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PROTECTING VICTIMS OF TRAFFICKING IN HUMAN BEINGS IN THE UK. THE ITALIAN ‘RIMINI METHOD’ THAT COULD INFLUENCE THE BRITISH APPROACH
MATILDE VENTRELLA•
Abstract: Victims of human trafficking should be protected to prevent their re- victimisation. This article compares the way the United Kingdom (UK) and Italy protect victims of human trafficking. The reason for this comparison is because the UK does not have any specific law that grants a residence permit to victims of human trafficking. The only way victims could be protected in the UK is when they can demonstrate their rights under the Refugee Convention or the European Convention on Human Rights. In contrast, Italian law establishes the issue of a residence permit to victims of human trafficking. Unfortunately, rarely this law is applied and often victims are confused with other irregular migrants and criminals and expelled. In an Italian city called Rimini, Italian law has been adequately applied and the phenomenon of trafficking in human beings has been completely defeated. In the article, the Rimini Method is described. Moreover, the findings of interviews held in Rimini with the head of the Italian Police in Rimini and with the responsible of an anti-trafficking organization which supported the Police in Rimini are shown, with the aim to explain how trafficking in human beings in Rimini has been defeated. Finally, this article argues that the UK should follow this example and a first step to protect victims of human trafficking should be, as the British Joint Committee on Human Rights highlighted, to sign and ratify the Council of Europe Convention on Actions against Trafficking in Human Beings.
1. Introduction The aim of this article is to show that trafficking in human beings could be defeated in the UK by introducing a law granting a permanent visa to all victims of this crime and not by considering the assistance that victims might need on a case-by case basis. The issue is demonstrated by explaining that in this way trafficking in human beings for the purpose of sexual exploitation has been defeated completely in an Italian city called Rimini. This article focuses attention on trafficking in human beings as defined at International level and in the EU. Moreover, this article highlights the importance of protecting victims of human trafficking by granting them a visa in the States where
• PhD candidate, School of law, University of Birmingham. I can be contacted to discuss further the findings of this article at [email protected] or [email protected] I am extremely grateful to Sabato Riccio (Head of the Investigative Office of Polizia di Stato in Rimini) and Giampiero Cofano, co-ordinator of the Anti-trafficking Organisation Pope John XXIII in Rimini. The thoughts of this article are only mine.
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they have been trafficked. For this purpose, laws adopted at international and EU level on the protection of human trafficking victims’ are analysed. The second part of this article is a case study of British and Italian laws on trafficking in human beings and on the protection of victims. The laws of these two States are compared because the United Kingdom (UK) does not have a legislation that provides a form of legal protection to victims of human trafficking. In contrast, Italy has a very advanced legislation on the issue that has permitted the protection of many victims when this law has correctly been applied. The aim of this article is to support the introduction of a law in the UK on the protection of victims of human trafficking. A first step in this sense should be to ratify the Council of Europe Convention on action against trafficking in human beings because it establishes the concession of a reflection period and the release of a resident permit to victims of human trafficking. The issue is approached by demonstrating that this method of recovering victims has been successful in Italy.
2. Definition of trafficking in human beings 2.1 International level A clear definition of trafficking in human beings can be found in the Trafficking Protocol of the United Nation Convention against Transnational Organized Crime UNTOC1 and in the Council of Europe Convention on action against trafficking in human beings.2 Both these international instruments describe the crime of trafficking in human beings.3 Trafficking in human beings has been characterised by the combination of three elements: action, means and purpose.4 Indeed, the action requires ‘… the recruitment, transportation, transfer, harbouring or receipt of persons,…’.5 Moreover, the means should consist 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,…’6 All these activities shall be perpetrated ‘…for the purpose of exploitation…’7 The UNTOC Protocol requires States Parties to criminalise trafficking in human beings.8 The UNTOC Protocol also states that a conduct inclusive of the all elements
1 See Article 3 (1)(a) of the Protocol to prevent, suppress and punish Trafficking in persons, especially women and children, supplementing the United Nations Convention against Transnational Organized Crime. A/RES/55/25, 8.1.2001. Document A/55/383. 2 See Article 4 (1)(a) of the Council of Europe Convention on action against trafficking in human beings. CM (2005) 32 Addendum 1 final 3 May 2005. 3 The UNTOC Protocol on Trafficking in Human Beings uses the expression “Trafficking in persons”. See Article 3 (1(a)) of the UNTOC Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime. A/RES/55/25, 8/1/2001. Document A/55/383. See also Article 4(1(a)) of the Council of Europe Convention…op. cit. note 2. 4 See Legislative Guide for the Implementation of the Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime, 268. 5 See Article 3(1)(a) of the Trafficking Protocol above note 1. See also Article 4(1)(a) of the Council of Europe Convention above note 2. 6 above note 5. 7 above note 5. 8 See Article 5 of the Trafficking Protocol above note 3.
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described above in this same section, shall be criminalised and not individual elements.9 States Parties may obviously decide to criminalise the single acts, although the criminalisation of single acts, is outside the scope of the Trafficking of Persons Protocol.10 Furthermore, in both Conventions,11 the exploitation element is not only required for human trafficking with the purpose of prostitution, but also for other situations of exploitation, such as forced labour.12 Indeed, the Council of Europe Convention on Action against Trafficking in Human Beings and the UNTOC Protocol on Trafficking of Persons, state: ‘Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs;….’13 Therefore, trafficking in human beings can consist of trafficking in prostitution, although this conduct is not the only form of trafficking in human beings. The UNTOC and Protocols negotiators then pointed out that the attempt to commit trafficking in persons should also be criminalised.14 Nevertheless, not all States Parties punish the attempt to commit a crime. 15 This is the reason why the criminalisation of attempts to commit trafficking in persons is not mandatory16 and the UNTOC Trafficking Protocol establishes: ‘Each State Party shall also adopt such legislative and other measures as may be necessary to establish as criminal offences: (a) Subjects to the basic concepts of its legal system, attempting to commit…’17 Another provision that at international level punishes trafficking in human beings is Article 4 of the European Convention on Human Rights (ECHR) which prohibits slavery and forced labour.18 In an important case related to this Article, the Court of Strasbourg held that States Parties have the positive obligation to criminalise slavery and forced labour.19
2.2 EU level At EU level, Article 5 of the Charter of Fundamental Rights prohibits trafficking in human beings.20 Certainly, as Advocate General Colomer pointed out, this instrument is not binding as ‘…there is no enacting provision incorporating its subject matter’.21 However, as Advocate General Colomer emphasised, ‘…the Charter did not emerge in a vacuum, without any link to its surroundings…it codifies and reaffirms certain rights which are derived from
9 above note 4. 10 See the interpretative notes A/55/383/Add. 1, para. 64. 11 above note 5. 12 above note 5. 13 above note 5. 14 See Legislative Guide above note 4, 271. 15 above note 14. 16 above note 14. 17 See Article 5 (2) (a) of the UNTOC Trafficking Protocol above note 3. 18 See Article 4 of the Convention for the Protection of Human Rights and Fundamental Freedoms as amended by Protocol No. 11. 19 See Siliadin v. France (2005), European Court of Human Rights, Ser. A No. 73316/05, at 112. 20 See Article 5 (3) of the Charter of Fundamental Rights of the European Union. 2000/C 364/01, 18/12/2000. 21 See ECJ Case C-303/05. Advocaten voor de Wereld VZW v Leden van de Ministerraad. Opinion of Advocate General Ruiz-Jarabo Colomer delivered on 12/9/2006, para. 76.
