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The core elements for the support, assistance and protection of
victims of trafficking are clearly outlined in Articles 6 and 7
of the United Nations Protocol to Prevent, Suppress and Punish
Trafficking in Persons, Especially Women and Children (2000)
and Articles 24 and 25 of the Convention on Transnational Organised
Crime.
These measures include the provision of: residency status, appropriate
housing, information and counselling, medical and legal assistance,
and employment and training opportunities. They also cover areas
of witness protection, such as in-court evidentiary measures and
police protection, as well as opportunities for legal redress and
compensation.
The Protocol has now been signed by 117 States, but the provisions
for the protection and support of trafficked people are not binding
on State Parties who are only obliged to "consider implementing"
them "in appropriate cases". The consequence of this is
that when States come to implement the Protocol in national legislation
the protection and support components are usually diluted or ignored
completely.
Research results
Anti-Slavery International recently completed a study of 10 countries'
policies relating to trafficking with particular emphasis on protecting
the human rights of the trafficked person in countries of destination.1
The research found that many trafficked people continue to suffer
human rights abuses after they escape their traffickers due to the
failure of governments to take appropriate action to protect and
support them.
Many trafficked people will have irregular immigration status and
once identified they will need to be given a stay of deportation
or reflection period so that they can receive assistance, recover
from their situation and decide what to do next.
On the basis of our research, Anti-Slavery International recommends
that the reflection period should be for three months, as is the
case in the Netherlands. This gives the trafficked person adequate
time to recover from their experiences, build trust and confidence
in those assisting them and begin to take back control of their
lives. In this way the reflection period facilitates the gathering
of intelligence about the modus operandi of traffickers and
makes co-operation in a prosecution more likely.
Without a reflection period, few trafficked people will have the
confidence to co-operate with the authorities and will be removed
to their country of origin where they are likely to fall back into
the hands of the traffickers.
The research also found that the provision of temporary residency
permits beyond the reflection period is equally important in ensuring
the protection of trafficked people's rights. However, in most cases
access to the residency permit is made conditional on cooperation
in criminal investigations against traffickers and is not available
on the basis of serious harm suffered or the risk of harm upon removal.
The only exception to this is the Italian system which can provide
residency permits on the basis that a victim of severe exploitation
is in danger as a result of escaping from their situation or because
that person is co-operating in criminal proceedings. The Italian
model also provides for the integration of the trafficked person
through an emphasis on finding employment for victims who stay in
Italy.
The Italian model is not perfect, as was highlighted in submissions
to the Working Group last year, but it does recognise that the provision
of protection and support to victims should not be conditional on
cooperation in prosecutions. A senior expert for Social Policy in
the Italian Ministry of Manpower has stressed that this approach
has the full support of prosecutors and has helped to ensure more
cooperation with the authorities because victims feel more secure.
Some European Union (EU) governments reject this kind of system
on the grounds that it would lead to false applications from migrants
pretending to be trafficked in order to circumvent immigration controls.
However, this has not happened in Italy 2
or in Belgium or the Netherlands where they operate reflection periods.
Anti-Slavery International's research clearly shows the link between
the provision of good services to victims, including the right to
remain temporarily or permanently in the country of destination,
and higher conviction rates of traffickers. However, these findings
are not unique. The 45 recommendations in our report are similar
to those made by the UN Office of the High Commissioner for Human
Rights in its Recommended Principles and Guidelines on Human
Rights and Human Trafficking (2002), which in turn underline
the importance of the support and protection measures outlined in
the UN Protocol. The problem is getting these standards adopted
in binding international and regional standards.
The EU's counter-trafficking policy
The response of the EU to trafficking is a case in point. The EU
Council Framework Decision on Combating Trafficking in Human Beings
obliges all EU states to harmonise their domestic criminal legislation
on trafficking by 2004, including adopting a common definition consistent
with the Protocol and establishing minimum penalties for trafficking.
