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Doc. 9102
17 May 2001
Domestic slavery
Report
Committee on Equal Opportunities for Women and Men
Rapporteur: Mr John Connor, Ireland, Group of the European People's Party
Summary
In the last years, domestic slavery has appeared in Europe. This new form of enslavement forces thousands of victims to work without any real financial reward and is a violation of human rights and human dignity.
The Assembly deplores the fact that a considerable number of victims work for diplomats or international civil servants who, under the Vienna Convention of 1961, enjoy immunity.
The Assembly recommends namely to the governments of member states, so that immunity will not be synonymous with impunity, to amend the Vienna Convention of 1961 and to foresee in their criminal codes the recognition of slavery as an offence.
It also recommends to the Committee of Ministers to draw up a domestic workers’ charter of rights.
I. Draft recommendation
1. In the last few years, a new form of slavery has appeared in Europe, namely domestic slavery. It has been established that more than 4 million women are sold each year in the world.
2. In this connection, the Assembly recalls and reaffirms Article 4§1 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), which prohibits slavery and servitude, and also the definition of slavery derived from the opinions and judgments of the European Commission of Human Rights and the European Court of Human Rights.
3. The Assembly also recalls Article 3 of the ECHR, which provides that no one shall be subjected to torture or to inhuman or degrading treatment or punishment, and Article 6, which proclaims the right of access to a court in civil and criminal matters, including cases where the employer enjoys immunity from jurisdiction.
4. The Assembly also refers to the European Conventions on Mutual Assistance in Criminal Matters (1959) and Extradition (1967), and the European Agreement on “Au Pair” Placement (1969).
5. The Assembly notes that the victims’ passports are systematically confiscated, leaving them in a situation of total vulnerability with regard to their employers, and sometimes in a situation bordering on imprisonment, where they are subjected to physical and/or sexual violence.
6. Most of the victims of this new form of slavery are in an illegal situation, and have been recruited by agencies, having first borrowed money to pay for their journey.
7. The physical and emotional isolation in which the victims find themselves, coupled with fear of the outside world, causes psychological problems which persist after their release and leave them completely disoriented.
8. The Assembly also deplores the fact that a considerable number of victims work in embassies or in the homes of international civil servants who, under the Vienna Convention of 1961, enjoy immunity from jurisdiction and enforcement, and are covered by the principle of inviolability of persons and property.
9. The Assembly regrets that none of the Council of Europe member states expressly make domestic slavery an offence in their criminal codes.
10. The Assembly accordingly recommends that the Committee of Ministers ask the governments of member states to:
i. make slavery and trafficking in human beings, and also forced marriage, offences in their criminal codes;
ii. strengthen border controls and harmonise policies for police co-operation, essentially for the minors;
iii. amend the Vienna Convention in order to waive diplomatic immunity for all offences committed in private life;
iv. sign and ratify the Convention against Transnational Organised Crime and its additional protocols (December 2000).
v. protect the rights of victims of domestic slavery by:
a. generalising the issuing of temporary and renewable resident permits on humanitarian grounds;
b. taking steps to provide them with protection and with social, administrative and legal assistance;
c. taking steps for their rehabilitation and their reintegration ;
d. developing specific programmes for their protection ;
e. increasing victims’ time limits for bringing proceedings against offence of slavery;
f. establishing compensation funds for the victims of slavery;
11. The Assembly also recommends that the Committee of Ministers ask the relevant expert committee(s) to draw up a domestic workers’ charter of rights.
II. Draft order
The Assembly, referring to its Recommendation….(2001) on domestic slavery instructs its Committee on Equal Opportunities for Women and Men to follow closely the progress on this subject and to report back to it in two years.
III. Explanatory memorandum by Mr Connor
1. In the European society, domestic services are more and more ensured by female immigrants. Most of these women left their home countries and their families in the hope of making a better life for themselves and their relatives. Unfortunately, they find themselves victims of a new form of slavery: domestic slavery.
2. Domestic slavery is the situation of a vulnerable individual forced, by physical and/or moral coercion, to work without any real financial reward, deprived of liberty and in a situation contrary to human dignity.
