Explanatory Memorandum to COM(2010)95 - Preventing and combating trafficking in human beings, and protecting victims - Main contents
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This page contains a limited version of this dossier in the EU Monitor.
| dossier | COM(2010)95 - Preventing and combating trafficking in human beings, and protecting victims. |
|---|---|
| source | COM(2010)95  |
| date | 29-03-2010 |
Trafficking in human beings is considered one of the most serious crimes worldwide, a gross violation of human rights, a modern form of slavery, and an extremely profitable business for organised crime. It consists of the recruitment, transfer or receipt of persons, carried out with coercive, deceptive or abusive means, for the purpose of exploitation including sexual or labour exploitation, forced labour, domestic servitude or other forms of exploitation including the removal of organs.
Therefore the response to trafficking must be robust, and aimed at preventing and prosecuting the crime, and protecting its victims.
Several EU Member States are major destinations for trafficking in human beings from non-EU countries. In addition, there is evidence of flows of trafficking within the EU. It is reasonable to estimate from the available figures that every year several hundred thousand people are trafficked into the EU or within the EU area.
Social vulnerability is arguably the principal root cause of trafficking in human beings. Vulnerability derives from economic and social factors such as poverty, gender discrimination, armed conflicts, domestic violence, dysfunctional families, and personal circumstances such as age or health conditions or disabilities. Such vulnerability is used by international organised crime networks to facilitate migration and subsequently severely exploit people by use of force, threat, coercion, or various forms of abuse such as debt bondage. In fact the high level of profits generated is a major underlying driver. The demand for sexual services and cheap labour is a concurrent driver.
The UN Convention on the Rights of the Child, adopted in 1989 seeks to protect children from all forms of sexual exploitation and sexual abuse. This obligation extends to sexual exploitation and abuse of children connected to trafficking in human beings.
In 2000, the UN adopted a Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children, supplementing the UN Convention against Transnational Organized Crime. The Protocol was the first comprehensive international instrument dealing with trafficking in human beings. As of March 2009, the Protocol has been ratified by 24 EU Member States, and the remaining 3 have signed it. The European Community signed and approved the Protocol.
The Council of Europe Convention on Action against Trafficking in Human Beings provides a comprehensive and coherent framework covering prevention, cooperation between different actors, protection of and assistance to victims, and an obligation to criminalise trafficking in human beings. Implementing such measures would lead to significant improvements. The Convention has been ratified by 16 EU Member States. Another 10 have signed it and are going through the ratification process.
The Framework Decision (FD) on combating trafficking in human beings was adopted on 19 July 2002 as a response to a generally perceived need to address the serious criminal offence of trafficking in human beings at EU level. A report on the implementation of the FD was adopted by the Commission in May 2006.
Directive 2004/81/EC provides for assistance and residence status for victims who are third-country nationals. The Commission will report on the implementation of Directive 2004/81/EC in 2010 and will consider appropriate measures to further reinforce the protection offered to victims by Member States.
The fight against all forms of gender-based violence including trafficking in human beings is an integral part of the commitment undertaken by the Commission in the Roadmap on Gender equality.[1] The fight against child trafficking is also included in the strategy on the rights of the child.[2] The objective of fighting trafficking in human beings and assisting victims is consistent with the provisions contained in Council Framework Decision 2001/220/JHA on the standing of victims in criminal proceedings,[3] and Council Directive 2004/81/EC on residence permit,[4] which deals with immigration issues and only applies to third country nationals. All the provisions included in this Directive apply in so far as the issue is not covered by the above mentioned Directive. The objective of fighting trafficking in human beings is also consistent with Council Directive 2004/80/EC relating to compensation for crime victims which aims at facilitating access to compensation in cross-border situations,[5] and with Council Framework Decision 2008/841/JHA on the fight against organised crime.[6] Trafficking in human beings is included in the list of crimes which give rise to surrender pursuant a European arrest warrant in accordance with Council Framework Decision 2002/584/JHA on the European arrest warrant.[7] The objectives stated above are fully consistent with these instruments, as well as with the Council of Europe Convention on action against Trafficking in Human beings and with the mandates of Europol and Eurojust.
Any action of the EU in this field must respect fundamental rights and observe the principles recognised in particular by the Charter of Fundamental Rights of the European Union (EU Charter) and the Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR). Member States, when implementing Union law, must do so in accordance with these rights and principles.
This proposal was made subject to in-depth scrutiny to make sure that its provisions are in full compatibility with fundamental rights and notably human dignity, prohibition of torture and inhuman or degrading treatment or punishment, prohibition of slavery and forced labour, the rights of the child, right to liberty and security, freedom of expression and information, protection of personal data, the right to an effective remedy and to a fair trial and the principles of legality and proportionality of criminal offences and penalties.
