Is the European Union Combating Human Trafficking in its Territory?

Introduction

In the European Union trafficking in human beings (THB) is defined as “[t]he recruitment, transportation, transfer, harbouring or reception of persons, including the exchange or transfer of control over those 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 or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation”.[1] Exploitation, in this context, includes “as a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, including begging, slavery or practices similar to slavery, servitude, or the exploitation of criminal activities, or the removal of organs.”[2] It is the fastest growing criminal industry[3] and Western and central Europe are both main destination areas and areas of significant origin.[4] Member States registered 15,846 women, men, girls and boys as victims of trafficking during the years 2013-2014.[5] However, it is a recognized fact that the registered number of victims accounts merely for the victims that have been successfully both found and identified as victims of trafficking, whilst many go unnoticed.[6] Rooted in racism, poverty and social marginalization[7], all of which are on a rise[8], it does not look to be an industry which will die anytime soon. The deficit of decent jobs and the increasing economic inequality[9], as well as the ongoing migration crisis, are sure to render all the more individuals vulnerable to trafficking within the EU.

Union legislation

The Union’s key instruments

To combat THB, the EU has set in place multiple instruments, of which the most recent and most specific to the problem is the EU Directive on Trafficking in Human Beings (Directive 2011/36/EU). In an introduction to its commentary soon after the adoption of the Directive in the EU the UN stated that the Directive “is the most recent sign of the continued commitment of the European Union in this field. The Directive represents a critical step in addressing human trafficking comprehensively.”[10] This is brought into focus especially considering that the EU’s previous instrument[11] was primarily focused on the prosecution of criminals, dedicating only one vague article to the protection of victims, whilst the Directive replacing it has as its central components both the prevention of trafficking and the protection of victims alongside the prosecution of traffickers. In a Commission’s proposal[12] the explanatory referendum recognizes that “the response to trafficking must be robust” and finds as the added value of its proposed new approach “[n]ew provisions envisaging specific treatments for vulnerable victims in criminal proceedings, aimed at preventing secondary victimisation … [b]roader scope of the provision on non application of sanctions to victims for their involvement in unlawful activities … [h]igher standard of assistance to victims”.[13] Alas, one might conclude that the EU recognized quite extensively in 2009 what it was lacking in its approach towards human trafficking at that point. The final Anti-Trafficking Directive takes all these aspects mentioned above into account, including multiple provisions on the protection of victims (Art. 12 et seq.) and on the Member States’ legal obligation to prevent trafficking from taking place (Art. 18).

Besides the Anti-Trafficking Directive, the Union has also adopted Directive 2012/29/EU of the European Parliament and of the Council of 25 October 2012 establishing minimum standards on the rights, support and protection of victims of crime. Directive 2012/29/EU replaced Council Framework Decision 2001/220/JHA. There are provisions that are especially relevant in cases of human trafficking, such as entirely new rules on the victim’s ‘right to understand and to be understood’ (Article 3), ‘right to interpretation and translation’ (Article 7), ‘right to access victim support services’ (Articles 8 and 9), completely new rules in the event of a decision not to prosecute (Article 11), protection during criminal investigations – interviews, legal assistance, medical examinations (Article 20), expanded provisions on victims with ‘specific protection needs’ (Articles 22 to 24) and new provisions requiring Member States to make victims more aware of their rights (Article 26(2))[14]. As the most recent instrument of the European Union relating to trafficking in human beings, the Victims’ Rights Directive provides a powerful accompaniment to the Anti-Trafficking Directive in its increased protection for victims of trafficking. Besides providing for ex post protection of identified victims, it also requires ex ante action, such as awareness-raising[15] and training of ‘officials likely to come into contact with victims’[16].