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the heritage common to Member States, at national and international level, from which it follows that the Union must respect those rights and the Court must protect them…whatever the legal nature and force of the instrument adopted in December 2000.’.22 Moreover, Framework Decision 2002/629/JHA defines the crime of trafficking in human beings and it requires Member States to impose criminal penalties against persons who commit this crime.23 This Framework Decision requires EU Member States to criminalise ‘…the recruitment, transportation, transfer, harbouring, subsequent reception of a person,…’24 exercised by the use of ‘…force or threat, including abduction…’25 ‘for the purpose of exploitation of that person’s labour or services, including at least forced or compulsory labour or services, slavery or practices similar to slavery or servitude, or for the purpose of the exploitation of the prostitution of others or other forms of sexual exploitation, including in pornography’.26 Framework Decision 2002/629/JHA creates uniformity in the definition of human trafficking in the EU and it considers human trafficking not only trafficking in prostitution, but also other forms of exploitation. However, who are the victims of trafficking in human beings? The next section deals with this issue.
3. Data on trafficking in human beings The International Organization for Migration (IOM) reveals that still in 2004, trafficking in human beings was a phenomenon that remained mostly unreported and the statistics published by IOM are those of police, border guards and agencies which, give assistance to traffickers’ victims.27 IOM data does not show the sex of victims, albeit it reveals that in a health assistance programme carried out by the IOM, 392 victims of trafficking in human beings were received and that all these persons were women between 20 and 30 years old.28 Furthermore, from the data published by IOM on the top six nationalities of victims (Moldova, Romania, Ukraine, Belarus, Bulgaria and Dominican Republic), it might be assumed that the majority of victims are women because, it has been reported that, trafficking in human beings is mostly committed for sexual exploitation, although this data is not completely reliable as, it has been reported that men and especially boys are also victims of sexual exploitation.29 Data reported by IOM also show that in 2004, the majority of the victims, almost 78%, are aged between 18 and 24 years old,30 although nearly the 13% of traffickers’
22 See Case C-303/05 above note 21, para. 77. 23 See Articles 1 and 3 of 2002/629/JHA of Council Framework Decision of 19 July 2002 on combating trafficking in human beings. On OJ EU L 203/1 1/8/2002. 24 See Article 1(1) of the Framework Decision 2002/629/JHA above note 23. 25 See Article 1 (1)(a) of the Framework Decision 2002/629/JHA above note 23. 26 above note 24. 27 See the report published by the International Organization for Migration ‘World Migration’ Cost and Benefits of International Migration’ Published by the International Organization for Migration in 2005. Available on http://www.iom.int accessed on 12.1.2006 ,p, 417. 28 above note 27. 29 See ‘World Migration. Costs and Benefits of International Migration’ above note 27, 421. See also Communication from the Commission to the European Parliament and the Council. Fighting trafficking in human beings-an integrated approach and proposals for an action plan. COM (2005) 514 final, 18/10/2005, 7. 30 See ‘World Migration. Costs and Benefits of International Migration’ above note 27, 418.
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victims from the top six nationalities were under 18 years old.31 The IOM also reported that many of the victims, are mothers or single mothers 32 and UNICEF estimated that 1,2 million of children are exploited in the sexual market, although there is very little knowledge on the true rate.33 Nevertheless, other potential victims should not be neglected because the data indicated in this section are not reliable. Furthermore, the IOM reveals that almost 25% of exploitation consists of forced labour and other illegal activities not specified.34 Consequently, it should be investigated at national and international level, who are the other victims of trafficking in human beings because otherwise the fight against all forms of trafficking in human beings will be ineffective. Victims must be protected as the UNTOC, Council of Europe Convention and the EU require.
4. Protecting victims of traffickers in persons At international level, the UNTOC Protocols on trafficking and smuggling of persons35 require States Parties to protect victims of trafficking in persons.36 The UNTOC Trafficking Protocol requires States Parties to provide victims with ‘(a) Appropriate housing; (b) Counselling and information, in particular as regards their legal rights, in a language that the victims of trafficking in persons can understand; (c) Medical, psychological and material assistance; and (d) Employment, educational and training opportunities’.37 Furthermore, The UNTOC Trafficking Protocol states that States Parties shall adopt legislative measures in order to allow victims to remain on the receiving State territory temporarily or permanently.38 Certainly, the UNTOC Trafficking Protocol emphasises that the repatriation of victims should be facilitated ‘…without undue or unreasonable delay’.39 However, it states that the return of the victim should be voluntary.40 The UNTOC Trafficking Protocol points out that States Parties shall take the necessary initiatives ‘…including through bilateral and multilateral cooperation, to alleviate the factors that make persons, especially women and children, vulnerable to trafficking, such as poverty, underdevelopment and lack of equal opportunities’.41 Therefore, the UNTOC Trafficking Protocol emphasises that the development of poorer economies of victims countries of origin is an important step to follow in order to prevent human trafficking.
31 above note 30. 32 See ‘World Migration. Costs and Benefits of International Migration’ above note 27, 420. 33 See World Migration. Costs and benefits of international migration above note 27, 335. 34 above note 29. 35 See the UNTOC Protocol on Trafficking in Human Beings above note, 1. 36 See respectively Articles 6 and 9 of the UNTOC Protocol on Trafficking above note 1. 37 See Article 6 (3) (a) (b) (c) and (d) of the UNTOC Protocol on Trafficking above note 1. 38 Article 7(1) of the UNTOC Protocol on Trafficking above note 1. 39 Articles 8(1) of the UNTOC Protocol on Trafficking above note 1. 40 Article 8(2) of the UNTOC Protocol on Trafficking above note 1. 41 Article 9 (4) of the UNTOC Protocol on Trafficking above note 1.
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The Council of Europe Convention on trafficking in human beings states that specific programme should be established to prevent human trafficking.42 The Council of Europe Convention states that victims of human trafficking shall receive adequate assistance.43 Moreover, the Council of Europe Convention states that ‘Each State Party shall adopt such legislative or other measures as may be necessary to ensure that assistance to a victim is not made conditional on his or her willingness to act as a witness’.44 The UNTOC Trafficking Protocol does not have a similar provision so for this reason the Council of Europe Convention is more advanced than the UNTOC Trafficking Protocol. At European level, the Council of Europe Convention states that a residence permit shall be issued to victims not only when he or she decides to cooperate in investigations and criminal proceedings,45 but also when ‘…the competent authority considers that their stay is necessary owing to their personal situation…’.46 At EU level, a Directive has been adopted on a residence permit to issue to persons who have been victims of trafficking in human beings.47 The residence permit could be issued after a reflection period during which, victims of human trafficking, could have the opportunity ‘…to recover and escape the influence of the perpetrators…’.48 The residence permit can be issued to persons who decide to co-operate with the national prosecuting and judicial authorities in order to arrest and detain perpetrators of these crimes.49 Nevertheless, there are not other grounds on the basis of which, the residence permit can be released. Indeed, Article 8(1) reads that the residence permit should be issued ‘…for the investigation or the judicial proceedings, and…whether he/she has shown a clear intention to cooperate and …whether he/she has severed all relations…’50 with the human traffickers and the people smugglers. Directive 2004/81/EC also states that the residence permit may be withdrawn if the victim does not co-operate any more with the competent authorities, his/her co-operation is fraudulent, he/she has actively and voluntary renewed the contacts with his/her traffickers and for other reasons of public order.51 Moreover, the holder of residence permits can have access to vocational training and education only for the duration of the residence permit.52 Nevertheless, there is one provision that supports the integration of victims in the hosting Member State.53 This provision states that Member States can introduce specific schemes for the victims and for this purpose their residence permit can be renewed.54 However, the Directive should have stated that victims of trafficking in
42 See Article 5 (2) of the Council of Europe Convention on Trafficking above note 2. 43 See Article 12 (1) of the Council of Europe Convention on Trafficking above note 2. 44 See Article 12 (6) of the Council of Europe Convention on Trafficking above note 2. 45 See Article 13 (1) (a) of the Council of Europe Convention on Trafficking above note 2. 46 See Article 13 (1) (b) of the Council of Europe Convention on Trafficking…op. cit. note 2. 47 See Council Directive 2004/81/EC of 29 April 2004 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. On OJ EU L 261/19, 6/8/2004. 48 See Article 6 (1) of Council Directive 2004/81/EC above note 47. 49 See Article 8 of Council Directive 2004/81/EC above note 47. 50 See Article 8 (1) of Council Directive 2004/81/EC above note 47. 51 See Article 14 of Council Directive 2004/81/EC above note 47. 52 See Article 11(2) of Council Directive 2004/81/EC above note 47. 53 See Article 12 of Council Directive 2004/81/EC above note 47. 54 above note 53.
