Joint Committee On Human Rights Twenty-Sixth Report


3  The Council of Europe Convention

Background to the Convention and Status of Ratification

53. The Council of Europe has been at the forefront of the fight against trafficking of human beings. While it started dealing with the issues in relation to the subject matter in the 1980s, a concentration of activities emerged from the early 1990s.[51] It has, for example, established the Group of Experts on trafficking in women, promoted awareness raising campaigns through seminars, meetings of experts and research studies, and drafted a model action plan.[52] In 2006, the Council of Europe Campaign to Combat Trafficking in Human Beings was launched.[53] The campaign aims to raise awareness among Governments, parliamentarians, NGOs and civil society of the extent of the problem of trafficking in human beings in Europe today. It will highlight the different measures to prevent the practice, as well as measures to protect the human rights of victims and prosecute the traffickers. The campaign also aims to promote the widest possible signature and ratification of the Council of Europe Convention on Action against Trafficking in Human Beings.

54. Alongside these activities, the Council of Europe has been active in developing a legal framework for member states to follow. Some of the early examples include Recommendation No. R(2000)11 on Action Against Trafficking in Human Beings for the Purpose of Sexual Exploitation, Recommendation 1545 (2002) on Campaign Against Trafficking in Women, and Recommendation 1610 (2003) on Migration Connected with Trafficking in Women and Prostitution. These instruments, however, were not legally binding.

55. The Council of Europe then saw the need to adopt a legally binding instrument which goes beyond recommendations.[54] While recognising the existing instruments which are applicable to trafficking such as the ECHR, the Council of Europe considered that an instrument with a stronger focus on protection of victims would supplement the current legal framework and promote a pan-European action against the practice.[55] The adoption of a new instrument was supported by various bodies including the OSCE and the United Nations.

56. The Committee of Ministers then approved a plan to draft a Convention in April 2003, and the Ad Hoc Committee on Action against Trafficking in Human Beings (CAHTEH) was established.[56] In September of the same year, the Council of Europe started negotiations on the Convention itself, and it was finalised in February 2005.

57. The Convention was finally adopted by the Committee of Ministers on 3 May 2005, and opened for signature on 16 May 2005 in Warsaw. As of September 2006, the Convention has been signed by 32 member states.[57] Under Article 42 of the Convention, 10 ratifications are necessary in order for the Convention to take effect. Only Moldova and Romania have so far ratified it. The UK has neither signed nor ratified the Convention.

58. The Government participated actively in the drafting and negotiation of the Convention, and says that it fully supports its key aims.[58] While it has not signed or ratified the Convention as yet, a decision has not been taken and the Government may do so in the future. The Government is exploring, with various NGOs and others working in the field, the potential benefits and disadvantages of the Convention.[59] A cross-government group of officials has been meeting on numerous occasions to analyse in detail all aspects of the Convention and continues to report progress at regular intervals.[60] Further, the Government claims that a significant amount of work has already been undertaken to look at potential changes to legislation and policies to minimise the impacts of abuses on immigration controls, should the Government adopt the Convention.[61] However, there are still some areas of concerns surrounding the instrument, and the Government argues that it requires more time before reaching a final decision.

Overview of specific provisions

59. The Convention is a comprehensive treaty which recognises trafficking as a grave violation of human rights and focuses mainly on the protection of victims of trafficking and the safeguarding of their rights. It embodies the international human rights standards in this area and will strengthen the protection measures afforded by the Trafficking Protocol. It applies to all forms of trafficking, including sexual and labour exploitation.

60. The Convention is divided into 10 Chapters. For the purpose of this part of our Report, we will concentrate on Chapter III on protection of victims. As the Explanatory Report to the Convention acknowledges, Chapter III is an essential part of the Convention as it places the human rights of trafficked people at the centre of the anti-trafficking strategy.[62]

ARTICLE 10 (IDENTIFICATION OF THE VICTIMS)

