INTRODUCTION TO HUMAN TRAFFICKING 1 WHO WE ARE: THE ELI PROJECT Upholding Rights! Early Legal Intervention for Victims of Trafficking The Early Legal Intervention [ELI] pilots aim to demonstrate the value and importance of providing early and effective legal advice to potential victims as soon as anyone recognises them as such. This entails: the provision of confidential advocacy at the first encounter between victims and authorities; risk assessment of immediate protection needs; decision on the best/most appropriate route for protection by State; ensuring recovery and reflection (R&R) prior to interviews; and assessing criminalisation risks. The key aim of the project is to impact on national and EU anti-trafficking responses to enhance the support and protection of victims. ELI project partners: Immigrant Council of Ireland (Lead Partner), LSA Glasgow, AIRE London, Centre for Women War Victims Croatia, BGRF Bulgaria and KSPSC Lithuania. 2 STRUCTURE 1.What is trafficking? 2.Why does it happen? 3.What are the challenges in identifying victims of trafficking? 4.What rights do victims have? 3 WHAT IS TRAFFICKING? 4 INTRODUCTIONS Please introduce yourself telling us: 1.Your name 2.Your organisation 3.How trafficking is relevant to your work 4.What you hope to learn FILM Satumaa Wonderland This film is a part of a social awareness campaign against human trafficking in Finland. The track is a rearrangement of a classic Finnish tango from the 1950s. Satumaa tells about longing for a better life somewhere over the ocean. The film can be accessed online here - https://vimeo.com/ https://vimeo.com/ THE INTERNATIONAL LEGAL FRAMEWORK Main framework set by the United Nations (UN) and the International Labour Organisation (ILO). Relevant provisions can also be found in the UN Convention of the Rights of the Child. Core instrument: The UN Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children (the Palermo Protocol). Definition of trafficking widely adopted by the international community. 7 COUNCIL OF EUROPE The Council of Europe Convention on Action Against Trafficking in Human Beings of 2005 (Human Trafficking Convention) Article 4: recruitment, transportation, transfer, harbouring or receipt 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 or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. The European Convention of Human Rights (ECHR). Human trafficking is prohibited by Article 4 of this Convention which also prohibits slavery, forced labour and servitude. Other rights protected by the ECHR may also be engaged when looking at a states responsibilities to victims of human trafficking. 8 EU LAW Council Directive 2011/36/EU of 5 April 2011 on preventing and combating trafficking in human beings and protecting its victims (the Human Trafficking Directive). Extends the definition of human trafficking Sets state obligations to protect VoT Directly applicable and able to be relied upon if transposed effectively into national legislation The EU Charter of Fundamental Rights Article 1: the principle of human dignity: any application of EU law must have this principle at its core. Article 5 prohibits human trafficking 9 ARTICLE 2 OF EU DIRECTIVE 2011/36 Member States shall take the necessary measures to ensure that the following intentional acts are punishable: The 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. 10 Children(ARTICLE 2) 5. When the conduct referred to in paragraph 1 involves a child, it shall be a punishable offence of trafficking in human beings even if none of the means set forth in paragraph 1 has been used. 6. For the purpose of this Directive, child shall mean any person below 18 years of age. As under Article 4 of the Council of Europe Trafficking Convention; Minors CANNOT consent to being exploited, even in the absence of the threat or use of force, or other forms of coercion, deception, fraud etc. 11 IDENTIFICATION Broad and universally accepted definition: Adult victims: Act MeansPurpose Child victims: ActPurpose Note: No requirement for a transnational element. Means (for adults) include fraud, deception and abuse of power or vulnerability. The purpose will broadly be exploitation. 12 CONSENT:PERSONS WITH DISABILITIES Earning potential: a child with disabilities earns three times more than a child without a disability in forced begging situations. In general, if a victims consent has been procured by means of force, fraud, coercion, abuse of authority or abuse of vulnerability (especially relevant in the case of mental disabilities), it will be irrelevant. States must put in place additional supports for victims with special needs such as disabilities or mental or psychological disorders Identification and in particular EARLY identification is key. 13 UN CONVENTION ON THE RIGHTS OF PERSONS WITH DISABILITIES Article 11: States Parties shall take, in accordance with their obligations under international law, including international humanitarian law and international human rights law, all necessary measures to ensure the protection and safety of persons with disabilities in situations of risk. This could be helpful if trafficking were to be interpreted as a situation of risk. Article 13 requires the Parties to ensure persons with disabilities may access justice on an equal basis with others, including as witnesses and at investigative stages. They must provide appropriate training for working in the justice field, including police and prison staff. Article 16(1): States Parties shall take all appropriate legislative, administrative, social, educational and other measures to protect persons with disabilities, both within and outside the home, from all forms of exploitation, violence and abuse, including their gender- based aspects. 