Model Legislative Provisions Against Trafficking in Persons

MODEL LEGISLATIVE PROVISIONS AGAINST TRAFFICKING IN PERSONS 1 UNITED NATIONS OFFICE ON DRUGS AND CRIME VIENNA MODEL LEGISLATIVE PROVISIONS AGAINST TRAFFICKING IN PERSONS UNITED NATIONS Vienna, 2020 ©United Nations 2020. The designations employed and the presentation of material in this publication do not imply the expression of any opinion whatsoever on the part of the Secretariat of the United Nations concerning the legal status of any country, territory, city or area, or of its authorities, or concerning the delimitation of its frontiers or boundaries. This publication has not been formally edited. Cover drawing and artwork, © Yasser Rezahi. Publishing production: English, Publishing and Library Section, United Nations Office at Vienna. ACKNOWLEDGEMENTS Many experts and organizations contributed to the preparation of the Model Legislative Provisions against Traf- ficking in Persons. The United Nations Office on Drugs and Crime (UNODC) extends its appreciation to all those who directly contributed through participation in the Expert Group Meetings and to those who have shared their knowledge, insights and experience in this field of work over the years by reviewing and providing comments on the text. This project was conducted under the responsibility of the UNODC Human Trafficking and Migrant Smuggling ACKNOWLEDGEMENTS Section, Organized Crime and Illicit Trafficking Branch, Division for Treaty Affairs (DTA/OCB/HTMSS) and benefited from the significant experience of its members. Numerous UNODC staff from other functions also contributed to its completion. This publication was supported through the generous contribution of the Government of Switzerland. The con- tents are the sole responsibility of UNODC and do not necessarily reflect the views of the Government of Switzer- land. This publication may be reproduced in whole or in part and in any form for educational or non-profit purposes without special permission from the copyright holder, provided acknowledgement of the source is made. UNODC would appreciate receiving a copy of any publication that uses this publication as a source (please email [email protected]). INTRODUCTION 9 PREAMBLE 12 CHAPTER 1 – GENERAL PROVISIONS 13 Article 1 14 Article 2 – Commencement 14 Article 3 – General principles 14 Article 4 – Scope of application 16 OF CONTENT TABLE Article 5 – Saving clause 16 CHAPTER 2 – DEFINITIONS AND GUIDANCE ON KEY CONCEPTS 17 Introduction 18 Article 6 – Definitions 18 CHAPTER 3 – JURISDICTION AND LIABILITY OF LEGAL PERSONS 26 Introduction 26 Article 7 – Jurisdictional provisions governing application of criminal law 27 Article 8 – Additional jurisdictional provisions governing application of criminal law 28 Article 9 – Liability of legal persons 30 CHAPTER 4 – CRIMINAL OFFENCES AND RELATED PROVISIONS 32 Introduction 33 Article 10 – Human Trafficking Offence and Elements of the Crime 33 Article 11 – Irrelevance of consent of the victim in establishing guilt 39 Article 12 – Aggravating circumstances 40 CHAPTER 5 – CRIMINAL PROVISIONS & ANCILLARY OFFENCES 43 Introduction 44 Article 13 – Non-punishment of victims of trafficking in persons 44 Attempts and Modes of Participation in Trafficking in Persons Offences 49 Article 14 – Participating as an accomplice 50 Article 15 – Organizing and directing to commit an offence 50 Article16 – Attempt 51 Other Criminal Offences 52 Introduction 52 Article 17 – Use of services and goods provided by victims of trafficking 52 Article 18 – Documents Offences 53 Article 19 – Duty of Commercial Carriers 54 CHAPTER 6 – VICTIM AND WITNESS PROTECTION, ASSISTANCE 55 AND COMPENSATION TABLE OF CONTENT TABLE Introduction 56 Article 20 – Identification of victims of trafficking in persons 56 Article 21 – Recovery and reflection period 57 Article 22 – Information to victims 59 Article 23 – Provision of benefits and services to victims of trafficking in persons 60 Article 24 – General protection of victims and witnesses 63 Article 25 – Child victims and witnesses 64 Article 26 – Protection of victims and witnesses in court 65 Article 27 – Participation in the criminal justice process 66 Article 28 – Protection of data and privacy 67 Article 29 – Unlawful disclosure of the identity of victims and/or witnesses 68 Article 30 – Relocation of victims and/or witnesses 68 Article 31 – Compensation through Restitution 71 Article 32 – Compensation through Victim Funds 73 Article 33 – Compensation through Civil Action 76 CHAPTER 7 – IMMIGRATION AND REPATRIATION 78 Introduction 79 Article 34 – Temporary or permanent residence permit 79 Article 35 – Return of victims of trafficking in persons to [name of State] 82 Article 36 – Repatriation of victims of trafficking in persons 83 Article 37 – Verification of legitimacy and validity