COMMISSION OF THE EUROPEAN COMMUNITIES Brussels, 02.05.2006 SEC(2006) 525 COMMISSION STAFF WORKING DOCUMENT Annex to the REPORT FROM THE COMMISSION TO THE COUNCIL AND THE EUROPEAN PARLIAMENT based on Article 10 of the Council Framework Decision of 19 July 2002 on combating trafficking in human beings {COM(2006) 187 final} EN EN TABLE OF CONTENTS 1. ANALYSIS OF NATIONAL MEASURES TAKEN TO COMPLY WITH THE FRAMEWORK DECISION ........................................................................................ 3 1.1. Article 1: Offences concerning human trafficking for the purpose of labour exploitation or sexual exploitation............................................................................... 3 1.2. Article 2: Offences related to the instigation,aiding,abetting and attempt................... 7 1.3. Article 3: Penalties .......................................................................................................9 1.4. Article 4 and 5: Liability of, and sanctions for, legal persons: .................................. 13 1.5. Article 6: Jurisdiction and Prosecution ...................................................................... 15 1.6. Article 7: Protection of, and assistance to, victims .................................................... 19 EN 2 EN 1. ANALYSIS OF NATIONAL MEASURES TAKEN TO COMPLY WITH THE FRAMEWORK DECISION As a preliminary point it should be noted that the implementation of the Framework Decision has in some Member States required the adoption of new legislation or the amendment of certain internal provisions. 1.1. Article 1: Offences concerning trafficking in human beings for the purpose of labour exploitation or sexual exploitation 1. The UN2 Trafficking Protocol’s definition of human trafficking formed the basis for the Council Framework Decision on combating trafficking in human beings (2002/629 JHA) (the “Framework Decision”). As a result, the definitions that have been agreed at EU level largely include the same elements used in the UN Protocol. Both the UN Trafficking Protocol and the Framework Decision make a clear distinction between trafficking and prostitution. Prior to the entry into force of the Framework Decision, most of the Member States had no specific legislation on human trafficking. Meanwhile, some Member States do not have criminal law provisions that explicitly define human trafficking; in these Member States prosecution of the offences concerned is based more on general provisions that include human trafficking amongst other offences. The main aim of the Framework Decision is to render uniform the definition of human trafficking in all of the Member States by introducing specific and common elements of certain acts which amount to trafficking in human beings (and related actions). The object of the Framework Decision is to render uniform the laws and regulations of the Member States in the area of police and judicial cooperation in criminal matters relating to the fight against trafficking in human beings. 1 Article 1 of the Framework Decision 2002/629 JHA Offences concerning trafficking in human beings for the purposes of labour exploitation or sexual exploitation 1. Each Member State shall take the necessary measures to ensure that the following acts are punishable: the recruitment, transportation, transfer, harbouring, subsequent reception of a person, including exchange or transfer of control over that person, where: (a) use is made of coercion, force or threat, including abduction, or (b) use is made of deceit or fraud, or (c) there is an abuse of authority or of a position of vulnerability, which is such that the person has no real and acceptable alternative but to submit to the abuse involved, or (d) payments or benefits are given or received to achieve the consent of a person having control over another person 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. 2. The consent of a victim of trafficking in human beings to the exploitation, intended or actual, shall be irrelevant here any of the means set forth in paragraph 1 have been used. 3. When the conduct referred to in paragraph 1 involves a child. It shall be a punishable trafficking offences even if none of the means set forth in paragraph 1 have been used. For the purpose of this Framework Decision, “chills” shall means any person below 18 years of age. 2 In addition to the UN organization such as Council of Europe, OSCE and IOM are active in the fight against human trafficking, see also chapter VII of the Communication from the Commission to the European Parliament and the Council on “Fighting trafficking in human beings –as integrated approach and proposals for an action plan” (COM(2005)514 final). EN 3 EN Thus, common framework provisions are required at European level in order to address certain issues. These include criminalisation, imposition of penalties/sanctions, aggravating circumstances, jurisdiction and the prosecution of serious criminal conduct (as defined by the Framework Decision) and the subjective element of the crime. Article 1 of the Decision defines trafficking in human beings as being for the purpose of labour or sexual exploitation. The Member States must criminalise any form of recruitment, transportation, transfer or harbouring or other treatment of a person without the latter’s valid consent, as defined in the Framework Decision, in particular where the physical or mental vulnerability of a person is subject to abuse. The victim's consent is, however, irrelevant where, for example, use is made of coercion, force or threats. This might include abduction, the use of deceit or fraud or the abuse of authority. In relation to Article 1(2), the only Member States to transpose its provisions are Belgium, Italy, Latvia, Sweden, Slovakia, Malta, France and the Netherlands. Regarding the implementation of Article 1 of the Framework Decision, not all Member States provide a definition of human trafficking within their judicial systems. The core elements of trafficking are coercion, abuse and deceit. It has to be clear that trafficking is not only related to sexual exploitation, but also to labour exploitation. Particular attention shall be paid to children as they have a specific legal status, needs and vulnerabilities. Belgium amended its penal code in order to comply with the Framework Decision with a law which entered into force on 12th September 2005. Art. 433 (5)(1) paragraphs (1),(2) and (3) and Article 433(7)(1) of the Belgium Penal Code set out the definitions of human trafficking and provide for the punishment of the offender with dissuasive and proportionate measures. Article 225-4-1 of the French Penal Code lists certain categories that constitute human trafficking offences. The same Article states that human trafficking is punishable with seven years imprisonment. Pursuant to Article 225-4-2, a human trafficking offence which involves a minor as a victim is punishable by a sentence of 10 years imprisonment. Article 3 of Chapter 25 of the Criminal Penal Code of Finland deals with human trafficking, and provides for a sentence of between 4 months and 6 years imprisonment. According to Article 3 bis3, offences committed in aggravated circumstances are punishable by at least 2 years and at most 10 years imprisonment. On 2 April 2004 the Finnish Government proposed law 34/2004vp, which was adopted by Parliament on 8 June 2004, under which human trafficking is made a comprehensive crime. Denmark stated that pre-existing Danish Criminal legislation already satisfied the requirements of the Framework Decision, apart from the maximum penalty requirement as set out in Article 3. Bill no. L118 was adopted in February 2002 in order to amend the Criminal Code, and has been judged as fully meeting the penalty requirement set out in Article 3 of the Framework Decision and to align Articles 228, 229 260 and 261 of the Danish Penal Code to the requirements of the Framework Decision. Article 262A, which was added to the Danish Penal Code contains special provisions on human trafficking, and new provisions have been adopted which entered into force on 8th June 2002. It provides for a general maximum penalty of eight years imprisonment. 3 Chapter 25 of Criminal Penal Code of Finland. EN 4 EN Articles 601, 602 of the Italian Penal Code (as modified by Article 2 of Law 228/2003) provide for a definition of human trafficking, and punishment of offenders. Article 50 of the Italian Penal Code stipulates that the consent of a victim of human trafficking to the exploitation, intended or actual, shall be irrelevant. According to Section 2 of the Cypriot Law to combat trafficking in human beings and the sexual exploitation of children4, trafficking is defined as any act or behaviour which facilitates the entry into, transit through, residence in or exit from the territory of the Republic of a minor5 or adult for the purpose of their sexual exploitation. Section 3(1)(a) of Law No.3(I)/2000 prohibits the sexual exploitation of adults for the purpose of economic gain by use of coercion, force, threat, deceit or fraud. This Law also addresses the position of vulnerable persons; in particular the sexual exploitation of minors. Furthermore under Section 46, the use of minors in the pornography trade is punishable with a maximum of ten