Brussels, 29 March 2010
Proposal for a Directive on preventing and combating trafficking in human beings and protecting victims, repealing Framework Decision 2002/629/JHA
On 29 March 2010 the European Commission tabled a proposal for a new Directive on trafficking in human beings, aimed at further approximating legislation and penalties, ensuring successful prosecution, better protection of and assistance to victims, and prevention of trafficking. It follows up on a previous proposal tabled in 2009. The Directive, if approved, will replace current EU legislation dating from 2002 (Framework Decision 2002/629/JHA).
What is the problem to be addressed?
Trafficking in human beings is considered a new form of slavery. Victims are mostly women and children, who are trafficked for various purposes such as sexual exploitation, labour exploitation, domestic servitude, begging, and the removal of organs. A major root cause of trafficking of these victims is their social vulnerability, which can derive from extreme poverty, dysfunctional families, domestic violence and gender discrimination.
Organised crime networks take advantage of these vulnerability factors to coerce, deceive or abuse victims, and subsequently exploit victims. In fact trafficking is an extremely profitable business for organised crime: the third source of illicit profits after drug trafficking and traffic of weapons. Victims of such trafficking suffer psychological and physical consequences of the crime to which they have been subjected. Often they suffer trauma; victims of trafficking for sexual exploitation are exposed to the risk of HIV and other sexually transmitted diseases, and to other serious health risks.
What is the scale of the problem?
It is not easy to estimate the extent of this crime, since criminal activities related to trafficking are hidden behind widespread phenomena such as prostitution or immigration. According to ILO1, there are globally at least 2.45 million people in forced labour as a result of trafficking in persons. Most people are trafficked into forced labour for commercial sexual exploitation (43%) or various reasons (25%). The remainder (32%) are victims of trafficking for economic exploitation. Women and girls represent 56% of victims of forced economic exploitation, while men and boys represent 44%. As regards forced commercial sexual exploitation, an overwhelming majority (98%) are women and girls.
Trafficking in the EU used to be a criminal phenomenon coming predominantly from third countries. However, the last enlargements have led to flows of human trafficking within the EU area. Cases of internal trafficking are also reported by national monitoring mechanisms.2 Estimates which have been attempted for Europe are scarce and unreliable. Nevertheless, as one of the most significant destinations in the world, it is reasonable to estimate from the figures available that several hundred thousand people are trafficked into the EU or within the EU every year.
What are the results of EU policy?
In October 2008 the Commission issued a Commission Working Document on the evaluation of the implementation of anti-trafficking policy in the EU. The main findings were that the number of criminal proceedings and victims assisted were not high enough compared to the estimated scale and the gravity of the crime. About 1,500 criminal proceedings for trafficking were carried out in 2006, and about 3,000 victims were assisted in the EU, mostly in Italy, Belgium and Austria. Therefore, more ambitious and binding legislation is needed in order to make anti-trafficking policy more effective. The protection of and assistance to victims needs significant improvement, especially as this is an obligation under human rights standards, and also remains the best means of securing an essential source of evidence in criminal proceedings.
What is new in the proposal for a Directive?
The proposal builds upon the 2000 United Nations Protocol on trafficking in persons, especially women and children, and the 2005 Council of Europe Convention on action against trafficking in human beings and brings added value. It follows up on a 2009 Commission proposal which was being negotiated but lapsed with the entry into force of the Lisbon Treaty.
The new Directive covers action on different fronts:
CRIMINAL LAW PROVISIONS, including a common definition of the crime, aggravating circumstances and higher penalties, as well as non-punishment of the victims for unlawful activities such the use of false documents in which they have been involved for being subjected to by traffickers.
PROSECUTION OF OFFENDERS, including extraterritorial jurisdiction (the possibility to prosecute EU nationals for crimes committed in other countries), use of investigative tools typical for organised crime cases such as phone tapping and tracing proceeds of crime.
VICTIMS' RIGHTS IN CRIMINAL PROCEEDINGS, including specific treatment for particularly vulnerable victims aimed at preventing secondary victimisation (no visual contact with the defendant, no questioning on private life, no unnecessary repetition of the testimony, etc.), police protection of victims, legal counselling also aimed to enable victims to claim compensation; special protective measures are envisaged for children such as holding interviews in a friendly environment.
VICTIMS' SUPPORT, including national mechanisms for early identification and assistance to victims, based on cooperation between law enforcement and civil society organisations, providing victims with shelters, medical and psychological assistance, information, interpretation services. A victim shall be treated as such as soon as there is an indication that she/he has been trafficked, and will be provided with assistance before, during and after criminal proceedings.
PREVENTION, including measures aimed at discouraging the demand that fosters trafficking, i.e. employers hiring trafficked persons and clients buying sexual services from victims of trafficking, training for officials likely to come into contact with victims, and of potential victims to warn them about the risks of falling prey to traffickers.
MONITORING, providing for the establishment of National Rapporteurs or equivalent mechanisms, which should be independent bodies, in charge of monitoring the implementation of the measures foreseen by the Framework Decision. Such bodies should have further tasks including giving advice and addressing recommendations to governments.
Why is the European Commission willing to adopt a new Directive on areas already covered by the Council Framework Decision?
The Framework Decision (2002/629/JHA) on this topic currently in force was a first step to addressing the crime of trafficking in human beings at EU level. This current framework, however, suffered from insufficient or erratic implementation in Member States. A number of provisions allow for exceptions or reservations. As the Framework Decision focuses on criminal law provisions, implementation of comprehensive anti-trafficking policy in Member States still is unsatisfactory, particularly as regards the effectiveness of law enforcement activities to detect and prosecute trafficking, victims' protection and assistance, or monitoring of trends and anti-trafficking policies. This calls for a substantive improvement of EU rules.
In addition, the entry into force of the Lisbon Treaty (on 1 December 2009) provides considerable advantages for new legislation to be adopted in the field of Justice and Home affairs from now on. This also justifies the proposal for a new Directive.
Legislation will no longer need to be approved unanimously by the EU Council of Ministers (i.e. national governments). Instead, it will be adopted by a majority of Member States at the Council together with the European Parliament. A single country will not be able to block a proposal.
Implementation at national level will also be improved. The Commission will be able to monitor how Member States apply EU legislation. If it finds that EU countries violate the rules, it will be in a position to refer the case to the European Court of Justice.
Patrick Belser, Michaelle De Cock, Fahrad Mehran, ILO Minimum Estimate of Forced Labour in the World, ILO, Geneva, April 2005.
For example, cases of internal trafficking have been reported by the Sixth Report of the Dutch National Rapporteur,