● Carlos López-Veraza Pérez
Public Prosecutor, Huelva, Spain
You, dear reader, what would you think if I told you that there have never been so many slaves in the world as today? Perhaps you would think that the author of this article is out of his mind, or perhaps that it is a joke. However, one of these options would be better than the facts (and without dismissing the first of the options...). There is no doubt that both in and outside of Europe, there are thousands of slaves.
According to a report elaborated by the International Labour Office and the Walk free Foundation in partnership with the UN Migration Agency, there were in 2016, 40 million people in situation of modern slavery. There were 5.4 victims of modern slavery for every thousand people in the world. With regard to forced labour, the study concluded that the prevalence was higher in Asia and the Pacific, where four of every 1000 people were victims, followed by Europe and Central Asia (3.6 per 1000, Africa (2.8 per 1000), Arab States (2.2 per 1000) and the Americas (1.3. per 1000), what means that Europe is sadly in the second position[1] of this score.
Nevertheless, the extent of trafficking in human beings (hereinafter, THB) is difficult to assess. In 2012, Member States reported a total number of 10.998 registered victims, and over the three years 2010-2012, 30.146 persons were registered as victims within the European Union[2], but it is impossible to determine the real number. We must take into account that identifying THB is a difficult task because of the fear of the victims to testify, and even in many cases they are not aware of being victims. Notwithstanding, we need to be clear that THB is a fact that occurs in every country, in every city, in every region and for this reason it must be must be combated by land, sea and air, in a holistic way and with all legal instruments.
The Palermo Protocol provided the first comprehensive international definition[3] ofTHB. According to its article 3, THB is the recruitment, transportation, transfer, harbouring or receipts of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments and benefits to achieve the consent of a person, having control over another person, for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs.
The expression “as a minimum” entails that the concept establishes a numerus apertus and each State Party can include other forms to the concept of THB given by the United Nations.
For this reason, Directive 2011/36 on Preventing and Combating Trafficking in Human Beings and Protecting its Victims, which replaced Council Framework Decision 2002/629/JHA, established that the expression ‘exploitation of criminal activities’ should be understood as the exploitation of a person to commit, inter alia, pick-pocketing, shop-lifting, drug trafficking and other similar activities which are subject to penalties and entail financial gain. The definition also covers trafficking in human beings for the purpose of removing organs, which constitutes a serious violation of human dignity and physical integrity, as well as, for instance, other behaviour such as illegal adoption or forced marriage.
With regard to the Council of Europe Convention on Action against Trafficking in Human Beings, the definition of the Palermo Protocol was adopted, but by explaining in the relevant passages of the Explanatory Report of the Convention that trafficking in human beings consists in a combination of three basic elements:
- The action of: recruitment, transportation, transfer, harbouring or receipts of persons.
- By means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments and benefits to achieve the consent of a person, having control over another person, for the purpose of exploitation
- For the purpose of exploitation.
Trafficking in human beings is a combination of these three elements. However, in a case of a child (victims who are younger than 18 years old), it shall be considered as THB even if there is no use of any of the described means.
Finally, we should take into account that 1) the consent of a victim of THB shall be irrelevant and that 2) it would be considered as abuse of the situation of a person, every case where the person involved had no real and acceptable alternative but to submitting to the abuse (such as situations of economic or social vulnerability, which in the most of the cases are the push factors).
Traffickers take advantage of the vulnerability of their victims, turning them away from their places of origin in order to make them more vulnerable.
THB is explicitly prohibited in the EU Charter of Fundamental Rights. By virtue of its article 5, no one shall be held in slavery or servitude. No one shall be required to perform forced or compulsory labour and trafficking in human beings is explicitly prohibited.
After the entry into force of Directive 2011/36/EU on preventing and combating THB and protecting its victims, the EU launched an EU Strategy towards the eradication of the crime of THB for the period 2012-2016[4] in order to set up concrete measures in order to support the transpositions and implementation of the said Directive.