However, while the EU recognises that harmonised definitions and
penalties are essential in combating trafficking, it has not yet
accepted that high standards of support and protection for victims
are equally important.
The proposed EU Council Directive on short-term residence permits,3
states at the outset that it "is not concerned with protection
of either witnesses or victims." Despite this, the Directive
does contain measures which relate to the victim's protection and
support, such as a 30 day reflection period and residency permits
for those who decide to cooperate with the authorities.
This Directive has its limitations, including the fact that the
reflection period is too short and that residency permits will only
be given if "the presence of the victim is useful" and
they show "a clear intention to cooperate". There is no
reference to issuing permits on compassionate grounds or because
of the risk of serious harm to that person if they are returned
to their country of origin.
Nevertheless, the Directive could constitute a starting point in
setting some minimum standards regarding residency permits for trafficked
people. Unfortunately there does not seem to be political agreement
amongst EU states even on this relatively low standard and the Directive
still has not been approved.
By contrast, Ministers from Albania, Bosnia-Herzegovina, Bulgaria,
Croatia, Hungary, Macedonia, Moldova, Turkey and Yugoslavia have
all agreed 4 to:
- Improve identification of trafficked persons;
- Refrain from immediately expelling possible victims of trafficking
(due to their irregular migration and/or labour status);
- Entitle possible victims of trafficking to remain on the state's
territory and to grant them a recuperation period of up to three
months; and
- Refer possible victims of trafficking to shelters, providing
them with social assistance, health care, counselling and legal
advice.
Anti-Slavery International can see no reason why EU countries should
not match these standards and hopes that they will incorporate the
commitments made by the South Eastern European countries into the
Brussels Declaration 5 and establish binding
minimum standards of victim protection and support across the EU.
The EU is not alone in failing to provide trafficked people with
adequate legislative and procedural safeguards. All countries of
destination should establish minimum standards for protection and
support which incorporate the measures outlined in the UN Protocol
and in the High Commissioner's Recommended Principles and Guidelines
on Human Rights and Human Trafficking.
Finally, we urge all governments to sign and ratify both United
Nations Protocol to Prevent, Suppress and Punish Trafficking in
Persons, Especially Women and Children (2000) and the UN
Convention on the Protection of the Rights of All Migrant Workers
and their Families (1990). The Migrant Convention enters into
force on 1 July 2003 and underlines the importance of extending
opportunities for safe legal migration between countries for work
purposes and ensuring that migrants are not subject to discriminatory
treatment in terms of pay and conditions or other forms of human
rights abuse. Such measures will help to reduce trafficking and
should form an integral part of any counter trafficking strategy.
1 Anti-Slavery International, Human Traffic,
Human Rights: Redefining victim protection, 2002. The report
reviews Belgium, Colombia, Italy, the Netherlands, Nigeria, Poland,
Thailand, Ukraine, United Kingdom and the United States. It contains
45 policy recommendations and is available at:
http://www.antislavery.org/homepage/resources/humantraffichumanrights.htm
2 Identification of victims in Italy is carried out by NGOs assisting
them who are certified by the Ministry for Equal Opportunities.
3 The EU Council Directive on the Short-Term Residence Permit
Issued to Victims of Action to Facilitate Illegal Immigration or
Trafficking in Human Beings who Cooperate with the Competent Authorities,
Brussels 11 February 2002.
4 Statement on Commitments to Legalize the Status of Trafficked
Persons, 11 December 2002.
5 The Brussels Declaration was agreed at an EU/IOM Conference in
September 2002 and adopted as an official EU document in 2003. In
terms of victim protection and support it states that: there should
be adequate funding for shelters and assistance to victims of trafficking;
victims of trafficking should not be criminalised or detained for
offences resulting from their being trafficked; immediate removal
of victims of trafficking should generally be avoided; that short
term residency permits and reflection periods must be available
under certain conditions.
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