14 THE THREE ELEMENTS 15 THE NATIONAL DEFINITION Trainers should include information here about their own countrys current definition of trafficking. Trainers should highlight any differences between national and European definitions. They should also highlight any problematic issues with the definition within the national context. 16 CASE STUDIES Please read through the case studies and decide who is a victim of trafficking and who is not 17 COMMON MISCONCEPTIONS There does not need to be an international element There does not need to have been forced movement, or captivity of any kind There does not need to be sexual exploitation Benefit fraud is another form of human trafficking Men and boys are often victims of trafficking But women and children are more vulnerable There does not need to have been violence Or even the threat of violence There does not have to be slavery The victims may not know they are being trafficked They may even not agree with the finding that they are VoT It doesnt matter! 18 TRAFFICKING CRIMES Domestic slavery Sexual Trafficking is NOT the only form of slavery! Sexual Exploitation Forced Labour i.e. Factories, fishing, massage parlours, farms, bars, hotels, restaurants Drug cultivation Trade in human organs Benefit Fraud Forced begging and petty crime The pieces of a puzzle that can be combined in many ways New forms of exploitation Petty crime Sham marriage 19 WHY DOES TRAFFICKING HAPPEN? 20 A SUCCESSFUL BUSINESS THE MARKET: High demand Low competition High Reward Low risk Good service Low production costs Unique selling point Successful business 21 WHY IS TRAFFICKING A LUCRATIVE BUSINESS Trafficking is a big business driven by profit. Its main product has some unusual features: Low freight costs: The victims move themselves Visible invisibility: Possession of a woman is not illegal per se! Enormously profitable: Worldwide profits estimate = $12 - $17 billion/ year. (ILO) $100,000/ year from one prostituted woman 100,000 EUR / year from one child in forced begging Sustainable source of income by their activities Low cost, low risk (high risk working conditions, higher working hours) High return on investment Remember: Traffickers behave like businessmen- they meet and adapt to market demand. 22 TRAFFICKING: THE MARKET DEMAND Products: i.e cheap clothes, fruit, fish, vegetables, drugs Personal Subjugation: i.e sexual services, domestic slavery Services: i.e Cheap beauty services, cheap forced labour 23 DEMAND REDUCTION Article 9(5) Palermo Protocol State Parties shall adopt or strengthen legislative or other measures, such as educational, social or cultural measures, including through bilateral and multilateral cooperation, to discourage the demand that fosters all forms of exploitation of persons, especially women and children, that leads to trafficking. A pull factor for trafficking for sexual exploitation is the commodification of female bodies. If we recognise that demand is indiscriminate and that prostitution and trafficking for sexual exploitation are intrinsically linked as interchangeable goods. With no demand for sexual services there will be no market for sexual services. This is the argument for the Swedish model and making the purchase of sex illegal EXAMPLE: CHEAP GOODS Leads to Ali being trafficked from Lesbos to Manolada (ACT) Requires coercion or deception of suitable men (ACT) Requires transport of suitable men or creation of incentives for self- transportation TransportationMeans Requires desperate Bangladeshi men willing to work tirelessly for a very low salary ExploitationIntent/ purpose European markets demand for cheap Greek strawberries ExploitationIntent/ Purpose 25 WHAT ARE THE CHALLENGES IN IDENTIFYING VICTIMS OF TRAFFICKING? 26 THE USE OF INDICATORS No full definition because trafficking is a complex crime. Only few victims can identify themselves as VoT. Indicators contain a set of general and specific situations. Indicators can be used as a handy reminder. Attention should be paid, lists are NOT exhaustive. Try to work backwards: focus on exploitation and not on transportation. 27 INDICATORS:EXAMPLES People who have been trafficked may: be distrustful or fearful of the authorities; act as if instructed by another or always escorted by another fear of saying what their immigration status is not be in possession of their passports or other documents not know their home or work address limited language ability physical indictors such as injuries or tattoos marking ownership psychological indicators such as fear, anxiety 28 EARLY INDICATORS At the moment, the vast majority of the indicators are applicable once a person has come to seek help in some way. But what if we had some indicators to assist the professionals most likely to have a first hand contact with a VoT? i.e. a policeman arresting a minor in a supermarket for petty theft What should they look out for? Majority of the indicators become visible too late and are unhelpful for early identification. EXAMPLES WHICH COULD RAISE