Discovering Trafficking in Human Beings for the Purpose of Labour Exploitation and Forced Labour: European Perspective Vít Střítecký, Daniel Topinka et al. The preparation and publication of this work has been made possible by the financial assistance from the project of "Discovering Trafficking in Human Beings for the Purpose of Labour Exploitation and Forced Labour". PhDr. Vít Střítecký, M. Phil., Ph.D., PhDr. Daniel Topinka, Ph.D. et al. Discovering Trafficking in Human Beings for the Purpose of Labour Exploitation and Forced Labour: European Perspective La Strada Česká republika, o.p.s.., Prague 2013 The text has not been proofread. © Vít Střítecký, Daniel Topinka, 2013 © La Strada Česká republika, o.p.s., Prague, 2013 PHDR. VÍT STŘÍTECKÝ, M. PHIL., PH.D., PHDR. DANIEL TOPINKA, PH.D. ET AL. 2 1. Introduction 12 2. Trafficking in human beings –Making Sense of the Concept in Practice 13 3. Sexual exploitation in prostitution, consensual sex work, and trafficking 15 4. The fight against ‘illegal’ migration 18 5. The fight against organized crime 20 6. Forced labour, slavery and exploitation 21 7. New insights and developments 24 7.1. Movement as one of the defining elements of trafficking 24 7.2. Abuse of a position of vulnerability 27 7.3. Non-criminalization and non-punishment of trafficked persons 29 7.4. Emerging forms of exploitation and trafficking involving Persons 30 7.5. Coerced involvement in petty crime, drug smuggling and drug cultivation 31 7.6. Trafficking in Persons for the purpose of organ removal 31 7.7. Coerced involvement in benefit and other types of fraud 32 7.8. Sham marriages (marriages of Convenience) 33 7.9. Forced marriages 33 7.10. Surrogate motherhood 34 8. Conclusions 34 COMPARATIVE ANALYSIS OF EUROPEAN SENTENCES IN THE AREA OF TRAFFICKING IN PERSONS FOR THE PURPOSES OF LABOUR EXPLOITATION 37 1. Introduction 37 2. Theoretical part - legal aspects of trafficking in persons 39 3. Methodology 46 4. Case studies 47 4.1. Relevant legislative of selected countries and comparative analysis of individual passed sentences 47 4.1.1. Netherlands 47 4.1.1.1. Legislative and delimitation 47 4.1.1.2. Introducing the cases and their legal qualification 48 4.1.2. Germany 55 4.1.2.1. Legislation and delimitation 55 4.1.2.2. Introducing the cases and their legal qualification 61 4.1.3. Spain 64 4.1.3.1. Legislation and legislative scope 64 4.1.3.2. Introduction to relevant cases and their legal classification 65 4.1.4. Slovakia 67 4.1.4.1. Legislation and legislative scope 67 4.1.4.2. Introduction to relevant cases and their legal classification 71 4.1.5. Belgium 73 4.1.5.1. Legislation and legislative scope 74 4.1.5.2. Introduction to relevant cases and their legal classification 76 4.1.6. Bulgaria 80 4.1.6.1. Legislation and legislative scope 80 4.1.6.2. Introduction to relevant cases and their legal classification 82 4.1.7. Italy 83 4.1.7.1. Legislation and definition 83 4.1.7.2. Introducing the cases and their legal qualification 86 4.1.8. Romania 88 4.1.8.1. Legislation and definition 88 4.1.8.2. Introducing the cases and their legal qualification 91 4.2. The legal situation in the Czech Republic 95 4.3. Analysis of the judgments of Czech courts and their comparison with the judgments of the European courts 102 5. Conclusion: Proposals for resolving the situation in the Czech Republic 119 STRATEGIC ADVOCACY: FROM THEORY TO PRACTICE 127 1. Introduction 127 2. Methodology 128 3. Strategic Representation concept 132 3.1. Theory of Strategic Litigation 132 3.2. Legislative framework of strategic representation 139 3.2.1. Basic legal regulations 140 3.2.2. General information about process proceedings 142 3.2.2.1. Procedure proceedings 142 3.2.2.2. Criminal proceedings 142 3.2.3. Introduction to legal representation 144 3.2.4. The rights of victims of offences 146 3.2.4.1. The rights of the injured within criminal proceedings 147 3.2.4.3. On-off compensation from the state fund 152 3.3. Strategic representation within La Strada organization 154 4. Introduction of strategic Representation: From Theory to Practice 161 4.1. Preparation of Strategic Representation 161 4.2. Introduction to Practice 162 4.2.1. Dilemmas 174 4.3. Evaluation 176 5. Strategic representation from the perspective of the attorneys 177 5.1. The criterion of the criminal act of human trafficking - "used by somebody else" 177 5.2. The criterion of the criminal act of human trafficking - "distress" - in practice 178 5.3. The role of attorney 180 5.3.1. Commission for cooperation with client 180 5.3.2. Defence of the interests of the aggrieved, and accompany in lawsuit 181 5.3.3. Selection of proxy strategy 183 5.3.4. Proposal of damages 185 5.3.5. Cooperation with other participants 188 5.4. Role of the aggrieved 190 5.4.1. Reimbursement of non-proprietary loss 191 5.4.2. Position of the aggrieved