3 Trafficking in human beings
| (30513)
8151/09
COM(09) 136
+ ADDs 1-2
| Draft Council Framework Decision on preventing and combating trafficking in human beings, and protecting victims, repealing Framework Decision 2002/629/JHA
Commission staff working documents: impact assessment and summary of assessment
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| Legal base | Articles 29, 31(1)(e) and 34(2)(b) EU; consultation; unanimity
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| Document originated | 25 March 2009
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| Deposited in Parliament | 27 March 2009
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| Department | Home Office |
| Basis of consideration | EM of 14 April 2009
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| Previous Committee Report | None
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| To be discussed in Council | No date set
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| Committee's assessment | Politically important
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| Committee's decision | Not cleared; further information requested
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Background: the present Framework Decision and the EU Action
Plan
3.1 A Framework Decision of 2002 contains the main EU legislation
on trafficking in human beings.[16]
The Framework Decision requires Member States to ensure that:
- the offences specified in the Framework Decision (such as
the use of deceit to recruit a vulnerable person for the purpose
of prostitution) are punishable by a criminal penalty;
- the penalty is effective, proportionate and dissuasive
and, in certain circumstances (for example, where the offence
has been committed to exploit a child for the purposes of prostitution
or pornography), the offence should be punishable by imprisonment
for not less than eight years.
- legal persons can be held liable for the specified
offences and be punishable by effective, proportionate and dissuasive
sanctions;
- they establish their jurisdiction over the specified
offences if committed wholly or partly in their territory, or
by one of their nationals, or for the benefit of a legal person
established in their territory;
- investigations or prosecutions of offences do
not depend on a report or accusation by the victim of the offence;
and
- special protection is given to children who are
victims of trafficking and assistance is given to their families.
3.2 In 2004, the European Council adopted the Hague
Programme for work on justice and home affairs over the next five
years.[17] It included
an invitation to the JHA Council and Commission to devise a plan
for the development of common standards, best practices and mechanisms
to prevent and combat trafficking in human beings.
3.3 In response, the Commission presented a Communication
describing what it saw as the priorities for action.[18]
It proposed that action to protect the human rights of victims
of trafficking should be at the centre of EU policy. It called
for special attention to be given to the protection of women and
children. It stressed the need for more and better data on trafficking.
And it advocated that law enforcement authorities should give
the prevention and detection of trafficking the same priority
as action against other serious organised crime.
3.4 In December 2005, the Council adopted the Action
Plan for which the European Council had called.[19]
It was based on the Commission's Communication. It specified actions,
objectives, timescales, allocations of responsibility and performance
indicators.
3.5 In October 2008, the Commission published its
evaluation of the implementation of the Action Plan.[20]
The following were among the main points:
- Prevention
— many Member States had taken preventive action within
their own borders, such as providing training for law enforcement
agencies, but much less has been done to promote prevention in
the countries from which victims originate.
- Investigation and Prosecution
— while the statistics were not comprehensive, the figures
for the number of investigations and prosecutions by Member States
led the Commission to conclude that trafficking for the purposes
of sexual exploitation and labour exploitation are still low-risk
crimes for the offenders.
- Compensation —
while the legislation of many Member States includes a right for
victims of trafficking to receive compensation from public funds,
the only available figures indicate that the actual number who
have received compensation is very low.
- National coordination
— national monitoring arrangements appeared to be inadequate.
But two countries had already appointed rapporteurs and
eight others (including the UK) were considering whether to make
similar appointments.
- Commission conclusion on implementation by
Member States — in the Commission's
view, there appeared to be a significant gap between what the
national legislation to implement the Framework Decision provided
and what Member States were actually doing.
3.6 The Commission suggested that, in the short term,
effort should be concentrated on:
i) establishing national rapporteurs to
help monitor trends in trafficking and the results of counter-measures;
ii) setting up or strengthening national arrangements
for identifying victims of trafficking and referring them to services
which can help them;
iii) setting up child protection systems to explore
whether trafficking has occurred in any case of child exploitation
for prostitution or other forms of exploitation;
iv) giving support to NGOs which help victims
of trafficking;
v) organising training for authorities and organisations
involved in the identification of cases of trafficking and, in
particular, trafficking for labour exploitation;
vi) improving the coordination of the investigation
and prosecution of traffickers; and
vii) strengthening cooperation with third countries
to counter trafficking and encourage judicial cooperation.
The Commission also said that it was considering
revision of the Framework Decision.
Council of Europe Convention of 2005 on Action
against Trafficking in Human Beings
3.7 In 2005, the Council of Europe adopted a Convention
on trafficking in human beings. It came into effect in February
2008. By January 2009, it had been ratified by 11 Member States;
another 14 had signed it and were in the ratification process.