SUSPICION Seasonal agricultural work Shoplifting Petty street crime People washing windscreens at traffic lights Advertisements for people looking for staff for care homes Van depositing a number of people at a certain location every day A woman always showing up to medical appointments accompanied by a partner who is supervising her Model agencies Tenants in a house who seem fearful Any child begging should be considered to be a VoT/ at risk of being a VoT Can you think of other examples? SELECTED ISSUES A.Early Identification/National Referral Mechanism B.Legal Rights and Responsibilities C.Missed opportunities case studies D.ELI revisited 31 A. EARLY IDENTIFICATION 32 THE LEGAL FRAMEWORK Human Trafficking Convention Article 10 Each Party shall provide its competent authorities with persons who are trained and qualified in preventing and combating trafficking in human beings, in identifying and helping victims, including children, and shall ensure that the different authorities collaborate with each other as well as with relevant support organisations, so that victims can be identified in a procedure duly taking into account the special situation of women and child victims. EU Human Trafficking Directive Article 11 (4) Member States shall take the necessary measures to establish appropriate mechanisms aimed at the early identification of, assistance to and support for victims, in cooperation with relevant support organisations. 33 EARLY IDENTIFICATION OF VoT Early identification is the best way to ensure better protection for the individual and key to a State complying with its international obligations. Definition of NRM by OSCE: A National Referral Mechanism (NRM) is a co-operative framework through which state actors fulfil their obligations to protect and promote the human rights of trafficked persons, co- ordinating their efforts in a strategic partnership with civil society." Each State has its own NRM procedures. Basic aims of NRMs: Ensuring human rights of VoT are respected Providing an effective way to refer VoTs to services 34 THE PROBLEM WITH NRMs Many countries have adopted identification mechanisms which are referred to as NRMs but which vary in how closely aligned they actually are to the OSCE principles. Many are law enforcement led which can limit the access that victims have to the rights and protections they are entitled to under international law. Individual is not recognised as a victim unless that status has been formally conferred on him or her through a formal framework such as an NRM. This is despite International and European legal standards being clear that where an individual meets the definition of a victim of human trafficking, they are to be recognised as a victim with all the rights and responsibilities that this entails. Such rights do not stem from a formal status conferred on a victim but from the victims experiences themselves and international law. 35 NATIONAL IDENTIFICATION Trainers should set out the system of identification in your country. Discuss how closely it mirrors the OSCE models and any problems in practice. 36 BARRIERS TO IDENTIFICATION A barrier to disclosure is a reason why a trafficked person will resist disclosing their situation to an interviewer. A trafficked person may be reluctant to disclose information owing to: 1.Mistrust of others, shame and trauma. 2.Reluctant to repeat their story: re-traumatisation. 3.Fear of harm, and not realising that safe alternative options to their situation exist. 4.Lack of understanding of trafficking, control, or their rights. 5.Manipulation by their trafficker. 6.Inability to discuss their trafficking experience due to their lack of life experience i.e. when the victim is very young. 7.Debt bonding. 8.Lack of gender appropriate lawyers. Note that some VOTs may have no idea that they have been trafficked and/ or are unable/ unlikely to identify themselves as victims. Disclosure may take a very long time. 37 THE INVISIBLE CHAINS: OTHER BARRIERS Symptoms (not exhaustive): The VoT may be hyper alert to everything and/ or may present a strong attachment to its trafficker(s). Remember! These barriers to disclosure can be mitigated by an experienced, appropriate and understanding interviewer. Feelings of being overwhelmed by their situation, especially if they are young Threats to their family Shame and other societal barriers to speaking out Fear of what might happen if they speak out, including deportation and a criminal record Language barriers if there is no interpreter present Cultural/ religious beliefs against speaking i.e. Ritual oaths Deception and Drugging Convincing the victim they are indebted to the trafficker (Stockholm syndrome) Fear of/ isolation from the community Ensuring the victim does not know that they have been trafficked 38 Best practice in interviewing suspected victims of trafficking 10 guiding principles in the World Health Organisation Ethical and Safety Recommendations for Interviewing Trafficked Women: 1. Do no harm 2. Know your subject and assess the risks 3. Dont offer advice or make promises that you cannot fulfil 4. Adequately select and prepare interpreters and co-workers 5. Ensure anonymity and confidentiality 6. Get informed consent 7. Listen to and respect each womans assessment of her situation and risks to her safety 8. Do not re-traumatise a woman 9. Be prepared for emergency