61. This Article places a clear obligation upon "competent authorities", such as police and immigration authorities, to identify victims. Such identification is essential for victims to receive all the necessary protection measures. In order to facilitate effective identification, Article 10 obliges the authorities to co-operate with each other and other support groups, such as NGOs. However, it goes further than simply identifying the victims. For instance, the competent authorities are also obliged to have trained and qualified individuals to identify and protect victims and to issue residence permits in appropriate cases in accordance with Article 14 of the Convention.[63] If there are reasonable grounds to believe that a person is a victim of trafficking, the competent authorities are to refrain from removing or deporting that person until the identification process is complete and to afford the protection stipulated in Articles 12(1) and (2).[64] Articles 10(3) and (4) relate to protection of children. Under Article 10(3), if the age of the victim is uncertain and there is a reasonable ground to believe that he or she is a child, then the authorities must proceed on the basis that he or she is a child and afford special protection, in compliance with the CRC.[65] When a victim is an unaccompanied child, states are obliged to appoint a legal guardian who will act in the best interests of that child, take steps to ascertain his or her identity and nationality, and locate his or her family.[66]

ARTICLE 11 (PROTECTION OF PRIVATE LIFE)

62. Under this Article, states must protect the privacy and identity of victims. Protection of privacy and identity is essential not only to protect the physical and mental safety of victims, but also to preserve their chance of integration into their destination states.[67]

63. In order to protect victims' privacy and identities, various measures are provided for under Article 11. Article 11(1) stipulates that victims' personal data is to be stored and utilised in accordance with the Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data.[68] This Convention provides, among other things, that personal data are to be stored and used for lawful purposes only, and that states must take steps to prevent unauthorised access, alteration and disclosure of such data.[69] Article 11(2) is designed to safeguard the privacy and identity of child victims of trafficking, as they are particularly vulnerable to exploitation and abuse. Finally, Article 11(3) places an obligation to encourage media to protect victims' privacy and identities through self-regulation or regulatory measures, while simultaneously respecting their right to freedom of expression under Article 10 of the ECHR.

ARTICLE 12 (ASSISTANCE TO VICTIMS)

64. Article 12 is perhaps the most important as it provides for detailed measures of protection to be implemented by states. This Article applies to all victims, whether victims of trafficking within national borders or transnational trafficking.[70] Measures to be taken include, but are not limited to, secure accommodation, access to emergency medical assistance, translation and interpretation services, counselling and provision of information in the languages victims can understand, assistance during judicial proceedings, and access to education for children.[71] Victims lawfully residing in destination states can receive protection wider than those residing illegally. Those measures include additional medical assistance and access to employment, vocational training and education.[72] If someone's status is not confirmed as a victim, he or she may receive protection under Articles 12(1) and (2) and not all Article 12 measures. Another important point on Article 12 is that it obliges states to co-operate closely with NGOs and other members of civil society, and to ensure that assistance to victims is not made conditional on their willingness to act as witnesses.[73]

ARTICLE 13 (RECOVERY AND REFLECTION PERIOD)

65. Article 13 obliges states to provide a recovery and reflection period of at least 30 days where there are reasonable grounds to believe that a person is a victim of trafficking. The Explanatory Report states that "this minimum period constitutes an important guarantee for victims and serves a number of purposes."[74] Major purposes include recovering from violations of human rights and deciding whether or not to co-operate with authorities.[75] It is important to keep in mind that the grant of a recovery and reflection period "is not conditional on [victims] co-operating with investigative or prosecution authorities."[76]

66. The competent authorities are not permitted to implement enforcement measures such as deportation during this period. Further, protection measures as stipulated in Articles 12 (1) and (2) are to be afforded to victims.[77] However, under Article 13(3), the competent authorities do not have to grant a recovery and reflection period on grounds of public security or if it is found that victim status is being claimed improperly. Many of those who submitted evidence argued that a period of 30 days was not long enough and recommended that the Government should grant a longer period, such as 3 months.[78]

ARTICLE 14 (RESIDENCE PERMIT)

67. Under this Article, victims of trafficking are to be issued renewable residence permits. This provision is designed to meet both victims' needs and also requirements for law enforcement.[79] The victims' personal circumstances to be taken into consideration include, but are not limited to, their safety, health and family situation. If a victim is a child, his or her best interests must be taken into consideration above all others.[80]

68. Article 14 does not specify the length of residence permits, nor does it oblige states to provide permanent residence permits. It allows a certain degree of discretion to states in this regard. Article 14(3) states that "the non-renewal or withdrawal of a residence permit is subject to the conditions provided for by the internal law of the Party." However, the Explanatory Report provides that states must set a length compatible with Article's purpose, and that permits must be "renewable."[81]