3.8 The Commission staff working document attached
to the proposed new Framework Decision says that the Convention
:
"is regarded by experts as constituting the
highest international standard to date, since it provides a comprehensive
framework covering prevention, cooperation between different actors,
protection and assistance to victims, obligation to criminalise
trafficking, rules and instruments to facilitate investigation
and prosecution, including procedural law. Implementing such measures
would lead to significant improvements."[21]
Legal background
3.9 Title VI of the EU Treaty contains the legal
base for EU action on trafficking in human beings. Article 29
EU says that the Union's objective is to provide its citizens
with a high level of safety in an area of freedom, security and
justice through police and judicial cooperation in criminal matters.
Article 31(1)(e) EU states that common action on judicial cooperation
in criminal matters includes adopting measures establishing minimum
rules on both the constituent elements of criminal acts and penalties
"in the fields of organised crime". Article 34(2)(b)
authorises the Council to adopt Framework Decisions for the approximation
of the laws of the Member States. Framework Decisions are binding
as to the results to be achieved but leave Member States discretion
how to give effect to them.
The draft Framework Decision
3.10 Although the Commission applauds the Council
of Europe's 2005 Convention on trafficking in human beings, it
says that the Convention has weaknesses. For example, it makes
no provision about the custodial penalty to be imposed on offenders
and the provision about exempting victims from punishment if they
have committed an offence (for example, shown false documents
to cross a border) is not binding. Similarly, the Commission believes
that EU's 2002 Framework Decision has weaknesses: for instance;
it contains no provision on exempting victims from punishment,
the treatment of vulnerable victims (other than children) or training.[22]
3.11 In the Commission's view, the inadequacies in
the present EU legal framework have led to practical problems.
They include:
- failure to convict criminals
because of insufficient approximation of Member States' laws,
insufficient cross-border cooperation and the unwillingness of
some victims to report crimes for fear of denunciation to the
immigration authorities and immediate deportation;
- insufficient protection of victims and assistance
for them;
- inadequate prevention of trafficking because,
for example, law enforcement and social services in countries
of origin and destination lack the necessary expertise and resources;
and
- there is inadequate knowledge about, for example,
the volume of trafficking and the effectiveness of counter-measures.
3.12 In the light of these practical problems and
its consultations with Member States, interested NGOs and others,
the Commission proposes this Framework Decision. It re-enacts
some of the provisions of the 2002 Framework Decision without
amendment, re-enacts others with amendment and the adds some wholly
new provisions. The main differences between the 2002 Framework
Decision and the draft Decision are as follows.
3.13 Definition: the draft Decision
would amend the definition of the offence of trafficking in human
beings to bring it into line with the definition in the UN Protocol
to Prevent, Suppress and Punish Trafficking in Persons, especially
Women and Children (2000).
3.14 Period of imprisonment: the present
Framework Decision requires Member States to provide for the punishment
of the offender by imprisonment for a maximum of not less than
eight years where the offence has endangered the victim's life,
or the victim is a child who has been exploited for the purpose
of prostitution or another form of sexual exploitation, or the
offence has been committed by the use of serious violence or has
caused particularly serious harm to the victim, or the offence
has been committed within the framework of a criminal organisation.
The present Framework Decision does not prescribe a sentence for
any of other trafficking offence.
3.15 Article 3 of the draft Decision proposes that
Member States should ensure that :
- an offence which endangers
the life of a victim or involves serious violence or causes particularly
serious harm to the victim is punished by a term of imprisonment
with a maximum of not less than 12 years;
- an offence committed by an official in the performance
of his or her duties, or an offence against a particularly vulnerable
victim, or an offence committed within the framework of a criminal
organisation is punished by a term of imprisonment with a maximum
of not less than 10 years; and
- other trafficking offences are punished by a
term of imprisonment with a maximum of not less than six years.
3.16 Exemption of victims of trafficking:
the draft Decision requires Member States to "provide for
the possibility" of not prosecuting or imposing penalties
on victims of trafficking for their involvement in unlawful activities
as a direct consequence of the trafficking offence against them.
The 2002 Framework Decision contains no such provision.
3.17 Investigation and prosecution:
the draft Decision includes a new Article which, among other things,
requires Member States to ensure that people and bodies responsible
for investigating and prosecuting trafficking offences are trained
to do the job; and that they have access to the investigative
tools used in the investigation and prosecution of organised crimes
(such as phone taps and electronic surveillance).
3.18 Jurisdiction and coordination of prosecution:
the draft Decision adds to the requirements in the 2002 Framework
Decision for Member States to establish their jurisdiction over
trafficking offences and, in particular, offences committed outside
their territory. It also introduces a new requirement for Member
States to cooperate with each other where an offence falls within
the jurisdiction of more than one of them; and sets out factors
to be taken into account in deciding which of them should bring
the prosecution.
3.19 Protection of vulnerable victims of trafficking
in criminal proceedings: the draft Decision also includes
new provisions on the protection of vulnerable victims, such as
access to witness protection programmes, legal representation
and the avoidance of visual contact between the victim and the
alleged offender during the giving of evidence and cross-examination.
