Against Trafficking in Human Beings
Trafficking in human beings violates the rights and affects the lives of countless people in Europe and beyond. An increasing number of women, men and children are being traded as a commodity, across borders or in their own countries, and trapped into exploitation and abuse.
Since the late 1980s, the Council of Europe has invested considerable efforts in the fight against trafficking in human beings. These efforts culminated in the adoption, in May 2005, of the Convention on Action against Trafficking in Human Beings and the setting up of a mechanism to monitor compliance with the obligations contained in it. This monitoring mechanism is composed of the Group of Experts on Action against Trafficking in Human Beings (GRETA), a multidisciplinary panel of 15 independent experts, and the Committee of the Parties to the Convention. GRETA draws up country evaluation reports containing an analysis of the implementation of the Convention by each Party and proposals for further action. On the basis of GRETA’s reports, the political pillar of the monitoring mechanism, the Committee of the Parties, may adopt recommendations concerning the measures to be taken to implement GRETA’s conclusions.
The Convention entered into force on 1 February 2008. It is a legally binding instrument which builds on already existing international instruments. At the same time, the Convention goes beyond the minimum standards agreed upon in other international instruments and aims at strengthening the protection afforded by them. The main added value of the Convention is its human rights perspective and focus on victim protection.
Trafficking in human beings vs. smuggling of migrants:
Whereas smuggled migrants belong to the groups of persons vulnerable to THB, trafficking in human beings is to be distinguished from smuggling of migrants. While the aim of smuggling of migrants is the unlawful cross-border transport in order to obtain, directly or indirectly, a financial or other material benefit, the purpose of trafficking in human beings is exploitation. Furthermore, trafficking in human beings does not necessarily involve a transnational element; it can exist at national level. However there are also overlaps between trafficking in human beings and smuggling of migrants, for instance because the actions of migrant smugglers often result in benefit for traffickers, and in some cases, migrant smugglers can also be or become traffickers.
Prevention of trafficking in human beings:
The Convention requires measures enabling legal migration (Article 5, paragraph 4), border measures to prevent trafficking in human beings (Article 7) and measures to ensure the security of travel and identity documents (Articles 8 and 9).
Identification of victims of trafficking among migrants:
Victims of trafficking must be identified and recognized as such, in order to avoid law enforcement agencies and public authorities treating them as irregular migrants or criminals. Pursuant to Article 10 of the Convention, Parties must provide their competent authorities, including border police, customs and immigration authorities, with persons who are trained and qualified in preventing and combating human trafficking and in identifying and assisting victims. In its evaluation reports, GRETA underlines the necessity of identifying foreign nationals who could be subject to human trafficking, particularly those who are held in detention centres pending their deportation (SK, DNK, BUL) or who stay in refugee centres (AUT) and giving potential victims in these centres access to relevant legal assistance and interpreters in all stages of the identification process (AUT, BUL).
Measures for unaccompanied children:
Under Article 10, Paragraph 4, of the Convention, as soon as an unaccompanied child is identified as a victim, each Party shall take specific measures to provide for representation of the child by a legal guardian, organisation or authority which shall act in the best interest of that child. Steps shall also be taken to establish the child’s identity and nationality and to locate his/her family when this is in the best interest of the child.
Recovery and reflection period:
Article 13 of the Convention introduces the obligation for Parties to provide in their internal law for a recovery and reflection period of at least 30 days. The minimum 30-day period constitutes an important guarantee for victims and potential victims and it serves a number of purposes, including to allow them to recover and escape the influence of traffickers and/or to take a decision on co-operating with the competent authorities. During this period, Parties must authorise the person concerned to stay on their territory and expulsion orders cannot be enforced.
Residence permits, repatriation and return of victims of trafficking:
Article 14(1) of the Convention provides for two possibilities when it comes to the issuing of renewable residence permits to victims
of trafficking: on the basis of their personal situation and/or their co-operation with the competent authorities in the investigation or criminal proceedings. Pursuant to Article 16 of the Convention, the return of victims of trafficking shall preferably be voluntary and needs to be carried out with due regard for the rights, safety and dignity of the person and for the status of any legal proceedings related to the fact that the person is a victim of human trafficking. Parties shall establish repatriation programmes which aim at avoiding re-victimisation and involve relevant national or international institutions and NGOs, as well as make efforts to favour the reintegration of victims into the society of the State of return.
Non-punishment of victims of trafficking for migration-related offences:
Pursuant to Article 26 of the Convention, Parties must provide for the possibility of not imposing penalties on victims of trafficking for their involvement in unlawful activities, to the extent that they have been compelled to do so. As stressed by GRETA in its evaluation reports, this is particularly relevant in countries that criminalise the irregular entry or stay in a country as a victim of trafficking could be prosecuted for migration-related offences while he/she has been compelled to commit the offence by the traffickers (DNK, BUL). Victims of trafficking are also sometimes compelled by their traffickers to use fraudulent travel and identity documents and Article 26 could also be relevant in such cases (DNK).
In order to combat transnational trafficking effectively, international co-operation between countries of origin, destination and transit for victims of trafficking is vital. This is why Article 32 of the Convention requires Parties to co-operate with each other to the widest extent possible in order to prevent and combat trafficking in human beings, protect and assist victims, and investigate related criminal offences.