information 10. Put information collected to good use. Note that these principles are applicable to ALL VoTs not just women, but also girls, boys and men Help the VoT rebuild their power and regain control of her situation. B. RIGHTS AND RESPONSIBILITIES 40 INTERNATIONAL OBLIGATIONS ON MEMBER STATES 41 EU HUMAN TRAFFICKING DIRECTIVE (2011/36/EC) Recognises that human trafficking is a violation of fundamental rights Recognises that trafficking is a gender-specific phenomenon Recommends an integrated, holistic, human rights-based approach Demands that a childs best interests must be a primary consideration Demands that attention to victims with special needs is required States that existing international conventions on human trafficking should be supported to avoid duplication of effort A broad concept of what should be considered trafficking is adopted by the directive, including forced begging and trafficking for criminal activity within its definition Infringement procedures are possible for a breach of its terms. Failure of a national court to make a reference to the CJEU (where interpretation is not obvious) under Article 267 without any reasoning at all is a breach of Article 6 ECHR. 42 THE COUNCIL OF EUROPE PROTECTIVE SYSTEM CoE Human Trafficking Convention is the main tool Comprehensive framework for the identification, protection and promotion of VOT rights. The European Convention on Human Rights (ECHR) Human trafficking, as defined within the Trafficking Protocol and the Trafficking Convention is prohibited by ECHR Art. 4 Other ECHR rights may be triggered when looking at states responsibilities to VoT i.e. Art. 3 All public authorities must act in line with these rights. Powerful tool for victimsprotection in terms of ensuring full legal implementation of the states responsibilities as well as obtaining damages for breach I.e. Siliadin v France, Rantsev v Cyprus and Russia 43 CoE CONVENTION NON-LEGAL IMPLEMENTATIONS The Contracting Parties must take measures aimed at prevention of trafficking, discouraging demand, strengthening border controls to prevent trafficking, and security, control, legitimacy and validity of documents. They must provide their competent authorities with persons trained and qualified in combating trafficking, and take appropriate measures regarding separated children. They must assist the recovery of the victims, including providing adequate compensation. The Parties must co-operate internationally and with NGOs. The Convention does not affect the rights and obligations derived from other international instruments. 44 CoE CONVENTION LEGAL IMPLEMENTATIONS The Contracting Parties must introduce criminal sanctions, including criminalising trafficking, use of services of a victim of human trafficking, aiding and abetting, and corporate sanctions. Victims must be able to make complaints before competent authorities, and investigations must not be dependent upon the report made by a victim. Measures must be taken to provide effective and appropriate protection from retaliation or intimidation of victims, those who report criminal offences, witnesses, and the family members of each of the parties. 45 THE CoE & EU ADVOCACY AVENUES Council of Europe Informing GRETA about failures in the domestic systems Ensuring that an Art 13 ECHR effective remedy exists Consider the possibility of taking both the country of origin and the host country to the ECtHR ( see Rantsev v Russia and Cyprus) Pose questions to responsible states about what kind of actions they are taking to comply with their international and European obligations 46 THE CoE & EU ADVOCACY AVENUES The European Union Early notification to the Commission of failures to properly transpose or to comply with the Human Trafficking Directive Followed up as appropriate with a view to infringement proceedings NGOs seeking at an early stage to intervene in any domestic proceedings with a view to a reference being made to the Court of Justice of the European Union (under Art 267 of the Treaty of Functioning of EU) Encouraging national courts to refer appropriate cases to the CJEU Be aware of the jurisprudence on failure to refer to the CJEU (Ferreira da Silva case) 47 RIGHTS OF TRAFFICKING VICTIMS 48 RIGHTS OF VoTS: THE GENERAL FRAMEWORK Access to compensation (including legal aid for this purpose ) Access to support and assistance Access to restitution including restoration of liberty Protection from secondary victimisation Access to information on available remedies in a language the victim understands Access to free legal assistance and legal aid without delay for the length any civil, criminal or other action against the perpetrators Access to support and facilitation to rehabilitation 49 OBSTACLES TO CLAIMING RIGHTS Unclear role distribution amongst stakeholders or lack of trained staff members in frontline services Culture of mistrust in identification and credibility assessment Lack of early access to legal aid or long procedures Racism, prejudices and stereotyping against women in forced prostitution and/or victims of forced begging Obstacles to advocacy NON-PROSECUTION and NON- PUNISHMENT Article 8 of Human Trafficking Directive 2011/36: Non-prosecution or non-application of penalties to the victim: Member States shall, in accordance with the basic principles of their legal systems, take the necessary measures to ensure that competent national authorities are entitled 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 as a direct consequence of being subjected to any of the acts referred to in Article 2. 