3.20 Assistance to victims: the draft
Decision contains a new requirement for Member States to provide
victims with assistance, such as helping them to escape from the
influence of offenders and providing them with secure accommodation
and medical treatment.
3.21 Prevention: Article 12 of the
draft Decision requires Member States "to discourage the
demand that fosters all forms of exploitation" and to promote
regular training of police officers and others who come into contact
with victims. Article 12(3) requires every Member State to:
"consider taking measures to establish as a
criminal offence the use of services which are the object of exploitation
… with the knowledge that the person is a victim of an offence".
The 2002 Framework Decision contains none of these
requirements.
3.22 Monitoring: finally, the draft
Decision requires Member States to appoint national rapporteurs,
or equivalent mechanisms, to monitor the implementation of new
the Framework Decision.
The Government's view
3.23 In his Explanatory Memorandum of 14 April, the
Minister of State at the Home Office (Mr Phil Woolas) tells us
that the Government's preliminary view is that the Commission's
proposals for a new Framework Decision are broadly in line with
existing UK policy on trafficking in human beings. In the negotiations
on the draft Decision, the Government will aim to achieve a balance
between prevention, enforcement and victim support. Where the
proposals go beyond current international agreements to which
the UK is a party, the Government will ask the Commission to explain
why the departure might be justified.
3.24 The Minister tells us that the UK's ratification
of the Council of Europe Convention on trafficking in human beings
came into effect on 1 April 2009. He adds that it is expected
that the new Framework Decision will be agreed by the JHA Council
in October or November.
Conclusion
3.25 As recently as last October, the Commission
issued a document containing its evaluation of the implementation
of the EU Action Plan on trafficking in human beings. The section
on counter-trafficking policy in the Member States concluded that:
"The past years have witnessed a dynamic
process of approximation of legislation in the Member States in
the field of both criminal law and victim assistance. However,
the figures available indicate a serious gap between the legislation
in force and actual implementation."[23]
Moreover, most Member States are still in the
process of ratifying the Council of Europe Convention on trafficking,
the implementation of which would, according to the Commission
staff working document, "lead to significant improvements".[24]
3.26 We are surprised, therefore, that the Commission
is proposing new EU legislation. We ask the Minister for his view
on this and, in particular, on whether concentration on full implementation
of the 2002 Framework Decision and the Council of Europe Convention
might be a more effective means to counter trafficking in human
beings and help victims than creating new legislative requirements.
3.27 We note that Article 3 of the draft Framework
Decision proposes that Member States should ensure that some trafficking
offences are punishable by imprisonment for a maximum term of
not less than six years, another class of trafficking offences
by imprisonment for not less than 10 years and a third class for
a maximum term of not less than 12 years. We are minded to conclude
that this might unacceptably fetter the discretion of the judiciary
to decide sentence on the facts of each particular case. But before
we reach a final view, we should be grateful for the Minister's
comments on the question.
3.28 We also note that Article 8(4) sets out a
procedure for settling conflicts of jurisdiction in parallel proceedings
for the offence of human trafficking in more than one Member State,
which is inconsistent with the procedures for resolving such conflicts
set out in the Draft Council Framework Decision "on prevention
and settlement of conflicts of jurisdiction in criminal proceedings".
This latter Framework Decision applies to all parallel criminal
proceedings in the EU and is expected to be adopted by the Council
under the current Presidency. Article 8(4) should therefore refer
to, and be consistent with, this Framework Decision.
3.29 We also note that Article 12(3) of the draft
Framework Decision would require each Member State to "consider"
making it a criminal offence knowingly to use the services of
a victim of a trafficking offence. The Commission recognises that
the proposal to create such an offence is controversial. We ask
the Minister for the Government's view on it.
3.30 In addition, we ask the Minister to tell
us the answers the Government receives from the Commission to
its requests for clarification of the proposals.
3.31 Pending the Minister's replies to our requests
for further information, we shall keep the document under scrutiny.
16 Council Framework Decision 2002/629/JHA: OJ No.
L 203, 1.8.02, p.1. Back
17
European Council 4-5 November 2004, Presidency Conclusions, Annex
I, p.12, paragraph 1.7.1. Back
18
(26961) 13590/05: see HC 34-ix (2005-06), chapter 11 (9 November
2005). Back
19
EU Action Plan on best practices, standards and procedures for
combating and preventing trafficking in human beings: OJ No. C
311, 9.12.05, p.1. Back
20
(30067) 14602/08: see HC 19-i (2008-09), chapter 20 (10 December
2008). Back
21
See 8151/08, ADD 1, page 5, penultimate paragraph. Back
22
See 8151/09, ADD 1, pages 13-14. Back
23
(30067) 14604/08, page 5, section 1.7, first two sentences of
first paragraph. Back
24
See 8151/09, page 5, penultimate paragraph. Back
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