Explanatory Memorandum to COM(2000)854-2 - Combating trafficking in human beings - Main contents
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| dossier | COM(2000)854-2 - Combating trafficking in human beings. |
|---|---|
| source | COM(2000)854  |
| date | 21-12-2000 |
On 24 February 1997 the Council adopted a Joint Action concerning action to combat trafficking in human beings and the sexual exploitation of children i. The Joint Action covers a wide range of topics such as definitions (without prejudice to more specific definitions in the Member States' legislation), jurisdiction, criminal procedure, assistance to victims and police and judicial co-operation. Through the Joint Action, the Member States undertook to review their existing laws with a view to providing that trafficking in human beings and the sexual exploitation of children were criminal offences.
Since the adoption of the Joint Action in 1997, actions and initiatives against trafficking in human beings have developed considerably in number and in substance at the level of the European Union as well as at local, regional and international level in a wider context. That said, the continuing divergence of legal approaches in the Member States clearly demonstrates the need for further action against the menace of trafficking.
Furthermore, Article 29 of the Amsterdam Treaty provides an explicit reference to trafficking in human beings. The Vienna Action Plan i and the Tampere European Council made a clear call for further legislative action against trafficking. Legislative action is also indicated in the Commission's Scoreboard i. At the wider international level, one of the most significant developments has been the United Nations Convention on Transnational Organised Crime with its two supplementing protocols targeting smuggling of migrants and trafficking in persons. The Commission has participated actively in the elaboration of these instruments and important elements of the protocol on trafficking are reflected in this proposal, albeit taken further.
The specific character of an area of freedom, security and justice to be created within the European Union should enable the Member States to develop a Framework Decision in which certain aspects of criminal law and judicial co-operation are taken further than has been possible through instruments available before the entry into force of the Amsterdam Treaty and instruments developed at a wider international level. A Framework Decision should, for instance, address more precisely, issues such as criminalisation, penalties and other sanctions, aggravating circumstances, jurisdiction and extradition.
In conclusion, the Commission believes that a further response to the issue of trafficking is required at the level of the European Union. Use of a Framework Decision, an instrument introduced by the Amsterdam Treaty, will reinforce a common approach of the European Union in this area and fill gaps in existing legislation. The need for a clear common approach on trafficking should also be viewed against the background of the future enlargement of the European Union. The Commission has therefore, as announced in the Scoreboard, decided to put forward a proposal for a Framework Decision on the approximation of the criminal laws of the Member States, including penalties, concerning trafficking in human beings.
The proposal also includes provisions on horizontal judicial issues such as jurisdiction and co-operation between Member States. The proposal covers trafficking in human beings for the purposes of labour and sexual exploitation, not including sexual exploitation of children and child pornography which will be covered by a separate proposal. The separation into two Framework Decisions will allow the Council to focus on trafficking in human beings for the purposes of labour as well as sexual exploitation.
Contents
- 2. TRAFFICKING AND SMUGGLING
- 1. LEGAL BASIS
- 4. THE FRAMEWORK DECISION: ARTICLES
- Article 2 (Trafficking in human beings for the purpose of sexual exploitation)
- Article 3 (Instigation, aiding, abetting and attempt)
- Article 4 (Penalties and aggravating circumstances)
- Article 5 (Liability of legal persons)
- Article 6 (Sanctions on legal persons)
- Article 7 (Jurisdiction and prosecution)
- Article 8 (Victims)
- Article 9 (Co-operation between Member States)
- Article 10 (Implementation)
- Article 11 (Repeal of the Joint Action of February 1997)
- Article 12 (Entry into force)
The Commission is of the view that the division into one United Nations-protocol on trafficking in human beings and one United Nations-protocol on smuggling of migrants highlights the complexity of different forms of criminal movements of people that are operated by international criminal organisations. While smuggling of migrants could be said to constitute a crime against the state and often involves a mutual interest between the smuggler and the smuggled, trafficking in human beings constitute a crime against a person and involves an exploitative purpose.
The Commission is therefore of the view that the French initiatives i on facilitation of unauthorised entry, movement and residence are related to smuggling of migrants. This proposal, on the other hand, relates to trafficking in persons with its characteristics. The Commission's conclusion is that the French initiative on facilitation and this proposal on trafficking complement each other and that they both contribute to a European-wide fight against severe types of criminal activities by international criminal organisations.
This proposal for a Framework Decision concerns approximation of the laws and regulations of the Member States in the area of police and judicial co-operation in criminal matters. It also to a substantial part concerns 'minimum rules relating to the constituent elements of criminal acts and to penalties in the field of organised crime'. The legal basis indicated in the preamble of the proposal is therefore Articles 29 with an explicit reference to trafficking in human beings, 31(e) and 34(2)(b) of the Treaty on European Union. The proposal will not entail financial implications for the budget of the European Communities.
Article 1 (Trafficking in human beings for the purpose of labour exploitation)
Article 1 puts on the Member States an obligation to ensure that trafficking in human beings for the purpose of labour exploitation is punishable.