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human beings shall have a permanent residence permit and that this permit should not be bound by their willingness to co-operate or no with police forces. The reason for this is because many victims may be reluctant to co-operate either because they fear smugglers and traffickers reprisals or because they fear law enforcement actions against them.55 A process of integration of victims in the EU Member States may help victims to co-operate. Moreover, returned victims may easily be re-victimised.56 Therefore, the Directive should have stated that the situation of all victims of human trafficking shall be carefully analysed to prevent their re-victimisation. The next sections compare British and Italian laws on trafficking in human beings and suggest the changes that UK law should introduce in order to protect victims of trafficking in human beings. This comparison is made because Italian law has permits the issue of an automatic residence permit to victims of human trafficking. This law should also be introduced in the UK because when in Italy this law has been applied, trafficking in human beings has been defeated.
5. British and Italian laws on trafficking in human beings 5.1 British law British law on trafficking in human beings was inadequate for many years because had only one provision on trafficking in prostitution and did not take into consideration other forms of human trafficking expressly indicated by the UNTOC Trafficking Protocol57 and by the Council of Europe Convention on Action against Trafficking in Human Beings.58 Indeed, the British Sexual Offences Act 1956 stated that it was an offence ‘…to procure a woman to become, in any part of the world, a common prostitute…’.59 Moreover, British law stated that it was a criminal offence to detain a woman against her will and to constrain her to have intercourse with one particular man or with other men or to detain a woman against her will in a brothel.60 British law also punished abduction and the exercise of control over prostitutes.61 The Sexual Offences Act 1956 was amended in 2003 when new provisions on trafficking in prostitution were introduced. Sections from 47 to 51 of Sexual Offences Act 2003 are entitled ‘Abuse of children through prostitution and pornography’.62 Section 47 punishes persons who ‘…intentionally obtains for himself the sexual services of another person (B)…’,63 ‘…before obtaining those services, he has made or promised payment for those services to B or to a third person…’64 and ‘…either B is under 18, and A does not reasonably believe that B is 18 or over, or…B is under 13’.65 In all these cases British law foresees imprisonment up to 14 years, unless B is under 13 years old, because in this case the perpetrators would be sentenced to imprisonment for life.66 Therefore, British law punishes the sexual exploitation of children itself, no matter if there is also the element of trafficking. The following sections of Sexual Offences Act 2003 punish persons who cause or incite child
55 See sections 6.1 and 7.2. 56 See sections 6.2 and 7.3. 57 See Article 3 of the Trafficking Protocol above note 1. 58 See Article 4(a) of the Council of Europe Convention above note 2. 59 See Section 22(1) (a) of the original Sexual Offences Act 1956. 60 See Section 24(1) above note 59. 61 See Sections 30 at 31 above note 59. 62 See Sections 47-51 of Sexual Offences Act 2003. 63 See Section 47(1) (a) above note 62. 64 See Section 47(1) (b) above note 62. 65 See Section 47(1) (c) (i) and (ii) above note 62. 66 See Section 47(2) (3) (4) above note 62.
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prostitution or pornography,67 who controls a child prostitute or a child involved in pornography,68 who arranges or facilitates child prostitution or child pornography.69 Sections 52-55 punish exploitation of prostitution which consists of causing, inciting or controlling prostitution for a financial gain.70 Finally, Sexual Offences Act 2003 punishes trafficking for sexual exploitation in the UK and outside the UK territory.71 Section 57 states that ‘A person commits an offence if he intentionally arranges or facilitates the arrival in the United Kingdom of another person (B)…’72 and either he intends to commit a criminal offence involving B or he knows that another person intends to commit a criminal offence involving B in the UK only.73 In all these cases the offenders will be punished with a penalty not exceeding fourteen years.74 Section 58 punishes any person who facilitates the arrival in the UK of a person to facilitate trafficking for sexual exploitation in the UK or in any other parts of the world.75 Moreover, Section 59 punishes trafficking for sexual exploitation committed outside the UK.76 The Nationality, Immigration and Asylum Act 2002 introduced other provisions which, covered trafficking of persons for sexual exploitation.77 One of these provisions stated that it was an offence to arrange and facilitate the arrival of a person in the UK for the purpose of prostitution.78 However, the most important modification to British law was made in 2004 because trafficking in human beings for the general purpose of exploitation became a criminal offence.79 British legislation states that exploitation includes any behaviour which is against Article 4 entitled ‘Prohibition of slavery and forced labour’ of the Human Rights Convention.80 British legislation states that human trafficking also encompasses traffic of human organs81 and any form of force, threat or deception to induce a person ‘(i) to provide services of any kind,’82 ‘(ii) to provide another person with benefits of any kind’,83 ‘(iii) to enable another person to acquire benefits of any kind’.84 Moreover, British legislation states that trafficking in human beings is a criminal offence if committed against a vulnerable person who ‘…is mentally or physically ill or disabled, he is young or he has a family relationship with a person, and…a person without the illness, disability, youth or family relationship would be likely to refuse the request or resist the inducement’.85
67 See Section 48 above note 62. 68 See Section 49 above note 62. 69 See Section 50 above note 62. 70 See Sections 52 at 53 above note 62. 71 See Sections 57 at 58 above note 62. 72 See Section 57(1) above note 62. 73 See Section 57(1) (a and b) above note 62. 74 See Section 57(2) (b) above note 62. 75 See Section 58(1) (a and b) above note 62. 76 See section 59(1) (a and b) above note 62. 77 See Sections 145 et 146 of the Nationality, Immigration and Asylum Act 2002 (C. 41). 78 See Section 145 (1) above note 77. 79 See Section 4(1) of Asylum and Immigration (Treatment of Claimants, etc.) Act 2004, Chapter 19. 80 See Article 4 ECHR above 18. See also Section 4(4) (a) above note 79. 81 See Section 4(4) (b) above note 79. 82 See Section 4(4) (c) (i) above note 79. 83 See Section 4(4) (c) (ii) above note 79. 84 See Section 4(4) (c) (iii) above note 79. 85 See Section 4(4) (d) (i) (ii) above note 79.
