Study on case-law relating to trafficking in human beings for labour exploitation Final report MigrationDirectorate-General and for Development and CooperationHome Affairs – EuropeAid Study on case-law relating to trafficking in human beings for labour exploitation Final report This final report has been prepared by Milieu Ltd under contract No HOME/2013/ISEC/PR/014-A2-Lot 1. Disclaimer: The information and views set out in this publication are those of the author(s) and do not necessarily reflect the official opinion of the European Commission. The European Commission does not guarantee the accuracy of the data included in this study. Neither the European Commission nor any person acting on the Commission’s behalf may be held responsible for the use which may be made of the information contained therein. Milieu Ltd (Belgium), Chaussée de Charleroi 112, 1060 Brussels, BELGIUM. Tel. +32 25061000; email: [email protected]; internet: http://www.milieu.be Europe Direct is a service to help you find answers to your questions about the European Union. Freephone number*: 00 800 6 7 8 9 10 11 *Certain mobile telephone contractors do not allow access to 00 800 numbers or these calls may be billed. More information on the European Union is available on the Internet (http://europa.eu). For more information on the EU anti-trafficking policy visit: (http://ec.europa.eu/anti-trafficking/) Luxembourg: Publications Office of the European Union, 2015 Cover © iStockPhoto/AndreyKrav PDF ISBN 978-92-79-50630-7 doi:10.2837/379747 DR-02-15-699-EN-N © European Communities, 2015 Reproduction is authorised provided the source is acknowledged. STUDY ON CASE-LAW RELATING TO TRAFFICKING IN HUMAN BEINGS FOR LABOUR EXPLOITATION 3 Contents Executive summary 7 1. Introduction 13 1.1. Introduction to the study — objectives and methodology 13 1.2. Background and context 16 1.3. International/EU legal and policy framework 18 1.4. Key terms 20 2. Overview of trafficking in human beings for forced labour in EU Member States 23 2.1. Characteristics of trafficking in human beings for forced labour in EU Member States 23 2.2. Sectors of exploitation and nationalities of victims 24 2.3. Main observations on characteristics of trafficking in human beings for forced labour 25 3. National legal and institutional framework for the prosecution of trafficking in human beings for forced labour — comparative overview 27 3.1. Member States’ legal framework relating to trafficking in human beings for forced labour 27 3.2. National institutional framework for the investigation and prosecution of trafficking in human beings for forced labour 38 4. Availability of case‑law on trafficking in human beings for forced labour 43 4.1. Case-law on trafficking in human beings for forced labour collected at EU level 43 4.2. Collection of case-law in EU Member States 44 5. Case‑law analysis 49 5.1. Observations on characteristics of trafficking for forced labour in the case-law identified 49 5.2. Observations on the investigation/prosecution of cases (as identified through case studies) 56 6. Challenges in bringing charges and prosecuting cases of trafficking in human beings for forced labour in the EU 79 6.1. Challenges arising from national legal frameworks 79 6.2. Challenges relating to victims’/witnesses’ participation in the investigation/prosecution 88 6.3. Challenges relating to the investigation and prosecution 90 6.4. Challenges relating to lack of training and resources 94 6.5. Challenges relating to lack of cooperation among national and intra-national authorities 98 7. Concluding remarks 101 Annex I: Legal framework and definitions applicable to prosecuting THB for forced labour 103 Annex II: Key actors involved in the investigation/prosecution of cases of THB for forced labour 124 Annex III: Case study references 128 Annex IV: List of sources 132 Annex V: Case studies on case‑law in selected Member States 148 4 STUDY ON CASE-LAW RELATING TO TRAFFICKING IN HUMAN BEINGS FOR LABOUR EXPLOITATION Abbreviations — not applicable CMM Danish Centre against Human Trafficking (Center mod Menneskehandel) CMS Committee against Modern Slavery ECHR European Convention of Human Rights ECtHR European Court of Human Rights GLA Gangmasters Licensing Authority (United Kingdom) GRETA Group of Experts on Action against Trafficking in Human Beings ICMPD International Centre for Migration Policy Development ILO International Labour Organisation IOM International Organisation for Migration MOI Interministerial Committee for Combating and Preventing Trafficking in Human Beings (Poland) OCLTI Central Office for Combating Illegal Labour (Office central de lutte contre le travail illégal) (France) OSCE Organisation for Security and Cooperation in Europe N/A not available THB trafficking in human beings UN United Nations UNODC United Nations Office on Drugs and Crime WEA Danish Working Environment Authority Member States AT Austria FI Finland NL The Netherlands BE Belgium FR France PL Poland BG Bulgaria HR Croatia PT Portugal CY Cyprus HU Hungary RO Romania