The Strategy established five priorities:
This strategy has been the fundamental instrument in the fight against THB. Nowadays, the combat against this crime is a priority in the 2018-2021 Policy Cycle on Organised Series Crime International[7]. The Commission, for its part, identified in a communication of 4.12.2017 three key areas that require immediate action:
Provide better access to and realise the rights for victims of trafficking.
According to article 4 of the European Convention on Human Rights (hereinafter, The Convention):
“1. No one shall be held in slavery or servitude.
(a) Any work required to be done in the ordinary course of detention imposed according to the provisions of Article 5 of [the] Convention or during conditional release from such detention;
(b) any service of a military character or, in case of conscientious objectors in countries where they are recognised, service exacted instead of compulsory military service;
(c) any service exacted in case of an emergency or calamity threatening the life or well-being of the community;
(d) any work or service which forms part of normal civic obligations.” As can be seen, there is no reference to trafficking in the Convention. However, the European Court of Human Rights (hereinafter, the Court) has declared in several occasions that THB falls within the scope of protection of Article 4 of the Convention [8]. THB threatens the human dignity and fundamental freedom of its victims and cannot be considered compatible with a democratic society and the values expounded in the Convention.
Moreover, and by pursuant of the rules of interpretation set out in the Vienna Convention of 23 May 1969 on the Law of Treaties, the Court interprets Article 4 relying on international instruments such as the 1926 Slavery Convention, Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery ILO Convention No. 29 and Council of Europe Convention on Action against Trafficking in Human Beings and the Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children supplementing the United Nations Convention against Transnational Organised Crime[9]. More specifically, it declared that the member States obligations under Article 4 of the Convention must be construed in the light of the Council of Europe’s Anti- Trafficking Convention and be seen as requiring, in addition to prevention, victim protection and investigation. Thus, the Court is guided by that Convention and, therefore, the manner in which has been interpreted by the Group of expert on action against THB[10] (GRETA, which monitors the implementation of the convention on action against THB)[11]. However, we can divide the positives obligations in two: the obligation to put in place an appropriate legal and regulatory framework and the obligation to adopt operational measures.
With regard to the first of these obligations, all member States are required to establish a legislative and administrative frame to prohibit and punish forced or compulsory labour, servitude and slavery[12]. For this reason, in case of an application to the Court, it will evaluate if the State has put in place a legislative framework to combat THB.
Nevertheless, a legislative framework is not enough; all member States must adopt effective measures to prevent trafficking and to protect the rights of victims. They are obliged to prevent every situation of THB, protect the victims, conduct and effective investigation into the offences and to punish those responsible for the trafficking. In order to comply with those ambitious obligations, the Court set out the following requirements[13]:
Finally, it must be noted, that according the ECHR the investigations must be effective, what means that they must be capable of leading the identification and punishment of the individuals responsible, this being an obligation of means and not of results[14]. But whether is any breach of the aforementioned obligations, there could be a violation of Article 4 of the Convention.
THB is one of the most difficult crimes to quantify, to identify and to prosecute. It is a transnational crime, in which victims are often controlled in their countries of origin. Therefore, it is extremely unlike the collaboration of a victim with neither police nor judicial authorities. If they testify, their families can suffer violent responses from the network of the traffickers in their places of origin, what makes almost impossible to the judicial authorities their protection. For this reason, I firmly believe that in addition to all the foregoing, there are three fundamental points that they should be taken into account within the European Union:
Directive 2012/29/EU of 25 October 2012 established minimum standards on the rights and protection of victims of crime but it does not set a uniform witness protection law. It stated that persons who are particularly vulnerable or who find themselves in situations that expose them to a particularly risk of harm, should be provided with specialist support and legal protection. These types of vulnerable victims should enjoy appropriate measures to protect them during criminal proceedings, which should be determined through the individual assessment. Moreover, the Directive expressly mentions victims of human trafficking, considering that they tent to experience a high rate of secondary and repeat victimisation. Nevertheless, there is an absence of regulation in this area in the European Union, what strongly complicates the fight against THB. For this reason, I see the urgency to implement an ambitious witness protection system within the European Union. This system should address this issue, by giving support and options to the victims (witness protection units, identity change, is for collaboration with justice….).