3. Other criteria could be added in order to give a definition to this new form of slavery.
4. Victims' passports are systematically confiscated on their arrival in the country of destination, placing them in a state of vulnerability and dependence with regard to their employers.
5. Work is unremunerated or, where some form of remuneration exists, it is out of all proportion to the services provided.
6. Working conditions and accommodation offend against human dignity. These women work between fifteen and eighteen hours a day, without ever being allowed a day off. They do not have their own rooms and often have only their employers' leftovers to eat.
7. Some foreign domestic workers are also kept locked up. The others are subject to what could be termed self-imposed confinement. This does not mean that they are forbidden to go out and constantly imprisoned in their employers' homes, but that they are permitted to be absent only for a certain period of time to carry out a given task. Even where an employer does not expressly curtail a worker's freedom of movement, it is restricted nonetheless because the woman knows that she is in an illegal situation and is therefore at risk of being arrested and deported.
8. Domestic workers are cut off from their family and friends, since the employer forbids them to carry on any correspondence and receive or make telephone calls.
9. The domestic worker suffers cultural isolation, finding herself in a country where she sometimes does not speak and often does not understand the language. She does not know her rights and has no-one to turn to for help.
I. Situation in the member states: overview
A. Countries where cases have been reported
10. In France, since its foundation in 1994 the Committee against Modern Slavery (CCEM) has taken up the cases of over 200 domestic slavery victims, mostly originating from West Africa (Ivory Coast, Togo, Benin) but also from Madagascar, Morocco, India, Sri Lanka and the Philippines. The majority of victims were women (95%). One-third arrived in France before they came of age and most of them suffered physical violence or sexual abuse.
11. The employers mostly came from West Africa or the Middle East. 20% are French nationals. 20% enjoyed immunity from prosecution, among them, one diplomat from Italy and five French diplomats in post abroad. Victims working for diplomats mainly come from India, Indonesia, the Philippines and Sri Lanka. It has been estimated that there are several thousand victims of domestic slavery in France.
12. In the United Kingdom, Kalayaan, an NGO, has taken care of over 4,000 domestic workers from 29 different countries. 84% had suffered psychological duress, 54% had been locked up, 38% beaten and 10% sexually abused. Approximately one hundred domestic workers fled their employers' homes between 1985 and 1990.
13. Most domestic workers in the UK come from the Philippines. Other countries of origin are Bangladesh, India, Indonesia, Nepal, Sri Lanka, Morocco, Ethiopia, Eritrea, Nigeria, Sierra Leone, Brazil and Colombia.
14. The employers themselves originate not only from the Gulf States and the Middle East, Nigeria, India, Singapore, Hong Kong, Brunei and Brazil, but also from Greece, Italy, United Kingdom and the United States.
15. In Belgium, most victims of domestic slavery come from the Philippines and work for diplomats in service in Brussels.
16. In Spain, the majority of overseas domestic workers are of African, in particular Moroccan, origin. Others come from South America (the Dominican Republic, Peru).
17. In Italy, the Committee against Modern Slavery (Comitato Contro la Schiavitù Moderna), set up as part of the Daphne initiative in 1998, is unable to estimate the number of victims of domestic slavery. However, since domestic work is very widespread in Italy, there is reason to believe that very many workers are being exploited there in situations close to slavery.
18. In Austria, the phenomenon was recognised only very recently, and this explains why most of the cases registered so far involve especially diplomats.
B. Situation of the victims
19. It is possible to distinguish three categories of victims of domestic slavery.
20. The first consists of people recruited in their home country by an agency to serve as domestic workers abroad. Workers recruited in this way often find themselves in debt. Some of them have borrowed money to pay agency fees, or have requested an advance from the agency. Debts have to be repaid before the workers can send money home to their families. Employers from the Gulf States or the Middle East, particularly diplomats, use the services of such agencies.
21. Other fell prey to traffickers, who forced them into this work. This category includes minors from West Africa, a region where there has been a recrudescence of traffic in children over the past two decades. Some of them are sent to Europe, between eight and fifteen years old in order to work for fellow countrymen. The typical employer lives on the outskirts of a European city, and the presence of this child, who will do the housework and take care of the employer's own children will allow him, without spending money, to carry on a paid occupation.
