Resolution of EWLA on Trafficking in Human Beings regarding a future European Convention on Trafficking in Human Beings
The General Assembly of the European Women Lawyers Association (EWLA), held from 6 - 8 June 2003 in Helsinki, Finland, has unanimously adopted the following
Resolution on Trafficking in Human Beings
regarding a future European Convention on Trafficking in Human Beings
Preamble
The EWLA General Assembly,
- Welcomes the UN Trafficking Protocol, which establishes 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 recent efforts at the EU level to harmonise 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,
- Urges all states to sign and ratify the UN Trafficking Protocol, the Convention Against Transnational Organized Crime and the Optional protocol on the sexual exploitation of children to the convention on the right of the child.
- Expresses at the same time concern that these 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.
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 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 human rights law.
4. the integration of a human rights perspective into anti-trafficking action, as stated by the High Commissioner for Human Rights, 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,
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, and therefore welcomes the initiative of the Council of Europe for a European Convention on trafficking in human beings.
Recommendations to the Council of Europe for a European Convention on trafficking in human beings
A European Convention on trafficking should be based on the following principles and recommendations:
1) The Convention should be based on a human rights approach. The protection of the human rights of trafficked persons should be at the core of any anti-trafficking policies and legislation mandated by the Convention.
2) The Convention should define trafficking according to the UN Trafficking Protocol, article 3, par a-d, in order to ensure that all persons affected, women, men, girls and boys, as well as all forms of trafficking are included.
3) The Convention should provide for preventive measures aiming to strengthen the position of women and girls and other high risk groups in the countries of origin and provide them with legal instruments to defend themselves against discriminatory and abusive practices. The Convention should also oblige states to fund or organise public awareness raising campaigns, which inform the general public and high risk groups about the phenomenon of trafficking, recruitment methods used and which institutions to contact for help or further information. The Convention should also forsee measures to discourage the demand.
4) The Convention should oblige state parties to undertake effective measures to treat trafficked persons as victims of crime and to protect their human rights. In particular, state parties should:
- Ensure that all victims have access to safe accommodation, adequate and confidential social, psychological, legal and medical assistance; states should cooperate with specialized service providing NGOs.
- Refrain from arresting, prosecuting or summarily deporting victims for offences related to their status as trafficked persons, such as illegal border crossing, use of false documents, or participation in prostitution.
- Ensure that victims have the right to pursue criminal and civil action against the traffickers. That includes the right to restitution and compensation for loss and damages suffered. States should use confiscated assets to compensate victims.
- Establish necessary procedural safeguards to ensure that proceedings are not detrimental or prejudicial to the rights of trafficked persons participating in the investigation and prosecution and that they are treated with sensitivity and respect for their dignity and safety. This should include, inter alia, the following measures:
? information about their legal rights, their role and the scope, timing and progress of proceedings, notification upon release of the traffickers from imprisonment
? access to competent, qualified and state-paid translation services and legal assistance by lawyers and independent legal advocates;
? adequate protection of their identity and privacy, for example by closing the trial from the public or by restricting the right of the accused to ask intimidating questions;
? availability of effective police and in-court witness protection, such as police escorts, video-link testimonies or criminal sanctions for witness intimidation;
? training of police officers, prosecutors and judges on the rights and needs of victims of crime in general and victims of trafficking in particular.
5) The Convention should oblige state parties to refrain from the immediate expulsion of trafficked persons because of their irregular residence and/or labour status. Persons who decide to give testimony in criminal proceedings should be entitled to residence permits for at least the duration of such proceedings. Whether or not trafficked persons decide to make a witness statement, they should be entitled to remain in the member state’s territory for an adequate period of time in order to recover and retake control of their lives, which should be at least six months. This should include the right to have access to the labour market. If there are substantial reasons to believe that it is unsafe for victims to return home because of the risk of retaliation from the traffickers or criminal prosecution for status-related offences by the authorities in the home country, or if required for humanitarian reasons, long-term or permanent residence permits should be issued or refugee-status should be granted to trafficked persons, whether or not they have decided to act as witnesses in criminal proceedings.
6) The Convention should oblige state parties to provide for adequate assistance and support programs for victims who return home with due respect for confidentiality and privacy. It should also provide for cooperation between origin, transit and destination countries in the implementation of such programmes.
7) The Convention should consider victim protection and assistance separately from witness protection. Not all victims are willing or able to act as witnesses in criminal proceedings, for example out of fear for reprisals or if a case is not prosecuted due to evidentiary problems. Unless certain measures are by their very nature restricted to witnesses (such as for example in-court witness protection), basic protection and assistance services should be made available to all trafficked persons, irrespective of their readiness to testify.
8) The Convention should include a non-discrimination clause in order to ensure that anti-trafficking measures cannot be used to discriminate against victims or potential victims of trafficking, or infringe upon the basic human rights of individuals as set forth in major international instruments, such as the basic right to leave her/his country, to migrate legally or the right to earn an income. It must be ensured that trafficked persons are not subjected to discriminatory treatment in law or in practice and that protection for trafficked person is available without discrimination, particularly based on sex, immigration status, the status as a trafficked person or to former participation in the sex industry.
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Footnotes:
(1) Reflected for example in the International Covenant on Civil and Political Rights (ICCPR), Article 2, and the Convention to Eliminate all Forms of Discrimination Against Women (CEDAW), Articles 2 and 3.
(2) As set forth in, inter alia, the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, the Convention on the Elimination of All Forms of Discrimination of Women, the International Convention on the Protection of the Rights of All Migrant Workers and their Families, the Slavery Convention, the Supplementary Convention on the Abolition of Slavery, the Slave Trade and Practices similar to Slavery, the Forced Labour Convention, the Abolition of Forced Labour Convention, the Convention for the Suppression of the Traffic in Persons and of the Exploitation of Prostitution of Others and the Convention on the Rights of the Child. In this context are also of relevance: Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, adopted by General Assembly Resolution 40/34 of 29 November 1985; Model Strategies and Practical Measures on the Elimination of Violence Against Women in the Field of Crime Prevention and Criminal Justice, adopted by General Assembly Resolution 52/86, 2 February 1998; the various Resolutions of the Commission on Human Rights on the Traffic of women and girls and the Elimination of violence against women.
(3) Message from the High Commissioner for Human Rights, Mary Robinson, to the Ad Hoc Committee on the Elaboration of a Convention Against Transnational Organized Crime, Fourth session, Vienna, 28 June- 9 July 1999.
(4) See e.g. Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, adopted by General Assembly Resolution 40/34 of 29 November 1985; Model Strategies and Practical Measures on the Elimination of Violence Against Women in the Field of Crime Prevention and Criminal Justice, adopted by General Assembly Resolution 52/86, 2 February 1998.