requirements are met”.19 Recital 4 of the Convention states that “respect for victims’ rights, protection of victims and action to combat trafficking in human beings must be the paramount objectives”; while Article 1(b) provides that one of the purposes of the Convention is “to protect the human rights of the victims of trafficking”. Thus, from a human rights perspective, which is central to the Council of Europe Convention, the implementation of the non-punishment clause would therefore require that States put the protection of the victims’ rights at the core of the actions of any public authority and take into account the victim’s condition and their impossibility to act fully independently and freely because of their trafficking situation. From this perspective, an unjust prosecution would contradict the obligation to protect and would represent a form of punishment.
In furtherance of the non-punishment principle, as soon as there is a reasonable suspicion that a person might have been trafficked, that person should receive essential assistance and support in accordance with their needs and entitlements, including access to independent legal advice regarding their situation. In situations where such a reasonable suspicion emerges during proceedings for offences allegedly committed by the presumed victim, it would be recommended that the prosecutor and/or judge provisionally suspend those proceedings until it is established whether the person is a victim of trafficking.
It is here argued that the non-punishment obligation should be interpreted in such a way as to also allow immunity from prosecution and/or detention – not just immunity from the application of a penalty – for trafficking victims compelled to commit an offence. Furthermore, the non-punishment obligation should likewise be interpreted in such a way as to allow the same immunities for trafficking victims compelled to commit an offence because of or during their trafficking.
The non-punishment provision should also be interpreted and applied so as to avoid other sanctions and punishments being unjustly imposed. For example, States should adopt measures to ensure that administrative fines are not imposed on trafficked persons, and that they are not subjected to automatic re-entry bans because of violation of immigration legislation. Further, States should ensure that trafficked persons do not have a criminal record for having been suspected of (or prosecuted for) THB-related offences, so as to avoid other unintended consequences on their lives, such as restrictions on travel and/or employment, or other limitations to accessing residence permits.20
Children
In cases involving children, it is essential that States adopt and/or implement laws and other measures to ensure that child victims are never punished or in any other way penalised for their involvement in unlawful activities related to their trafficking experience. Children are supposed to be granted special protection in accordance with their rights as children and victims of crime. Article 8 of the Optional Protocol to the Child Rights Convention on the Sale of Children, Child Prostitution and Child Pornography21 establishes, inter alia, that parties shall adopt appropriate measures to protect the rights and interests of child victims, and shall consider the best interests of the child as a primary consideration.
In the context of child victims of trafficking involved in violations of the law related to their status as victims, it is important to understand and interpret the non-punishment clause in light of the child trafficking definition established under international law (Article 3 of the Palermo Protocol, Article 4 of the Council of Europe Convention, and Article 2 of the EU Trafficking Directive). According to this definition, when establishing the offence of child trafficking, the abusive and coercive means are irrelevant; it is necessary only to demonstrate the existence of any of the acts of trafficking (recruitment, transportation, transfer, harbouring, or receipt) for the purpose of exploitation.
This definition recognises that children are particularly vulnerable to abuse and exploitation. Children lack full agency, both in law and in fact, and when child victims are involved in a violation of the law related to their trafficking situation it should be understood that, in such situations, a child has no autonomy and is very dependent on the trafficker(s). Consequently, authorities are to ensure that children be protected from sanctions and prosecution and not be required to prove that they were ‘compelled’ to commit an offence. There might be challenges in the implementation of the non-punishment provision derived from the fact that, while international human rights law defines a child as every human being below the age of 18 years, in many jurisdictions children can bear criminal responsibility at the age of 16, or sometimes younger.22 Children are, by virtue of their age alone, in a position of vulnerability compared to adults, and they are to be protected from harm; child victims should never be subjected to the test of compulsion. The focus should be on the child’s situation of exploitation, on protecting their rights – taking into account their best interests – and on providing them with the immediate and appropriate support and assistance they are entitled to as children and child victims of crime. UNICEF further underlines that the non-punishment clause, “should apply regardless of their role in the offence and where the offence was committed, and irrespective of the initiation or outcomes of criminal proceedings, or the charges brought forward against the perpetrators”.23
The non-punishment provision in practice: how are these standards applied
?
The practical implementation of the non-punishment provision varies greatly from country to country, and it is quite inconsistent. In Europe, the GRETA reports provide useful insights on the approaches taken by States to comply with their international obligations under Article 26 and, where applicable, Article 8 of the EU Directive on THB. Very few countries (eight out of 35 countries evaluated by GRETA by 2014)24 have adopted specific legal provisions to deal with the non-punishment of victims of trafficking; and in most cases the application of this provision is limited to a certain type (e.g., offences which are not classified as particularly serious) or number of offences – for example, possession of forged documents, illegal border crossing, and other immigration-related offences (see Armenia, Azerbaijan, Cyprus, Georgia, Luxembourg, the Republic of Moldova, and Romania). The vast majority of countries rely on existing general legal provisions on duress. However, the judicial application of these provisions is quite restrictive, given their general nature; thus, they are rarely applied in trafficking cases. A number of countries have chosen to adopt guidelines for judicial authorities on the interpretation and application of non-punishment (e.g., Belgium, Ireland, Norway, Poland, Spain, and the UK). In 2014, GRETA concluded that 46% of the evaluated countries did not comply with their obligations under Article 26.25
Routledge Handbook of Human Trafficking Page 37