22. The third category concerns people who were already doing domestic work for an employer in a third country and accompanied that employer when he or she came to stay in Europe for a definite period. This is the case, in particular, of many South-East Asians working for Middle Eastern employers.
C. Conditions of residence
23. Most victims of domestic slavery qualify as illegal immigrants under the law of the host country. However, two special situations apply in the case of minors and of domestic workers in the service of a diplomat.
24. Most migrant domestic workers entered the country with a tourist visa, which does not authorise them to work. The employer confiscates after that the worker's passport without completing the formalities necessary for the worker to be issued with a residence permit. Once their visas have expired, such workers are at risk of being arrested during an identity check and deported.
25. Foreign minors are not subject to identity checks and cannot be expelled. Yet, this does not mean that the situation in which they find themselves is lawful, but merely that there is a latent breach of the law. As soon as the persons concerned come of age, the unlawfulness of their situation takes on full significance, and they can be arrested and expelled. For this reason many employers send them back to their country of origin or simply abandon them on the streets and replace them with younger victims.
26. Diplomats and international civil servants are entitled to bring their domestic servants to countries where they are stationed. It is an international custom for states to extend each other the courtesy of issuing residence permits for such workers, known as "special cards". This special status increases the worker's dependence on the employer, since the card is directly related to the employer's capacity and person. The worker is therefore given permission to stay in the country for the same length of time as the employer. Furthermore, in the event of dismissal, the domestic worker loses the residence permit and is reduced to illegal immigrant status.
D. Attitude of the authorities in the host country and the country of origin
a. Attitude of the host country authorities
27. Host country authorities tend to regard victims of domestic slavery primarily as illegal immigrants. In many countries this places the victims at risk of being made subject to an expulsion measure, which may even lead to their forced removal from the country. Moreover, in some countries this status deprives them of all legal, social or medical assistance. As a result, even where they are entitled to request the host country's protection under the legislation in force, most of these illegal migrants hesitate to report the more or less serious offences perpetrated against them, since, if they do so, the traffickers may possibly be convicted and sentenced, but the migrants' only certainty is that they themselves will, in the end, be expelled.
28. France and the United Kingdom have not passed any particular legislation in aid of the victims of modern forms of slavery. It is therefore NGOs which provide victims with protection and social and legal assistance. It must nonetheless be said that most of the victims looked after by NGOs who have taken their cases to court have been granted a temporary residence permit on humanitarian grounds.
29. Attention should be drawn to two exceptions: Belgium and Italy recognise the victim status of people who have been subjected to trafficking in human beings, and consequently of the victims of domestic slavery, and issue them with temporary residence permits so as to enable them to file and pursue a complaint against those who have exploited them.
b. Attitude of the authorities in the country of origin
30. Most of the consulates of the countries of origin, particularly the countries of West Africa, refuse to issue passports. The consulates of the Philippines are more co-operative, however.
E. Relevant legislation
31. Since 1995 Belgium has been implementing judicial arrangements aimed at combating international traffic in human beings. It has set up a network of liaison judges and special sections of the police and the gendarmerie, responsible for investigating cases of trafficking. Specialist departments have been established at the Ministry of the Interior and the Ministry of Foreign Affairs, and a team has been set up with specific responsibility for mediating in cases of exploitation by diplomats.
32. Belgium also provides for the issuance of temporary residence permits and work permits to foreigners victims of the traffic in human beings. These texts mainly concern persons forced into prostitution, but can also apply to the victims of domestic slavery. The Belgian authorities have, however, made the granting of a residence permit conditional on the victim's co-operating in legal proceedings against the traffickers. Renewal of this residence permit and the possibility of more lasting legalisation of the person's situation depend on developments in the judicial process. Specialist reception centres, approved and funded by the Belgian authorities, provide victims with social and administrative support and legal assistance. They may also make preparations for the victims' return to their home countries.
