Trafficking in Human Beings: the EU legislates but the Member States keep dragging their feet…

by Federica VIGNALE (Free Group Trainee)

Since more than ten years Trafficking in Human beings is a recurrent issue on the agenda of the European Parliament Committee on Civil Liberties, Justice and Home Affairs. The last debate [i] was notably focused on the Commission Mid-term report on the 2012-2016 EU strategy towards the eradication of trafficking in human beings and the Global Report on Trafficking in persons of United Nations Office on Drugs and Crime.

Trafficking in Human Beings (THB) is recognized by the European and the international law as a gross violation of human rights and as a form of organized crime[ii]. At European level, THB is defined as “the recruitment, transportation, transfer, harbouring or reception of persons, including the exchange or transfer of control over those persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation”. Furthermore, due to the presence of these forms of violence or coercion, trafficking in human beings represents also a form of modern slavery. Currently there are tens of thousands potential people who are kept in captivity or forced to provide services against their will, but there are some people who were lucky enough to have been identified.

In this respect and before analysing the European and the international legal context, it is worthwhile analysing the data related to victims and traffickers that emerge from the Trafficking in Human Beings Report that the DG Home Affairs and Eurostat published on the occasion of the EU Anti-Trafficking day anniversary. Between 2010 and 2012, 30.146 people were registered by the authorities, but this number is more alarming if we consider that there are certainly other victims of THB that have not been registered. The above-mentioned Report indicates also that:

• “80 % of registered victims were female.
• Over 1 000 child victims were trafficked for sexual exploitation^[iii].
• 69 % of registered victims were trafficked for sexual exploitation.
• 95 % of registered victims of sexual exploitation were female.
• 71 % of registered victims of labour exploitation were male.
• 65 % of registered victims were EU citizens.
• There are no discernible trends in the variation of victim data at EU level over the three reference years.
• 8 551 prosecutions for trafficking in human beings were reported by Member States over the three years 2010-2012.
• Over 70 % of traffickers were male. This is the case for suspects, prosecutions and convicted traffickers.
• 3 786 convictions for trafficking in human beings were reported by Member States over the three years.
• There are no discernible trends in the number of prosecutions or convictions at EU level”.

Two thirds of the victims are from the countries within the EU (Romania, Bulgaria, the Netherlands, Hungary and Poland), and the rest of the victims are primarily from Nigeria, China, Vietnam, Brazil and Russia. These figures are extremely worrying, especially because – in terms of legislation – the EU has built a very ambitious legal framework that consists of:

• Directive 2011/36/EU on preventing and combating trafficking in human beings and protecting its victims, and replacing Council Framework Decision 2002/629/JHA;
• Council Directive 2004/81/EC of 29 April 2004 on the residence permit issued to third-country nationals who are victims of trafficking in human beings or who have been the subject of an action to facilitate illegal immigration, who cooperate with the competent authorities;
• Directive 2012/29/EU of the European Parliament and of the Council of 25 October 2012 establishing minimum standards on the rights, support and protection of victims of crime, and replacing Council Framework Decision 2001/220/JHA;
• Council Directive 2004/80/EC of 29 April 2004 relating to compensation to crime victims;

In accordance with the Directive 2011/36/EU, which was supposed to be transposed by all MS on the 6^th April 2013, Member States have the legal obligation to focus on prevention (Art. 18), on prosecution of the criminals (Art. 9) and on the protection of the victims (Art. 12 et seq.).

The policy framework is ambitious too, and it includes the EU Strategy towards the Eradication of Trafficking in Human Beings 2012-2016 that has been adopted by the European Commission on the 19^th June 2012. This strategy supports the Directive 2011/36/EU and, since this fight against the THB figures also in several other instruments governing the EU’s external relations[iv], it aims also to avoid the duplication of initiatives and to complete the efforts made by MS, International Organisations and civil society in the EU and in third countries. In compliance with the 2012-2016 Strategy, the EU should concentrate on 5 key priorities in its action against THB, which are:

1. Identifying, protecting and assisting victims of trafficking;
2. Stepping up the prevention of trafficking in human beings;
3. Increased prosecution of traffickers;
4. Enhanced coordination and cooperation among key actors and policy coherence;
5. Increased knowledge of and effective response to emerging concerns related to all forms of trafficking in human beings;

On the occasion of the last December parliamentary commitees debate, the EU Anti-Trafficking Coordinator, Myria Vassiliadou, illustrated the achievements made so far in each scope of action thanks to the cooperation of MS, civil society, eight EU agencies[v], many services of the Commission and of non-EU countries. Some highlights include:

• The continuation of the work of the EU informal network of national rapporteurs or equivalent mechanisms;
• The strengthening of the network between the Commission and the MS[vi];
• The creation of a civil society platform with over 100 NGOs that work in different areas related to the fight against THB and that share their information with the Member States;
• The launch of an electronic platform that allows to share information, reports and experiences at EU level;
• The publication of many handbooks and guidelines on victims’ identification, on victims’ rights and studies on vulnerable groups.