of documents upon request 84 CHAPTER 8 – PREVENTION, TRAINING AND COOPERATION 85 Introduction 86 Article 38 – Establishment of a national anti-trafficking coordinating body [inter-agency 87 anti-trafficking task force] Article 39 – Establishment of the office of a national rapporteur [national monitoring and 91 reporting mechanism] Article 40 – National cooperation 92 CHAPTER 9 – REGULATORY POWER 93 Article 41 – Rules and regulations 94 ANNEXES 95 ANNEX A – TRAFFICKING OFFENCES AND PENALTIES 96 ANNEX B – NON-PUNISHMENT PROVISIONS 167 TABLE OF CONTENT TABLE ANNEX C – PROVISIONS CONCERNING THE COMPENSATION OF VICTIMS 182 1.INTRODUCTION In 2009, the United Nations Office on Drugs and Crime (UNODC) published the Model Law against Trafficking in Persons in response to the request of the General Assembly to promote and support the ratification of the Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children (“Trafficking in Persons Protocol”) by Member States. At the end of 2009, there were 135 States Parties to the Protocol; at the end of 2020, there were 178 States Parties to the Protocol. Despite the fact that the Trafficking in Persons Protocol is I. INTRODUCTION approaching universal ratification, there remains an ongoing need for implementation, and guidance to support such efforts. This revised document, the Model Legislative Provisions against Trafficking in Persons, is one way that UNODC supports Member States to better understand and apply the Trafficking in Persons Protocol. Trafficking in persons remains a crime of significant concern, driven by underlying socio-economic and security factors, affecting the majority of countries worldwide. Trafficking in persons is endemic, impacting millions of people and generating billions of dollars in illicit revenue on an annual basis. Simultaneously, the realities of trafficking in persons continue to evolve as do the practices employed by traffickers. Accordingly, legislators from around the world must remain vigilant and constantly assess the efficacy of their anti-trafficking efforts. HOW TO USE THIS DOCUMENT The development of a single and comprehensive document that can be used by legislators with different legal systems, constitutional frameworks, and social, political, economic and cultural frameworks is challenging. Nevertheless, policy makers and legislators may find this as a useful reference tool as they draft, amend or re- view their relevant legislation. The aim of this document is not to provide a “one-size-fits-all” or comprehensive set of provisions that can simply be replicated into domestic law. Rather, the model provisions and related commentary are designed to provide general guidance, along with relevant examples from different countries from around the world, of the major aspects of the Trafficking in Persons Protocol which can be implemented legislatively. When doing so, legislators must ensure that the proposed changes are drafted in a manner that reflects not only their obligations but also the core policy objectives reflected in the relevant articles of the Protocol. At the same time, national legislation has to be informed by and developed in a manner that reflects each State’s legal traditions and social, economic, cultural and geographic conditions. Simply copying either text from the Trafficking in Persons Protocol or the Model Legislative Provisions will likely be insufficient and may, unintentionally, impede efforts to effectively address this crime. Parts of this document are presented in a way that might suggest the provisions are part of a stand-alone anti- trafficking statute. There is, however, no requirement that anti-trafficking provisions be contained in a distinct statute and many countries incorporate anti-trafficking provisions into existing statutes. Indeed, it may be pre- ferable to incorporate provisions into existing legislation rather than create new stand-alone instruments. Wha- tever approach is taken, legislators should ensure that all provisions are harmonized with the existing domestic legal system. A failure to do so risks creating confusion and can undermine the efficiency and effectiveness of the justice system. The Model Legislative Provisions should not be relied upon in isolation to support the development of domestic anti-trafficking responses. It is important to note that the Trafficking in Persons Protocol supplements the United Nations Convention against Transnational Organized Crime and should be interpreted together with the Conven- tion. Further, UNODC has produced a number of additional tools to support implementation of the Protocol. In particular, the Model Legislative Provisions should be read in conjunction with the revised Legislative Guide for the Implementation of the Protocol

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