EWLA

The General Assembly of EWLA held in Brussels, Belgium, on 18 March 2005 adopted unanimously the following Resolution on the Constitutional Treaty of the European Union

Resolution of EWLA on Trafficking in Human Beings regarding the future European Convention on Action against Trafficking in Human Beings
The General Assembly of the European Women Lawyers Association (EWLA), held from 17-18 March 2005, in Strasbourg, France, focusing on Access to Justice, has adopted the following:
Resolution on Trafficking in Human Beings
regarding the future Council of Europe Convention on Action against Trafficking in Human Beings
Preamble
The EWLA General Assembly,

- Welcomes the UN Trafficking Protocol, which established the first-ever international definition of trafficking in human beings covering all contemporary forms of trafficking as an important milestone in the development of international anti-trafficking legislation, as well as efforts at the EU level to harmonize national anti-trafficking legislation by adopting the Council Framework Decision on combating trafficking in human beings and elaborating a draft Directive on short-term residence permits for, inter alia, victims of trafficking;

- Expresses at the same time concern that the above-mentioned documents are primarily law enforcement instruments and do not include strong and mandatory provisions on victim protection and assistance, thereby failing to provide adequate protection of the human rights of victims of trafficking;

- Notes the EWLA Resolutions on this subject of 2001 and 2003;

- Welcomes the Opinion of the Parliamentary Assembly of the Council of Europe 253 5(2005) concerning the draft Council of Europe's Convention on Action against Trafficking in Human Beings adopted on 26 January 2005, and the Recommendation 15 (2005) of the Committee on Equal Opportunities between Women and Men of the Parliamentary Assembly of the Council of Europe.

EWLA takes note of the following:

1. trafficking in human beings is recognised as a violation of human rights;

2. states have a duty under international human rights law to protect and respect the rights of individuals to exercise their human rights, investigate alleged violations of human rights, punish violators of human rights and provide effective remedies to victims of human rights violations;

3. trafficking is both a cause and a consequence of human rights violations. Therefore the effective prevention and prosecution of trafficking is highly dependent upon the protection and promotion of the human rights of trafficked persons. The analysis of the issue of trafficking and the development of an effective response requires the integration of a human rights perspective. This implies that measures should be in conformity with existing obligations of States under international law;

4. the integration of a human rights perspective into anti-trafficking action is the only way to retain a focus on the trafficked person and to avoid that trafficking is simply reduced to a problem of migration, public order or crime;

5. the root causes of trafficking can be found in economic factors such as poverty, unemployment and indebtedness; social and cultural factors such as the demand, violence against women and gender discrimination; legal factors such as a lack of appropriate legislation to address these issues; political factors such as corruption in the public sector or armed conflicts; and international factors such as the growing feminisation of labour migration, opposed to increasingly restrictive immigration policies of recipient countries;

6. the lack of rights and adequate legal protection of women, migrants and other vulnerable groups increases their susceptibility for trafficking and related forms of violence and abuse;

7. the willingness of trafficked persons to assist in prosecutions is critical for the effective detection, investigation and prosecution of traffickers. This willingness strongly depends on the availability of safety and privacy protection and assistance to victims and their general treatment by the police and judicial authorities. It is also related to the risk trafficked persons incur of being deported and/or arrested, detained or prosecuted for offences relating to their status of being trafficked, such as illegal border crossing, involvement in the sex industry or the use of false documents;

8. the absence of adequate procedural safeguards and assistance may prevent trafficked persons from reporting to the authorities and inadvertently expose them to further trauma and the risk of reprisals by traffickers, including the risk of being re-trafficked. Therefore, a neglect of victim issues is not only contrary to international human rights law, which obliges states to provide victims of human rights violations such as trafficking with access to adequate and appropriate remedies, but may also compromise the effective implementation of anti-trafficking legislation;

9. the recognition and protection of the rights of trafficked persons provide an important incentive to trafficked persons to report to the authorities and act as witnesses, and thus contribute significantly to achieving law enforcement objectives;

10. EWLA underlines the need for a strong human rights instrument, which ensures adequate protection and assistance for victims of trafficking, irrespective of their status as witnesses;

11. EWLA welcomes the aims of the draft Council of Europe Convention on Action against Trafficking in Human Beings as set forth in Article 1;

12. EWLA considers that the current draft Council of Europe Convention on Action against Trafficking in Human Beings builds upon existing international standards of protection for trafficked persons in some respects — in particular by expanding the definition of trafficking set out in the Palermo Protocol to expressly include internal (in-state) trafficking and trafficking not necessarily involving organized criminal groups; and, by establishing an independent mechanism (GRETA) to monitor the implementation of this Convention

13. EWLA, however, considers that there is a pressing need to strengthen the provisions of the draft Council of Europe Convention on Action against Trafficking in Human Beings related to the assistance and protection of trafficked persons. EWLA regrets that many of the key provisions concerning the protection and assistance of trafficked persons contained in the draft Convention submitted to the Committee of Ministers, fail to significantly enhance the assistance and protection currently available under some national or European Union legislation. They result from the lowest-common denominator positions agreeable to the European Union member states.
Recommendations to the Council of Europe for the future European Convention on Action against trafficking in human beings

14. The European Convention on Action against Trafficking in Human Beings, currently under consideration by the Committee of Ministers of the Council of Europe with a view to its adoption, should be strengthened in the following manner:

i.) As trafficking in human beings results in the violation of the rights of trafficked persons— including their rights to dignity; freedom from torture, including rape; forced labour; slavery and slave-like practices— trafficked persons must be recognized and treated as victims of human rights violations, not as criminals. The non-punishment clause contained in Article 26 should be amended to prohibit the arrest, detention and prosecution (as well as the punishment) of trafficked persons for illegal entry or residence and unlawful activities, unless it is shown that the unlawful activities were not a consequence of their situation as a victim;

ii.) Article 12 should be amended so that it requires states to ensure that all trafficked persons are given access to necessary medical assistance, including psychological care and treatment, (not just emergency medical assistance) and the protection and assistance measures are extended to the families of trafficked persons, when necessary

iii.) Article 15 should require states to ensure legal assistance, free of charge to all victims of trafficking;

iv.) Article 13 on the Recovery and Reflection Period should be amended to require that when there are reasonable grounds to believe a person has been trafficked, they are afforded a recovery and reflection period - of at least three months and sufficient for the person concerned to begin to recover, escape the influence of their traffickers and make informed decisions about their future;

v.) Article 14 on Residence Permits should be amended to require that: renewable residence permits, of at least 6 months in length, are issued to trafficked persons when, following a risk assessment, the competent authorities consider that their stay is necessary owing to their personal situation or for the purpose of their participation in proceedings including criminal proceedings against their traffickers, or proceedings for compensation; and that provisions are made for family reunification when a trafficked person is issued a residence permit;

vi.) Article 10 should be supplemented to require that states ensure that persons have the right to have the decisions of the competent authorities taken under Articles 10-16 reviewed by an independent, impartial body established by law;

vii.) Articles 36-38 relating to the Monitoring Body should ensure the establishment of one single, independent expert body (GRETA) which should be mandated to monitor the implementation of the Convention by EU and non-EU member states alike. The GRETA should be empowered to receive information from any source, including the European Union and members of civil society, and should permit each Party to declare that they recognize the competence of the GRETA to consider collective complaints about a Party's failure to implement provisions of the Convention.