Joint action to combat trafficking in human beings and sexual exploitation of children
To establish common rules for action to combat trafficking in human beings and sexual exploitation of children in order to contribute to the fight against certain forms of unauthorised immigration and to improve judicial cooperation in criminal matters.
Joint Action 97/154/JHA of 24 February 1997 adopted by the Council on the basis of Article K.3 of the Treaty on European Union concerning action to combat trafficking in human beings and sexual exploitation of children [Official Journal L 63 of 04.03.1997].
Amended by Council Outline Decision 2002/629/JHA of 19 July 2002 concerning trafficking in human beings.
The Joint Action gives the following definitions:
- "trafficking": any behaviour which facilitates the entry into, transit through, residence in or exit from the territory of a Member State for gainful purposes with a view to the sexual exploitation or abuse of the adults or children involved;
- "sexual exploitation" in relation to a child: the inducement or coercion of a child to engage in any unlawful sexual activity; the exploitative use of a child in prostitution or other unlawful sexual practices; the exploitative use of children in pornographic performances and materials, including the production, sale and distribution or other forms of trafficking in such materials, and the possession of such materials;
- "sexual exploitation" in relation to an adult: at least the exploitative use of the adult in prostitution.
The Joint Action sets out the types of intentional behaviour concerning which the Member States undertake, in compliance with their constitutional rules and legal traditions, to review their relevant national laws:
- sexually exploiting a person other than a child for gainful purposes, where use is made of coercion, in particular violence or threats, or where deceit is used, or where there is abuse of authority or other pressure such that the person has no choice but to submit to the pressure or abuse of authority;
- trafficking in persons other than children for gainful purposes with a view to their sexual exploitation as described above;
- sexually exploiting or sexually abusing children;
- trafficking in children with a view to their sexual exploitation or abuse.
In the case of the types of behaviour set out in point 2, each Member State must review its existing law and practice with a view to providing that, at national level:
- these types of behaviour are classified as criminal offences;
- these offences, and participation in or attempt to commit them, are punishable by effective, proportionate and dissuasive criminal penalties;
- legal persons may, where appropriate, be held administratively liable for the offences listed in point 2 or criminally responsible for any such offences committed on behalf of the legal person, in accordance with arrangements to be laid down in the national law of the Member State. Such liability of the legal person is without prejudice to the criminal responsibility of the natural persons who have been accomplices in or instigators of those offences;
- the penalties and, where appropriate, the administrative measures include custodial penalties which may involve extradition and the confiscation or the temporary or permanent closure of establishments which have been used or intended for committing such offences.
The offences covered by the Joint Action will, as a rule, fall within the scope of the Council of Europe Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime (1990). However, where introducing or exercising the jurisdiction of the Convention would be contrary to the established principles of its criminal law relating to jurisdiction, a Member State may provide that the offence must also be punishable under the law of the State where it was committed.
Each Member State must take the measures necessary to ensure that in addition to ordinary constraining measures such as search and seizure, adequate investigation powers and techniques are available to ensure that offences are investigated and prosecuted effectively, in compliance with the rights of defence and privacy of the persons subject to those measures.
Each Member State must take the measures necessary to ensure:
- appropriate protection for witnesses who provide information;
- appropriate assistance for victims and their families.
Each Member State must take the necessary measures to ensure that the immigration, social security and tax authorities give special attention to the problems connected with trafficking in human beings and sexual exploitation of children and, while respecting the internal law of the Member State, cooperate with the authorities responsible for investigation and punishment of offences.
In order to guarantee that the fight against trafficking in human beings and sexual exploitation of children is fully effective, each Member State must ensure that the work of the authorities responsible for taking action is coordinated, thus enabling a multi-disciplinary approach to be followed.
Member States must grant each other the widest possible judicial cooperation in investigations and judicial proceedings, allowing the direct transmission of requests for assistance.
Member States must, in accordance with the applicable arrangements and conventions in force, ensure that letters rogatory are put into action as quickly as possible and must keep the requesting State fully informed of the progress of the procedure.
Each Member State must appoint authorities which may be contacted in the event of difficulty in the effective functioning of the urgent letters rogatory.
Each Member State must ensure that information concerning missing minors and persons convicted of the offences specified in the Joint Action, together with any information which could be useful for the investigation and prosecution of such offences, is organised in such a way that it is readily accessible and can be effectively used and exchanged with other Member States.
In parallel with the measures to improve Member States' penal provisions and judicial cooperation, the European Union has also taken other initiatives in this area.
Firstly, in September 1996, the mandate given to Europol's Drugs Unit (the precursor of Europol) was extended to include trafficking in human beings and to draw up a list of specialised powers. Through Member States' liaison officers based in the Hague, the Drugs Unit has begun to exchange information on trafficking in human beings and is currently preparing a general report on the situation in the EU.
Secondly, under the Joint Action adopted on 29 November 1996, the EU set up a multiannual financial programme (STOP) establishing a framework for information, training, research and exchanges. The programme aims to encourage cooperation among the various professionals (immigration officers, judges, police, social workers, etc.) responsible for action to combat trafficking in human beings and sexual exploitation of children.
Thirdly, two years ago the Commission a launched the DAPHNE initiative aimed chiefly at supporting NGOs (non-government organisations) in their work to combat various forms of violence, including the trafficking in and sexual exploitation of children, since such organisations have a crucial role to play with regard to victims. In May 1998 the Commission put forward a proposal to set up a medium-term Community action programme (2000-2004).
14.The Joint Action provides that the Council is to assess how far the Member States have fulfilled their obligations by the end of 1999. However, the Ministers of Justice and Home Affairs have agreed to bring the deadline forward by six months.