DG-II (2002) 5
English only
FEASIBILITY STUDY
ON A COUNCIL OF EUROPE CONVENTION
ON TRAFFICKING IN HUMAN BEINGS
Maria Grazia Giammarinaro
Criminal Court Judge
Rome - Italy
2
Table of contents
Page
1.
Scope and Objectives of a Convention of the Council of Europe
on Trafficking in Human Beings
3
The United Nations Convention against Transnational Organised
Crime and the Protocol on Trafficking in Persons,
Especially Women and Children
8
Expanding the scope of international co-operation to the cases of
THB in which organised crime is not necessarily involved
12
The clause of non-punishment for offences connected to the
condition of victim of THB
16
5.
The problem of residence status of the victims of THB
20
6.
The residence permit
25
7.
Assistance and social protection of trafficked persons
27
8.
The protection of the rights of the victims who are minors
31
9.
Rights of the trafficked person in criminal proceedings
33
10.
THB and new information technologies
36
11.
Addressing the root causes of THB
38
12.
Establishing a national and a European monitoring system
40
2.
3.
4.
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1.
Scope and objectives of a Convention of the Council of Europe on Trafficking in
Human Beings
During its meeting held in Strasbourg on 17-19 April 2002, the Steering Committee for Equality
between Women and Men discussed a proposal for a CoE Convention on Trafficking in Human
Beings (THB). The Steering Committee emphasised a human rights approach and a gender
perspective as the essential focus of a new international instrument dealing with THB.
This approach is consistent with the relevant CoE documents on THB, particularly
Recommendation N° (2000) 11.
Focusing on trafficking for the purpose of sexual exploitation, the Recommendation establishes
principles and indicates measures appropriate to all forms of trafficking for any illicit purpose. The
Recommendation states as an essential goal the adoption of legislative measures and actions for
"the protection of the rights and interests of the victims of trafficking, in particular the most
vulnerable and most affected groups: women, adolescents and children".
The Recommendation gives absolute priority to assisting victims of trafficking through
rehabilitation programmes, and to protecting them from traffickers. Simultaneously, the document
recommends taking action to apprehend, prosecute and punish all those responsible for trafficking,
to prevent sex tourism and all activities which might lead to forms of trafficking. The document
recommends that THB falls within the scope of international organised crime and therefore calls for
co-ordinated action both at national and international levels.
Recommendation N° (2000) 11 establishes a balance between the prosecution of traffickers and the
protection of the rights of victims, an important approach in terms of process and outcome.
THB continues to be one of the most severe violations of human rights as well as a serious criminal
problem. In spite of the various initiatives taken by international organisations and governments, the
efforts employed against THB are still insufficient.
At the EU level, two Joint Actions in 1996 and 1997, the European Guidelines adopted in The
Hague in 1997 were the first significant steps towards a comprehensive strategy against THB.
On 19th May 2000 the European Parliament adopted a Resolution based on the report submitted by
Patsy Sorensen, addressing different aspects of the struggle against THB.
At the UN level, the Statute of the International Criminal Court defines trafficking as a form of
enslavement falling within the crimes against humanity, subject to the jurisdiction of the Court.
In 1999 the Office of the High Commissioner for Human Rights produced a significant document
on "Principles and Guidelines on Human Rights and Human Trafficking". The General Assembly
has adopted many Resolutions on THB, submitted by the Commission on the Status of Women. The
recent Report of the Secretary General submitted on 25th January 2002, concerning the Integration
of the Human Rights of Women and the Gender Perspective, deals particularly with "Traffic in
Women and Girls", and comprises actions and measures against THB.
Concerning legal documents, the most important is the Convention against Transnational Organised
Crime and the Optional Protocol on Trafficking in Persons, especially Women and Children,
adopted in Palermo in December 2000. The UN Convention and the Protocol established a
regulation which should be considered as a starting point for any further initiative on the subject.
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In the "Ad Hoc Working Group" in Vienna, the negotiation of the two instruments acknowledged
the importance of victims' protection. At the last session the scope of the Protocol was enlarged. In
the final version, art. 2 of the Protocol comprises within the purposes of this instrument by
including assistance to and protection of victims, in addition to the prevention and combat of THB .
However, the provisions concerning assistance and protection have been formulated in a context
particularly aimed at prosecuting organised crime. As a consequence, the Protocol primarily focuses
on investigation, prosecution and law enforcement.
The provisions under art. 6 of the Protocol concerning assistance and protection, in particular safe
housing, counselling, psychological, medical and material assistance, training and job opportunities,
are formulated in a non binding language: “Each State Party shall consider implementing measures
to provide for the physical, psychological and social recovery of victims (..)”. Regarding victims'
residence status in receiving countries, art. 7 does not indicate legal grounds for granting a
residence permit. This provision only provides for the States Parties to grant a discretionary
authorisation to stay in the territory of the State.
The provisions in the Protocol aimed at social protection and residence status of victims are mere
recommendations. In spite of the ratification of the Convention and the Protocol, these can have no
substantial consequence in terms of improving the protection of the human rights of trafficked
persons.
The recent Framework Decision of the Council N° (2001) 24 focuses on investigation and
prosecution. The document mentions the need for the European Union to follow up the work of
international organisations, particularly the UN. Despite the fact that the document defines THB as
a serious violation of human rights and human dignity, the essential objective is to establish severe
and dissuasive sanctions, to improve judicial co-operation and prevention of crime.
In this context, a few provisions deal with matters of victims' rights. The Framework Decision
limits itself to indicating to the Member States the necessity to protect and give an appropriate legal
status to victims during judicial proceedings. Furthermore, the document requires Member States to
be vigilant, in order that criminal proceedings do not cause further prejudice towards the victims.
However, in the context of the document focused on prosecution, the provisions aimed at protecting
victims are insufficient for establishing an effective mechanism to ensure enforcement of the rights
of trafficked persons.
The protection of the human rights of victims and effective investigation and prosecution are
inextricably linked. According to the most effective national experiences, victims are willing to
co-operate with authorities in charge of investigation and prosecution when they are assisted and
protected, especially concerning safe housing, psychological and medical assistance, residence
status, legal counseling and representation in criminal proceedings.
Therefore, the CoE Convention should aim at a proper balance between matters concerning human
rights and prosecution.
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The UN Convention and the Protocol are the starting points. Furthermore, the CoE Convention
should:
 extend the scope of the Protocol, and comprise within the regulation, for the purpose of
international co-operation, cases of trafficking which are not committed in an organised crime
context;
 include more detailed and binding provisions, especially concerning assistance, social protection
and residence status of victims;
 include more detailed provisions regarding the rights of victims in criminal proceedings;
 stipulate provisions aimed at further improvements in investigative co-operation;
 establish a mechanism to monitor the application of the Convention, both at national and
international level.
As a general approach, in every action aimed at preventing and combating THB, the Convention
should:
 stipulate the principle of non-discrimination as a principle of applicable law, encompassing the
prevention of all forms of social stigmatisation towards trafficked persons, as illegal immigrants
and/or prostitutes;
 integrate a gender perspective, taking into account the fact that women are the most targeted;
 incorporate the principle of the well-being and the best interest of minors stipulating, inter alia,
a more protective standard of assistance and social protection for minors, considering the
vulnerability and special needs of children;
 indicate the aim of co-operation between public institutions and NGOs, on a permanent basis.
The Convention should stipulate more detailed provisions, taking into account the need for further
regulation aimed at:
1.
ensuring that trafficked persons do not undergo additional negative consequences as a
result of their condition as victims, in particular:
a) stipulating a clause of non-punishment for the offences connected to the status of victim, such as
prostitution, illegal border crossing, crimes instrumental in illegal immigration (use of false
documents, destruction or alteration of documents, staying within the State beyond the expiring
date of entry documents); the clause should be applied when the person makes reliable and
helpful statements in criminal proceedings (see Chapter 4);
b) activation of a reflection period, when a person states she/he is a victim of trafficking; during
this period the expulsion order cannot be enforced;
c) stipulating a residence permit on grounds of protection; after the expiry of the reflection period,
if the person reports to the police and makes reliable and helpful statements in criminal
proceedings; during the validity of the residence permit, the person should be allowed to get a
remunerated job; in this case, the residence permit should be converted for labour reasons (see
Chapter 6);
2.
establishing a standard of assistance and social protection of trafficked persons,
appropriate for the initial support activities, the reflection period and the duration of the
residence permit (see chapter 7); in particular:
a) during the reflection period, assistance activities should aim at enabling victims to recover from
the trauma, start a process for restoring self-esteem; relevant needs to be met are related to safe
housing, urgent medical and psychological care, interpretation service and cultural mediation,
legal counselling; interpretation, cultural mediation and counselling should be ensured to all
those who are to be deported, when there are grounds to suspect they are victims of THB;
b) during the validity of the residence permit, assistance activities should aim at social integration,
in the host country, or in the country of origin in cases of voluntary repatriation; the standard of
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assistance during this period should focus on education and professional training, job
opportunities, financial support, access to basic medical care;
3.
a)
b)
c)
d)
4.
a)
b)
c)
d)
e)
f)
5.
6.
the level of assistance should be heightened where children are concerned (see chapter 8);
in particular:
unaccompanied minors should not be deported before establishing their nationality, the location
of their families, or before the possible application for a residence permit;
with the assistance of a tutor, the minor should have an opportunity to decide if she/he wants to
return or to stay in the host country; if she/he wants to return, the State should establish
programmes aimed at assisted return; if she/he wants to stay, she/he should have the option of a
residence permit on protection grounds, or a more favourable procedure provided by national
legislation for minors;
if an unaccompanied minor does not want to return, the possibility for her/his family to join
her/him in the host country should be provided for, especially where her/his safety is
endangered in the country of origin;
if a minor choses the option of the residence permit on protection grounds, she/he should have
access to the reflection period and residence permit under the same conditions as adults; in
addition to the general measures concerning adults, she/he should have access to education,
under the same conditions as nationals; housing and assistance activities should take into
account children's need for deep and committed relationships, and aim at creating a familiar and
friendly environment;
favouring the harmonisation of national legislation on criminal procedure, intended to
further protect victims' rights in criminal proceedings (see Chapter 9); in particular,
stipulating more detailed provisions regarding:
the protection of privacy, especially through closed-door trial or at least an optional closed-door
hearing for giving evidence;
anonymity, at least through a rule of confidentiality in criminal proceedings;
police protection; when the victim acts as a witness, police protection should be proportionate to
the severity of the case; if the danger is very serious and ordinary measures are insufficient, the
victim should have access to special protection programmes, including change of identity,
replacement and financial support; when the family in the country of origin is threatened, the
State should facilitate the resettlement of the family in the receiving country;
protection from intimidation; a special preliminary hearing for giving evidence should be
provided for, to avoid coercion of the victim before trial; audio-video facilities could be used in
order to avoid physical and visual contact between the victim and the defendant;
assistance and legal representation; the victim should be allowed to be assisted by a trusted
person during criminal proceedings; as far as possible, the States should facilitate access to free
legal representation;
compensation; the right to compensation is established in the UN Convention and the Protocol;
the CoE Convention could establish a special Fund, to ensure compensation is actually received
by trafficked persons;
establishing new regulations aimed at preventing and combating the use of New
Information Technologies for the purpose of trafficking;
stipulating further provisions concerning prevention, addressing the root causes of THB
(see Chapter 11), aimed at:
a) improving international co-operation to deal with extreme poverty, inequality, lack of equal
opportunities for women, discrimination, domestic violence, lack of protection of children's
rights; (see Chapter 11);
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b) discouraging the demand for sexual services;
c) disseminating information;
d) improving law enforcement activities aimed at prevention;
7. establishing a monitoring system (see Chapter 12), in particular:
a) establishing a national independent authority, responsible for promoting new legislation,
administrative measures, policies against THB, and monitoring the implementation;
b) establishing at the CoE level a monitoring system of the implementation of the Convention.