The older, now controversial, instruments

In instruments set in place before the recognition of relevant updates to the Union’s approach toward THB, the distinction between THB and related crimes has been blurred. The Directive on the residence permit issued to third-country nationals who are victims of trafficking in human beings or who have been the subject of an action to facilitate illegal immigration, who cooperate with the competent authorities[17] is a prime example of this lack of differentiation. The preamble of this Directive states as its aim “[t]he framing of a common immigration policy, including the definition of the conditions of entry and residence for foreigners and measures to combat illegal immigration”, though it has been recognized that has been recognized that THB is “not just a question of migration policy”, since “most of the victims identified are EU citizens”.[18]  THB differs from human smuggling in that it involves the use of force and does not require the crossing of a border or physical transportation, whilst human smuggling may be a transaction between two consenting parties, and the crossing of a border is a prerequisite.[19] The fact that the European Commission, among other sources, lists instruments more directly related to smuggling as legislation of human trafficking[20] such as there aforementioned Directive, the Directive defining the facilitation of unauthorised entry, transit and residence[21] and the Council Framework Decision on the strengthening of the penal framework to prevent the facilitation of unauthorised entry, transit and residence[22] illustrates that tensions between competing interests in this area of similar crimes still exist.

The uncertainty around direct effect and direct individual criminal liability

According to EU Treaty law, Directives are binding as to the result to be achieved, but Member States retain discretion to establish the means they will use to obtain that result.[23] Furthermore, case law shows that direct effect may arise from them. In the case of the Trafficking Directive, as Article 22 of the Directive states, the Member States were required to transpose this instrument into national legislation by 6 April 2013. Due to the lack of European level case law on the basis of this Directive it is hard to definitely say what stance the European Court of Justice would take on the direct effect of the Directive. Considering that THB is the only form of organized crime expressly prohibited in the EU Charter of Fundamental Rights[24] one might hope that it would therefore be given adequate protection. The Union’s criminal legislation has, however, had a tendency towards lacking direct effect against individuals[25], and Anti-Trafficking Directive being written in the form of MS obligations could indicate that this deprivation of direct effect would apply to it as well. Despite these assumptions, the fact remains that the Court is not dealing with this issue, and cases in the sphere of THB are being dealt with on the European level in the European Court of Human Rights (ECtHR)[26]. One of the most central controversies this creates in the area of THB is that the ECtHR cannot apply Union law, such as the Anti-Trafficking Directive, and relies therefore on human rights provisions for its judgements. From the perspective of criminal prosecutions this is troublesome, since the ECtHR cannot create direct individual criminal liability or direct effect against individuals, and can only sanction States.

Results of EU action and inaction

For the years 2012-2016 the EU has put in place the Strategy towards the Eradication of Trafficking in Human Beings. Its five key priorities are identifying, protecting and assisting victims of trafficking; stepping up the prevention of trafficking in human beings; increased prosecution of traffickers; enhanced coordination and cooperation among key actors and policy coherence; and increased knowledge of and effective response to emerging concerns related to all forms of trafficking in human beings.[27] The contents of the five key priorities are exactly what the Anti-Trafficking Directive requires. Although within its strategy the EU has had some success, for example through “the continuation of the work of the EU informal network of national rapporteurs or equivalent mechanisms; the strengthening of the network between the Commission and the MS; the creation of a civil society platform with over 100 NGOs that work in different areas related to the fight against THB and that share their information with the Member States; the launch of an electronic platform that allows to share information, reports and experiences at EU level; the publication of many handbooks and guidelines on victims’ identification, on victims’ rights and studies on vulnerable groups”[28], the strategy itself is not a tool to implement EU legislation, but rather to encourage and help Member States to fulfil the Anti-Trafficking Directive’s requirements. Despite all this, there is no evidence to show that trafficking has significantly been reduced or that more convictions have taken place. Though two thirds of suspected traffickers were EU citizens (69 %) and the top five Member States of their citizenship were Bulgaria, Romania, Belgium, Germany, and Spain, together Romania and France accounted for around half of all reported convictions in the past three years in EU.[29] This does not speak well for the other Member States with high rates of traffickers.