CZ Czech Republic IE Ireland SE Sweden DE Germany IT Italy SI Slovenia DK Denmark LT Lithuania SK Slovakia E England LU Luxembourg UK United Kingdom EE Estonia LV Latvia W Wales EL Greece MT Malta ES Spain NI Northern Ireland STUDY ON CASE-LAW RELATING TO TRAFFICKING IN HUMAN BEINGS FOR LABOUR EXPLOITATION 5 Project management/authors: Emma Psaila, Vanessa Leigh, Linda De Keyser and Gillian Kelly, Milieu Ltd. Milieu Ltd (Belgium), Chaussée de Charleroi 112, 1060 Brussels. Tel. +32 25061000; fax +32 25143603; email: [email protected]; internet: http://www.milieu.be Senior Expert Panel: Professor Gary Craig, University of Durham Claire Falconer, Legal and Policy Director of Focus on Labour Exploitation (FLEX) Professor Gert Vermeulen, Ghent University Country experts: Austria — Julia Mall Behrens Belgium — Nathalie Meurens/Michele Morel Bulgaria — Vladislava Stoyanova Cyprus — Maria Kyprianou Croatia — Sandra Budimir Czech Republic — Marie Kaufmann Denmark — Ulla Iben Jansen Estonia — Jaan Ginter Finland — Helena Raulus France — Delphine Dyevre Germany — Julia Lietzmann Greece — Styliani Kaltsouni/Athina Kosma Hungary — Katalin Császár Ireland — Patricia Brazil Italy — Marilena Verbari Latvia — Martins Mits/Linda De Keyser Lithuania — Dovile Stoskeviciute Luxembourg — Adrien Lantieri Malta — Patricia Cassar Torregiani Netherlands — Nienke van der Burgt Poland — Karolina Jurkiewicz Portugal — Goncalo Moreira Romania — Silvia Tabusca Slovakia — Zuzanna Caputova/Eva Kovacecova (VIA IURIS) Slovenia — Klavdija Štarkel Spain — Alicia Garate Prieto/Ana Gomez Rojo Sweden — Agnes Said United Kingdom — Vanessa Leigh STUDY ON CASE-LAW RELATING TO TRAFFICKING IN HUMAN BEINGS FOR LABOUR EXPLOITATION 7 Executive summary Trafficking in human beings is a severe crime and constitutes a gross violation of human rights, and as such it is ex- plicitly prohibited by the EU Charter of Fundamental Rights (Article 5, Prohibition of slavery and forced labour) (1). Addressing trafficking in human beings requires an effective response from criminal justice systems. The EU has de- veloped a comprehensive legal and policy framework to address this phenomenon, in particular Directive 2011/36/ EU on preventing and combating trafficking in human beings and protecting its victims (hereafter ‘the directive’ or ‘Directive 2011/36/EU’) and the EU strategy towards the eradication of trafficking in human beings 2012-2016 (here- after ‘EU strategy’) (2). One of the forms of trafficking in human beings is trafficking in human beings for the purpose of labour exploita- tion. According to the Eurostat working paper covering the years 2010-2012, 19 % of registered victims were vic- tims of labour exploitation. In order to increase the number of cases of trafficking in human beings for labour exploitation that are investigated and prosecuted and to improve the quality of the investigation and prosecution of such cases in all Member States, Action 4 of Priority E of the EU strategy on ‘Increased knowledge and effective response to changing trends in traf- ficking in human beings’ called for a Commission-funded EU-wide study on the related case-law. In this context, the overall aim of this study is to identify case-law on trafficking in human beings for the purpose of forced labour (hereafter ‘trafficking in human beings for forced labour’ or ‘trafficking for forced labour’) in EU Member States for the reference period 2009-2013, and to analyse Member State practices with respect to the prosecu- tion of this crime. The case-law analysis also provides an indication of how national legislation transposing Directive 2011/36/EU is applied, without prejudice to the Commission’s work on monitoring the transposition of the directive. The study is based on reports conducted by national experts in the 28 EU Member States, as well as in-depth case studies of cases in the Member States where case-law was identified. The study does not attempt to provide an ex- haustive overview of the case-law in all Member States. Rather, it is based on the cases that have been identified by national experts based on the methodology developed for the study and the input received from many stakehold- ers consulted at national level. The scope of the study is on trafficking in human beings for forced labour, including domestic servitude. The term ‘forced labour’ is used throughout the study to reflect the terminology used in Article 2 of Directive 2011/36/EU. Most Member States refer to ‘forced labour’ in the respective national offence provisions transposing Article 2 of the direc- tive. Given that some Member States refer to ‘labour exploitation’ and in practice there is significant overlap between the two terms, the title of the study therefore refers to the broader term ‘labour exploitation’ to reflect this. Trafficking in human beings for sexual exploitation and other forms of exploitation, including for engagement in criminal ac- tivities, forced begging or for the purpose of the removal of organs, are also excluded from the scope of the study.