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British law establishes the sentence of a term not exceeding fourteen years of imprisonment, for persons plead guilty of human trafficking.86 Moreover, British legislation also provides a summary penalty not exceeding twelve months of imprisonment.87 In conclusion, it could be highlighted that after 2002 the UK has introduced legislation ad hoc not only against traffic in prostitution, but also against other forms of human trafficking. However, it can be pointed out that the UK has an unbalanced legislation on this issue. Indeed, if on one side, the UK has responded to the international requirements on Trafficking in Human Beings. On the other side, the UK does not have specific legislation on the protection of victims of human trafficking. Moreover, it did not participate in the Directive on the protection of human trafficking.88
5.2 Italian law A new Italian law on trafficking in human beings was introduced in 2003.89 In the past there were provisions on trafficking in prostitutes, an activity expressly punished by Act 75/1958,90 which also made a crime the recruitment in Italy and abroad of persons with the purpose of sexual exploitation.91 Moreover, the Italian court of last resort Corte di Cassazione stated that the crime of trafficking in prostitutes of Article 3(7) Act 75/1958, could have been punished in conjunction with the crime of associazione per delinquere (association between three or more persons with the intent of committing crimes) punished by Article 416 of the Italian penal code92 as Article 3(7) alone, cannot punish criminal organisations involved in trafficking in prostitution but only individual activities committed to the purpose of trafficking in prostitution.93 Instead, Article 416 of the Italian penal code punishes any form of criminal association.94 Therefore, it could have been applied in conjunction with Article 3(7) of Act no 75/1958. Other provisions against trafficking in human beings concerned the sexual exploitation of children and were adopted in 1998.95 Act 269/1998 referred to the Convention on the Rights of the Child,96 ratified by Italy in 1991.97 Act 269/1998 introduced, for the first time into Italian law the concept of sexual exploitation of children and it established a special police unit with the purpose to fight against this crime in co-operation with Europol and with other police units of other European
86 See Section 4(5) (a) above note 79. 87 See Section 4(5) (b) above note 79. 88 See section 6.2. 89 See Act 228/2003 ‘Misure contro la tratta di persone’ in Gazzetta Ufficiale 23/8/2003, no 195. 90 See Act 75/1958 ‘Abolizione della regolamentazione della prostituzione e lotta contro lo sfruttamento della prostituzione altrui’. In Gazzetta Ufficiale no. 55, 4/3/1958. 91 See Article 3(7) of Act 75/1958 above note 90. 92 See Article 416 of Codice Penale. R.D.N. 1398, 19/10/1930. In Gazzetta Ufficiale n. 251, 26/10/1930. See Cass. Pen. Sez. 1 sent. 21, 7/1/2003, rv. 223024. 93 See Cass. Pen. Sez. 1 sent. 21, 7/1/2003, rv. 223024. 94 See Article 416 above note 92. 95 See Act 269/1998 ‘Norme contro lo sfruttamento della prostituzione, della pornografia, del turismo sessuale in danno di minori, quali nuove forme di riduzione in schiavitù. In Gazzetta Ufficiale no 185, 10/8/1998 which, introduced Articles 600bis, 600ter, 600quater,600quinquies, 600sexies and 600septies to the Italian Codice Penale above note 92. 96 See Convention on the Rights of the Child. Adopted by the General Assembly Resolution 44/25 of 20 November 1989. 97 See Article 1(1) of Act 269/1998 above note 95.
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countries.98 Act 269/1998 did not foresee the case of trafficking in children but their exploitation for the purpose of prostitution or for the purposes producing, commercialising or possessing pornographic material on children.99 In 1998 Legislative Decree 286/1998 introduced the concept of smuggling of migrants with the purpose of prostitution, exploitation of any person and the exploitation of children for any purpose.100 In 2002 Act 189/2002 inserted a new provision in Legislative Decree 286/1998101 which, established the punishment with imprisonment from five up to fifteen years for smugglers of migrants who committed this crime with the intent to recruit persons for the purpose of sexual exploitation or children for the purpose of any form of exploitation.102 Act 189/2002 added the concept of sexual exploitation to the exploitation of prostitution. Therefore, Italian law on trafficking in human beings only concentrated on trafficking in prostitutes and on sexual exploitation. The major modification to Italian legislation on trafficking in persons, was made by the introduction of Act 228/2003103 which, modified previous provisions of the Italian penal code.104 The previous Articles 600, 601 and 602 foresaw the crimes of slavery and commercialisation of slaves. Article 600 stated that any one who reduces a person to slavery is punished with imprisonment from five years up to fifteen years.105 Article 601 stated that the trafficking or commercialisation of slaves was punished with imprisonment from 5 years up to twenty years.106 Article 602 punished the purchase, cession, selling and possess of slaves with imprisonment from three years to twelve years.107 Act 228/2003 gave a more in depth definition of the concept of reduction to slavery and it stated that it consists of any form of subjection suffered by an individual and committed by a person for the purpose of forced labour, forced sexual acts, begging, or other acts of exploitation.108 The reduction to slavery could be committed by threat, violence, deception, abuse of power or abuse of a position of physical or psychical inferiority or of a situation of necessity or by the promise of economic advantage or other profit on those persons who exercise the authority over the person willing to reduce to slavery.109 In all these cases the new Article 600 foresees imprisonment from eight years to twenty years.110 The penalty is raised from one third to a half if the crime of reduction to slavery is committed against a minor
98 See Article 16(5 et 6) of Act 269/1998 above note 95. 99 See Articles 600bis, 600ter, 600quater of the Italian penal code above note 92 as modified by Act 269/1998 above note 95. 100 See Article 12 (3) of Legislative Decree 286/1998 ‘Testo unico delle disposizioni concernenti la disciplina dell’immigrazione e norme sulla condizione dello straniero. In Gazzetta Ufficiale no. 191, 18/8/1998. 101 See Article 11(1) (c) of Act 189/2002 ‘in Gazzetta Ufficiale no.199 26/08/2002 which introduced paragraph 3bis to Article 12 of Legislative Decree 286/1998 above note 100. 102 ibid note 101. 103 ibid note 89. 104 See Articles 600, 601, 602 and 416 of Codice penale above note 92 as modified by Articles 1,2,3,4 of Act 228/2003 above note 89. 105 See Article 600 of of Codice penale above note 92. 106 See Article 601 of of Codice penale above note 92. 107 See Article 602 of of Codice penale above note 92. 108 See Article 600 (1) of Codice penale above note 92 as modified by Article 1 (1) of Act 228/2003 above note 89. 109 See Article 600 (2) of Codice penale above note 92 as modified by Article 1 (2) of Act 228/2003 above note 89. 110 above note 108.
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under eighteen years old or for the purpose of prostitution or withdrawal of organs.111 The Italian court of last resort called Corte di Cassazione pointed that the new Article 600 defines the crime of reduction to slavery introduced by the Slavery Convention ratified in Italy in 1928.112 Article 601 defines the crime of trafficking in human beings consisting of transportation of persons from one State to another with the intent of exploiting these persons.113 Under Italian law, the crime of human trafficking shall be committed by deception, force, threat, abuse of authority or abuse of the inferiority of the person subject to human trafficking.114 Article 600 establishes imprisonment from eight up to twenty years for those persons who commit this crime.115 Moreover, the penalty increases if minors under eighteen years old are trafficked or if persons are trafficked for the purpose of prostitution or for the purpose of withdrawal of organs.116 Moreover, persons who commercialise slaves are punished with imprisonment from eight years up to twenty years.117 The imprisonment for persons who commercialise slaves will increase if the victim is a minor under eighteen years old or if persons are commercialised for the purpose of prostitution or for the purpose of withdrawal of organs.118 The sexual exploitation of minors under eighteen years old is also severely punished by Act 38/2006.119 Moreover, Act 228/2003 punishes criminal organisations that commit trafficking in human beings, reduction in slavery and commercialisation of slaves.120 Italian law on human trafficking is similar to the Council of Europe Convention on Action against Trafficking in Human Beings that Italy has signed on 8/6/2005.121 Italian law on human trafficking did not take into consideration the UNTOC Trafficking Protocol because Italy has not yet ratified the UNTOC Trafficking Protocol.122 In conclusion, British and Italian law on human trafficking are very strict because they consider trafficking in human beings a form of slavery. It could be added that British and Italian definitions on human trafficking are quite similar.