Essentially, the aim of the CoE Convention is to elevate the standards of protection of rights
awarded to trafficked persons. There are two equally important reasons. Firstly, victims should be
protected because THB is one of the most serious forms of violation of human rights in the
international arena; therefore trafficked person should not be considered merely as a tool for
investigation. Equally, the co-operation of victims makes prosecution more effective.
During the seminar held in Geneva, on 9th April 2002, "Combating THB - A European
Convention?", the High Commissioner for Human Rights Mary Robinson emphasized that "Human
rights must be at the core of any credible anti-trafficking strategy. (…) A European Convention on
Trafficking is a potentially important part of the solution. We have the opportunity, in Europe, to
develop a treaty which will provide an example for other regions to follow".
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2.
The United Nations Convention against Transnational Organised Crime and the
Protocol on Trafficking in Persons, especially Women and Children
The definition of trafficking in persons contained in the Palermo Protocol is the starting point for
the production of further regulations. Indeed, the definition is the outcome of a long negotiation and
constitutes a sound balance between widely differing cultural interests and orientations, having a
different view of the phenomenology of people trafficking. In other terms the negotiation has
involved the countries of origin, transit and destination of all the areas in the world.
The definition contained in Article 3 of the Protocol is very broad so as to cover all forms of
trafficking.
The definition includes first of all any form of recruitment, transportation, transfer, harbouring or
receipt of the person, and hence all the conducts that contribute to determining the condition of
uprooting and isolation which is functional to reducing the trafficked person to the typical condition
of being subdued to the traffickers.
With reference to the means used by the perpetrators of the crime, the definition mentions threat,
the use of force or other forms of coercion, abduction, fraud, deception, abuse of power or of a
position of vulnerability, the receiving of payments or other benefits to achieve the consent of a
person having control over another person.
The aspect of greatest interest of the definition consists in the abuse of the position of vulnerability.
Through this formulation, one can include in the area of criminalisation, behaviours that, albeit not
explicitly coercive or deceitful, are in any case characterised by the fact of taking advantage of an
objective situation which dramatically limits the freedom of choice of the person. This formulation
therefore makes it possible to take into account the problem of debt bondage, and in general of all
the situations in which – according to the specification contained in the travaux préparatoires – the
person involved has no real and acceptable alternative other than submitting to the abuse1.
As to the objectives pursued by the traffickers, the definition indicates a general aim of exploitation,
and specifies that the exploitation must involve, at minimum, the exploitation of the prostitution of
others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to
slavery, servitude or the removal of organs.
The definition is therefore sufficiently wide and detailed to cover all forms of trafficking, The
obligation to establish trafficking as a criminal offence posed by Article 5 of the Protocol entails
that the process for the harmonisation of national legislation on this issue be as broad and as
effective as possible, and that it be placed as the bedrock of any further production of legislative
activity on this subject.
Since the CoE Convention must be an independent and completely international instrument, and
must include a definition of THB, the above approach implies that the Convention should keep the
definition as it stands in the UN Protocol.
With reference to international co-operation in this field, the provisions of the Protocol are to be
interpreted by taking into account the connections linking the Protocol to the UN Convention.
1. 63. “The “travaux préparatoires” should indicate that the reference to the abuse of a position of vulnerability is
understood to refer to any situation in which the person involved has no real and acceptable alternative but to submit to
the abuse involved.
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The general aim of the Convention is to enhance the efficacy of international co-operation in the
repression of crimes committed in an organised form. Hence the specific objectives and the scope of
application of the Convention and of the Protocols are identified in relation to the repressive
purposes of these international instruments, with special reference to the repression of organised
crime at the international level.
The consequence is that, in spite of the fact that trafficking in human beings is taken into account in
its comprehensiveness and complexity, the normative instruments prepared for preventing and
fighting against this offence are specifically targeted at the forms of trafficking that meet the
requirements of the offence being transnational in nature and of the fact that it is committed by an
organised group of criminals.
Both statements need to be described in further detail.
The duty of criminalisation envisaged in Article 5 of the Protocol is not subject to the requirement
that the crime is transnational or that it is the work of organised crime. Indeed, Article 34 of the
Convention, concerning the application of the Convention itself, applicable also to the Protocol by
virtue of the reference to the Protocol made in Article 1, envisages that the types of crime envisaged
in the Convention itself will have to be transposed into the national legislations irrespective of the
transnational nature of the crime or of the involvement of an organised criminal group2.
The travaux préparatoires further clarify that neither the requirement of the crime being
transnational nor that of it being committed by a criminal group should necessarily be introduced in
the criminal laws of the individual domestic legislations dealing with all the offences to which the
Convention applies, namely money laundering (Article 6), corruption (Article 8), obstruction of
justice (Article 23) and the participation in an organised criminal group (Article 5). By virtue of the
connection between the Convention and the Protocol, the same provision applies also to the crime
of THB.
Hence within individual countries, according to domestic legislation, THB will always have to be
prosecuted and punished irrespective of whether the activity is transnational or whether an
organised criminal group is involved.
In the same context, however, the travaux préparatoires specify that the exclusion of the
requirements of transnationality and of the involvement of an organised criminal group exclusively
concerns the obligation to criminalise, and has no impact whatever on the interpretation of the
provisions of the Protocol concerning international co-operation (Articles 16, 18 and 27).
The consequence is that each State Party is obliged to introduce criminal laws providing for the
punishment of the trafficking offence also for trafficking within the boundaries of the State, or when
there is no evidence that an organised group is involved, whereas international co-operation can be
activated only in the presence of such preconditions. Hence the provisions on extradition
(Article16), on mutual legal assistance (Article18) and on law enforcement co-operation
(Article 27) shall apply only on the conditions envisaged in Article 3, which defines the scope of
application of the Convention – and per relationem of the Protocols – that is to say when the crime
is transnational and involves an organised criminal group.
2. The sole exception is the duty of criminalisation contained in Article 5 of the Convention which, being focused
precisely on the participation of a criminal group, necessarily requires as an indispensable precondition that there be a
criminal group. Moreover, in the travaux préparatoires it is specified that also in this case there is no requirement that
the group be a transnational group, for the purposes of it being considered a crime in the national legislation.
10
With regard to trafficking in human beings, there are a number of problems that arise in relation to
the limitation of international co-operation, especially with reference to the second of the mentioned
requirements.
The requirement of transnationality, as defined in Article 3, is sufficiently broad to cover all forms
of management of the various segments of trafficking at the international level. The offence set
forth in the Convention is transnational in nature if:
(a) It is committed in more than one State;
(b) It is committed in one State but a substantial part of its preparation, planning, direction or
control takes place in another State;
(c) It is committed in one State but involves an organised criminal group that engages in
criminal activities in more than one State; or
(d) It is committed in one State but has substantial effects in another State.
In particular, with reference to trafficking in human beings, provision (c) allows to consider as
being transnational also the cases where the person has not yet been transferred from the country of
origin to the country of transit or destination, and in any case, the criminal group is part of a
network that has international characteristics. This extension of the definition makes it possible to
start international co-operation at a very early stage of the trafficking, for instance when the initial
evidence of the assumption of a crime is being collected in the country of origin. In this case the
enforcement agencies can ask for information or other elements of investigative co-operation of the
other countries of transit or destination, in which there are reasons to believe that the local criminal
group has some interest or connections.
It must further be pointed out that, on the basis of Article 18 of the Convention, on mutual legal
assistance, the member States are obliged to provide the broadest possible assistance when the
requesting State has “reasonable grounds to suspect that the offence referred to in Article 3,
paragraph 1 (a) or (b)3, is transnational in nature, including the victims, witnesses, proceeds,
instrumentalities or evidence of such offences are located in the requested State Party and that the
offence involves an organised criminal group”.
Hence Article 18 of the Convention, with specific reference to the conditions whereby a State Party
is obliged to provide assistance to the requesting State, expressly indicates that the condition
required for co-operation is that the victims, witnesses, means or proceeds or the evidence for such
crimes are to be found in the State requiring assistance.
In any case, on the basis of the provision of Article18, it is sufficient for the person subject of the
offence to be in the country whose assistance is requested, for that country to be obliged to
co-operate. With specific reference to trafficking, this means that mutual assistance, for instance the
exchange of investigative information, will be triggered when a State of origin or of transit has
started investigating into a domestic group of criminals suspected of THB towards another country,
and the trafficked person has already been transferred to the country of transit or of destination.
Duty to co-operate is triggered even when the country of destination has started investigations, and
the offended person is to be found – for instance after being expelled – in his/her country of origin.
Furthermore a country cannot refuse co-operation when the investigations have started in the
3. Participation in a criminal group, in money-laundering, corruption, obstruction of justice and severe crimes as
defined in Article 2 of the Convention, that is to say crimes punishable with a maximum sentence of at least 4 years of
imprisonment.
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country of destination and the proceeds from the crime have already been transferred to the country
of origin of the criminal group that has run the trafficking.
These examples confirm the fact that the requirement of transnationality is defined by the
Convention in a sufficiently wide manner, so as not to require any further provisions aimed at
enhancing the efficacy of international co-operation.
When, instead, the trafficking is purely domestic in nature, namely it entails the transfer of the
trafficked person and the proceeds from the crime only within the boundaries of a single country,
and is run by local groups with means that are exclusively local, the phenomenon may effectively
be dealt with at the domestic level. As said earlier, from this standpoint the Convention and the
Protocol oblige the State Party to criminalise the offence of trafficking in their domestic legislation,
irrespective of whether it is transnational in nature or not.
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3.
Expanding the scope of international co-operation to the cases of THB in which
organised criminal groups are not necessarily involved
The most difficult problem is related to the second requirement for triggering international
co-operation, that is to say the involvement of an organised criminal group.
The definition of organised criminal group is contained in Article 2 (a) of the Convention:
«“Organised Criminal Group» shall mean a structured group of three or more persons, existing for a
period of time and acting in concert with the aim of committing one or more serious crimes or
offences established in accordance with this Convention in order to obtain, directly or indirectly, a
financial or other material benefit.”
Article 2 (c) further defines the notion of structured group. “Structured group shall mean a group
that is not randomly formed for the immediate commission of an offence and that does not need to
have formally defined roles for its members, continuity of its membership, or a developed
structure”.
This definition identifies four elements, all of which are defined in the negative, but with a different
function in identifying the circumstance to which it should apply. The first one (not randomly
formed) from a substantial point of view, sets a threshold below which the group cannot be defined
as being structured. The group must not be randomly formed for the aim of committing a specific
offence. This is the interface of the requirement of having been in existence for some time,
envisaged in Article 2 (a). Indeed, the fact that the group is not randomly formed, which is an
element of criminal phenomenology, implies existence for a minimum standard of time in
chronological terms.
