As trilogue negotiations begin, the EU is on the home stretch of a crucial directive for victims of human trafficking.
Experts have long warned of the need to amend the European Union directive on preventing and combating trafficking in human beings and protecting victims. These changes are needed to make it more effective in the fight against trafficking and to strengthen the protection, assistance and support of victims.
In December last year, the European Commission proposed changes to the text. This was very much welcomed by the European Parliament, which had passed a number of resolutions on implementation of the directive, highlighting some of the challenges to be addressed.
Good starting point
The commission’s starting point is a good one. It expands the non-exhaustive list of forms of exploitation by including forced marriage and illegal adoption. It takes into consideration the changing nature of this crime and new trends which have emerged—particularly increasing digitalisation of trafficking in human beings—adding offences committed or facilitated via information or communication technologies.
The commission also proposes stronger instruments for the investigation and prosecution of the crime. It makes the case for the freezing and confiscation of proceeds or mandatory sanctions against legal companies, replacing the optional regime of sanctions with two different mandatory regimes for standard and aggravated offences.
Moreover, the proposal introduces referral mechanisms to improve early identification and to strengthen the structures and practices for referral of victims to appropriate assistance and support services. It would also make mandatory the criminalisation of the use of services of trafficked persons, recognising that the demand that fosters trafficking has not decreased in spite of all the efforts in prevention—while making clear that we absolutely need to sustain preventive measures.
Last but not least, the proposal introduces a requirement to collect data and statistics. There are still many under-reported cases and gaps in data collection. We definitely need coherent and reliable data to be able to detect failures and improve measures in place, as well as for purposes of accountability.
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As co-rapporteurs for the parliament on this topic, we are thrilled because last month it passed a very ambitious position. Generally this agrees with the commission’s approach but has improved the text, especially with victims in mind.
We had proposed to add three more forms of exploitation: surrogacy for reproductive exploitation, exploitation of children in residential and closed institutions and the recruitment of children to commit or participate in criminal acts. We also added new aggravating circumstances, including regarding the online dimension as well as more sanctions for legal persons.
We are particularly proud of how the parliament seeks to put victims at the centre—for example, with regard to compensation and the principle of non-prosecution or non-punishment of the victim. The commission has acknowledged that compensation is rare and that schemes have had limited effectiveness.
We propose a link with the freezing and confiscation of proceeds and instrumentalities, so that member states ensure that those used for the commission, or contribution to the commission, of trafficking are utilised to provide victims with support, assistance and protection and to invest in investigation and prosecution. Member states should establish national victims’ funds and pay compensation in due time, without prejudice to the pursuit of those liable for that compensation to reimburse the state.
Although all member states have adopted measures for non-prosecution and non-punishment of victims, restrictive interpretations tend to prevail. Victims of trafficking should not be held liable for the irregularity of their entry into or stay in a member state or for their involvement in unlawful activities (not only criminal) which they have been compelled to commit as a direct consequence of being subjected to trafficking. Nor should any decision on non-prosecution and non-application of penalties be conditional on the victim’s co-operation in any criminal investigation, prosecution or trial but should follow an individual assessment of their case by trained and qualified officials.
Many other proposals address victims’ needs and rights, for instance in relation to assistance, support and protection—which, again, should not be made conditional on willingness to co-operate in criminal proceedings. And a new article is required regarding victims in need of international protection.
Prevention and a reduction of demand have been cornerstones of the parliament’s position. Although we agree with the commission that it should be mandatory for member states to criminalise users, the proposal is too restrictive, since it requires that the user knows that the person is a victim of trafficking. When it comes to sexual exploitation, such knowledge has not proved much of a deterrent and in this case users should face prosecution without any additional requirement. For the other cases of trafficking, where users know or could reasonably have known, their negligence could be added to the prosecutorial equation.
We have also called for more ambition on data collection and improvement of the institutional set-up. For example, we have specified what we believe should be the minimum functions of national referral mechanisms, we have added national anti-trafficking co-ordinators, we have strengthened the relationships among the different bodies provided for in the directive and we have included an obligation to produce national plans.
This week we begin negotiations with the Council of the EU and hope to achieve the best outcome for the thousands of victims already suffering serious violations of their human rights—and to prevent as much as we can the commission of this offence.