The Anti-Trafficking Coordinator Vassiliadou[30] and the UN Commentary on the Trafficking Directive both indicate that implementation by the Member States is what will determine the success of the Anti-Trafficking Directive. The International Centre for Criminal Law Reform and Criminal Justice Policy points out that “[THB] is a criminal industry driven by the ability to make large profits … with negligible risk of prosecution.”[31] The European Court of Justice is in charge of effective implementation of Union law, but the EU report on the progress made during 2012-2016 maintains that “increasing the number of investigations and prosecutions on trafficking in human beings is one of the key priorities of the EU legal and policy framework. The level of prosecutions and convictions remains worryingly low.”[32] In the European Commission’s case law section of its ‘Together Against Trafficking in Human Beings’ website, which “will be regularly updated with case law from EU Member States”[33], the case law from a given year during 2005-2016 does not exceed nine cases, and during 2014-2016 only two cases have been updated to the website each year. “[I]n order to be effective any legislation to combat trafficking must be accompanied by a clear cultural shift from a culture of impunity to a culture of zero tolerance of trafficking”[34], the Committee on Women’s Rights and Gender Equality recognizes. In a situation where “a ‘one size fits all’ strategy is not efficient and where the different forms of trafficking, such as trafficking for sexual exploitation, trafficking for labour exploitation and child trafficking, need to be addressed with specific and tailored policy measures”[35] the Court can be the one to define and refine strategies that are already in place.

As Vladislava Stoyanova points out, the lack of convictions or of protection afforded to victims is not purely procedural, but related also to the substance of the Trafficking Directive which, though it “defines human trafficking and determines the minimum scope of criminalization”, also legislates that “Member States can interpret trafficking more expansively.” An example to this effect is Bulgaria where the crime of human trafficking is interpreted in an exceedingly wide way.[36] “The ‘action’ element consists of recruitment, transportation, harbouring or receipt of individuals. Any of these actions has to be committed for the purpose of debauchery, forced labour, removal of organs, keeping somebody in forceful subjection or selling the child of a pregnant woman.”[37] However, “[u]nder the Bulgarian legislation no ‘means’ element is required so that the crime of human trafficking is constituted”[38], Stoyanova notes. On the contrary, in the Finnish criminal code the definition of human trafficking begins with the ‘means’ element, stating that “[a] person who … by taking advantage of the dependent status or vulnerable state of another person or by pressuring another, … by deceiving another person or by taking advantage of a mistake made by that person, … by paying remuneration to a person who has control over another person, or … by accepting such remuneration takes control over another person, recruits, transfers, transports, receives or provides accommodation for another person for purposes of sexual …, forced labour or other demeaning circumstances or removal of bodily organs or tissues shall be sentenced for trafficking in human beings”. [39] The Commission itself does not seem to be particularly clear about the conceptual limits of trafficking either. It defines it as “the buying, selling and exploitation of adults and children. In this way, it subsumes exploitation under the definition of human trafficking.”[40]

The flexibility awarded to Member States by the Anti-Trafficking Directive leads to inconsistencies – there is a high number of prosecutions in Bulgaria,[41] but also very little assistance offered to victims, since the ‘means’ element which is absent in the criminal law definition is present in their Trafficking Act’s definition: “for persons to qualify as victims and to be offered assistance, some manner of ‘means’ should have been used against them … On the one hand, from the perspective of the national criminal law, there is a victim since a person might have been transported for the purposes of debauchery, which will be sufficient for qualifying the transportation as human trafficking. On the other hand, that same person will not be a victim and thus eligible for assistance and protection under The Trafficking Act since he/she might not have been transported by means of deception or coercion”[42].