in claiming damages in civil action 191 5.5. Recommendations 193 6. Conclusion 195 Introduction Vít Střítecký, Daniel Topinka, Irena Konečná Presented monograph is concerned with the important present legal topic that is the area of human trafficking for the purpose of other forms of exploitation and forced labour. According to the report of International Labour Organization (ILO, 2012) was possible to find in 2012 20.1 million people on the Earth that were the victims of forced labour. This methodologically sophisticated statistic (ILO, 2012b) of "modern day slavery" includes also the cases of human trafficking for the purposes of forced labour and sexual exploitation. Closer look at the above mentioned number indicates that globally speaking are approximately 3 people out of every thousand working under threats or pressure in the conditions similar to slavery. The latest ILO methodology does not specifically categorize the cases of human trafficking; however the next to last global report issued in 2005 mentioned 12 millions victims of forced labour in total, from which were 2.4 millions subjected to direct trafficking (ILO, 2005).1 Depicting the situation in Czech republic and other countries of EU in this book is illustrative of the fact, that the forced labour, often interconnected to the human trafficking, is not the prerogative of the developing world. Although the ILO statistics (ILO, 2012: 15-16) is dominated by the Asian-Pacific region (with the part of 56%), followed by Africa with 18%, we could still find approximately 1.5 million of forced labour workers in the developed countries and EU. From the statistics can be deduced that more than 90% of present day slaves are being exploited within the private sector. Out of this number, approximately one fourth of all cases is sexual exploitation and the rest are victims of forced labour in traditional sectors such as agriculture, construction, production or housework (ILO, 2012: 13-14), that are the major topic of this book. Without looking at the discussions questioning the relevance of the above mentioned numbers, it is clear that the phenomenon of the forced labor and the interconnected human trafficking requires the attention of civil service of individual states as well as of the international organisations. The analyses of human trafficking in Europe (Ruggiero, 1997; Friesendorf, 2007; Picarelli, 2009) indicate that the human trafficking is generating the profits irrespective of the employment choice of the trafficked persons. In the context of these cases, the activities of 1 As already mentioned, the results published in the 2012 Report are based on the changed methodology (comp. Kutnick, Belser, Danailova-Trainor, 2007) official, semi-official agencies or of unambiguously criminal groups, were proven and frequently all the parties were interconnected. Human trafficking and illegal, often forced labour, affected also the important European companies working in the field of textile industry or in the construction. These large groups were not participating directly on semi- legal and in the vast majority of cases purely illegal activities, they were doing so through various smaller sub-contracting companies, that were not included in the control mechanisms of established companies. In the end, the illegal activity connected to human trafficking and forced labour affected also the parties with higher ethic and commercial standard, which is indicative of the depth and complexity of the whole issue (Ruggiero, 1997: 241-242). In the context of the relative growth of human trafficking in the past two decades, which is connected to the growing political and economic interconnecting of the different parts of the world; there was also the rise in the activity of the national and international parties in the area of the fighting against this phenomenon. The key role in this field is played by the parties working in the law-enforcement agencies, whose goal is the prosecution of the human traffickers and the organizers of the forced labour, the protection of the victims of this kind of criminality and last but not least the prevention of this activity. The character of the human trafficking and extended criminal activities indicates the need of broad range view of law-enforcement agencies. Aside from the key law-enforcement agents considered as traditional, such as armed services, police, border service or immigration service,there are included also agents from the area of justice, the agencies responsible for the control of armed services or lately emerging private law-enforcement agencies (Friesendorf, 2009). This book is trying to show that different, but still important role is played by the governmental and above all by non-governmental institutions, that offer consulting, social services and protection to the victims.