Instead the other three terms indicate requirements that, although not necessarily present in a given
circumstance, are not an obstacle to the qualification of the criminal group as being a structured
group. Therefore, the group may be considered as structured even though it does not present
formally defined roles, continuity in the participation of individual members, or a developed
structure. However attention needs to be paid to the fact that this definition implicitly confirms that
roles must be defined to some extent, albeit not formally, that there must be some affiliation of
individual members, albeit not on a basis of continuity, and that there needs to be some
organisational structure, albeit not a fully developed one.
Ultimately, bearing in mind the complex technique used for developing the definition used in the
Convention and the interpretational experience that has formed in countries that have been more
engaged in combating organised crime, in order to be able to state that a criminal group meets the
standard required in the Convention the following elements must all be present:
The group must
A. consist of three or more persons who act in agreement with the aim of committing one or
more of the severe crimes envisaged in the Convention;
B. have been in existence for a certain amount of time;
C. not randomly formed to commit a given offence;
D. have some, albeit not a fully fledged, organisational structure, that is to say be endowed with
minimum means such as premises, means of transport, weapons, etc.
E. have some, albeit not formally defined roles;
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F. have some, albeit not necessarily stable, modality for affiliating its members. In other terms
one can assume the group to be defined as being structured even though, unlike associations
of the mafia type, individual members may join or leave the organisation on their own will;
G. have the aim of obtaining, directly or indirectly, a financial or other material benefit.
Over and above outward appearances, this standard is not at all minimal, and requires evidence for
several elements.
As said earlier with regard to the transnationality requirement in mutual legal assistance, under
Article 18 of the Convention, Member States are obliged to provide the broadest assistance when
the requesting State has “reasonable grounds to suspect that the offence referred to in Article 3,
paragraph 1 (a) or (b)4, is transnational in nature (..) and that the offence involves an organised
criminal group”.
Since co-operation in investigation and prosecution must start in an early phase for it to be
effective, in order to activate the initiatives of mutual assistance it is not necessary to have full
evidence of the involvement of a criminal group. There must however be “reasonable grounds to
suspect”, which means that for each of the elements of the case at hand, including involvement of
the organised criminal group, objective elements must emerge to provide motivated grounds for the
belief that what is involved is actually an organised criminal group.
With reference to the phenomenology of THB, there are a number of problems that are posed in
relation to circumstances where an organised criminal group either does not exist or the evidence is
not enough, or where even if an organised criminal group is involved and in spite of sufficient
evidence being available, the group does not meet the standard set forth in Article 2 of the
Convention.
We need to bear in mind that in many cases, trafficking for sexual exploitation occurs in a family
setting or within a couple. Sometimes the person is trafficked by an older relative, or by a real or a
so-called boyfriend or husband. In these circumstances, even though in general the original
trafficker is helped by other people to compel the girl to prostitute herself, the case remains
characterised by the original relational setting, and from this standpoint it comes closer to the
traditional forms of exploitation of prostitution than to forms of trafficking run in an organised
manner. However, also in this case the person involved is uprooted from his/her social environment
of origin and is reduced to a condition of extreme vulnerability, and undergoes a dramatic reduction
in her/his self-determination. Also in this case his/her human rights undergo an unacceptable
violation.
Domestic servitude is another case in which trafficking is generally not accomplished in a form of
organised crime. Indeed, domestic servitude is always characterised by a personal relationship
between exploiter and exploited person, which occurs within a setting of a family-patriarchal
ideology, in which constitutionally there can be no form of bargaining between the worker and the
employer. In this relational setting, the distinctive features are the absence or absolute insufficiency
of the remuneration, the absence of any rule on working hours and on daily or weekly rest, the lack
of respect for the dignity of the person as a human being and as a worker. All of these elements
contribute to destroying the dignity of the person and hence to putting or rooting the person in a
condition of submission in which there is no room for rebellion or for negotiation.
4. Being a member of a criminal group, taking part in money-laundering, corruption, obstructing justice and severe
crimes as those defined in Article 2 of the Convention, i.e. punishable with a maximum sentence of 4 years’
imprisonment.
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The person is caught in an abusive relational web, based on a direct relationship with an individual
person, who is usually the employer. It is true that at times the person exploiting the work at the
same time reduces the person to a condition of sexual enslavement, and lends or sells the sexual
services of that person to others. In these cases there is a mixing of domestic servitude, sexual
servitude and prostitution, and other individuals come onto the scene, who are not only the
beneficiaries of the services but also accomplices. However, not even in this case can one speak of
an organised group, according to the standard set forth in the Convention. In fact this is typically a
random group, that is formed exclusively with the aim of exploiting that person. It is self-evident
that also in these circumstances the person’s rights are severely violated, and that also these cases
require adequate repressive intervention at the international level.
Another case for which it is worthwhile expanding the obligations set forth in the Convention, is
that of criminal groups that organise specific segments of the trafficking of people, and that do not
present the characteristics of a structured group under the Convention. In particular, these are cases
in which the group, even if it is not randomly formed, is however extremely mobile, coming
together and dismantling very rapidly depending on needs and circumstances. This occurs at times
in the final phases of THB, when the task of introducing the people into the territory of the transit or
destination country, or shifting them about within the territory of the same State, is assigned to
groups that are set up ad hoc for such transportation.
It must be pointed out that such groups are obviously those that are most exposed, and therefore
they are the ones that are identified more easily in the countries of transit or of destination. For
these very groups however it is difficult to identify the minimal features of their having some
organisational structure and above all of not being randomly formed. According to the UN
Convention, only under those conditions is international co-operation in investigation compulsory.
Such co-operation is moreover essential because the group that is identified is only a secondary cell
of the broader criminal network that runs the flow of traffic at the international level, but of which
there is not evidence. Investigative assistance in this case has precisely the aim of working one’s
way up to the upper levels of the network. Lacking such co-operation, repression will only strike the
“small fry”.
It would therefore be desirable for the new Convention of the Council of Europe to set forth
provisions containing greater details on investigative and prosecution co-operation, aimed at
triggering instruments of mutual assistance also in the cases where THB does not involve organised
criminal groups.
This indication appears to be of special importance with reference to all the aspects of mutual
assistance in legal matters as already envisaged in Article 18 of the UN Convention. In this
connection, therefore, the aim of the new Convention would be to turn into compulsory
co-operation what under Article 18, paragraph 9, of the Convention is only a discretional choice.
The consequence is that in the case of THB, the States Parties to the Convention of the Council of
Europe will have the same obligations as those set forth in the UN Convention for all the offences
of organised crime, but such obligations will be extended also to the cases where there are not
indicators pointing to the involvement of a criminal group.
The rationale behind extending the international obligations of States in this direction is to be
sought in the circumstances according to which, unlike other international organised criminal
activities, such as drug traffic or trafficking of weapons, money laundering or corruption, THB
entails a direct violation of the human rights of the people involved. The fundamental
15
assets-interests injured by the offence, such as freedom, health, physical integrity or sexual
freedom, pertain to people who are not damaged in a mediated manner by the offence, as typically
occurs for drug trafficking, but they are the passive subjects of the offence, in that they themselves
are the “commodity” being trafficked.
The proposal to broaden the scope of the UN Convention only to THB implies an additional
advantage, that is to say it does not require the re-negotiation in general terms of the definition of
organised criminal group, that will hence continue to constitute the legal standard in force at the
international level in the area of repressing offences and of co-operation in investigation and
prosecution.
16
4.
The clause of non-punishment for offences connected to the condition of victim of
THB
Another issue on which it is desirable to provide additional and more detailed provisions with
respect to the UN Convention in terms of Criminal Law, concerns the non-punishment of the
trafficked person, under certain conditions, for the crimes committed in relation to his/her
involvement in the trafficking activity, and hence with the very process of victimisation.
The approach of the Convention of the Council of Europe, focused on the protection of the human
rights of the trafficked person, implies the adoption of provisions that are consistent with the idea
that they should not undergo additional negative consequences as a result of their condition as
victims.
On the other hand it is useful here to point out that, in the experience of all countries, co-operation
by the victims has proven to be essential with a view to repressing crimes, even where the
investigations are carried out with the use of sophisticated techniques.
If no changes are made to the regulatory framework according to which the trafficked person may
be prosecuted under Criminal Law for offences related to the person’s position as a victim, a
number of negative consequences are produced simultaneously: the person involved is a victim
twice over, a perverse relationship is established between trafficker and victim, an obstacle exists to
the victim’s possibility to rebel against the traffickers, and finally the criminal proceedings are
deprived of a major investigative resource.
It is therefore necessary for the trafficked persons to be certain they will not be exposed to criminal
prosecution for the fact that they are illegal foreigners, prostitutes or for other offences committed
in close relation to their being victims of trafficking, neither in the country of arrival nor in their
country of origin, if they are sent back or if they wish to go back in the future.
At the present time neither the Convention nor the Protocol envisage any possibility of release from
liability for the victims of trafficking.
It should be pointed out that, under Article 26, the Convention envisages the possibility of granting
immunity from prosecution to a person who provides substantial co-operation in the investigation of
an offence covered by the Convention.
It is not clear, however, whether the provision also applies to victims. The title of Article 26 is
all-inclusive, as it refers to “Measures to enhance co-operation with law enforcement authorities”.
However, the first paragraph refers to the “appropriate measures to encourage persons who
participate or have participated in organised criminal groups” to provide co-operation in the
investigation. Such wording unmistakably refers to accused persons who collaborate and not to the
victims, since victims cannot be considered as belonging to a criminal group. Also paragraph 2 of
Article 26, which envisages the possibility of mitigating punishment of an accused person,
obviously cannot refer to the victims.
Paragraph 3 of Article 26, concerning non-punishment, instead refers in more general terms “to a
person who provides substantial co-operation in the investigation (..)”. The assumption that this
should apply also to trafficked persons can be maintained, even though the ambiguous mixing
between the positions of perpetrator of the crime and victim is to be pointed out.
17
In any case, even if Article 26, paragraph 3, were to be deemed to be applicable to victims, there
would be two problems left to be solved, besides the non-binding nature of this paragraph:
1. If the provision applies to trafficked persons, the offences for which immunity cannot be
granted are to be identified, it being accepted that by definition this will not apply to the
offence to which the current proceedings refer.
2. The standard set by the provision in relation to the characteristics of co-operation
(“substantial co-operation”) must in turn be interpreted5 and this is probably restrictive in
relation to the degree of knowledge of the victim, which is obviously less than that of a
member of the criminal organisation.
With regard to both problems, it is necessary to set very precise legal requirements, so as to avoid
the possible improper use of the non-punishment clause. Indeed, improper use of the clause could
lead to a general impunity of all crimes related to the condition of being an illegal foreigner. Such
requirements would necessarily refer to statements to be made during the criminal proceedings.
As to the first problem, the clause of non-punishment should apply to all offences typically related
to the process of victimisation which may occur in trafficking, as defined in Article 3 of the
Protocol. All the crimes related to transferring the person from one country to another are to be
taken into account, first of all illegal border crossing.
One must also take into account the crimes that are instrumental to illegal border crossing, such as
the use of forged documents, altering or destroying documents, and in general any conduct related
to getting the person from one State, and/or introducing that person into a State other than the one
of which he/she is a national, and/or the stay in a State other than the one of which he/she is a
national in violation of the legislation regulating migration. In some countries belonging to the
Council of Europe, indeed, the domestic law considers as crimes, not only administrative violations,
any conduct that violates the laws on immigration and emigration.