Particular attention was paid to Article 5 i of the EU Charter which explicitly prohibits trafficking in human beings. In addition, Article 24 of the EU Charter was of importance, since many of the victims of trafficking in human beings are children. Provisions on protection and assistance to victims have a positive impact on fundamental rights. The right to be protected from slavery, forced labour and servitude has been acknowledged by the European Court of Human Rights. The right of the victim to accurate, impartial, effective, and quick investigation is also relevant here; it would be made effective by an increased recognition of the role of the victim in criminal proceedings.
A possible negative impact deriving from the increased role of the victim in criminal proceedings could accrue, if this strengthened role were to endanger the defendant's procedural rights, in particular the right to a fair trial (Article 47 EU Charter) and the right of defence (Article 48 of EU Charter). However, the European Court of Human Rights has established clear principles to reconcile the respective rights of the defendant and the victim. Therefore full compatibility with defence rights has been ensured by a careful drafting of the legislative text, which is the basis for appropriate implementation by Member States.
Where necessary, appropriate use may be made of funding possibilities available at the level of the European Union to support Member States' efforts to comply with the requirements of this directive.
Following the Council's request to evaluate the implementation of the EU Plan i, the Commission sent a questionnaire to the Member States (MS) in December 2007. 23 MS, plus Norway, replied. The results fed into the Commission Working Document adopted on 17 October 2008 i.
Three consultative meetings were held with a view to drafting the impact assessment. The Group of Experts on Trafficking in Human Beings met on 2 and 3 October 2008, and after extensive discussion issued a written opinion. A consultative meeting with experts from different backgrounds including governments, law enforcement agencies, NGOs, international organisations and universities was held on 7 October 2008. The participants were subsequently invited to transmit written comments, and several experts did so. A meeting with Member States' representatives was held on 17 October 2008.
- In its written opinion, the European Commission's Group of Experts on Trafficking in Human Beings stated that the guiding principles were the need for an appropriate legal framework in each country, the need to make human rights a paramount issue, to take a holistic, coordinated and integrated approach linking government policies on trafficking in human beings with migration policies, to respect children's rights, to promote research about trafficking in human beings and to monitor the impact of anti-trafficking policies.
- Many stakeholders agreed on the need for specific provisions aimed at strengthening investigation and prosecution. The crucial role of assistance measures was generally emphasised.
- The issue of introducing a specific obligation to criminalise clients who knowingly use sexual services from a trafficked person was controversial among stakeholders. Several MS pointed out that in any case such a provision should not be binding.
There was no need for external expertise.
Various policy options were examined in connection with the previous Proposal for a Framework Decision of 25 March 2009 with a view to preventing and combating trafficking in human beings more effectively, and better protecting victims.
- Policy option i: No new EU action
The EU would take no action to combat trafficking in human beings, while Member States may continue the process of signature and ratification of the Council of Europe Convention on Action against Trafficking in Human Beings.
- Policy Option i: Non legislative measures
FD 2004/629/JHA would not be amended. Non-legislative measures could be put in place in the areas of victim support schemes, monitoring, prevention measures in countries of destination, prevention measures in countries of origin, training, and law enforcement cooperation.
- Policy option i: New legislation on prosecution, victim support, prevention and monitoring
A new legislative act would be adopted, incorporating the provision of the existing FD, along with certain provisions of the CoE Convention and additional elements. In particular, the new FD would contain provisions in the areas of substantive criminal law, jurisdiction and prosecution, victims' rights in criminal proceedings, victim assistance, special protective measures for children, prevention, and monitoring.
- Policy option i: New legislation (as in option 3) + non legislative measures (as in option 2)
- A new legislative act would be adopted, incorporating the existing FD and including new provisions. The new legislative act would be supplemented by non-legislative measures, and in particular those identified in option 2.
- Following the analysis of economic impacts, social impacts, and impacts on fundamental rights, options 3 and 4 present the best approach to the problem and should fully achieve the identified objectives. The preferred option would be option 4.