111 See Article 600 (3) of Codice penale above note 92 as modified by Article 1 (3) of Act 228/2003 above note 89. 112 See the Geneva Slavery Convention of 25/9/1926. In United Nations, Treaty Series, vol. 212. See the Act of ratification R.d. 26/4/1928, no 1723. See also Cass. Pen. Sez. 6, sent. 81, 4/1/2005, rv. 230777. 113 See Article 601 (1) of Codice penale above note 92 as modified by Article 2(1) of Act 228/2003 above note 89. 114 above note 113. 115 above note 113. 116 See Article 601 (2) of Codice penale above note 92 as modified by Article 2(2) of Act 228/2003 above note 89. 117 See Article 602 (1) of Codice penale above note 92 as modified by Article 3(1) of Act 228/2003 above note 89. 118 See Article 602(2) of Codice penale above note 92 as modified by Article 3(2) of Act 228/2003 above note 89. 119 See Act 38/2006 ‘Disposizioni in materia di lotta contro lo sfruttamento sessuale dei bambini e la pedopornografia anche a mezzo Internet’ . On Gazzetta Ufficiale no. 38, 15/2/2006. 120 See Article 416(3) of Codice penale above note 92 as modified by Article 4 of Act 228/2003 above note 89. 121 See
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6. Protecting victims of human trafficking in the UK to reduce their victimisation 6.1 The Council of Europe Convention British law provides for the protection of victims of human trafficking by a case-by case approach only,123 although the British Joint Committee on Human Rights have estimated that the UK is one of the main European countries of destination for the victims of human trafficking for the purpose of sexual exploitation.124 The UK has signed the Council of Europe Convention on human trafficking on 23 March 2007 but it has not ratified it.125 In the government there is who says that this Convention should be ratified because it would oblige the government to protect all victims of trafficking and not only victims trafficked for the purpose of sexual exploitation.126 Moreover, those from the government who support ratification emphasise that this Convention would allow automatic reflection periods and residence permit to victims and this would reinforce the protection of victims and the prosecution of traffickers.127 In contrast, there is who says that the Convention should not be ratified because the automatic reflection periods and residence permit would encourage those irregular migrants who are not victims of human trafficking to make false claims to avoid deportation.128 However, one thinks that this is not true because, as it will be shown below, 129 victims are reluctant to report their exploiters as they fear retaliation. The government also pointed out that the automatic reflective periods and residence permit could delay investigations while victims decide to co-operate or not with law enforcement authorities and this delay could cause loss of important evidence.130 This last statement should not prevent the UK government from adopting a law on the protection of victims of human trafficking. In other words, their protection should not be bound by the fact that victims decide to co-operate with police forces. The reason for this is because victims who are in the UK irregularly might be reluctant to approach public authorities because they are concerned to be returned to their countries of origin and charged for immigration offences.131 There are then people who do not want to approach public authorities because they distrust them as in their countries of origin public authorities are corrupted.132 Finally, binding the release of a permanent residence permit to the decision of victims to co- operate with law enforcement authorities would not respect the requirements of Framework Decision 2002/629/JHA that expressly specifies that the protection of human trafficking victims’ ‘…shall not be dependent on the report or accusation made by a person’…133 when the crime has been committed wholly on the territory of one EU Member State.134
123 See Joint Committee on Human Rights ‘Human trafficking’. (Session 2005-06, 26th report, HL 245- 1 and HC 1127-1). Report together with Formal Minutes, 27. 124 See Joint Committee on Human Rights ‘Human trafficking’ above note 123, 28. 125 See http://www.coe.int/t/DG2/TRAFFICKING/campaign/Docs/Profiles/UK%20Profile_en.asp, accessed on 27/5/2007 126 See Joint Committee on Human Rights above note 124, 25 at 26. 127 See Joint Committee on Human Rights above note 124, 25. 128 above note 127. 129 See sections 7.2 and 7.3. 130 above note 127. 131 above note 127. 132 above note 127. 133 See Article 7(1) of Council Framework Decision 2002/629/JHA above note 23. 134 See Articles 6(1) (a) and 7(1) of Council Framework Decision 2002/629/JHA above note 23.
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6.2 The UNTOC Trafficking Protocol and other UK laws on the protection of victims of human trafficking The UK has ratified the UNTOC Trafficking Protocol.135 The Trafficking Protocol requires States Parties to protect victims of human trafficking, with particular attention to women and children and not to other victims of human trafficking136 and thus it has a narrower scope compared to the Council of Europe Convention. Nevertheless, it obliges States Parties, including the UK, to approve at least legislation in protection of human trafficking victims’, who are women and children. However, the fact that UK is not a party to the EC Directive on the protection of victims of trafficking in persons137 makes the introduction of law in protection of victims of human trafficking, very difficult. Certainly, in the UK victims of human trafficking can be recognised asylum under the Geneva Convention or other forms of protection under the Human Rights Act 1998 (European Convention on Human Rights),138 although sometimes their request has been rejected. Certainly, in some cases women were recognised protection under the Refugee Convention because they were discriminated as belonging to a particular social group,139 and victims of human trafficking for sexual exploitation obtained the status of refugees or other forms of humanitarian protection because their countries of origin did not have adequate law against human trafficking for sexual exploitation.140 In other cases however, although there was evidence that the claimant had been sexually exploited and that her husband would have been violent to her at her return, she was not granted the status of refugee or other humanitarian protection because her country of origin had adequate law that could have protected her.141 Nevertheless, when victims claimed Article 3 European Convention on Human Rights (ECHR),142 the Strasbourg Court decided not to return them to their countries of origin because there was a high risk that they would have suffered inhuman and degrading treatment.143 However, the victims of human trafficking should not demonstrate that they need the legal protection on the basis of the Refugee Convention or of the ECHR. The reason for this is because, even if the countries of origin of human trafficking victims’ punish human trafficking, the victims would never be adequately protected, if they will continue to live in poor conditions in their countries of origin. In other words,
135 above note 122. 136 See Article 6 et seq. of the UNTOC Trafficking Protocol above note 57. 137 See Recital 21 of Council Directive 2004/81/EC above note 47. 138 See Richards, S., Steel, M., Singer, D., ‘Hope Betrayed: An analysis of women victims of trafficking and their claims for asylum’. Eaves-Poppy Project, 2006,12. 139 See Shah and Islam [1999] INLR 144. See also Secretary of State for the Home Department v. Lyudmila Dzygun (Immigration Appeal Tribunal), Appeal no. CC-50627-99 (00TH00728), 13 April 2000. 140 See Home Office Immigration & Nationality Directorate Home Office March 2004. Gender issues in the asylum claim Asylum Policy Instruction (API)
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returning to a position of poverty will make victims of human trafficking easy targets for criminal organisations ready to traffic them again.144 Moreover, it could be that the restrictive approach adopted by the UK and the relegation of all irregular migrants to detention camps without any distinction between human traffickers and their victims, might have facilitated the commission of human trafficking, especially because it is difficult to identify victims in detention centres. The Joint Committee on Human Rights revealed that victims of human trafficking have been kept in detention centres with other irregular migrants where it was impossible to identify people as victims.145 Therefore, it is desirable that the UK grants an automatic permanent residence permit to victims of human trafficking beyond the Refugee Convention and the ECHR and in the respect of the Council of Europe Convention on action against Trafficking in Human Beings. The new legislation against criminal organisations should also be reformed. Indeed, this legislation, although it establishes a form of protection for persons who want to witness against criminal organisations, does not address the issue of human trafficking victims’.146 The reason for this is because this new legislation states that people who can be protected have to be resident in the UK and have to be witnesses in criminal proceedings against members of criminal organisations.147 Victims of human trafficking are not mentioned by this legislation and if they are irregular migrants, they cannot be protected because they are not legally resident in the UK. Organised Crime and Police Act 2005 (SOCA) considers the fight against human trafficking as a priority with the fight against drug trafficking. 148 Nevertheless, if the SOCA will not provide assistance for victims of human trafficking, it will not reduce the commission of this crime. In conclusion, the UK does not have legislation ad hoc on victims of human traffickers. Moreover, a shelter can only be provided on a discretionary basis, to 25 victims of human trafficking for sexual exploitation. The next section examines this issue.