ARTICLE 15 (COMPENSATION AND LEGAL REDRESS)

69. The purpose of Article 15 is to ensure that victims of trafficking are compensated for damage suffered.[82] This is in line with the obligation to compensate illustrated in Chapter 2. To begin with, Article 15(1) obliges competent authorities to provide information on judicial and administrative proceedings in languages victims understand so that they can obtain compensation from appropriate authorities or mechanisms. This obligation is closely interlinked with the grant of residence permits under Article 14, as victims cannot claim compensation without being able to remain in countries where proceedings take place.[83] Article 15(2) is designed to assist victims to go through often lengthy and complicated legal processes in obtaining compensation.[84] It should be noted, however, that this Article does not give victims an automatic right to free legal aid. It is up to each state to decide the requirements for obtaining such aid.[85] In so doing, however, states must take Article 6 of the ECHR and its jurisprudence into consideration, which may mean that legal aid must be provided in certain circumstances.[86]

70. Article 15(3) establishes the right of victims to compensation. According to the Explanatory Report, the compensation is pecuniary and covers both material injury (cost of medical treatment) and non-material damage (suffering experienced).[87] The victims' right to compensation under this paragraph involves a claim against traffickers and not against a state. However, in cases where traffickers are not found, disappear, or declare themselves bankrupt (and therefore compensation cannot be claimed from them), Article 15(4) requires states to take steps to secure compensation by other means. A certain degree of discretion is afforded to states in deciding what to do, but the establishment of the victim compensation fund and social integration programmes is among measures recommended. In any event, states are referred, among other things, to the European Convention on the Compensation of Victims of Violent Crimes (ETS No.116) in deciding compensation arrangements.[88]

ARTICLE 16 (REPATRIATION AND RETURN OF VICTIMS)

71. A victim has a right to return to his or her own country, and the applicable international human rights standards are illustrated in Chapter 2. Sending states should not forcibly repatriate victims of trafficking, and Article 16 strengthens this obligation to promote voluntary and safe return. When ECHR rights, such as Article 3, are involved, states must take the jurisprudence of the European Court of Human Rights into consideration before making a decision on victims' return.[89] Articles 16(3) and (4) are concerned with international co-operation between source and destination countries to facilitate voluntary and safe return.[90] Under Article 16(5), States must establish repatriation programmes, including reintegration, by working with relevant national or international institutions and NGOs. Article 16(6) further stipulates that states should provide information on the organisations and programmes available once victims return to their countries. In the case of child victims, states should not return them if it would not be in their best interests, in accordance with Article 3 of the CRC.[91]

ARTICLE 17 (GENDER EQUALITY)

72. This Article obliges states to promote gender equality in developing, implementing and assessing protection measures to victims of trafficking. According to the Explanatory Report, the main aim of Article 17 is to draw attention to the fact that women are the main target group of trafficking of human beings and that they are marginalised and vulnerable even before being trafficked.[92] Therefore, states must also take into account various causal factors which trigger the movement of women, and implement gender specific measures to meet the need of female victims.

Arguments for and against signature and ratification

ARGUMENT FOR

73. Nearly all of those who submitted evidence to our inquiry called upon the Government to sign and ratify the Convention. The following is a list of key reasons advanced for ratification:

  • Signing and ratifying the Convention would signal regionally and internationally that the UK is taking a lead on trafficking and that it supports a human rights approach to the practice.[94]
  • The Convention applies to all trafficked persons (not just those trafficked for sexual exploitation), and therefore expands the scope of protection.[95]
  • In addition to prohibition of trafficking itself, the Convention also obliges states to prohibit sexual and labour exploitation, under Article 19. This is important as it will oblige them to adopt tougher legislative and other measures against slavery and forced labour.[96] In other words, the Convention would encourage the Government to adopt a holistic approach which addresses wider issues surrounding trafficking.
  • Automatic reflection periods and residence permits as set out in the Convention were an effective way of protecting the human rights of victims and enhancing prosecution of traffickers.
  • In countries which had introduced measure analogous to those set out in the Convention, there was no evidence of abuse of the humanitarian measures or evidence of a pull factor.