It is worthwhile pointing out that the duty to introduce a clause of non-punishment in connection
with a personal condition of the offended person would not have any direct influence or any indirect
influence on national policies on immigration, but would apply only in the restricted cases where a
judicial authority recognises a person as being a victim of THB.
Another crime related to the process of victimisation which is typical in THB is prostitution, at least
in countries where this conduct is criminalised. Indeed, in some member countries of the Council of
Europe, prostitution itself is criminalised. Therefore not only the exploiter but also the person who
sells his/her sexual services must be prosecuted for prostitution.
National legislation on prostitution differs widely from one European country to another. Some
countries have chosen to legalise prostitution. In most States, abetting and exploitation is punished,
whereas prostitution has been depenalised. In other countries prostitution as such is a crime. Just as
for illegal immigration, the introduction of this clause would preserve the existing national legal
frameworks with regard to “sensitive” issues for which reform processes would be extremely
complicated.
The introduction of a specific clause of non-punishment is also necessary because not all the
assumptions of trafficking in human beings can be said to be covered by the general clause of
non-punishment generally envisaged in all the Criminal Codes, on the basis of which anyone who
commits a crime under physical constraint or under deceit by someone else is exempt from liability.
With reference to the first assumption it must be pointed out that the scope of the clause is generally
5. The travaux préparatoires do not provide any further interpretational indications.
18
restricted to the cases where true physical force has been used by the perpetrator. Even the case of
deceit is generally interpreted in a restricted manner, both with regard to the object of the deceit,
which must determine a de facto error, and with reference to the type/quality of means used.
But even if the clause were formulated or interpreted in domestic law as being applicable to all
cases of coercion and deceit, it must be further pointed out that the definition of trafficking is not
restricted to coercive or deceitful assumptions, but also includes assumptions of abuse of authority
or of the position of vulnerability, which in any case would not be covered by the clauses of
domestic law.
It can therefore be concluded that it is highly desirable for a special clause for the non-punishment
of victims of THB to be set forth in the domestic legislation for the crimes of
 Prostitution
 Illegal border crossing
 Crimes that are instrumental to the violation of domestic legislation on expatriation, entry
and/or stay, like the use of forged documents, destruction or alteration of documents, staying
in the territory of a state after expiry of regular entry papers.
The criteria with which the judicial authority must comply in assessing the applicability of the
clause of non-punishment are to be identified with specific reference to the condition of victim of
the person requesting application of the clause.
In other terms, applicability of the clause should not depend on the decisiveness or on the
exceptional nature of the contribution given by the person to the investigation or identification or
capture of the perpetrators.
The rationale is not to be sought in a rewarding approach, typical of the application of clauses
applied for defendants who collaborate with the judicial authorities, but which is not suited to
individuals who are the victims in criminal proceedings.
In an initial stage of the proceedings the judicial authority must evaluate whether there are grounded
reasons for deeming that the person is truly a victim of trafficking in human beings.
Furthermore, the judicial authority must assess the statements made by the victim. The standard
should be established in relation to the reliability of the statement, not to the statements being
decisive for the outcome of the investigations. In other terms the person must make statements that
can be verified and checked, so that he/she can be reasonably considered to be the victim of
violence, threat, deceit or abuse, and not simply an illegal migrant seeking to use the legislation to
obtain regular papers.
Of course a truthful statement, from which evidence emerges during the criminal proceedings, is
also a statement that is useful to the evolution of the investigations.
The minimum standard for applying the clause should therefore include two requirements:
 That the statement is reliable
 That the statement proves to be useful for the subsequent phases of the investigations.
What instead should be irrelevant is the time at which the person files a report with the police or
makes statements. The clause should apply both to the person who filed the report before the
starting of the criminal proceedings and to the person making statements after initiation of the
19
proceedings, when such person is called upon to make a deposition to the police or the judicial
authority.
Below it is pointed out that the “reflection period” (see Chapter 6) enables the person to postpone
the moment of co-operating with the authorities up to expiry of the deadline, so that the person can
re-acquire self-esteem, self-confidence, that he/she may overcome the fear of retaliation by the
traffickers and hence be able to make the decision to co-operate in the investigations in full
awareness.
The person must therefore make useful statements upon expiry of the time of reflection, the latter
will be assessed, and where all the requirements are fulfilled will be considered grounds for the
application of the non-punishment clause.
Where such preconditions for release from liability are identified by the judicial authority of the
State where the proceedings are started, for instance in the country of destination, the application of
the clause will produce the effect of exempting the person from liability in his/her country of origin,
for the same or other charges in that country.
This means that the person returning to his/her country of nationality, or country of origin,
following the execution of an expulsion order or after voluntary repatriation, shall not be prosecuted
for crimes related to his/her condition as a victim of trafficking in human beings.
20
5.
The problem of residence status of the victims of trafficking in human beings
Another reason for concern for trafficked persons, besides the punishability for the crimes related to
their condition as victims, is the certainty of immediate expulsion, if the authorities find out that
they do not have a legal residence permit in the country of transit or of destination.
The need to face the problem of the residence status of trafficked persons has emerged in recent
years. In the daily experience of the actions to combat against illegal trafficking, it has become clear
that if this crucial question is not solved, the victims will mostly go on remaining silent and will
continue to endure their condition of submission.
In actual fact, some domestic legislation has tried to confront the problem with innovative
instruments. The Belgian, Italian and Dutch legislations are of special interest at European level.
In Belgium, child trafficking and pornography are regulated by the Act of 13 April 1995 and by
Royal Decree of 16 June 1996. The Law provides for the establishment of a “Centre for equal
opportunities and for the fight against racism” which has the task of promoting and co-ordinating
the policies against trafficking at the international level. An interdepartmental cell has been set up
which brings together representatives of the various ministries, of the Board of Judges and
Prosecutor’s Offices, the enforcement agencies, the Office for Foreigners, and of the Centre for
equal opportunities and the fight against racism. The body has the task of assessing the results
obtained, of spreading the information of the Centre, submitting proposals and recommendations to
improve the fight against trafficking. The interdepartmental cell has set up two Centres providing
shelter and support which is run by two associations: PAG-ASA and SURYA. The PAYOKE
association (active since 1988 in the Flanders) is linked to a programme providing assistance and
protection for the victims of trafficking. The centre offers legal, administrative, social and medical
assistance to the victims. The circular letter of 7 July 1994 has set forth that the three centres can
address the Belgian authorities for the issue of a short-term residence permit for the victims of
trafficking, provided that they co-operate in the judicial proceedings against the traffickers.
The procedure for the issuing of the residence permit is as follows:
Phase one: the victims are served an order to leave the territory within 45 days. During this period
the victims may decide to report the exploiter.
Phase two: If within 45 days the victim files a report, he/she receives a three-month provisional
permit. Throughout this time the victim is always assisted by a shelter centre and can also be given
a provisional work permit.
Phase three: if the criminal proceedings are started and it is ascertained that the person is truly a
victim of trafficking, he/she receives a six-month residence permit, which is renewable.
During this time period the specialised shelter centre must continue to take care of the victim. If the
exploiter is bound over for trial or the deposition of the victim is considered to be significant for the
subsequent steps of the criminal proceedings, the person may apply for a residence permit for an
unspecified length of time.
The Italian Law on Immigration (Law Decree n° 286 of 25.7.98) provides for a residence permit for
victims of trafficking in human beings on grounds of social protection. The trafficked persons can
get a special residence permit when they are in danger because of their attempts to escape from the
traffickers. There are two different ways through which a residence permit may be granted, the
so-called “judicial way” and the “social way”. In the “judicial way”, if a trafficked person files a
report with the police as a first step, the local police office will refer him/her to the closest shelter
and then the prosecutor’s office will ask for a residence permit. In the “social way”, the trafficked
21
person first turns to a social worker of an outreach unit and the association will shelter her and then
apply directly to the police authority for a residence permit, giving the reasons for the application.
In other words, the association states that the person was exploited and subjected to acts of coercion
by a criminal group, and that she is currently in danger because of her attempts to escape from
organised crime. In the latter case, the police authority checks into the existence of the conditions
provided for by the law and grants the residence permit regardless, at least at this stage, of whether
the person has reported or acted as a witness in the criminal procedure.
The “social way” is independent of the procedure in the first stage, but they are linked in the second
stage. In fact, the information contained in the application of the NGO is a notitia criminis, and the
police must inform the prosecutor’s office. In the Italian legal system prosecution is mandatory ex
officio for the majority of crimes involved in the cases of trafficking. Hence, at a certain point, the
victim will be obliged to act as a witness, and this is compulsory in the Italian criminal procedure.
But by this stage, the person will already have obtained a residence permit and have been
guaranteed that she will be sheltered, protected and not be deported. It is not exactly the “reflection
period”, but the result is the same in practice. Under Italian Law, the residence permit has a duration
of six months, renewable for one year, or more, if the presence of the person is required in the
criminal proceedings. During the period of duration of the residence permit, the victim can obtain a
gainful employment. In this latter case victims can get a residence permit for work and stay in Italy
even after the end of the criminal proceedings.
In The Netherlands the reflection period approach has been adopted. When the police suspect a case
of trafficking, victims are given the possibility to file a complaint within three months. If the
trafficked person reports to the police, a residence permit is granted and a shelter is given for the
duration of the proceedings against traffickers. When the proceedings end, the victim is given the
possibility to apply for a further residence permit on humanitarian grounds. During the criminal
proceedings, housing, income and social security are provided for by the State. However, victims
are not allowed to work.
In Spain, according to the Organic Act 4/2000, any foreign citizen who illegally crosses the Spanish
border because she/he has been a victim, sufferer or witness of an act of trafficking, will not be
deported if she/he reports the perpetrators or co-operates with the police officers. In those cases,
foreign citizens will be held to be exempt from administrative liability, the return to their country of
origin or their stay and residence in Spain will be facilitated, as well as a work permit and social
integration facilities.
The Palermo Protocol, adopted in December 2000, only partially transposed the indications that
emerged from such domestic experience. Besides the European law, mention must be made also of
the US law which in some circumstances allows for a “T Visa” to be given to the victims of the
more severe forms of trafficking in human beings.
Article 7 § 1 sets forth that “In addition to taking measures pursuant to Article 6 of this Protocol 6,
each State Party shall consider adopting legislative measures that permit victims of trafficking in
persons to remain in its territory, temporarily or permanently, in appropriate cases”.
Article 7 § 2 adds that “in implementing the provision contained in paragraph 1 of this Article, each
State Party shall give appropriate consideration to humanitarian and compassionate factors”.
As already pointed out above, paragraph 1 is worded in such a way as to leave the States with as
wide a discretionary power as possible, not only as to the ways but also as to whether they should or
6. Assistance and protection of victims of trafficking in persons.
22
should not adopt legislative measures aimed at allowing temporary or unlimited residence to the
victims of trafficking in the territory of the State.7 It is quite significant that, throughout Article 7,
reference is never made to a technical term like “residence permit”. This implies that not even in
mediated terms does the rule recognise the trafficked person the right to a residence permit, even
under certain conditions. Rather it suggests that the States should adopt legislative measures on the
issue, which however only envisage that an authorisation can be granted ad personam, in a totally
discretionary manner.