6.3 The Poppy Project and its inadequacy in protecting victims of human trafficking The British Home Office funds a project called the Poppy project149 which provides a shelter to trafficked women who are not minors. Indeed, children cannot be admitted to the Poppy Project. 150 In 2004 a place was opened in Sussex with the purpose of providing protection to children aged between 16 and 17 years old.151 However, this place was closed after few weeks partly because there were not enough referrals.152 From 2004 no other projects have been organised in order to accommodate children who are victims of human trafficking.153 The Poppy project reported that children do not receive enough support and it seems that children in the
144 See Joint Committee on Human Rights above note 124, 47. 145 See Joint Committee on Human Rights above note 124, 49. 146 See Section 82 et seq., of Serious Organised Crime and Police Act 2005. 147 See Section 82(1) (b) and Schedule 5 of Serious Organised Crime and Police Act 2005. 148 See Joint Committee on Human Rights above note 124, 42. 149 See
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UK are put through the immigration and asylum process without the recognition of their special needs to be protected from human traffickers. 154 The Poppy project can only accommodate up to twenty-five women victims of trafficking for sexual exploitation.155 Victims are hosted by the Poppy project between 8 months to a year156 and afterwards many of them are returned to their countries of origin. Trafficked women to be admitted to the Poppy project, must meet specific criteria consisting of having been brought to the UK, having worked as prostitutes in the last thirty days in the UK, having been forcibly exploited, having gone forward to the authorities and having shown the will to co-operate with the authorities.157 Nevertheless, these criteria can be evaluated with much discretion. 158 Indeed, 15 of the 99 women accepted for the project in between 2003 and 2006, did not meet all criteria required.159 However, many women were not admitted because there was not enough space to accommodate them.160 The project is divided into two stages one available for a period of time not exceeding four weeks and another stage available for a period of time in between six and twelve weeks.161 In the first stage, the victim enjoys a short-term accommodation, health assessment, access to legal services, interpretation and translation service, information on the support she would receive if she decided to assist the authorities and liaison with police and immigration officials.162 On the second stage, victims are required to co-operate with law enforcement authorities and on the basis of this co-operation, they can obtain further support.163 It must be specified that there is not a legal obligation in the UK to grant protection to trafficked women. Moreover, three facts have to be pointed out. Firstly, the protection of victims of human trafficking for sexual exploitation may only be granted to victims who decide to co-operate with law enforcement authorities. Certainly, the Poppy Project can apply with discretion the criterion on the decision to co-operate with law enforcement authorities. However, this criterion should be completely abolished because in many cases victims in the UK do not want to accuse their exploiters because they fear retaliation. 164 Secondly, the UK does not grant any form of legal protection to victims of human trafficking for other purposes, apart from the sexual exploitation. Certainly, the UK opened a multi- agency unit to deal with any form of human trafficking, which is operational from 2nd October 2006.165 This multi-agency is called the UK Human Trafficking Centre (UKHTC) and is based in Sheffield. 166 The UKHTC might extend protection to victims of any form of trafficking, although it is too premature now to evaluate this. Thirdly, the Poppy Project is the only non-governmental organisation that provides a shelter for some victims of human trafficking for sexual exploitation.167 Another project similar to the Poppy Project should be organised in Glasgow, although at the
154 See Joint Committee on Human Rights above note 124, 55. 155 See
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moment the Poppy Project in London is unique in all the UK.168 Moreover, other NGOs and voluntary organisations that offer assistance to human traffickers victims’ do not receive enough funding and for this reason they are not able, in many cases, to provide assistance. 169 The next section examines Italian law where the trafficking in human beings is approached in a more advanced way. It could be highlighted that if all police forces in Italy applied the Italian law on human trafficking, this crime could be dramatically reduced. However, there is one factor that should be considered. Restrictive laws on irregular migration, have contributed to the automatic expulsion of irregular migrants without encouraging police forces to investigate if the irregular migrants were victims of human traffickers. Consequently, the application of the law on protection of victims of human trafficking has been left to the ‘good will’ of police forces which were keened to defeat the human trafficking. This situation happened in Rimini an Italian city where police forces were respectful of the law on human trafficking and defeated the human trafficking for sexual exploitation by the integration of victims on the Italian territory through the issue of a visa.170
7. Italian law on protection of human trafficking victims’ 7.1 Article 18 of Legislative decree 286/1998 Italy has ratified the Trafficking Protocol but not the Council of Europe Convention against trafficking in human beings.171 The ratification of both Conventions is essential to develop international co-operation against trafficking in human beings. Nevertheless, provisions have been adopted in Italy on the protection of victims of human trafficking and they consist of establishing a fund in favour of human trafficking victims,172 accommodation and health assistance.173 Finally, Italian legislation foresees the adoption of important preventive measures against human trafficking.174 These measures shall consist of international co-operation, information campaigns and co-operation with countries of origins of human trafficking victims.175 However, the most advanced provision is Article 18 of Legislative Decree 286/1998.176 The British Joint Committee on Human Rights stated: ‘…we were highly impressed by the way in which the proactive victim- centred approach adopted in that country has allowed such high numbers of trafficking victims to be supported and ultimately integrated into Italian society’. 177 Therefore, the UK should adopt provisions on the model of the Italian provisions for the reasons explained below in this same section. The most important difference between Italian law on human trafficking and British law is made by Article 18 of the Legislative Decree 286/1998.178 This Article is revolutionary because it permits to recover all victims of human trafficking by
168 See
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granting them an automatic resident permit.179 Article 18 (1) of the Italian Legislative Decree 286/1998 which was not modified by Act 189/2002, states ‘When, during police’s operations or inquiries or proceedings, for a criminal offence of the article 3 of Law 20 February 1958, n. 75180 or one of those described at the article 380 of Criminal Procedure Code,181 or during aid interventions of social services of local bodies, situations of violence or serious exploitations of a foreigner are found, and concrete dangers emerge for his or her life, as effects of trying to escape from the influence of an association dedicated to one of the above mentioned crimes, or because of the declarations made during preliminary enquiries or during the proceeding, the chief of the local Police headquarter, also on Public Prosecutor’s proposal, or with the favourable opinion of the same authority, releases a special permit of staying to give the opportunities to the foreigners to escape from the violence and from the influence of the criminal organisation and to participate in an assistance and social integration program’.182 This Article not only permits the integration of victims of human trafficking by the issue of a residence permit, when the victims decide to cooperate with law enforcement authorities in order to arrest traffickers of persons,183 but it also permits the issue of a residence permit to these people whether they decide not to cooperate with law enforcement authorities.184 The next sections explain how Article 18 Legislative Decree 286/1998 has been applied for the protection of victims of human trafficking and especially of victims of human trafficking for the purpose of sexual exploitation. Particularly, the next section explores how Italian police in Rimini were able to defeat human trafficking for sexual exploitation by applying Article 18 of Legislative Decree 286/1998 and how this Article can be applied to other forms of human trafficking.