Lack of transposition in several EU Member States

Insofar as the transposition of the Directive 2011/36/EU across all Member States, in 2013 thirteen  Member States[vii] were subject to infringement procedures because they “failed to notify the Commission of any transposing legislation. To date, 25 Member States have indicated that they have transposed the Directive in full. The Commission is currently analysing the information received and will report in 2015, in accordance with Article 23 of the Directive, on the State of transposition across all Member States”[viii]. Belgium and Germany, on the other hand, are still pending for notification[ix] while Denmark is not taking part in the adoption of that Directive[x]. By taking advantage of their protocols Ireland has “opted in” differently from the UK who did’nt.

During the debate the EU Anti-Trafficking Coordinator underlined that, although the legal framework is adequate, there is still a lack in its concrete application by the MS. While the European Commission is still analysing received data, it is evident that in some Member States the prevention of the crime, the protection of the victims and the prosecution of the traffickers are often not guaranteed.

Italy : insufficient transposition of the EU Directive … 

Referring to the specific Italian context, for instance, the European Directive has not been transposed accurately in the national legislation, with the result that the intended goal was not fully achieved and a unique and specific legislative instrument was not created.

The Directive 2011/36 has been transposed, in fact, through the Legislative Decree N° 24/2014, which has introduced rules modifying the pre-existing legislation of the Criminal Code, the Criminal Procedure Code and the Consolidated Law on immigration. Furthermore, several Directive’s provisions are missing in the Italian legislation, such as rules that ensure the irrelevancy of the victim’s consent, the non-punishment of victims of THB and assistance and support for victims of trafficking provided for Articles 2§4, 8 and 11 of Directive respectively[xii].

..and of the Council of Europe Convention on the same subject..

An analysis on the implementation of the Directive in the Italian legislation is contained also in the Report concerning the implementation of the Council of Europe Convention on Action against Trafficking in Human Beings by Italy[xiii], in which GRETA – Group of Experts on Action Against Trafficking in Human Beings – highlighted the same deficiencies illustrated before. The report also include a list of the Group of Experts’ proposals to Italy to better react to THB involving, among other things:

• A comprehensive approach and co-ordination
• The training of relevant professionals
• Data collecting and research
• International co-operation
• Measures to raise awareness and discourage demand
• Social, economic and other initiatives for groups vulnerable to THB
• Border measures to prevent THB and measures to enable legal migration
• Identification of victims of THB
• Investigation, prosecution and procedural law
• Repatriation and return of victims

The United Nations general framework

Besides the Convention on Action against Trafficking in Human Beings, another important instrument at international level appointed to the fight against THB is the Protocol to Prevent, Suppress and Punish Trafficking in Persons, part of the 3 Palermo Protocols, together with the Protocol against the Smuggling of Migrants by Land, Sea and Air and the Protocol against the Illicit Manufacturing and Trafficking in Firearms, Their Parts and Components And Ammunition. The first two Protocols are important especially for the distinction between Trafficking in Persons and Human Smuggling that are often used interchangeably, but the international law set out clearly the difference. According to these Protocols, in fact, ““Trafficking in persons” shall mean the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include, at a 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” while ““Smuggling of migrants” shall mean the procurement, in order to obtain, directly or indirectly, a financial or other material benefit, of the illegal entry of a person into a State Party of which the person is not a national or a permanent resident”.

Some data related to the fight to THB at international level are briefed by the Global Report on Trafficking in persons of United Nations Office on Drugs and Crime published in November 2014. This report is divided in two parts: in one there are global and regional perspectives, in the other one there is a country’s profile for all those countries that have been covered (155 countries). Even if the Report doesn’t cover every country in the world, we can easily assume that every country has problems with trafficking because this study has proven the existence of at least 510 trafficking in persons flows. People are trafficking among different continents, from poor to rich areas^[xiv], but these flows are registered in a very limited regional area, usually in a sub-region. 34% of trafficking in persons occurs domestically, which means that it happens within one country. The rest of it, it is transnational, which means that victims are transported. Most of the traffickers are detected within their countries, where they are usually convicted.

Moreover, while sexual exploitation is the main practice of exploitation of trafficking victims, there are also other forms of this crime: domestic servitude and forced marriage, organ removal, the exploitation of children in begging, the sex trade and warfare. This last crime is increasing, especially in Africa and in conflict zones. However, in these countries, laws are often confusing or – worse – there is a legal vacuum and therefore real figures are missing.