On the other hand, paragraph 1 contains another expression aimed at further limiting States'
obligations to adapt to the criteria set forth in the Protocol. Indeed, instead of identifying the
preconditions required for the States to authorise the victims to stay in their territory, the last
sentence in paragraph 1 restricts itself to autonomously setting conditions and limits for the
authorisation to stay in the territory, without any restraint as to the criteria that should be complied
with. Therefore, both the decision as to whether an ad hoc procedure should be set up or not, and
the very nature of such a procedure are not binding in nature and could entail a discretionary
assessment. This interpretation appears to be supported by the wording of paragraph 2 of the same
Article, which indicates as sole specific criteria humanitarian and compassionate factors which, by
their very nature, demand an evaluation to be made on a case-by-case basis.
This confirms the interpretation according to which the procedure – which is not
binding – envisaged in the Protocol is essentially a discretionary administrative procedure, that does
not attribute any right to the victim and does not provide any reassurance against expulsion.
The conclusion is that on the basis of the provisions of the Protocol, both the introduction in the
domestic law of a procedure aimed at recognising residence status to a trafficked person and the
features of such procedure, as well as the assumptions underlying the granting of the status, are not
compulsory for States Parties, but are left entirely to the discretion of the national legislators. In this
field the provisions of the Protocol constitute only the indication of a possibility and a trend; at the
most it is a recommendation that does not affect the full freedom of States to take action or not in
this area. Moreover, the type of proceeding that the provision indicates, without being binding, is a
discretionary procedure that attributes no right to the trafficked person.
As confirmation of the fact that a greater awareness of the decisive role of the provisions on the
residence status of the victims in the fight against trafficking, in February 2002 the text of a draft
Directive of the Council was defined at the European level concerning the entitlement to temporary
residence stay to be issued to the victims of action to facilitate illegal immigration and to the
victims of trafficking in human beings if they co-operate with the competent authorities8.
The Directive applies not only to the victims of THB, but also to the victims of the crime of
favouring illegal immigration. The latter are defined as those who, having resorted voluntarily to
people facilitating illegal immigration, then suffered injury, for instance had their lives put at risk,
or have undergone lesions to their physical integrity.
Therefore the scope of application of the Directive is much broader than that set forth in the
Convention of the Council of Europe. The Convention is addressed to the people who can be
considered as victims of the crime of trafficking as defined in the UN Protocol, hence only to
victims who have been subjected to violence, threats, deceit or abuse.
7. The expression “shall consider” is the least binding among all those used in the Protocol.
8. Proposal n. 2002/0043 (CNS)
23
The aim of the Directive is to strengthen the instruments to combat illegal immigration. Issuing a
residence permit is explicitly aimed at favouring co-operation with the competent authorities against
the authors of these crimes, and from this standpoint, the broadening of the scope of application to
the victims of people who facilitate illegal immigration.
Even though the issuing of a residence permit indirectly has a protective effect on the victims,
because de facto the residence permit protects them from the risk of being expelled from the
territory of the State, the protection of victims and of witnesses is not among the aims of the
Directive9. On the other hand, the legal foundation of the Directive is Article 63 paragraph 3 of the
Treaty, that entitles the Council to adopt “immigration policy measures in the following areas:
a) conditions of entry and stay (..)
b) irregular immigration and stay
The protection of victims and of witnesses instead comes under ordinary domestic and European
law.
There would not seem to be any overlap or duplication between the Directive and the Convention,
since the aims, the legal foundation, the rationale and scope of application of the two instruments
are quite distinct and separate.
Moreover, it is evident that the subject matter of the Convention is extremely broader and more
complex that that covered by the Directive. The content of the latter must be specifically viewed in
relation to the legal foundation of this specific regulatory instrument, and cannot go beyond the
subject area of immigration with special reference to the conditions of entry and of stay.
The peculiar approach of the Convention, focused on the protection of the human rights of the
trafficked persons, suggests, on the contrary, a broad range of interventions that go from substantial
criminal regulations to the rights of the victim of the crime in the criminal proceedings, to the
regulations on assistance and social protection in relation to residence status.
It must further be pointed out that the human rights approach, at least with reference to the victims
of trafficking, requires a regulation partially different from that provided for in the draft Directive.
The Directive embodies the approach of the reflection period, which as we have seen lies at the
heart of the more interesting domestic legislation on the issue. Victims shall be granted a reflection
period of 30 days to take the decision to co-operate with the competent authorities. This period
starts from the moment they sever relations with those suspected of committing an action to
facilitate illegal immigration or trafficking in human beings (Article 8). During this period Member
States shall ensure that victims have access to suitable accommodation, emergency medical and
psychological treatment, and medical care that cannot be postponed, and the necessary support in
the form of social welfare and means of subsistence if they do not have sufficient resources. They
shall attend to the special needs of the most vulnerable (Article 9). During the same period it shall
not be possible to enforce any expulsion order against them (Article 8 § 2).
According to Article 10 of the Directive, the authority responsible for the investigation or
prosecution shall decide on the following matters, at the latest in the days following the expiry of
the 30-day reflection period:
a) whether the presence of the victim is useful;
b) whether the victim has shown a clear intention to co-operate substantiated, for example, by an
initial, material declaration to the authorities responsible for the investigation or prosecution, or the
lodging of a complaint, or any other act provided for in the Member State’s legislation;
9. See the Descriptive Report of the Proposal.
24
c)whether the victim has severed all relations with those suspected of facts that might be included
among the offences referred to in the Directive (trafficking and facilitating illegal immigration);
In the presence of the above three requirements certified by the judicial authority, and provided
there are no reasons related to public order or national security, the victim is issued a six-month
residence permit provided the requirements set by law continue to exist, that is to say that the
presence of the person continues to be useful for the subsequent stages of the criminal proceedings,
and if all links between victim and perpetrators have been severed. The residence permit could be
extended to family members for humanitarian reasons (Article 10).
The Member States shall authorise the holders of a short-term residence permit to have access to the
labour market, to vocational training and education, to primary medical care. They shall meet the
special needs of the victims, such as pregnant women, the disabled, the victims of rape or of other
forms of sexual violence and minors, for the cases in which the latter have access to this type of
residence permit (Articles 12 and 13).
With specific reference to minors, Article 3 of the Directive points out that the short-term residence
permit applies normally to adults. However Member States can decide to apply the provisions also
to minors who meet given conditions, in accordance with domestic law. In that case, in applying the
provisions of the Directive, the Member States take into due account the overriding interest of the
child and take action to adapt the procedure to the age and degree of maturity of the child. In
particular, the Member States may extend the duration of the reflection period and can grant the
minor access to education, restricting such access to the public education system (Article 14).
If the victim is an unaccompanied minor, the Member States shall adopt the measures required to
establish their identity and the fact that they are truly unaccompanied, and then make every effort to
locate their families as quickly as possible and take the necessary steps immediately to ensure legal
representation, including representation in the criminal proceedings, if necessary (Article 14 §3).
The Member States may make the issue of residence permits conditional upon the victims’
participation in a programme aimed either at their integration in the host country and, where
appropriate, vocational training, or their assisted return to their country of origin or to another
country willing to accept them (Article 15).
When the short term residence permit expires, ordinary law on aliens shall apply. If victims submit
an application for another type of residence permit, Member States shall take account of their
co-operation when considering their applications (Article 16 § 2).
In general, the approach of the reflection period should be adopted also in the Convention.
However, it is worth pointing out that thirty days appear to be somewhat insufficient with respect to
the time actually required by the psychological process of a trafficked person to regain confidence
in the possibility of changing the course of his/her life. Moreover, the criteria for access to the
reflection period, for granting a residence permit and for the social protection and assistance to be
provided for the victims in each phase, should be different from those envisaged by the Proposal for
the Council Directive.
25
6.
The residence permit
Under the Convention, both access to the reflection period and the transition from the reflection
period to the issue of a residence permit are to be regulated bearing in mind the rights and the
special needs of the trafficked persons.
The approach of the Directive still appears to be conditioned by the similarity between the position
of victim and that of the defendants who collaborate with the judicial authorities. This is partially
justified in relation to the scope of application of the Directive, which includes persons offended by
the crime of facilitating illegal immigration, where originally the person involved had given a free
and voluntary consent, wanting to use the facilitator for illegally entering the country of destination.
But the above approach is inappropriate with reference to trafficking victims, who in any of the
segments of trafficking are subject to coercion, and deceitful or abusive conduct.
From the standpoint of the Convention, and with specific reference to the victims of trafficking in
persons, the residence permit is first of all a measure of social protection aimed at avoiding that the
trafficked persons should suffer additional negative consequences as a result of their being illegal
foreigners.
This approach implies two significant corollaries, that produce special ways of regulating access to
the reflection period and the right to having a residence permit issued upon expiry of the reflection
period.
Activation of the reflection period must be automatic whenever a person states he/she is a victim of
trafficking or makes statements from which there emerges evidence of his/her condition of being a
victim, or asks to be accepted in a shelter home, or to receive the benefits envisaged by the Act on
the reflection period. There should be no request, as set forth in the Proposal for a Directive, to
verify whether the victim has severed all ties with the perpetrators. It is well known that for a victim
of trafficking in human beings, the decision to break away from the traffickers entails a high risk of
retaliation. Hence it should be considered sufficient for the person to want to stop the activity for
which he/she is being exploited and start a process to regain autonomy, in order for him/her to be
entitled to the benefits related to the reflection period.
A person who contacts a police department first or an NGO or a voluntary association, he/she
should immediately be admitted to the reflection period programme.
A first sensitive issue arises when the person declares his/her condition of victim after being
arrested or following a crack down of the police on illegal immigration, as a result of which the
person has been or could be expelled.
Whenever there is evidence that the person taken into custody and is waiting to be expelled is a
victim of trafficking – which typically occurs whenever the person is a prostitute – an institutional
step is that they should be heard and be informed about the rights that the victims of trafficking
have under the national legislation.
Upon expiry of the reflection period, it is indispensable to envisage that the judicial authorities
should evaluate the situation to verify whether the decision to sever links with the traffickers
persists. But here as well the standard envisaged by the Directive appears to be too restrictive. The
availability of the person to file a report to the police and bear witness during the proceedings
should be sufficient. Also, with a view to the granting of the residence permit and application of the
26
non-punishment clause, a requirement should be established such as to be generally met by the
victims of trafficking, irrespective of their degree of involvement and knowledge of the structure of
the criminal network that has exploited them.
In other terms, the verification by the judicial authority must be rigorously centred on the
truthfulness of the de facto situation concerning their condition as victims and it will thus be
sufficient to verify that the person is subject to a situation of violence and/or exploitation by
individuals who can be identified.
The criterion for verifying these conditions should not be related to the fact that the information
provided by the victim has been useful for the outcome of the investigation, as normally occurs with
defendants who collaborate with the judicial authorities. Vice versa here, the criterion is that the
victim has provided a reliable and useful contribution to the investigations. The preconditions here
are the same as those presented earlier for the applicability of the non-punishment clause for
offences related to the victimisation process.
The adoption of a legal standard for granting the residence permit and for applying the nonpunishment clause has the advantage of harmonising the evaluation criterion that the competent
judicial authorities are to use.
The renewal and conversion of the residence permit is of fundamental importance for the social
integration of trafficked persons. A rule needs to be set here according to which, in the presence of
specific conditions, the residence permit must become an opportunity for legalising their
administrative situation and for social integration.
