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Preventing and combating trafficking in human beings
This new Directive establishes minimum rules at European Union (EU) level concerning the definition of criminal offences and sanctions in the area of trafficking in human beings. It also provides measures aimed at better prevention of this phenomenon, and at improving the protection of victims.
Directive 2011/36/EU of the European Parliament and of the Council of 5 April 2011 on preventing and combating trafficking in human beings and protecting its victims, and replacing Council Framework Decision 2002/629/JHA [OJ L 101 of 15.4.2011].
Trafficking in human beings is globally considered to be one of the most serious of criminal offences. It constitutes a violation against human rights and is a modern form of slavery. The new Directive adopted by the European Union (EU) defines the minimum common rules for identifying and sanctioning offences of trafficking in human beings.
The following are considered as punishable acts: the recruitment, transportation, transfer, harbouring or reception of persons, including the exchange or transfer of control over those persons, for the purpose of exploitation.
Exploitation shall include, as a minimum:
- exploitation for prostitution or other forms of sexual exploitation;
- forced labour or services (including begging, slavery or practices similar to slavery, servitude, exploitation for criminal activities, or the removal of organs).
Exploitation exists when a constraint has been exerted on a person (by means of threat or use of force, abduction, fraud, deception, etc.), whether or not the victim has given his/her consent.
When the victim is a child (a person below 18 years of age), these acts of exploitation are automatically deemed to be an offence of trafficking in human beings, even if none of the means of constraint set forth in the paragraph above has been used.
Incitement to undertake trafficking in human beings, as well as the aiding and abetting, and attempt to do so shall be punishable.
The Directive sets the maximum penalty for these offences to at least five years of imprisonment and to at least ten years when the following aggravating circumstances can be identified:
- the offence was committed against a victim who was particularly vulnerable (children always come under this category);
- the offence was committed within the framework of a criminal organisation;
- the offence deliberately or by gross negligence endangered the life of the victim;
- the offence was committed by use of serious violence or has caused particularly serious harm to the victim.
Legal persons can also be held liable if the offences are committed for their benefit by a person who has a leading position. The same applies if a lack of supervision or control on the part of this person enabled another person placed under his/her authority to commit these offences.
Penalties against legal persons include criminal and non-criminal fines, and other sanctions such as placing them under judicial supervision, or judicial winding-up.
Member States may decide not to prosecute or impose penalties on victims of trafficking in human beings for their involvement in criminal activities which they have been compelled to commit.
With regard to the prosecution of offenders, the Directive provides for the possibility for Member States to prosecute their nationals for offences committed in another EU country and to use the same means of investigation as usually used for combating organised crime, such as phone tapping.
Assistance, support and protection for victims
Member States must ensure that assistance and support are provided to victims before, during and after criminal proceedings in order to enable them to exercise the rights conferred upon them by the standing of victims in criminal proceedings. In particular, this support may consist of the provision of accommodation, medical treatment including psychological assistance, as well as information, and interpretation and translation services, if necessary. As particularly vulnerable victims, children must receive additional measures such as physical and psycho-social assistance, access to education, and, where appropriate, the option to appoint a guardian or a representative.
During the investigation and criminal proceedings, victims must receive appropriate protection including access to legal counselling and representation, free of charge if necessary, and access to a witness protection programme, where appropriate. Any further trauma to the victim should be avoided, for example by sparing him/her any contact with the accused. Children must benefit from specific measures, particularly concerning the conditions of their hearings. Specifically, they will be interviewed without delay, in adapted premises, and by professionals trained for that purpose.
Victims of trafficking in human beings must have access to compensation for victims of violent crimes of intent.
In order to prevent trafficking in human beings, the Directive requests that Member States:
- discourage demand through education and training;
- lead information and awareness-raising campaigns;
- train the officials likely to come into contact with victims of trafficking;
- take the necessary measures to establish as a criminal offence the use of services, sexual or other, of a person who is a victim of trafficking.
The position of a European anti-trafficking Coordinator is established in order to ensure a consistent approach to combating this phenomenon in the EU.
Denmark is not taking part in the adoption of this Directive.
Trafficking in human beings is explicitly prohibited by the Charter of Fundamental Rights of the European Union and the EU has made combating this phenomenon one of the priorities of the Stockholm Programme.
This new Directive replaces Framework Decision 2002/629/JHA on combating trafficking in human beings. It adopts a wider definition of this phenomenon by including other forms of exploitation.
|Act||Entry into force||Deadline for transposition in the Member States||Official Journal|
|Directive 2011/36/EU||15.4.2011||6.4.2013||OJ L 101 of 15.4.2011|