In conclusion, it can be argued that there are already legislative instruments adopted on both the European and international levels. However a cross-compared analysis of Commission Mid-term report and the Global Report on Trafficking in persons of UNODC, shows that the fulfilment of these instruments is not yet sufficient to fully prevent and tackle Trafficking in Human Beings.

NOTES

[i] The last debate took place less than two months after the 8th Anti-Trafficking day, held on the 18^th October 2014.

[ii] THB is the only form of organized crime explicitly prohibited in the Charter of Fundamental Rights of the European Union. See Article 5§3 of the Charter.

[iii] Children are the most vulnerable victims and they represent half of all trafficking victims. On the 30^th June 2014 the EU Agency for Fundamental Rights (FRA), in order to raise awareness about this issue, published a Guardianship for children deprived of parental care – A handbook to reinforce guardianship system to cater for the specific needs of child victims of trafficking

[iv] The Global Approach to Migration and Mobility; the 2009 Action Oriented Paper on strengthening the EU external dimension against trafficking in human beings; the Country Strategy Papers and National and Regional Indicative Programmes.

[v] As indicated in the Mid-Term Report on the implementation of the EU strategy towards the eradication of trafficking in human beings, these agencies are “The European Police College (CEPOL), the EU Judicial Cooperation Unit (Eurojust), the EU law enforcement agency (Europol), the European Asylum Support Office (EASO), the European Institute for Gender Equality (EIGE), the EU Agency for Fundamental Rights (FRA), the European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union (Frontex) and Eurofound”. See also the Report on individual actions of the JHA Agencies in the field of THB.

[vi] In particular the Article 20 of the Directive 2011/36/EU: Coordination of the Union strategy against trafficking in human beings. In order to contribute to a coordinated and consolidated Union strategy against trafficking in human beings, Member States shall facilitate the tasks of an anti-trafficking coordinator (ATC). In particular, Member States shall transmit to the ATC the information referred to in Article 19, on the basis of which the ATC shall contribute to reporting carried out by the Commission every two years on the progress made in the fight against trafficking in human beings.

[vii] Austria, Cyprus, France, Germany, Greece, Ireland, Italy, Luxemburg, Malta, Netherlands, Portugal, Slovakia, Spain.

[viii] See the Mid-Term Report

[ix] Belgium has transposed only partially the Directive whereas concerning Germany, as underlined in http://ec.europa.eu/anti-trafficking/content/nip/Germany, “The Act to Combat Human Trafficking and Monitor Brothels (Gesetz zur Bekämpfung des Menschenhandels und Überwachung von Prostitutionsstätten), adopted by the German Bundestag on 28 June 2013 and designed to accommodate this need for a legislative response, can no longer enter into force because of the Bundesrat’s convening of the Mediation Committee and the end of the parliamentary term. Full transposition of this Regulation is therefore reserved for the 18th legislative term.”.

[x] See Recital 36 of Directive 2011/36/EU. As underlined in the Report concerning the implementation of the Council of Europe Convention on Action against Trafficking in Human Beings by Denmark, moreover, “Denmark is the only Member State of the European Union (EU) not bound by the new Directive 2011/36/EU of the European Parliament and of the Council of 5 April 2011 on preventing and combating trafficking in human beings and protecting its victims. This is due to the fact that the 2007 Lisbon Treaty  kept a number of exemptions (or “opt-outs”) that Denmark had secured since the 1992 Maastricht Treaty, including measures in the area of justice and home affairs (JHA), while allowing for the possibility to “opt-in” and take part in the adoption and application of JHA measures, on a case-by-case basis. Directive 2011/36/EU replaces the previous Council Framework Decision 2002/629/JHA on combating trafficking in human beings in all EU Member States except for Denmark, where it remains applicable”.

[xi] See page 3 and 4 of the Monitoring Report on the Implementation by the United Kingdom of EU Directive 2011/36 on preventing and combating trafficking in human beings.

[xii] For further information see the “Osservazioni relative allo stato di attuazione in Italia della direttiva 2011/36UE relativa alla prevenzione e la repressione della tratta di esseri umani e la protezione delle vittime e che sostituisce la decisione quadro del Consiglio 2002/629/GAI-Il decreto legislativo 4 marzo 2014 n. 24” in http://www.asgi.it/wp-content/uploads/2014/12/doc_LIBE-ASGI_2014.doc.

[xiii] The Council of Europe Convention on Action against Trafficking in Human Beings is available here.

[xiv] In particular there are three main hubs as destination points: 1) Middle East 2) North America, Western America and the Caribbean 3) Western and Central Europe.