The outline set by the Directive concerning access to the labour market, to education and vocational
training is to be followed and it should be added that the victim can have access to any type of
remunerated work.
As regards, instead, what happens after expiry, it is worthwhile setting a clearer and less
discretionary rule than that envisaged by the Directive. Upon expiry of the residence permit, and
when the presence of the person is no longer required for the legal proceedings, the normal regime
for foreigners should not apply as in some cases this would entail immediate expulsion. Neither is it
sufficient to state that if the person asks for another type of residence permit, the authorities shall
take into account the collaboration they have offered. Indeed, such a provision would make the fate
of the person too dependent on discretionary choices by the administrative authorities.
A clear rule needs to be set here, according to which upon expiry of the residence permit, if the
person can prove he/she has a remunerated job, the residence permit can be converted for labour
reasons. The same rule should apply in the case where the victim is attending a training course.
27
7.
Assistance and social protection of trafficked persons
Different levels of standard should be envisaged for the social assistance and protection of victims
during the reflection period and during the period of validity of the residence permit.
When the trafficked person makes the decision to escape from traffickers, and during the reflection
period, the standard of assistance and protection offered should be established taking into account
the vulnerability and dependent position of the victim and the objectives related to the rehabilitation
process which is about to start.
Victims need to react to violence and in general to the trauma they have experienced, start a process
for recovering self-esteem, reach a level of reassurance and of autonomy so as to enable them to
reach an informed decision to report the traffickers, and start a process of radical change in their
life-style.
Individual needs related to these objectives may differ from victim to victim, in relation to ability to
react and to the severity of the trauma they have undergone.
There are however some basic needs that are to be taken into account for all victims who are
starting this process.





Sheltered home. Usually this is a shelter that for security reasons is a collective home whose
location is known only to the police. At times, where necessary, police protection can be
offered for security reasons both to the victims and to the operators.
Urgent medical and psychological care. Immediate treatment is required to provide remedy
to the consequences of the trauma. Medical care is urgent and must not be postponed but
this cannot be set as a criterion for identifying the type of medical care to be provided
during the reflection period as this could prove be too restrictive. The criterion should be
more flexible and tailored to the urgent measures that the concrete situation may require, in
depending on the type of trauma undergone by the victim.
Interpretation services and cultural mediation must be offered right from the very first
contact with the police or with the associations. The intervention of a cultural mediator is
essential in the first phase when the person has to face a number of extremely severe
problems in a context of total isolation and she/he needs to overcome a series of difficulties,
mistrust and problems linked to the different cultural backgrounds of the victim and of
his/her institutional interlocutors.
Counselling in his/her mother tongue. In particular, information about the rights granted by
the legislation to trafficked persons who want to start a process to regain their autonomy
must be given in the person’s mother tongue. The timeliness and quality of counselling is
obviously essential in relation to the objective that the victims may reach an informed
decision as to whether they should report the traffickers and cooperate in the investigations.
Specific care and assistance aimed at catering to special individual needs, such as pregnant
women, children, disabled persons. The list is not exhaustive and is given only as an
example. The general objective is to adjust the activities of initial reception and care to the
subjective conditions of the trafficked persons. Moreover, it is a corollary of the principle of
non-discrimination.
With regard to all the social assistance and protection measures that characterise the first phase of
the rehabilitation process two aspects remain to be clarified.
28
The first is that the reflection period should necessarily be linked to social assistance and integration
activities to be carried out in co-operation between institutions and NGOs or other associations. The
trafficked person who decides to rebel cannot be left alone. She/he needs assistance and help that is
tailored to this situation of existential crisis and to the prospects of rehabilitation.
On the other hand the best context in which such care and activities can be carried out is an
informal and friendly one and hence must not be conditioned by the difficult relationship between a
trafficked person and the authorities whose work is to repress crime. It must be borne in mind at all
times that the victims of trafficking, owing to their situation as illegal foreigners and often as
prostitutes, besides this being often a feature of the cultural background of the countries of origin,
are instinctively embarrassed, mistrustful and at times afraid of the enforcement agents and in
general of the representatives of the institutions.
A necessary link needs to be found between reflection period and social assistance and protection
activities that will have to be funded by the public, national or local institutions and will have to be
run by the NGOs or by other associations.
This also entails that, when the first step taken by the victim is to file a report with the police, he/she
must immediately be sent to the closest available shelter home where the person can receive
protection and the necessary assistance.
In this regard it could be useful to provide for a form of accreditation, or some form of official
recognition of the list of NGOs or associations that are funded by public money to provide social
assistance and protection for the victims of trafficking. Indeed, this can allow for a better
collaboration between police and associations and hence a better protection of the interests of
trafficked persons.
The second important remark is that some of the activities described as being the standard of social
assistance and protection measures provided during the reflection period, should be made available
even when the victim has not yet taken any initiative, not even that of asking for help to escape
from the traffickers.
This would happen typically when the victim is taken into custody in the course of normal police
action aimed at repressing illegal immigration, and is held while waiting for an expulsion order.
Frequently, in these cases the victim is not even heard and hence no investigation is carried out on
the trafficking events that could be responsible for the condition of the person’s illegal presence
or/and of her/him being a prostitute.
It is therefore necessary that all or at least some of the essential activities of care envisaged for the
reflection period be provided also in the centres of temporary stay, and in any case they should be
provided during the time ranging from the issue of the order of expulsion to its execution.
It is however unfeasible to envisage the obligation of providing assistance, not even minimal levels
of assistance, for all the foreigners waiting to be expelled. In order not to burden the States too
much, this obligation could be restricted to groups at risk of being trafficked, for instance women,
children and the disabled. With regard to the latter, and any other individuals at risk that should be
identified, some essential interventions should be carried out even in the absence of the declared
will to break away from the traffickers. Such interventions would specifically be aimed at
ascertaining whether the person is in a condition of coercion and whether she/he can qualify as a
victim of trafficking, which could precisely be the reason for his/her silence.
29
What should be compulsory is providing an interpreter, a cultural mediator, and counselling on the
rights of trafficking victims, as well as any urgent treatment of any serious and specific
psycho-physical problems, and activities for people with special needs.
For cases during which the counselling evidence shows that they are victims of trafficking, the
cultural mediator and in any case the person who interviews the victim, shall inform the competent
authority so as to carry out further investigations aimed at verifying the condition of victim of that
person and at establishing her/his will to sever ties with the traffickers, with a view to activating the
reflection period programme.
After the first stage of assistance activities, during the period of validity of the residence permit the
standard of social assistance and protection measures must be specifically aimed at social
integration, both in the country of nationality or of habitual residence in case of voluntary return,
and the host country in relation to residence permits.
During this period the person has overcome the most critical phase of this experience and she/he has
already started the rehabilitation process. Hence the social assistance and protection measures must
aim mainly at helping the person to adjust in the best way and in most cases definitely to the labour
world, or if very young, to go back to school. During this phase, the persons who were victims of
coercion in the past, are now learning to organise their lives and autonomously manage their
resources.
The standard for this phase must take into account the following needs:





The home of the person may be a reception home but needs not necessarily be a protected
shelter. Indeed, the danger may be over for instance as a consequence of the
traffickers/exploiters being arrested. Where possible these persons must be encouraged to
gain greater autonomy and share a house with other persons.
The residence permit should provide access to basic medical care and therefore to a higher
standard compared with the reflection period.
The residence permit must give access to education and to professional training, possibly
aimed at preparing for predetermined jobs in relation to job availability in the community
and to the skills required.
The person who is attending training courses should receive help in looking for a job. This
type of support is of fundamental importance if – as will be explained later – the residence
permit can be converted into a permit for work purposes.
To the extent possible, the person will receive some financial support during this phase.
This provision has the aim of encouraging the acquisition of autonomy in running one’s life
and one’s resources.
Both the standard for the reflection period and the standard for the period of the residence permit
must be consistent with the criterion of the best interest of the child if the victim is under the age of
18 (see Chapter 8).
In conclusion, and summarising how the Convention compares with the Directive with regard to the
residence permit and the social assistance and protection measures, it can be stated that the
Convention:
-
Contains more favourable provisions applicable only to the victims of trafficking and not to
the victims of actions to facilitate illegal immigration.
30
-
-
For groups at risk it envisages language help and counselling also if the person has not
declared he/she wants to sever ties with the traffickers and is awaiting expulsion.
Envisages a higher standard of assistance during the reflection period.
Envisages less restrictive criteria for granting the residence permit. In particular the
reliability of the statements made are to be checked and the extent to which they can
contribute to the investigations.
Envisages the conversion of the residence permit into a permit for study or work.
Vice versa, the provisions of the Directive shall apply to both the victims of action to facilitate
illegal immigration and to the alleged victims of trafficking only where this is not provided for by
the Convention. For instance the provisions of the Directive on the residence permit shall apply and
not those of the Convention when a person is admitted to the reflection period as a victim of
trafficking, when there is not sufficient proof of submission deriving from violence or of abuse of
the victim’s position of vulnerability.
Hence for trafficking, the Directive, if approved, would have a residual scope and would be applied
to trafficked persons only in cases of doubt, where the partition between trafficking and illegal
voluntary immigration followed by harm to the victim were not clear.
31
8.
The protection of the rights of the victims who are minors
The Convention should integrate the approach of the well-being and best interests of the child10 in
all the provisions, concerning both criminal and social aspects.
Since the adoption of the UN Convention on the Rights of the Child, adopted in 1989, the approach
focusing on the rights of children should be taken into account in every international legal
document. With regard to legal measures concerning victims of crimes, it should be considered that
children are particularly vulnerable, and are targeted as potential victims of any form of
exploitation, sexual exploitation or labour exploitation.
Recommendation Rec (2001) 16 of the Council of Europe on the protection of children against
sexual exploitation states that "the well-being and best interests of children are fundamental values
shared by all member states and must be promoted without any discrimination". The
Recommendation aims at "promoting the well-being and best interest of any child and his or her
health and physical and mental, moral and social development to assist him or her in leading a life
free from sexual abuse, violence and exploitation" and "planning and implementing measures,
policies and practices with regard to the fight against sexual exploitation which take into
consideration the views and experiences of children themselves".
The Palermo Protocol mentions women and children as targeted groups. But only a few provisions
adequately emphasise the special needs of children. In particular, according to art. 6, § 4 of the
Protocol, in applying the provisions concerning assistance and protection of victims of trafficking,
each State Party shall take into account "the age, gender and special needs of victims of trafficking
in persons, in particular the special needs of children, including appropriate housing, education and
care".
The Convention should stipulate more detailed provisions on this subject in order to incorporate the
approach of the best interest of minors into every relevant action against THB. In particular, the best
interest of the child should be taken into account in the provisions concerning the residence status
and assistance activities, the rights of trafficked persons in criminal proceedings, the connection
between THB and illegal adoptions, forced child labour, sexual exploitation of children.
Regarding the status of residence of minors, this approach implies that a special standard should be
established, when the victim of trafficking is a child. In addition to the measures concerning
trafficked persons in general, children should be provided with better and further assistance, in
every stage of the process of investigation on the actual situation of a foreign child, application for
the residence permit, and recovery.