Conclusions

The EU has begun to pay attention to and take action against THB. It has been successful in defining the crime of THB in accordance with international standards, and has legislated instruments that Member States must implement. The efforts are, however, lacking in rigour and appear to be inconsistent in the effects caused by translations into national systems, which raise “serious questions about the integrity of the definition of human trafficking” as it “gives bases for uncertainty whether individuals who are victims from the perspective of the criminal trial will receive any assistance in their capacity as victims of human trafficking”[43]. Inconsistent effects are also caused by the attention awarded to migration-centred instruments in the context of THB – directives which aim to combat illegal immigration may be relevant to human smuggling, whereas human trafficking should receive an entirely different type of reaction due to the fact that in cases of THB one party is by default the victim and should therefore be allowed victim protection measures which may not be relevant to cases of human smuggling. The Anti-Trafficking Directive sets out a clear message on the non-prosecution or non-application of penalties to the victim and this is in danger in cases where smuggling and trafficking are not specifically and intentionally separated from each other. These inconsistencies arise out of discretion given to Member States. In theory, the EU could more effectively legislate in the form of Regulations which would automatically have direct effect and could award direct effect against individuals, but in the context of its political capabilities the EU has done what it feasibly can: pointed the Member States towards the right direction and left the rest for them to figure out.

[1] Directive 2011/36/EU Article 1(1)

[2] Directive 2011/36/EU Article 1(3)

[3]  International Labour Office, (2008). ILO Action Against Trafficking in Human Beings. Geneva: ILO, p.1, International Labour Office, Profits and Poverty: The Economics of Forced Labour (2014), page 1

[4] United Nations Office on Drugs and Crime, Global Report on Trafficking in Persons, 2014

[5] Report from the Commission to the European Parliament and the Council, Report on the progress made in the fight against trafficking in human beings (2016); Brussels, 19.5.2016; COM(2016) 267 final; as required under Article 20 of Directive 2011/36/EU on preventing and combating trafficking in human beings and protecting its victims {SWD(2016) 159 final}

[6] Ibid.

[7] Dr. Ami Carpenter: “it’s rooted in racism, its rooted in poverty and social marginalization” https://www.theguardian.com/us-news/2016/jun/21/san-diego-sex-trafficking-industry-federal-report The Guardian 21.6.2016

[8] Poverty: ILO World Employment and Social Outlook 2016, p 4 “the number of employed persons living in moderate and near poverty has increased since 2000, and evidence from other sources suggests that working poverty is on the rise in Europe”

Racism: Roberto Foa, 2015, UN Creating an Inclusive Society: Evidence from Social Indicators and Trends; “Since the 1990s, negative sentiment towards migrants has been rising in many countries and regions, both in developed and developing countries” p 8, http://www.un.org/esa/socdev/egms/docs/2015/sd-agenda2030/RobertoFoaPaper.pdf (accessed 2.10.2016)

[9] ILO World Employment and Social Outlook – Trends 2016, p 4

[10] The EU Directive on Trafficking in Human Beings – A Joint UN Commentary

29 December 2011, http://www.unodc.org/unodc/en/human-trafficking/2011/the-eu-directive-on-trafficking-in-human-beings-a-joint-un-commentary.html (visited 11.11.2016)

[11] Council Framework Decision on combating trafficking in human beings (2002/629/JHA)

[12] Commission’s proposal in 2009 for a new Council Framework Decision to repeal Decision 2002/629/JHA

[13] Proposal for a Council Framework Decision on preventing and combating trafficking in human beings, and protecting victims, repealing Framework Decision 2002/629/JHA {SEC(2009) 358} {SEC(2009) 359}

[14] Steve Peers, 2013, Guidelines for Transposition, The EU Directive on Victims’ Rights (2012/29/EU)

[15] Directive 2012/29/EU, Article 26(2): Member States ‘shall take appropriate action, including through the Internet’, to raise awareness of the rights set out in the Directive. These measures must also aim to reduce ‘the risk of victimisation’ and minimise ‘the negative impact of crime and the risks of secondary and repeat victimisation, of intimidation and of retaliation’

[16] Directive 2012/29/EU, Article 25(1)