7.2 The application of Article 18 Legislative decree 286/1998 and the so called ‘Rimini Method’ When an irregular migrant is arrested police forces should investigate if this person is a victim of human trafficking and not automatically expel him/her.185 Nevertheless, the legislation introduced by the Italian government in 2002 does not have any reference to Article 18 of Legislative Decree 286/1998 and it tried to make the expulsion automatic.186 Certainly, after the intervention of the Constitutional Court, the judicial authority must ratify the expulsion procedure.187 However, the new law does not state that the judicial authority has to check if the irregular migrant is victim
179 The official English version of Article 18 can also be found in ‘Tutela delle vittime del traffico di esseri umani e lotta alla criminalità. L’Italia e gli scenari europei. Rapporto di ricerca’. On the Road Edizioni, 2002, p 327-330. 180 This Act refers to sexual exploitation of women. 181 Article 380 of the Italian Criminal Procedure Code refers to crimes of serious entity such as reduction to slavery and terrorism. 182 See official English version above note 179, of Article 18(1) of Legislative Decree 286/1998 above note 100. 183 See section 7.2. 184 See section 7.3. 185 See Articles 13 and 18 of Legislative Decree 286/1998 above note 100. 186 See Article 13 of Legislative Decree 286/1998 above note 100 as modified by Article 12 of Act 189/2002 in Gazzetta Ufficiale no.199 26.08.2002, supplemento ordinario. 187 See judgement of the Italian Constitutional Court no 222, 8-15 luglio 2004, in Gazzetta Ufficiale no.28, 21.7.2004.
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of human trafficking.188 In other words, many irregular migrants may have been deported without investigating whether they were victims of human trafficking.189 This thought is confirmed by the British Human Rights Committee which reported that in few isolated cases victims of human trafficking were deported after having been informed of their rights to claim Article 18 Legislative Decree 286/1998.190 Therefore, checking if irregular migrants are victims of human trafficking is left to the discretion of law enforcement authorities because there is no provision that links Article 18 to measures on irregular migration. In Rimini the police authorities took the decision to check if the irregular migrants were also victims of trafficking for the purpose of sexual exploitation and they took the decision to advise victims of human trafficking of their right to invoke Article 18. By this method, called the Rimini Method, they defeated this form of trafficking in Rimini. The Rimini Method should be copied by police forces all over Italy and in the UK. This case is unique in Italy. Certainly, in other parts of Italy victims have also been recovered on a case by case basis.191 However, the Rimini Method is singular because it concerned the whole city. Instead, in other parts of Italy the recover of victims only concerned individual cases and the crime of human trafficking has not been defeated. The author of this article interviewed Sabato Riccio who is the head of investigative office of Polizia di Stato in Rimini. The work of Polizia di Stato in Rimini and the fact that they applied Article 18 of Legislative Decree 286/1998 has become a model for other investigative offices of Polizia di Stato in Italy. This is the reason why the work carried out by Polizia di Stato in Rimini is known as Rimini Method.192 Riccio said that before 1998 when prostitutes were arrested the police had the legal obligation to deport them to their countries of origin.193 Riccio said that also after 1998 prostitutes who did not have the visa should have been deported.194 However, he also emphasised that Article 18 of Legislative Decree 286/1998 states that if prostitutes are victims of sexual exploitation and accept to report their exploiters, they could obtain a visa.195 Riccio pointed out that the expulsion of prostitutes who were irregular migrants was counter-productive because these women after being expelled and deported, were able to return to Italy to work again as prostitutes and become again victims of human traffickers.196 Therefore, the Polizia di Stato in Rimini applied Article 18 of Legislative Decree 286/1998 by asking victims if they wanted to co-operate with police in order to arrest their exploiters. If prostitutes reported their exploiters, they were subsequently transferred to the Association of Pope John XXIII197 and this association started a process of integration with prostitutes by providing them a job and a visa.198 Riccio said that the Polizia di Stato worked in order to obtain the trust of victims of human trafficking for the purpose of sexual
188 See Article 1 of Legislative Decree no 241/2004., Gazzetta Ufficiale no 216, 14.9.2004. See Decree of conversion in law no 271/2004 in Gazzetta Ufficiale no. 267 of 14 November 2004. 189 See “ Associazione Papa Giovanni XXIII” And “Prostitution in Italy and the Law”, 9. Paper received by Giampiero Cofano on 19/4/2006. 190 above note 177. 191 See Joint Committee on Human Rights above note 124, 62. 192 Interview with Sabato Riccio, head of investigative office of Polizia di Stato in Rimini, held on 12/6/2006. 193 above note 192. 194 above note 192. 195 above note 192. 196 above note 192. 197 See section 7.3. 198 above note 192.
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exploitation and in this way victims assisted in the arrest of their exploiters.199 Certainly, at the beginning of the Polizia di Stato’s work in Rimini, it was very difficult to convince victims to cooperate.200 Nevertheless, gaining their trust was very important because Riccio said that initially, although women lived in condition of slavery and although criminals used to torture them in order to force them to become prostitutes, these women were reluctant to cooperate because they feared retaliation against their families in their countries of origin.201 Riccio highlighted that the peril of retaliation is real because it has been reported that in some cases criminal organisations have killed family members of victims who decided to cooperate with the police.202 However, the police in Rimini gained the trust of victims and many women decided to co-operate with police in order to arrest the criminals involved with human trafficking for sexual exploitation. 203 By the Rimini Method, the prostitution on the roads in Rimini has been defeated.204 Indeed, if in 1998 there were 700-800 prostitutes on the roads in Rimini, now there are around ten who mainly are not forced prostitutes,205 whilst the phenomenon of human trafficking, including the sexual exploitation of women is increased in other parts of Italy where a case-by case approach has been adopted.206 Riccio said that his investigative office has been successful simply because they have applied Article 18 of Legislative Decree 286/1998.207 Moreover, Riccio said that Article 18 can be applied to other forms of human trafficking and not only to the sexual exploitation who accept to cooperate with police because this Article can be extended to all crimes that require to protect victims, in order to cooperate with police forces.208 However, Article 18 Legislative Decree 286/1998 can be also applied to victims of human trafficking who do not cooperate with law enforcement authorities. The next section examines this particular aspect of Article 18.
7.3 The ‘Rimini Method’ and the legal protection of human trafficking victims’ who do not cooperate with police forces The Rimini Method also consists of protecting victims of human traffickers by granting them a visa, even if they do not co-operate with police authorities, in order to arrest their exploiters. The author of this thesis interviewed Giampiero Cofano on the meaning of Article 18 of Legislative Decree 286/1998.209 Cofano is the co-ordinator of the ‘Association Pope John XXIII’ founded by father Oreste Benzi in the fifties. This association is one of the ninety associations existing on the Italian territory that provide a shelter to victims of human trafficking. 210 This Association is similar to the Poppy project, although is bigger and provides a shelter not only to victims of human trafficking for sexual exploitation, but also to other victims of human trafficking such as minors under eighteen years old exploited by human traffickers for the purpose of begging
199 above note 192. 200 above note 192. 201 above note 192. 202 above note 192. 203 above note 192. 204 above note 192. 205 above note 192. 206 See
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and men exploited because they have to re-pay the price of their journey to Italy.211 One was told by Cofano that the Association Pope John XXIII provides a shelter to up 300 or 400 victims per project which lasts from one year to one year and half.212 This Association has its headquarter in Rimini and decentralised offices in all the twenty Italian regions.213 Moreover, the Association Pope John XXIII has other centres abroad in Bangladesh, Bolivia, Brazil, Chile, Kenya, Russia, Tanzania and Zambia.214 This Association is also opening a centre in France.215 Cofano has worked with victims of human trafficking since the early nineties and its centre in Rimini has provided a shelter for 5,500 victims.216 Actually, the centre in Rimini hosts 350 victims.217 Usually victims come from Eastern Europe, Latin America, Africa and Asia. 218 Cofano said that Article 18 of Legislative Decree 286/1998 applies to all human trafficking victims’ and it establishes that the visa can be issued either if victims decide to co-operate with law enforcement authorities or if they do not take this decision.219 In the first case, victims report their exploiters and a collaboration with law-enforcement authorities starts and continues until the arrest and prosecution of exploiters.220 In the second case, the Association Pope John XXIII, may take the initiative to request Italian authorities to issue a visa in Italy to victims who live a situation of exploitation.221 Therefore, the release of a visa is not bound by the acceptance or refusal of victims to co-operate with law enforcement authorities.222 The visa is issued to ensure that victims are not exploited any more by criminal organisations.223 Certainly, Article 18 of Legislative Decree 286/1998 is very important because it helps victims to report their exploiters by encouraging them to seek the assistance of the associations that provide a shelter to victims of human trafficking. An example could better clarify this issue. The Association Pope John XXIII is composed of volunteers available for help on a 24 hours basis and who seek victims of human trafficking on the road because in many cases it is unlikely that victims report their exploiters to the police because they fear retaliation.224 Usually, people from Nigeria, for example, are trafficked by the same people who smuggled them, whilst people from Eastern Europe are sold by their smugglers to their traffickers when they reach their countries of destination.225 This differentiation makes people from Nigeria reluctant to co-operate with law enforcement authorities because it is more likely that their exploiters, if reported to the police, will retaliate against the families of their victims as they know who they are.226 Instead, it is unlikely for people from Eastern Europe that their exploiters will retaliate against their families as their exploiters are not the people who smuggled them and thus, they
211 above note 209. 212 above note 209. 213 above note 209. 214 above note 209. 215 above note 209. 216 above note 209. 217 above note 209. 218 above note 209. 219 above note 209. 220 above note 209. 221 above note 209. 222 above note 209. 223 above note 209. 224 above note 209. 225 above note 209. 226 above note 209.