Primarily, the regulation should aim at ensuring that the competent authorities identify at an early
stage the cases of trafficking and take every necessary measure to protect the child. During police
operations, when there are reasonable grounds to suspect that an illegal alien is a minor, the State
Party should establish their identity. The State should also establish whether they are
unaccompanied. If so, when there are grounds to suspect that the minor is a victim of THB, she/he
should not be deported before establishing her/his nationality, the location of her/his family, and
before the possible application for a residence permit.
10. According to all the relevant international documents, the term child applies to all persons under the age of 18.
32
When the minor is unaccompanied, and there are grounds to suspect that she/he is a victim of THB,
with the assistance of a tutor, she/he should have the opportunity of evaluating whether the
procedure provided for the residence permit on grounds of trafficking is more favourable compared
with other procedures possibly provided for by the national legislation for minors. In assisting the
minor, the tutor should take into account the gender and the age of the minor, the opportunities for
social integration in connection with programmes of assistance and social protection.
With the assistance of a tutor, the minor should have the opportunity to decide whether she/he
wants to return to her/his home country, or to the country when her/his family is located. In such
cases, the States Parties should establish programmes aimed at assisting return, providing support to
families, who could be reluctant to receive the minors, particularly girls, when they have been
exploited as prostitutes abroad.
If the minor does not want to return, especially in the case of danger for her/his safety in the country
of origin, the possibility for their families to join her/him in the host country should be provided for.
If the minor chooses the option of the residence permit on grounds of being a victim of THB, she/he
should have access to the residence permit on the same grounds as adults. In this case, in addition to
all the general measures concerning adults, she/he should have access to the educational system
under the same conditions as nationals.
Concerning safe housing, the States Parties should take into account that children in institutional
care are not in the best situation to recover from the trauma. According to the most important
international experiences in this field, abused children need a deep relationship with someone who
is committed to them. That does not mean that the child should necessarily be entrusted to a family.
But it is important to emphasise that NGO shelters, managed in an informal and familiar way, based
on personal relationship with the children, are the best environment to meet their needs.
In every activity aiming at social integration, particular attention should be paid to education and
vocational training. To achieve a skill which can be utilized in the marketplace is the best tool for
recovery and achieving self-esteem.
A special focus should be put on trafficking in children for the purpose of forced labour.
The ILO Worst Forms of Child Labour Convention, adopted in 1999, identifies the elimination of
the worst forms of child labour as the main priority for national and international action, including
international co-operation and assistance. The Convention also indicates the need to remove the
children concerned from all such work and to provide for their rehabilitation and social integration
while addressing the needs of their families.
According to the ILO Convention, the CoE Convention should particularly address the issue of
rehabilitation of children, when they are employed in forced labour or services, in the context of
THB.
Particular attention should also be paid to trafficking in children for the purpose of organ
transplantation.
33
9.
Rights of the trafficked person in criminal proceedings
The CoE Convention should favour harmonisation of national legislative processes, also with a
view to protecting trafficked persons' rights in criminal proceedings.
On this subject, the Palermo Protocol includes three provisions.
"In appropriate cases and to the extent possible under its domestic law, each State Party shall
protect the privacy and identity of victims of trafficking in persons, including, inter alia, by making
legal proceedings relating to such trafficking confidential" (Art. 6, § 1).
"Each State arty shall endeavor to provide for the physical safety of victims of trafficking in
persons while they are within its territory" (art. 6, § 5).
"Each State Party shall ensure that its domestic legal system contains measures that offer
victims of trafficking in persons the possibility of obtaining compensation for damage suffered"
(Art. 6, § 6).
These provisions supplement articles 24, 25, 26 of the UN Convention on Transnational Organised
Crime, concerning protection of witnesses applicable to victims (insofar as they are witnesses),
assistance and protection of victims, and measures to enhance co-operation with law enforcement
authorities.
The Convention should include more detailed provisions aimed at attributing rights to victims in
criminal proceedings and enabling trafficked persons to exercise such rights. This issue
encompasses different areas, such as privacy, anonymity, assistance and legal representation, police
protection, audio-video facilities and anticipated evidence hearings, compensation.
Regarding protection of the privacy of trafficked persons, the Convention should include a
provision allowing a closed-door trial or at least an optional closed-door hearing for giving
evidence. If the victim is a minor, the closed-door trial should be mandatory ex officio. The
exception to the ordinary rule of publicity of the trial is motivated on grounds of protection of a
victim who has been subjected to violence, or coerced into prostitution, or sexually, physically or
psychologically abused. In these cases the right to privacy of the victim should prioritise over the
right of the public to attend the trial.
Concerning protection of identity of the victim, it seems difficult to establish a rule of anonymity of
the victim with respect to the defendant in criminal proceedings. The rights of the defendant would
be seriously infringed if the defendant could not know who reported her/him and acted as a witness
against her/him. However, a special rule of confidentiality of the evidence given during the
proceedings should be provided for, after the discovery or even after the sentence. The
confidentiality should be ordered by the judge upon request of the victim or ex officio in case of a
minor. The aim of such an order is to protect the privacy of the victims, especially children, on the
same grounds as the closed-door provisions. As to the protection of identity of the victim in case of
danger for their safety, see below in the text.
The issue of victims' protection is addressed in the UN Convention and the Protocol in different
articles. But more detailed provisions should be established with respect to the different phases of
the reflection period and the residence permit period.
Generally speaking, a police protection should imply that the victim acts as a witness in criminal
proceedings, as in art. 24 of the UN Convention. However, during the reflection period, if the
person is as yet undecided whether to report to the police, police protection should be ensured at the
34
shelter where the person has been residing, upon request of the NGO or other institution running the
shelter. Police protection should be granted when there is a substantial danger deriving from the
victim's attempt to escape from traffickers.
When the victim reports to the police and acts as a witness, police protection needs to be
proportionate to the severity of the case. This is crucial particularly where the person is in real and
present danger as a consequence of the statements made to the police or to the prosecutor.
The victim should have access to special protection programmes, including change of identity,
replacement and financial assistance, when the danger is very serious and ordinary measures are
insufficient. The programme should be applied when trafficking is managed in a framework of
organised crime, and the victim has been subjected to violence or coercion, or continuous or
particularly grave threats.
A specific quality of the statements could be required as a condition for access to the programme.
Following the same standard proposed above for immunity and residence permit (see
Chapters 4, 6), the statements should be reliable and helpful for the progress of the proceedings, but
not necessarily conclusive for the identification, capture and conviction of the perpetrators.
One problematic issue is the protection of the families. In many cases traffickers threaten victims'
children or relatives in order to force the trafficked person to be a prostitute or perform forced
labour or services. The problem is even more difficult when the families live in countries of origin.
As a general approach, following art. 24 § 1 of the UN Convention, police protection should be
ensured on the same grounds as to the victims/witnesses, to the persons who live with them or are
endangered as a consequence of their relationship with the trafficked person, particularly their
children, irrespective of where they live.
Provisions of the CoE Convention concerning police protection should be expressed in a language
of a more binding nature.
In order to ensure an effective protection to children and families living abroad, the Convention
could include specific obligations for the States Parties facilitating the re-settlement of families in
the host country, particularly through a special Visa on grounds of protection.
The objective of giving evidence before the trial has the double aim of protecting victims from
intimidation by traffickers and ensuring the authenticity of evidence. A special hearing for giving
testimony by the victim should be provided for, when there are reasonable grounds to suspect that
the person will be threatened or subjected to violence or other forms of coercion or intimidation.
Under these conditions, the preliminary hearing for giving evidence should be ordered by the judge
upon request of the parties. Such an order should be mandatory, irrespective of whether the above
conditions apply, when the victim is a minor.
For the same reasons of protection and authenticity of evidence, audio-video facilities could be used
with a view to avoiding physical and visual contact between the victim and the perpetrator, both in
the preliminary hearing and during the trial. Such a lack of contact should be mandatory (through
audio-video facilities or other tools) if the victim is a minor.
35
Regarding further protection of children, the avoidance of cross examination in the case of minors
could be considered. In any case the assistance of a psychiatrist or other specialised personnel for
the examination of children should be available to the judge.
Prosecution could be more effective if the victim is examined at an early stage of the procedure,
when the person is located in a different country, using audio-video facilities. This could be crucial
for countries of origin and transit, when a proceeding starts, the victim has been identified and has
been already trafficked abroad. In such a case, regardless of whether the proceeding was initiated
according to information sent by the receiving countries or motu proprio, the examination of the
victim abroad could be essential. Sometimes it is difficult to identify a case of trafficking in
countries of origin, since the violence, threats or abuse have not yet taken place at the first stage of
trafficking. Therefore, only the testimony of the victim abroad can give evidence of trafficking and
enable the competent authorities to distinguish that from an ordinary case of illegal border crossing.
Concerning this problem, instead of following the normal procedure for the rogatory, the possibility
of a simplification of the requested formalities could be considered, whereby the examination can
be carried out directly by the judicial authorities of the foreign country through audio-video
facilities.
Assistance and representation of victims is crucial to ensure the actual exercise of trafficked
persons' rights in criminal proceedings. As a person who has suffered very serious injuries, a victim
of THB should have the opportunity of being assisted by a trusted person for the whole duration of
criminal proceedings.
With regard to legal representation, States Parties should ensure, as far as possible, free legal
representation of trafficked persons. Since budgetary limits are a very serious threshold in some
countries, the Convention should at least provide that States Parties favour the access of victims to
legal representation. In practice, this goal could be reached by financing NGOs in order to establish
social protection programmes that comprise legal counselling, assistance and representation.
The right to compensation is already established by art. 24 § 2 of the UN Convention and art. 6 § 6
of the Protocol, through binding provisions. One problem is related to effective compensation. In
many cases of trafficking the proceeds of the crimes are quickly transferred abroad, and when the
perpetrators are convicted, no property or other goods formally belonging to them can be found.
Therefore the victim does not receive real compensation.
The CoE Convention could establish a special Fund for compensation of victims of trafficking, and
possibly for the financing of social protection programmes. The Fund could be financed by a
portion of the proceeds of the crimes and by voluntary contributions by the States Parties. This
would require a clarification of the relation between the obligation established by the CoE
Convention and that established by art. 30 § 2 (c), in a non-binding language, of contributing to the
special Fund in order to assist developing countries and countries with economies in transition.
36
10.
THB and New Information Technologies
The global impact of the new information technologies have not been evaluated yet. But in many
cases there was some indication that traffickers may use Internet to recruit women and children,
mostly for prostitution and other forms of sexual exploitation.
Travel Agencies or Marriage Agencies are the most important channels for recruitment. In some
countries the police noted suspicious advertisements for nannies, waitresses, dancers. Sometimes
marriages agencies have an Internet access, where women can correspond with men who pay an
additional fee for that service. In that case, Marriage Agencies facilitate women's access to Internet
even in countries where the use of new information technologies is not popular, especially in poor
and rural areas.
The agencies may not be directly involved in trafficking. But providing access to Internet and
contacts in Western countries, they facilitate the use of the Internet for trafficking. In addition to
introducing potential marriage partners, many agencies offer escort services, “erotic tours”, models
for pornographic pictures.
Sometimes there is a connection between pornography offered through the Internet and trafficking.
There are websites offering introductory services and pornography of women with disabilities for
men with fetishes for congenital malformations. Sometimes on the same website there are
photographs of orphans with disabilities urging for adoption. These people are the most vulnerable
and at risk of being trafficked and abused by men who offer to marry or adopt them. 11
There could be a connection between trafficking and some cases of sexual intercourse, through
e-mail, chat rooms and web cameras. Sometimes women who are employed in these services sign a
contract. However, the rules are so strict that it is impossible not to violate them. In such cases
women involved can be deprived of their profits and be forced to become prostitutes themselves or
be subjected to other forms of sexual exploitation because of debt bondage.