33. In Italy similar protection arrangements exist by providing even more flexible rules in favour of trafficking victims. As a matter of fact, issuance of a residence permit is not conditional on the victim's co-operation in legal proceedings against the trafficker, with the result that the victim need not be expelled in cases where the legal process does not reach a successful conclusion. Permits are valid for six months and may be extended for one year or more if legal proceedings are under way. They may be transformed into a work permit or a student's residence permit. Victims are also entitled to carry on an occupation.
34. Forty-nine associations and local authorities are responsible for implementing these arrangements by means of state subsidies.
35. Italy also provides for further preventive and protective measures, including the creation of a free telephone help-line, specialist reception centres, rehabilitation schemes as well as a national observatory of trafficking in human beings.
36. These measures are primarily targeted at the victims of forced prostitution, but can also apply to other forms of slavery, including domestic slavery.
37. Austria has also taken measures to protect the victims of trafficking, which are implemented with the assistance of associations. Since 1997 it has been possible under immigration law to issue trafficking victims and witnesses with a residence permit granted on humanitarian grounds, valid for a period at least equivalent to the time needed to bring the perpetrators to trial. However, in actual fact most victims are still treated primarily as illegal immigrants and hence expelled. Even when they are not expelled, this is not because they have obtained a residence permit - no residence permits have yet been issued on humanitarian grounds - but because the expulsion measure has been suspended, usually for a three-month period, to allow their participation in the trial.
38. In Spain victims of trafficking can obtain a residence permit for exceptional circumstances. Such permits, which are valid for one year and may be renewed three times, are issued on humanitarian grounds, principally to victims of racist and xenophobic acts. However, granting of such a permit is a matter for the authorities' discretion.
II. Effects on victims
A. Physical and mental health
39. The physical and emotional isolation of victims of domestic slavery, combined with their fear of the outside world, makes them particularly vulnerable and helps to explain why they often fall prey to physical and mental duress.
40. Even after their release, victims of domestic slavery continue to have a number of psychological problems.
41. Firstly, their fear of the outside world. These women are only familiar with their employer and his or her family, who have taught them to be afraid of strangers, particularly the police. After months, or possibly years, of isolation, they suffer from the same syndrome as a former convict released from prison: they are panic-stricken at their sudden freedom. They have lost all their bearings and no longer trust anyone. The situation is even more frightening for victims who do not speak the language of the host country, since they are unable to communicate.
42. Secondly, these women are used to working non-stop. When they suddenly find themselves inactive, they may suffer a genuine depression, all the more so in that their illegal status prevents them from finding work.
43. Moreover, because their employers have subjected them to working and living conditions contrary to human dignity and have always despised them, they have no self-confidence. This is particularly striking in the case of minors who, for lack of a real childhood and emotional relationships, have been unable to develop a normal personality.
44. Victims also experience contradictory feelings towards their former employers. They fear and reject them, but feel guilty for having left them. They have a sense of having broken a taboo. They believe that the mere fact that their employer brought them to Europe entitled him or her to exploit them. They are also under the impression that they were a burden for their employer. Where the employer was a member of their own family, their sense of guilt is all the greater.
45. The employers having prevented them from keeping in touch with their families, family ties have become practically non-existent. The victims are afraid of being rejected and are scared their parents will hold the fact that they have left their employer against them. These worries are justified, as such reactions have indeed been observed, particularly in families from Sub-Saharan or North Africa.
46. The majority of victims do not wish to return to their country of origin. They want to take advantage of the educational and vocational training opportunities available in the host country. Those who consider returning to their home country first want some guarantee that they will be able to come back in the event of a problem.
B. Forced return to the country of origin
47. For the time being, in France, the CCEM has not yet been confronted with a case of expulsion of a victim.
48. There is an alternative to non-voluntary return ; that is to say forced return organised by the host country authorities in accordance with the law of the country in question, where the person concerned has been ordered to leave the country and has failed to do so within the time-limit specified, which is voluntary return assisted by the International Organization for Migration or, possibly, by a government agency (such as the Office des Migrations Internationales in France).
49. The IOM's assisted voluntary return programmes aim to provide illegal migrants returning to their home countries with assistance in the form of information and counselling, aid with transport arrangements and return grants. The IOM frequently also takes charge of the reintegration of the persons in their countries of origin (vocational training, provision of micro-loans, job placement, etc.). The organisation can also make development grants to the communities from which the victims originate. However, the IOM offers its assistance subject to one condition: the unlawful migrant must have freely expressed a willingness to return to his or her home country, or at least not have refused to do so, and must not resist.