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do not know who the families of their victims are.227 It is thought that Article 18 of legislative Decree 286/1998 takes into consideration all these different cases and for this reason it does not bind the issue of a visa to the will of victims of human trafficking to co-operate with law enforcement authorities’. The Association Pope John XXIII reassures victims of human trafficking by telling them that they will be protected by this Association and that they will be provided with a resident permit and with a job228 because Article 18 of Legislative Decree 286/1998 permits reintegration of victims by providing victims with a job or study.229 In this way victims do not go back on the road and fully reintegrate into the Italian society. It is thought that this is the main reason why trafficking in human beings for sexual exploitation on the road was defeated in Rimini. Certainly, the work of Polizia di Stato helped. However, if victims had not been provided with a visa and a job, they would have returned to Rimini to work as prostitutes as in their countries of origin they would have returned to the state of poverty they left. Cofano pointed out that there is a vicious circle for victims of human traffickers because if Italian authorities expel irregular migrants without checking if they are victims of human trafficking, these people after returned to their countries of origin will be contacted again by their exploiters and will return on Italian territory as victims of human trafficking.230 It has been reported that from when the Italian government has implemented restrictive law against irregular migration, many potential victims have been returned to their countries of origin before it could be established if they had been trafficked.231 Therefore, victims of human trafficking should be persuaded not to return to their countries of origin, unless it is guaranteed that they will not return in the state of poverty they left in their countries of origin. Obviously, Cofano highlighted,232 that human trafficking victims’ can decide if they want to continue to stay in Italy. In this case the Association Pope John XIII will organise a repatriation programme which consists of checking if it is not dangerous for recovered victims to return to their countries of origin or if it is not dangerous for the families of victims who received threats by criminal organisations behind the human trafficking.233 Moreover, returned victims will be provided with training established through cooperation agreements with training societies and local firms.234 These trainings will help recovered victims to become hairdressers or to attend secretarial schools, factories or to work in the manufacturing sector or as nannies.235 Nevertheless, in many cases victims should not return to their countries of origin to prevent their re-victimisation and other perils such as their death. Indeed, it is very well known by the Association Pope John XXIII the story of a 21 years old Albanian girl called Lauretta Kikia.236 This girl was victim of human trafficking for sexual exploitation till the Association Pope John XXIII provided a shelter for her and a
227 above note 209. 228 above note 209. 229 See Article 18 ((5) of legislative Decree 286/1998 above note 100. 230 above note 209. 231 above note 189. 232 above note 209. 233 See “ Associazione Papa Giovanni XXIII” And “Prostitution in Italy and the Law” above note 189, 9. 234 above note 233. 235 See “ Associazione Papa Giovanni XXIII” And “Prostitution in Italy and the Law” above note 189, 9 et 10. 236 See
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programme of integration.237 Lauretta was learning Italian and had started to work in Italy.238 Unfortunately, she decided to return to Albania, although the volunteers of the Association Pope John XXIII tried to convince her to remain in Italy because there were not the conditions for a safe return and reintegration in her country of origin. 239 However, she wanted to see her family and after her return to Albania, she was recruited for the purpose of sexual exploitation and sent again to Italy where she was found dead in Tuscany in 2005. 240 There are other dramatic stories like this.241 Moreover, many stories concerning other forms of human trafficking remain unknown. In conclusion, it could be noted that there are many differences between Italian law and British law on human trafficking because the latter does not provide legal protection to victims of human trafficking such as the issue of an automatic visa. Moreover, in the UK victims of human trafficking may be protected only if they could demonstrate that they deserve legal protection under the Refugees Convention or under Articles 3 of Human Rights Act 1998.242 The UK should modify its law because the Joint Committee on Human Rights emphasised that they did not find any evidence in Italy that suggests that granting an automatic residence permit to victims of trafficking in human beings, according to Article 18, was a pull factor for fraudulent claims made by irregular migrants who are not victims of trafficking.243 In contrast, the application of Article 18 on a case-by case basis in other Italian cities, has not contributed to defeat human trafficking. Moreover, it was shown in this article that the peril of losing evidence might be over-come by convincing victims to trust police forces as it happened in Rimini. In any case, one thinks that the release of a residence permit should not be bound to the acceptance of victims to co-operate with police. Indeed, in this way, trafficking was defeated in Rimini. Therefore, the UK could grant reflection periods and residence permit to victims of human trafficking and for this purpose, it should ratify the Council of Europe Convention on trafficking in human beings. Finally, Italy should permit a link between Article 18 and the laws on the expulsion of irregular migrants. In this way, it would be possible to recover many victims of trafficking in human beings.
8. Conclusions This article focused on the protection of human trafficking victims. It showed that at international and EU level there are adequate laws on the protection of this category of people. Moreover, this Article concentrated on the UK and Italy because their laws approach on different ways the protection of victims of human trafficking. Indeed, the UK binds the protection of these victims to the Convention of Refugees or to the Human Rights Act 1998. In contrast, Italian law establishes a form of protection to human trafficking victims’ consisting of granting them an automatic residence permit simple because these people have been victims of human trafficking. In this way, when the Italian law has been appropriately applied, victims have been recovered. Therefore, the issue of a residence permit is a positive initiative that should also be
237 above note 236. 238 above note 236. 239 above note 236. 240 above note 236. 241 See Benzi, O., Prostitute Vi Passeranno Davanti Nel Regno Dei Cieli. (2001) Arnoldo Mondatori Editore. 242 See section 6.2. 243 See Joint Committee on Human Rights above note 124, 27.
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extended to the UK. Moreover, it should not be bound to the fact that victims co- operate with police forces. Therefore, it is important that the UK applies a specific law on the protection of victims of human trafficking and a first step in this sense should be done by ratifying the Council of Europe Convention on action against Trafficking in Human Beings because this Convention obliges States Parties to issue a reflection period and a residence permit to victims of human trafficking without binding it to their willingness to report their exploiters. The Joint Committee on Human Rights pointed out: ‘We are firm in the belief that the UK should… ratify the Council of Europe Convention. We can see no convincing argument against this course of action. While it would be possible for the UK to construct a coherent human rights based approach to tackling human trafficking outside the Convention, adherence to it in concert with the other nations of the Council of Europe will in our view greatly strengthen the framework of anti-trafficking policy in the UK, notably in relation to the core matter of the protection of victims’.244
244 See Joint Committee on Human Rights above note 124, 66.
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