Particularly regarding minors, the access to pornographic sites is occasionally used to persuade the
minor to leave her/his family, go abroad and join the man with whom she/he had sexual intercourse.
Any action against trafficking using new information technologies should be balanced with the right
to freedom of expression.
The Council of Europe Convention on Cybercrime (Budapest 23.11.2001) aims at ensuring a proper
balance between the need for effective investigation and prosecution of actions directed against
integrity and availability of computer systems, networks and computer data. Other aims include the
misuse of the latter, and respect for fundamental human rights. All the relevant international
instruments reaffirm the right of everyone to hold opinions without interference, as well as the right
to freedom of expression, which includes the right to privacy, the freedom to seek, receive and
impart information and ideas of any kinds, regardless of frontiers.
11. Donna Hughes, Role of Marriage Agencies in Trafficking in Women and Trafficking of Images of Sexual
Exploitation, Council of Europe, November 2001
37
In the Cybercrime Convention there is a provision concerning offences related to child
pornography. According to art. 9, each State Party shall adopt such legislative and other measures
as may be necessary to establish as criminal offences under its domestic law, when committed
intentionally and without right, the following conduct:
a) producing child pornography for the purpose of its distribution through a computer system;
b) offering or making available child pornography through a computer system;
c) distributing or transmitting child pornography through a computer system;
d) procuring child pornography through a computer system for oneself or for another person;
e) possessing child pornography in a computer system or on a computer-data storage medium.
Despite the fact that States Parties can make a reservation on the provisions under d) and e), the
obligation to criminalise can be considered broad-ranging enough, encompassing the most serious
behaviour such as producing, offering and distributing pornographic materials.
However, some of the above situations, where there is a connection between certain forms of
Internet usage and trafficking are not covered by the Cybercrime Convention. In particular, Internet
is used to establish the first contact, normally through travel or marriage agencies, with women or
minors to recruit for trafficking schemes. In such cases the advertisements are completely unrelated
to pornographic sites. Even when the first contact is made through pornographic sites, particularly
child pornography sites, the problem is that of identifying people who produce, offer and distribute
pornographic material, according to the Cybercrime Convention. Furthermore, there is the
additional problem of the trafficking network, behind the pornographic site managers.
Some of the problems that investigators encounter in dealing with a case of trafficking in which
Internet has been used are common to every other case of cybercrime. In particular, the questions
concerning preservation, search and seizure of computer data, the grounds of liability of the
provider, the identification of jurisdiction are still open. These general problems cannot be
adequately addressed in the framework of an international instrument specifically focused on
trafficking.
However, the CoE Convention could suggest a new regulation, concerning data preservation, as in
cases of trafficking investigation necessarily starts some months after the first contact on the web
with the person who is going to be victimised.
In addition, the CoE Convention should identify actions that favour the introduction in national
legislation of more effective forms of protection of trafficked persons, taking into account the
necessary balance with freedom of expression through the Web.
The Convention could deal with some aspects concerning prevention and investigative
co-operation, particularly the improvement of the cyber-police.
The Convention should also encourage international co-operation in investigation and prosecution,
when there are reasonable grounds to suspect that a stage of trafficking has been committed though
new information technologies. To this end, the network of contact points for cybercrimes should be
strengthened and enlarged.
38
11.
Addressing the root causes of THB
Effective action aimed at prevention should deal primarily with social and economic
obstacles, in order to improve the quality of life in countries of origin.
Poverty, lack of job opportunities, inequalities between women and men,
discrimination, abusive families are at the core of the decision of many young women to
leave the country and surrend themselves to traffickers.
The first objective is to improve international co-operation, with a view to valuing local
resources, promoting education and training, self-employment and small business,
access to funding, favouring equal opportunities between women and men.
In order to meet these objectives, the possibility of establishing a special mechanism, in
addition to those provided for by the UN Convention, art. 30, should be considered.
One problem to be faced is related to the widespread demand of sexual services, which
undoubtedly contributes to the creation or maintenance of a situation favourable for
traffickers. Therefore, action aimed at discouraging such a demand is needed.
However, national legislation on prostitution adopts different approaches to clients. In
the majority of legal systems the behaviour of clients is legal when the prostitute is an
adult. Therefore, criminalisation of clients could not be stipulated by the Convention.
Criminal penalty or any other form of punishment of clients could create an ambiguous
solidarity between traffickers and clients. Clients sometimes help trafficked girls in their
attempts to escape form traffickers, especially where clients are the only people they can
meet. If clients feared negative consequences for themselves, a resource against
traffickers would be severely lacking.
Effective action aimed at discouraging and reducing the demand should be taken first in
the field of education. Equality in the relationships between women and men is essential
in order to enhance an approach to sexual life based on respect of dignity and freedom
of the partner.
In addition, public awareness campaigns should specifically address clients. It should be
made clear that, behind the traditional phenomenon of prostitution on the streets or in
brothels, lies the possibility of slavery-like conditions and forced prostitution. Solidarity
towards kidnapped, raped or abused women should be encouraged.
Regarding prevention, information campaigns are essential and should be enforced and
disseminated, especially in poor areas and among targeted groups.
Prevention further includes prevention from revictimisation, especially for women who
have been prostitutes abroad, have been deported to source countries and have
encountered stigmatisation and marginalisation. Programmes of assisted repatriation
should be encouraged and supported, especially for minors, pregnant women and people
with HIV or special needs.
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Further measures should be provided for in the field of law enforcement activities and
organisation, in addition to those stipulated by the UN Convention and the Protocol,
regarding prevention.
Special Police Units should be established at regional level, to co-ordinate investigative
action against THB. Special Police Units should also be established also at local level
with operational tasks, especially in countries of origin and transit; if possible, women
officers should be appointed.
Further steps are required to improve the exchange of data and investigative
information, on a bilateral and multilateral basis. Additionally, the exchange of data
could be supported by international police bodies such as Interpol, Europol, SECI.
Police co-operation should also be improved in the field of protection of families of
victims abroad, when children or other relatives are threatened by traffickers. Protection
should be ensured in the country of origin by the local police authorities, upon request
of the State where criminal proceedings are in process.
Although not only related to prevention, it is essential to mention co-operation between
NGOs and law enforcement. To achieve the goal of improved co-operation, some forms
of official recognition of NGOs working with victims of trafficking should be
considered. Alternatively, the possibility of establishing a “memorandum of
understanding” between law enforcement authorities and NGOs could be tested.
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12.
Establishing a National and European Monitoring System
The European Guidelines drawn up in The Hague in 1997 stress the importance of a
national mechanism aimed at monitoring the various aspects of trafficking and
improving the effectiveness of government action against trafficking.
The European Guidelines, in particular, identified the following measures:
 Establishing National Rapporteurs, who bring to the attention of governments the
features and trends of trafficking, and suggest action aimed at the prevention and
combat of trafficking;
 Developing criteria to report on trafficking and initiatives aimed at the struggle
against trafficking;
 Favouring co-operation among National Rapporteurs on a permanent basis.
The Netherlands was the first country where a National Rapporteur was appointed. The
first Report of the National Rapporteur was submitted to the Dutch government in
May 2002.
Resolution n. 19/5/2000, adopted by the European Parliament according to the Report
by Patsy Sorensen, includes a specific recommendation to the Council to establish an
EU Rapporteur on trafficking.
The necessity of a monitoring system both at national and international level is
acknowledged now more so than in the past.
A national monitoring system should have an independent nature. Therefore, the
National Rapporteur seems to be the best mechanism, due to its independence.
The National Rapporteur could be established by the Parliament. In this case the
Rapporteur would have a position of absolute independence. Even where the National
Rapporteur is established by a government, it should be enabled by the law, or other
administrative act, to make an independent evaluation of every government action.
Developing the contents of the European Guidelines, the National Rapporteur should:
 Promote the gathering, analysis and exchange of information and comparable data at
national and international level;
 Promote researches on the root causes of trafficking;
 Make proposals for the harmonisation of national legislation, particularly in the field
of criminal law and immigration law;
 Promote initiatives aimed at improving government action and prosecution;
 Favour co-operation on a permanent basis among local administrations, prosecutors'
offices, local police authorities and NGOs, particularly in the field of assistance and
protection of victims;
 Promote a network of partnerships at international level, aimed at taking
co-ordinated action to prevent and combat trafficking, and to assist and protect
victims;
 Promote projects and initiatives aimed at disseminating information on the rights set
forth by national legislation and international instruments;
 Identify and report to the government acts of discrimination against victims of
trafficking or acts of violation of their rights;
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 Prepare an Annual Report for the government, in which the National Rapporteur
should stress effective action taken by the national government, the local
administrations, the judiciary, the police authorities and other relevant public
institutions to prevent and combat trafficking;
 The National Rapporteur should also identify the causes of insufficient results and
the need for further action.
At the CoE level, a monitoring mechanism should be established, to evaluate on a
regular basis the enforcement of the obligations provided for by the Convention.
Also in this case, it is necessary to clarify the relation between the new CoE Convention
and the UN Convention and Protocol. Under art. 32, the UN Convention establishes a
Conference of the Parties, to improve the capacity to combat transnational organised
crime, promote and review the implementation of the Convention.
However, a European mechanism is required, focusing especially on trafficking, to
co-operate with the Conference in this specific field. The same art. 32, §3 (c), stipulates
that the Conference of the States Parties co-operates with relevant international, regional
and non-governmental organisations. Hence, the CoE Convention should identify the
nature of a regional mechanism aimed at monitoring trafficking at the European level.
Two different mechanisms should be considered:
1) A monitoring system could be based on a Conference of the National Rapporteurs.
This solution could favour co-operation on a regular basis between bodies responsible
for the monitoring system at national level. This solution would also establish an
obligation to appoint the National Rapporteur.
2) Following the Optional Protocol to the International Covenant on Civil and Political
Rights, the Convention on the Elimination of All Forms of Discrimination against
Women (CEDAW), the Convention against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment, and more recently, the Optional Protocol to the
CEDAW Convention, a special Committee could be established, with the task of
monitoring the enforcement of the Convention.
The functions and powers of the Committee could be more or less expanded.
Three possible patterns could be considered:
a) the Committee periodically receives a report from every State Party, concerning the
assessment of the phenomenon, and the evaluation of action taken against
trafficking; according to the report, the Committee addresses recommendations to
the States Parties, aimed at improving the efforts and results of the fight against
trafficking;
b) in addition to the functions described under a), the Committee receives
communications from States, victims, NGOs, international organizations; unless the
Committee declares the communication inadmissible, it is brought to the attention of
a State Party. The Committee addresses recommendations to the State Party in order
to remove the causes of the violation or of a failure to comply with the obligations
under the Convention;
c) in addition to the functions described under a) and b), the Committee would be
enabled to start an inquiry procedure, in cases of widespread or systematic
violations of the rights set forth in the Convention.
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The functions described under b) and c) are in accordance with the recent Optional
Protocol to the CEDAW Convention and would establish a strong mechanism aimed at
bringing to the attention of the international community any violation of failure to
comply with the obligations established under the Convention.