C. Pressures brought to bear on families
50. Many victims of domestic slavery are scared of lodging a complaint against their employer and fear reprisals against themselves or members of their family who have remained in the country of origin. This has been mainly noted in families originating from West Africa and Madagascar, which were subjected to pressure after a daughter had initiated a court action against her employer.
D. Denial of justice resulting from possible application of the 1961 Vienna Convention on Diplomatic Relations
51. The Vienna Convention of 18 April 1961 provides a system of privileges and immunities for members of the diplomatic corps. The purpose of these privileges and immunities is to protect diplomats from pressures which might be brought to bear by the receiving state (host state). Members of staff of international organisations likewise enjoy privileges and immunities, which are laid down in the agreement relating to the organisation's seat, concluded with the receiving state, or in the organisation's statute.
52. Article 31 of the Convention stipulates that diplomatic agents shall enjoy full immunity from jurisdiction (criminal, civil and administrative) and from enforcement measures. At the same time, diplomats' persons and property are rendered inviolable (Articles 29 and 30). These privileges are extended to a diplomat's spouse and minor children.
53. These privileges and immunities prevent any judicial action against a diplomat who breaches the receiving country's law. Because diplomats' person is inviolable, not only is it impossible to arrest, detain, extradite or expel them, but they also cannot be obliged to give evidence as a witness. Immunity from jurisdiction can be relied on at any stage in proceedings, which means that a diplomat who fails to plead immunity at first instance and is convicted is not precluded from invoking immunity on appeal or in the court of cassation. Since this immunity is a matter of public policy, it is for the courts themselves to raise the question of whether it applies in a given case. Lastly, even if a diplomat has not pleaded immunity from jurisdiction, he or she can still oppose the enforcement of any sentence.
54. Article 41 of the Vienna Convention admittedly makes it the duty of diplomatic agents "to respect the laws and regulations of the receiving State". The Convention therefore does not impede the application of the rules of private international law, which, for example, under the French legal system more often than not result in French law's being chosen as the law governing an employment relationship. This does not mean, however, that a domestic worker is able to have charges brought against a diplomat who employs him or her under conditions breaching French labour law or commits a criminal offence against him or her. In such cases it is necessary to take measures more suited to the diplomatic sphere, for example initiating proceedings before the courts of the sending state (state of origin) or asking that state to waive a diplomat's immunity, or again declaring the diplomat persona non grata. It must nonetheless be said that such measures are rarely implemented in practice, and immunity is too often synonymous with impunity.
55. In Belgium, immunity from jurisdiction also deprives victims working for diplomats or international civil servants of the granting of a temporary residence permit since it is conditional on the victim's participation in trial proceedings. Permits are, however, sometimes granted nonetheless as an exceptional measure.
III. Legal instruments for combating domestic slavery
A. At national level
56. No member state of the Council of Europe has made express provision under its criminal law for an offence of keeping domestic slaves. However, a number of states have created specific offences of enslaving others, trafficking in human beings and/or trafficking in migrants. Although they have not established specific slavery or trafficking related offences, the other states have made certain acts giving rise to situations of slavery punishable under their criminal and labour law.
57. In Belgium, a law of 15 December 1995 makes it an offence to traffic in foreigners, in order to make it illegal to facilitate a foreigner's entry into or residence in the country in any way, directly or through an intermediary, by making direct or indirect use of fraud, violence, threats or any form of coercion, or by taking advantage of the particularly vulnerable situation of a foreigner whose administrative situation is unlawful or precarious, who is pregnant or who is suffering from an illness, an impairment or a physical or mental disability.
58. This law can therefore be used to punish those guilty of keeping domestic slaves. Employers are liable to one to five years' imprisonment and a fine of between BEF 500 and
BEF 25,000.
59. Belgian policy against trafficking was behind the initiative for the European Union's Joint Action of 14 February 1997 to combat trafficking in human beings and sexual exploitation of children, which called on EU member states to review their law, with the aim of establishing "effective, proportionate and dissuasive criminal penalties" in respect of the perpetrators of trafficking and of taking measures to protect victims.