- The Commission carried out an impact assessment to accompany the previous Proposal for a Framework Decision of 25 March 2009 on preventing and combating trafficking in human beings, and protecting victims, which is valid mutatis mutandis for the present Proposal for a Directive. As the Proposal for a Directive referred to in this memorandum is, to its content, essentially identical to the previous Proposal for a Framework Decision, the existing impact assessment can this be considered to remain valid also for the new proposal. The report on the impact assessment can be accessed at:ec.europa.eu/governance/impact/ia_carried_out
Contents
- LEGAL ELEMENTS OF THE PROPOSAL
- BUDGETARY IMPLICATION
- 1.1. Grounds for and objectives of the proposal
- 1.2. General context
- 1.3. Existing provisions in the area of the proposal
- 1.4. Consistency with the other policies and objectives of the Union
- 2. CONSULTATION OF INTERESTED PARTIES AND IMPACT ASSESSMENT
- 2.1. Consultation of interested parties
- 2.1.1. Consultation methods, main sectors targeted and general profile of consulted parties
- 2.1.2. Summary of views and how they have been taken into account
- 2.2. Collection and use of expertise
- 2.3. Impact assessment SEC(2009) 358 and Impact assessment summary SEC(2009) 359
- 3.1. Summary of the proposed action
- 3.1.1. Substantive criminal law provisions
- 3.1.2. Jurisdiction and prosecution
- 3.1.3. Victim assistance and support
- 3.1.4. Protection of victims in criminal proceedings
- 3.1.5. Prevention
- 3.1.6. Monitoring
- 3.2. Added value of the proposal, compared to the 2005 CoE Convention on action against trafficking in human beings
- 3.3. Legal basis
- 4. SUBSIDIARITY PRINCIPLE
- 5. PROPORTIONALITY PRINCIPLE
- 6. CHOICE OF INSTRUMENTS
- 8. ADDITIONAL INFORMATION
- 8.1. Repeal of existing legislation
- 8.2. Territorial scope
The new Directive, in addition to provisions in the current FD, would include the following new elements:
- Definition;
- Aggravating circumstances and penalties;
- Non application of penalties to the victim.
- Broader and more binding extraterritorial jurisdiction rule;
- Investigative tools.
- Establishment of mechanisms for early identification and assistance of victims;
- Standard of assistance including access to necessary medical treatment, counselling, and psychological assistance;
- Special measures for children.
- Special treatment aimed at preventing secondary victimisation;
- Protection on the basis of a risk assessment;
- Legal counselling and representation, including for the purpose of claiming compensation.
- Action aimed at discouraging the demand for sexual services and cheap labour;
- Training;
- Criminalisation of users of services exacted from a person, when the user knows that the person has been trafficked.
- Establishment of National Rapporteurs or equivalent mechanisms.
3.2. Added value of the proposal, compared to the 2005 CoE Convention on action against trafficking in human beings
The proposal builds upon the CoE Convention and adopts the same holistic approach including prevention, prosecution, protection of victims, and monitoring. Moreover, the proposal shows the following main elements of added value:
- Precise level of penalties adapted to the severity of the offences (Article 4).
- Broader and more binding extraterritorial jurisdiction rule, obliging Member States to prosecute nationals and habitual residents who have committed the crime of trafficking outside the territory of the Member State (Article 9).
- Broader scope of the provision on non-application of penalties to victims for their involvement in criminal activities, whatever illicit means have been used by traffickers (Article 6).
- Higher standard of assistance to victims, especially concerning medical treatment (Article 10).
- Special protective measures for child victims of trafficking in human beings (Articles 12-14)
- In addition, the integration of provisions which have similar content into the EU acquis shows the advantages arising from the stronger constraints imposed by the EU legal order, namely immediate entry into force and monitoring of implementation.
Article 82 i and Article 83 i of the Treaty on the Functioning of the European Union.
The objectives of the proposal cannot be sufficiently achieved by the Member States alone, for the following reasons.
The fight against trafficking in human beings requires coordinated efforts by Member States, as well as cooperation at an international level in order to achieve the aims. Differences in legal treatment in the different Member States hinder coordinated efforts and hamper international law enforcement and judicial cooperation.
Action by the European Union will better achieve the objectives of the proposal for the following reason.
The proposal will approximate Member States' substantive criminal law and procedural rules more extensively than the current FD. This will have a positive impact on international law enforcement and judicial cooperation, and on the protection and assistance given to victims. The proposal therefore complies with the subsidiarity principle.
The proposal complies with the proportionality principle in that it is confined to the minimum required in order to achieve the stated objectives at European level and does not go beyond what is necessary for that purpose.
Proposed instrument: Directive.
In the fight against trafficking in human beings, the approximation of the criminal laws and regulations of the Member States is necessary to improve cooperation in criminal matters. To this end, the Treaty specifically envisages the adoption of directives only.
The proposal has no implication for the EU budget.
The adoption of the proposal will lead to the repeal of existing legislation.
The proposal will be addressed to the Member States. The application of the resulting Directive to the United Kingdom, Ireland and Denmark will be determined in accordance with the provisions of Protocols (No 21) and (No 22) annexed to the Treaty on the Functioning of the European Union.