Trafficking is defined in the Article to include the recruitment, transportation, or transfer of a person, including harbouring and subsequent reception of and the exchange of control over him or her for the purpose of exploiting him or her in the production of goods or provision of services. This definition reflects the key elements of one of the parts constituting the definition of trafficking in the United Nations-protocol on trafficking in human beings.
Labour exploitation is defined in the Article to be an infringement of labour standards governing working conditions, salaries and health and safety. The reference to labour market regulations is in no way intended to affect the labour market regulations of the Member States. It is intended to establish a benchmark on the basis of existing regulations for what is an acceptable standard on the labour market. It should be underlined that this definition must be viewed upon in conjunction with the definition of trafficking and qualifying elements such as coercion. In addition the offence includes a requirement that the fundamental rights of the person have been and continue to be suppressed, for instance the rights of the Charter of Fundamental Rights proclaimed by the Nice European Council. This requirement includes also the perspective of the victim's fundamental rights and not only the conduct of the perpetrator as in the qualifying elements mentioned below. It also expresses a requirement for a continuing suppression of the fundamental rights of a person.
As regards the elements qualifying trafficking a person for the purpose of labour exploitation as a criminal offence, points (a) and (b) corresponds to the UN-protocol on trafficking. Points (c) and (d), which partly corresponds to the United Nations-protocol, cover forms of taking advantage or exercising pressure when a person is trafficked. The objective is to ensure a comprehensive coverage of criminal conduct. This includes practices such as debt bondage in which a person has no choice but to submit to the pressure. It also includes the abuse of the vulnerability of persons, for instance of persons being mentally or physically disabled or of persons illegally remaining on the territory of a Member State who are often in a situation in which they have no choice or perceive to have no choice, but to submit to the exploitation. These latter elements ensures also that the offence take the specific situation of the victim into account and not only the conduct performed by the trafficker.
The criminal offence described does not include an explicit requirement for the victim to cross a border. The reasoning here is following the Europol Convention and the United Nations-protocol on trafficking, i.e. the context of trafficking in human beings refers generally to international organised crime, but it is not necessary for the victim itself to cross a border. Moreover, the key elements of the offence of trafficking should focus on the exploitative purpose, rather than on the 'movement' across a border. If the requirement of a cross-border element would be maintained, there would be a paradox in that a European citizen forced into prostitution and trafficked within its own country, would be less protected than citizens from third countries would. The approach not to include a cross-border requirement also means that the proposal cover 're-trafficking' within the country of destination, which in many cases form an integral part of the trafficking chain/operation.
Article 2 puts on the Member States an obligation to ensure that trafficking in human beings for the purpose of sexual exploitation is punishable. The Article corresponds to the structure and content of Article 1.
Sexual exploitation includes the purposes to exploit a person in prostitution, in pornographic performances or in the production of pornographic material.
Article 3 puts an obligation on Member States to ensure that instigation of, aiding, abetting and attempt to commit trafficking for the purpose of labour exploitation and trafficking for the purpose of sexual exploitation is punishable.
Article 4 concerns penalties and aggravated circumstances. Paragraph 1 indicates that the offences referred to in Articles 1, 2, and 3 shall be punishable by effective, proportionate and dissuasive penalties, including by terms of imprisonment with a maximum penalty that is not less than six years. These penalties are sufficient to include trafficking in human beings within the scope of other instruments already adopted for the purposes of enhancing police and judicial co-operation in the European Union against organised crime such as the 98/699/JHA Joint Action i on money laundering, the identification, tracing, freezing, seizing and confiscation of the instrumentalities and the proceeds from crime and the 98/733/JHA Joint Action i on making it a criminal offence to participate in a criminal organisation.
As trafficking in human beings involves very serious criminal conduct, paragraph 2 sets out that Member States shall ensure that when aggravating circumstances apply the offences shall be punishable by terms of imprisonment with a maximum penalty that is not less than ten years. The Commission's proposal to have ten years as a minimum maximum penalty when aggravating circumstances are involved builds on the view that possible penalties for trafficking should reflect the seriousness of the crime and have a strong deterrent effect.
Three circumstances that typically should qualify the trafficking offence as aggravated are listed. These circumstances represent a minimum list, but are without prejudice to additional definitions in the legislation of the Member States. A further explanation of what is meant by these circumstances for the purposes of this Framework Decision is:
- 'generates substantial proceeds' could, where applicable, be construed in analogy with aggravated 'pimping' offences and should at least include the enrichment of the perpetrator of the criminal activities;
- 'is committed within the framework of a criminal organisation' should be construed in accordance with Article 1 of the 98/733/JHA Joint Action on making it a criminal offence to participate in a criminal organisation in the Member States of the European Union i;
- 'involves particular ruthlessness' is aimed at targeting the level of force or pressure exercised by the trafficker and the level of disregard of the health and integrity of the victim, physical as well as mental; the more serious force, pressure or disregard, the more severe the offence.