60. Italy and Austria have complied with the EU recommendations and have not hesitated to reinstate the offence of enslavement, which is recognised under their respective Criminal Codes in accordance with the 1926 United Nations Slavery Convention and the Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices similar to Slavery of 1956.
61. The Italian Criminal Code makes it an offence to reduce a person to slavery or a situation similar to slavery, to traffic or trade in human beings and to sell or buy slaves but it has not yet given a legal definition to slavery.
62. Two bills reforming the Criminal Code are currently before the Italian parliament. The first bill aims to introduce an article defining trafficking in human beings as bringing about or facilitating the unlawful entry into Italy of a foreign national coming from a third country, with a view to exploiting that person. The offence carries a sentence of 5 to 15 years' imprisonment and a fine of ITL 30 million to 300 million. The second one aims to change the classification of the offence of exploitation of human beings from a "delitto" (less serious offence) to a "crimine" (crime). The maximum sentence for perpetrators was also increased to fifteen years' imprisonment.
63. The Austrian Criminal Code recognises the specific offences of enslavement, trafficking in human beings and trafficking in illegal migrants. The Austrian courts no longer hesitate in making use of these offences and in charging offenders with a combination thereof, so as to make them liable to more severe penalties. By this way, for the first time, seventeen complaints were filed in 1997 under Article 104 and eighteen in 1998, but without sentence because the definition of the offence of trafficking in human beings concerns essentially exploitation for sexual purposes and is therefore not applicable to cases of domestic slavery.
64. In France, trafficking in human beings and enslaving others are not criminal offences as such. Slavery is explicitly reproved only as a crime against humanity, which necessarily entails mass, concerted action by a state and therefore cannot be deemed to apply in cases of domestic slavery.
65. Nevertheless it is possible to secure the conviction and sentencing of employers who resort to these methods, since certain types of behaviour giving rise to situations of domestic slavery are punishable under criminal and labour law. It is possible to cite the holding of persons against their will, breaches of labour regulations, inflicting physical or psychological harm, and the various offences relating to employment of undeclared workers or to facilitating the entry and residence of illegal immigrants. Since March 1994 it has also been possible to prosecute employers which respectively make it an offence to oblige a vulnerable person to work without remuneration and to impose working or living conditions offending against human dignity. These two charges have now become systematic in the cases of domestic slavery brought before the courts, and some ten convictions have still been secured on this basis.
66. The Spanish New Criminal Code of 1996 makes no mention of slavery related offences. As in France, employers can therefore only be prosecuted on the basis of other offences, such as maliciously imposing unlawful working conditions, abuse of persons in need, violence or intimidation, trafficking in workers and employment of illegal immigrants and failure to take measures to prevent work-related risks.
B. At international level
67. Article 4§1 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) provides that no one shall be held in slavery or servitude, but fails to give any definition of these concepts. Definitions can nonetheless be derived from the opinions and judgments of the European Commission of Human Rights and the European Court of Human Rights: slavery is the status of persons who are the property of another person, and servitude that of persons subject to duress, exercised by and/or for the benefit of another person, which, in denial of their liberty, curtails their freedom of movement and prevents them from changing their legal status.
68. Article 15§2 of the ECHR moreover states that there can be no derogation from the prohibition contained in article 4§1.
69. Situations of domestic slavery result in other violations of the Convention on human rights. Firstly, they entail a violation of article 3, which provides that no one shall be subjected to torture or to inhuman or degrading treatment or punishment, and, secondly, particularly where the employer enjoys immunity from jurisdiction, they are in breach of article 6, which asserts the right of access to the courts in civil and criminal matters.
IV. Recommendations
A. At national level
a. Provision of information and campaign for prevention and victim support
70. Prevention is the best means of countering trafficking in human beings. This necessitates both information and assistance for victims.
71. Migrant domestic workers must be informed, before they leave their country of origin, of the working conditions (minimum wage, working hours, etc.) to which they are entitled and the immigration law of the country of destination.