51 ARTICLE 8 DIRECTIVE 2011/36/EU It is notable that: it is analogous with Article 26 of the CoE Trafficking Convention, but it introduces the concept of non-prosecution; it still doesnt amount to a defence in law leaving victims with defence of duress (or a guilty plea); and unlike Article 2 of the Directive, it does not distinguish between adults and minors. 52 FOCUS ON CHILDREN International law recognises that children have particular needs and require additional protections and rights which it provides, This makes the identification of child victims of trafficking crucial. Age Assessment In case of uncertainty about the age of the trafficked person, he or she should be presumed to be a child in order to receive immediate assistance, support and protection Guardian/Representative There is a requirement that a child be provided with a guardian or representative, from the moment a child is identified by the authorities, in a situation where the parents cannot represent the child because of a conflict of interest between them, or because they are absent. 53 FOCUS ON CHILDREN Guardian/Representative contd One should be appointed, where appropriate, for separated children. Individual Assessments Trafficking Directive requires individual assessments of the circumstances of each child victim to be carried out taking into account the childs needs and concerns with a view to finding a durable solution. Specific assistance, support and protection to child victims of human trafficking who are defined as being under the age of RIGHT TO COMPENSATION Compensation mechanisms exist in most European states but for a variety of reasons, only a minority of victims receive the compensation they are entitled to. Access to compensation is one of the weakest protected rights and often most inaccessible. This is despite its role in combatting trafficking which is restorative, punitive and preventative. Restorative can assist with recovery and empower an individual to move on with lives. Punitive taking money from trafficker has a direct effect/punishment. Prevention strong deterrent mechanism. 55 COMPENSATION-THE LEGAL FRAMEWORK Palermo Protocol - States must ensure that at least one type of legal procedure is available to trafficked persons to access compensation. Human Trafficking Convention strengthens right to access compensation from the trafficker and provides right to access state compensation. EU Human Trafficking Directive 2011/36/EU, Article 17.Victims are entitled to access existing compensation schemes for victims of violent intentional crimes. EU Directive 2004/80/EC relating to compensation to crime victims Requirement to establish state scheme for victims of violent crime and set up a system for facilitating compensation for victims of violence crime in cross border situations. EU Directive 2012/29/EU on establishing minimum standards on rights, support and protection of victims of crime Article 16 - right to a decision on compensation from the offender in the course of criminal proceedings/measures to encourage offenders to provide adequate compensation to victims. Article 4 - right to receive information from the first contact with competent state authorities on compensation. Articles 4 (prohibition on forced labour) and 13 (right to an effective remedy) ECHR work together to demand compensation for VoT. 56 C. MISSED OPPORTUNITIES 57 MISSED OPPORTUNITIES: CASE STUDIES Please read through the case studies and discuss how ELI could have made a difference to the outcome. 58 CASE STUDY (UK) R v O [2008] EWCA Crim 2835: the common law and Article 6 of the European Convention on Human Rights alike require far higher standards of procedural protection than were given here. There was no fair trial... Prosecutors and Defence lawyers are to make proper enquiries. 59 D. EARLY LEGAL INTERVENTION 60 MAIN PRINCIPLES OF ELI Partner relationships and co-working (ensure that agency responsibilities are clear, roles are formalised and that memoranda of understanding are introduced) Obtaining Evidence to support the clients case Holistic approach Tenacity Frontloading 61 EARLY LEGAL INTERVENTION: THE BENEFITS For VoT: Access to rights Avenue to recovery Non-punishment Compensation Reducing the risk of re-victimisation EARLY intervention= EARLY, TIMELY resolution of the problem, focus on the goal/aim of the procedure For the work of organisations: Development of appropriate support and care plans meeting the client needs Effective legal representation and speedier resolution Increase of possibility of victim cooperation with the police- better witnesses in criminal prosecutions of traffickers- successful prosecutions Enhanced coordination between agencies Rights of VoT are upheld by the state and all statutory agencies involved-> reduced risk for future claims against the state and/ or negative international evaluations. 62 GROUP EXERCISE How can ELI apply more widely in your country? How can ELI develop to offer more in your country? Further advocacy and cooperation ideas on national and European level. 63 ENDS Slavery was abolished 150 years ago and yet there are more people in slavery today than at any other time in our history. 64