ARGUMENT AGAINST

74. On the other hand, the Government has expressed concerns about the Convention. For instance, it fears that the automatic granting of recovery and reflection periods and residence permits may act as a "pull factor" to the UK.[97] By this the Government means that they may provide incentives to those who are not victims of trafficking to make false claims of such status, circumvent immigration control, and obtain benefits deceptively.[98] In support of this argument the Government claims that whenever new schemes, laws and policies granting leave to remain have been introduced in the past, they have always been abused by some.[99]

75. In addition, the Government states that abusive claims will have a negative impact on the limited resources available to investigate and prosecute traffickers and support victims.[100] The Government also argues that introduction of reflection periods may have the effect of causing delays in investigating crimes of trafficking while victims decide whether or not to co-operate, endangering others being exploited by traffickers or resulting in the loss of vital evidence.[101]

76. Pointing out that a system of granting automatic reflection and recovery periods and residence permits is a relatively new initiative across Europe, the Government argues that there is no evidence to suggest that the case-by-case approach currently taken by the UK is in any way less effective at offering targeted support.[102] In view of all these factors, the Government claims that it requires more time to assess the system before reaching a conclusion. Later in this Report, we go on to report on the experience of Italy as an example of a country that has provided for residence permits over a number of years.


51   Council of Europe, Council of Europe Convention on Action against Trafficking in Human Beings and its Explanatory Report (2005) (henceforth Explanatory Report).For more information on the Council of Europe and Trafficking, visit http://www.coe.int/T/E/Human_Rights/Trafficking/ Back

52   Ibid., paras. 13-18.  Back

53   Council of Europe websiteBack

54   Explanatory Report, para. 29. Back

55   Ibid., para. 30. Back

56   Ibid., para. 33.  Back

57   Albania, Andorra, Armenia, Austria, Belgium, Bosnia and Herzegovina, Croatia, Cyprus, Denmark, Finland, France, Georgia, Germany, Greece, Iceland, Italy, Latvia, Luxembourg, Malta, Moldova, the Netherlands, Norway, Poland, Portugal, Romania, San Marino, Serbia, Slovakia, Slovenia, Sweden, FYR Macedonia, and Ukraine. One non-Member State (Montenegro) has also signed. See the Chart of Signature and Ratification at http://conventions.coe.int/Treaty/Commun/ChercheSig.asp?NT=197&CM=8&DF=8/22/2006&CL=ENG  Back

58   Appendix 1, para. 65 Back

59   Ibid., para. 70. Back

60   Ibid., para. 71. Back

61   IbidBack

62   Explanatory Report, para. 130.  Back

63   Article 10(1).  Back

64   Article 10(2). Back

65   Explanatory Report, para. 136. Back

66   Article 10(4).  Back

67   Explanatory Report, para. 138. Back

68   ETS No. 108. The UK has ratified this Convention on 26 August 1987.  Back

69   Explanatory Report, para. 141.  Back

70   Ibid., para. 146 Back

71   Article 12(1).  Back

72   Articles 12(3) and (4).The Explanatory Report (at para. 166), however, states that Article 12(4) does not create automatic right of access to labour market, vocational training and education. It is up to each State to consider granting such access. Back

73   Articles 12(5) and (6). Back

74   Para. 173. Back

75   Ibid., paras. 173-174. Back

76   Ibid., para. 175.  Back

77   Article 13(2). Back

78   Q 75, Appendix 10, para. 51, and Appendix 25, para. 99 Back

79   Article 14(1). Back

80   Article 14(2). Back

81   Explanatory Report, paras. 187 and 188. Back

82   Ibid., para. 191. Back

83   Ibid., para. 192. Back

84   Ibid., para. 195.  Back

85   Ibid., para. 196.  Back

86   Ibid.For the criteria in relation to legal aid, see, among others, Airey v Ireland, particularly paras. 24-26 Back

87   Ibid., para. 197.  Back

88   Ibid., para. 199. The UK ratified this instrument on 7 February 1990. Back

89   Ibid., para. 203 Back

90   Ibid., para. 204.  Back

91   Ibid., para., 207. Back

92   Ibid., para. 210. Back

93   Q 16 [Ms. Andrews] Back

94   Q 48 Back

95   Q 58 [Ms. Joshi] Back

96   Q 163 Back

97   Appendix 1, para. 67  Back

98   Q 141 Back

99   Ibid. Back

100   Appendix 1, para. 75 Back

101   Ibid., para. 76. Back

102   Ibid., para. 69. Back


 
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