There has traditionally been some reluctance to attribute to companies liability for crimes committed by their managers or even by the employers. However, corporate liability has been considered a fundamental instrument against organized crime as established in the Union Nations Convention against Transnational Organized Crime. The liability of legal persons may be criminal, civil or administrative; the main point is that it must be effective, proportionate and dissuasive.
In the same vein, both the Council of Europe Convention on Action against Trafficking of 2005 and Directive 2011/36 require Member States to establish corporate liability. Furthermore, it must be ensured that companies can be held liable for an absence of supervision or control, and what constitutes in my opinion the fundamental issue in order to use companies as mechanisms for fighting THB[15]. It is a relatively recent issue, but we should emphasize that companies can and should play a vital role in preventing human trafficking.
The Parties of the Convention of the United Nations for the Suppression of the Traffic in Persons and of the Exploitation of Other of 1949 agree to punish any person who, to gratify the passions of another, procures, entices or leads away, for purposes of prostitution, another person, even with the consent of that person; exploits the prostitution of another person, even with the consent of that person.
This Convention, currently in force in many Member States, considers that the “prostitution and the accompanying evil of the traffic in persons for the purpose of prostitution are incompatible with the dignity and worth of the human person and endanger the welfare of the individual”. However, there is an absence of a common vision of the procuring within the European Union, existing three types of legal systems: the regulationism, the abolitionism and the prohibition. While for some countries procuring is a seriously undermine of the dignity and worth of the human person, for other countries is totally admissible. While for some countries it must be a crime, for other countries it should be a legitimate business. However, the European Union values are common to all EU countries, being one of them the respect for human dignity. Consequently, the European Union should analyse if procuring is compatible with the dignity of human beings, taking into account that in the case that procuring were against that value, and consequently should be forbidden, it could lead to a drastic reduction of the THB for sexual purposes within the borders of the European Union.
THB is one of the most abhorrent crimes but we are usually unaware of the true incidence of this crime. It is difficult to display the real data concerning victims within the European Union Border. However, it is clear that there is a higher number of people trafficked than the registered and, worst of all, it seems that is recently increasing due to several facts such as the use of new technologies or the migration and refugee crisis.
People are being sold as if they were objects and used for different types of exploitations. They are “objectified”, being one of the worst attacks on human rights. Therefore, we all need to act against this crime, and recalling the words of William Wilberforce, you may choose to look the other way but you can never say again that you did not know.
Ljubljana, 21 January 2019
[1] Global estimation of modern slavery: forced labour and forced marriage. International Labour Office, Walk Free Foundation in partnership with the International Organization for Migration ( IOM), Geneva, 2017, p.5-10
[2] Eurostat,.(2015).“ Trafficking in human beings”. Statistical working papers. p.10
[3] Hyland, K.(2001).” The impact of the Protocol to Prevent, Suprress and Punish Trafficking in Persons, Especially Women and children”. Human Rights Brief 8,p.31
[4] Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions. Brussels 19.6.2012
[5]https://ec.europa.eu/antitrafficking/sites/antitrafficking/files/guidelines_on_identification_of_victims_1.pdf
[6] https://ec.europa.eu/anti-trafficking/sites/antitrafficking/files/eu_guidelines_rights_of_child_0.pdf
[7] Council conclusions on setting EU`s priorities for the fight against organized and serious international crime between 2018 and 2021, 7704/17.
[8] See Rantsev Judgement, §282
[9] European Court on Human Rights, Guide on Article 4 of the European Convention on Human Rights, 2018, p.g6
[10] See Chowdury Judgement, §104
[11] Article 36 Council of Europe Convention on Action against Trafficking in Human Beings. 16.v.2005
[12] See Siliadin Judgement, § 105
[13] Judgements Rantsev, Chowdury, Siliadin, Nedjet Sahin, Van der Mussele, Dink, Pau and Audrey Edwards
[14] see Rantsev Judgement, §288
López-Veraza Pérez,C.(2018). “Trafficking in human beings: how companies can make a difference”. Institute for Middle-Est and Balkan Studies