[17] Council Directive 2004/81/EC

[18] SWD(2014) 318 final, Commission staff working document, Mid-term report on the implementation of the EU strategy towards the eradication of trafficking in human beings {COM(2014) 635 final}

[19] COM(2012) 286 final, Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions: The EU Strategy towards the Eradication of Trafficking in Human Beings 2012–2016, p. 2

[20] The European Commission’s Anti-trafficking Website, Together Against Trafficking in Human Beings, https://ec.europa.eu/anti-trafficking/legislation-and-case-law/eu-legislation_en (visited 14.11.2016)

[21] Council Directive 2002/90/EC

[22] Council Framework Decision 2002/946/JHA

[23] European Union, Treaty on the Functioning of the European Union, OCJ 2010/C 83/01, Art. 288

[24] Charter of Fundamental Rights of the European Union, Article 5 (Prohibition of slavery and forced labour) paragraph 3 specifically forbids trafficking in human beings

[25] Samuli Miettinen, Criminal Law and Policy in the European Union, Routledge, 2013, p. 221

[26] European Court of Human Rights (ECrtHR), Rantsev v. Cyprus and Russia, Application No. 25965/04, 7 January 2010;  Siliadin v. France, Application No. 73316/01, 26 July 2005; Airey v. Ireland, Application No. 6289/73, 9 October 1979; Golder v. UK, Application No. 4451/70, 21

February 1975, Application No. 4451/70.

[27] COM(2012) 286 final, Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions: The EU Strategy towards the Eradication of Trafficking in Human Beings 2012–2016, p. 5

[28] Myria Vassiliadou in the Commission staff working document, Mid-term report on the implementation of the EU strategy towards the eradication of trafficking in human beings

[29] Eurostat Report on Trafficking in Human Beings – 2015 edition

[30] Euronews, “Europe’s sex slave shame: is enough being done to end human trafficking?”, 2014, http://www.euronews.com/2014/11/12/europe-s-sex-slave-shame-is-enough-being-done-to-fight-human-trafficking-across (visited 14.11.2016)

[31] The International Centre for Criminal Law Reform and Criminal Justice Policy, An Exploration of Promising Practices in Response to Human Trafficking in Canada (2010) page 14, http://www.humanservices.alberta.ca/documents/Human-Trafficking-in-Canada.pdf

[32] COM(2016) 267 final Report from the Commission to the European Parliament and the Council on the progress made in the fight against trafficking in human beings (2016)

[33] European Commission’s Anti-trafficking website: Together Against Trafficking in Human Beings, https://ec.europa.eu/anti-trafficking/legislation-and-case-law/case-law_en?solrsort=ds_field_publication_date%20desc (visited 14.11.2016)

[34] Committee on Women’s Rights and Gender Equality, Report on implementation of the Directive 2011/36/EU of 5 April 2011 on preventing and combating trafficking in human beings and protecting its victims from a gender perspective (2015/2118(INI)), April 2016

[35] Ibid.

[36] Vladislava Stoyanova, ‘The Crisis of a Legal Framework: Protection of Victims of Human Trafficking in the Bulgarian Legislation’ The International Journal of Human Rights (2013)

[37] Section IX (Trafficking of People) of the Bulgarian Criminal Code (New, State Gazette No. 92/2002). Article 159a (1) (Amended, State Gazette, No. 27/2009)

[38] Pursuant to Article 159a(2) of the Bulgarian Criminal Code, the application of certain means, for example coercion or deception, could be an aggravating circumstance

[39] Finnish Criminal Code, Chapter 25 Article 3

[40] Dr. Vladislava Stoyanova, How Many Victims of Human Trafficking in the EU? A Statistical Quagmire, 2016, EU Law Analysis Blog, http://eulawanalysis.blogspot.com.ee/2016/07/how-many-victims-of-human-trafficking.html (visited 14.11.2016)

[41] V. Stoyanova (reference 36)

[42] Ibid.

[43] Ibid.