It is necessary also to cover the situation in which legal persons are involved in the trafficking. Article 5 therefore provides provisions for holding a legal person liable for the offences envisaged by Articles 1, 2, and 3, committed for their benefit by any person, acting either individually or as a part of the organ of the legal person. The term liability should be construed so as to include either criminal or civil liability (see also Article 6 on sanctions).
In addition, paragraph 2 provides that a legal person can also be held liable when the lack of supervision or control by a person in a position to exercise control, has rendered possible the commission of the offence for its benefit. Paragraph 3 indicates that legal proceedings against a legal person do not preclude parallel legal proceedings against a natural person and paragraph 4 definesa legal person for the purpose of this Framework Decision.
Article 6 sets out a requirement for sanctions on legal persons. It requires effective, proportionate and dissuasive sanctions, where the minimum obligation is to impose criminal or non-criminal fines. Other sanctions that typically could apply to legal persons are also indicated.
The international nature of the trafficking offence implies that an efficient legal response requires procedural provisions on jurisdiction and on extradition which are as clear and as far reaching as national legal systems will allow in order to guard against persons evading prosecution.
Paragraph 1 establishes a series of criteria conferring jurisdiction on national enforcement and judicial authorities to prosecute and examine cases involving the offences referred to in this Framework Decision. A Member State shall establish its jurisdiction in three situations:
(a) where the offence is committed in whole or in part on its territory, irrespective of the status or the nationality of the person involved (territoriality principle), or
(b) where the offender is a national (active personality principle). The criterion of the status as a national means that jurisdiction can be established regardless of the lex locus delicti. It is up to Member States to prosecute for offences committed abroad. This is particularly important for Member States which do not extradite their own nationals, or
(c) where the offence is committed for the benefit of a legal person established in the territory of that Member State.
However, as not all Member States' legal traditions recognise extraterritorial jurisdiction for all types of criminal offences, Member States may, subject to the obligation under paragraph 1, limit their jurisdiction to the first of these three situations. In addition, if they do not do so, they can still make provisions the applicability of paragraphs 1(b) and 1(c) to cases where the offence has been committed outside the territory of that Member State.
Paragraph 3 takes account of the fact that some Member States do not extradite their nationals and seeks to ensure that persons suspected of having committed trafficking offences do not evade prosecution because extradition is refused in principle on the grounds that they are nationals of that state. A Member State which does not extradite its own nationals must, in accordance with paragraph 3, take the necessary measures to establish its jurisdiction over and to prosecute, where appropriate, the offences concerned when committed by its own nationals outside its territory. Paragraph 4 says that Member States shall inform the General Secretariat and the Commission where they decide to apply paragraph 2.
In the European Union's approach against trafficking in human beings, special importance has been attached to assistance to the victims. In many cases, victims of trafficking have been severely abused by the trafficker. The Commission is therefore of the view that an Article on victims should be included in this Framework Decision. Social assistance for children in order to help them overcome the consequences of such events and enable them to reintegrate, inter alia, into the labour market, forms part of the overall policy.
The purpose of Article 9 is to take advantage of instruments on international judicial co-operation to which Member States are parties and which should apply to the matters covered in this Framework Decision. For instance, arrangements on mutual legal assistance and extradition are contained in a number of bilateral and multilateral agreements as well as conventions of the European Union. An additional purpose with this Article is to facilitate the exchange of information.
Paragraph 1 requires Member States to afford each other mutual assistance to the widest extent possible in judicial proceedings on trafficking in human beings. For the situation where a positive conflict of jurisdiction occurs, paragraph 2 establishes that Member States shall consult one another with a view to co-ordinating their action to prosecute effectively. The paragraph also indicates that appropriate use shall be made of existing co-operation mechanisms such as the liaison magistrates i and the European Judicial Network i. Paragraph 3 stresses the importance of having appointed points of contact for the purpose of exchanging information. It explicitly indicates that Europol shall be properly involved. Paragraph 4 provides for the circulation of information on which points of contacts have been appointed for the purpose of exchanging information pertaining to trafficking in human beings.
Article 10 concerns the implementation and follow-up of this Framework Decision. It establishes that the Member States shall take the necessary measures to comply with this Framework Decision not later than 31 December 2002. It also establishes that the Member States shall, by the same date, transmit to the General Secretariat of the Council and to the Commission the provisions transposing into their national legislation the obligations imposed on them under this Framework Decision. On the basis of a report established on the basis of this information and on a written report from the Commission, the Council will by 30 June 2004 assess the extent to which Member States have taken the necessary measures to comply with this Framework Decision.
Article 11 repeals the Joint Action of February 1997. The Joint Action was to be implemented by 31 December 1999 and on this date the Member States were also to report to Secretariat General of the Council on the proposals they have made with a view for their adoption to fulfil their obligations under the Joint Action. This Framework Decision together with the Framework Decision on sexual exploitation of children and child pornography cover to a large extent the same issues. Although it might follow from general principles of law that the Joint Action is obsolete and no longer have any legal consequences, the Commission is of the view that it is important to clarify that this Framework Decision repeals the Joint Action.
Article 12 indicates that this Framework Decision will enter into force on the day of its publication in the Official Journal of the European Communities.