72. More balanced information on the ostensibly ideal living conditions to be found in western society is also desirable. Awareness of phenomena such as racism, discrimination and economic insecurity must be raised. Distributing such information is all the more necessary in that most victims who return to their home countries are ashamed to admit their mistakes and prefer to reinforce the rosy stereotypes that have currency in the countries of origin.
73. One very useful means of prevention is to ensure that potential victims are well aware of the existence of the trafficking networks and the way in which they function, in particular in the regions constituting the main sources of supply of domestic labour (South-East Asia, West Africa).
74. Prevention also involves combating the causes which lead migrants to leave their countries, first and foremost poverty. Development aid is therefore a preliminary preventive measure, which can prove effective in the long term.
75. Lastly, victims returning to their home country must be given assistance with their reintegration (in particular training and/or job placement); the aim is to avoid the same people's again falling prey to unscrupulous employers.
b. Creation of a compensation fund for victims
76. The states of destination should establish national compensation funds for victims of domestic slavery, since those who were in the service of diplomats or any other person enjoying immunity from prosecution currently cannot obtain reparation through the courts. Other victims may be taken care of only a number of years after the event, when they are no longer entitled to lodge a complaint. In addition, even where an employer is ordered to pay compensation, it is often very difficult for the victim to have the judgment enforced. This is the case, in particular, where the employer has left the country of destination before judgment is given or has engineered his or her own insolvency.
c. Legal classification of domestic slavery
77. Each state should make provision under its criminal law for an offence of enslaving and trafficking in human beings. The concept of slavery should be sufficiently broadly construed to make it possible to penalise the specific situations of domestic slavery and forced marriage, which combines domestic slavery and sexual exploitation. In defining the concept, account should be taken of current realities, in particular the abuse of vulnerability which is a constant of the modern slavery phenomenon.
d. Legal measures
78. States should take measures to provide victims of domestic slavery with protection and social, administrative and legal assistance.
79. Each state should also ensure that officials in contact with victims receive suitable training.
80. Member States should also strengthen the border control as well as their policy in the field of police co-operation , by harmonising the legislation in this matter.
e. Criminal procedure
81. Victims of domestic slavery often contact the social services or relevant associations a number of years after the situation has ceased, when prosecution of the offences allegedly committed by the employer is time-barred. Thought should therefore be given to amending the statutory time-limits. As is the case in France for sexual assaults, the limitation period might be deemed to run from the time when the victim files a complaint.
82. Granting of residence permits on humanitarian grounds to victims of trafficking in general and domestic slavery in particular should also be made standard practice, without making a condition on the victim's participation in legal proceedings.
83. Lastly, the handling of such cases by the public prosecution service and the police is unsatisfactory in that different departments are responsible for dealing with illegal employment, inflicting of physical or psychological harm and protection of minors, resulting in some unwieldiness and inconsistency. Consideration should therefore be given to putting a single specialist department in charge of domestic slavery cases.
f. Amendment of the rules for obtaining residence permits (the example of Switzerland)
84. A foreigner wishing to take up a position as a domestic worker in an embassy or consular mission is granted leave to enter Switzerland only if he or she is in possession of an employment contract, which must be in compliance with the legislation on working hours, wages, overtime, paid leave, etc. The principle is simple: no contract, no visa. Moreover, the four-year limit on the period of residence in Switzerland has been abolished. Workers are also entitled to change employer, on condition that the new employer has been approved by the Federal Department of Foreign Affairs. A domestic worker may also, exceptionally, live off the premises of the employer's residence. These last two measures are means of countering the worker's dependence on the employer.
B. At international level
a. To settle the conflict of law between the European Convention on Human Rights and the Vienna Conventions on Diplomatic and Consular Relations of 1961 and 1963
85. There is an inconsistency between the treaty law established by the Vienna Convention on Diplomatic Relations of 18 April 1961 and Article 6 of the European Convention on Human Rights, which guarantees the right of access to a court in criminal and civil matters. The European Court of Human Rights has consistently held that application by a state party of a convention other than the convention on human rights does not dispense it from examining whether the measure in question is consistent with the ECHR. Countries of destination which are members of the Council of Europe may therefore be found to be in breach of the ECHR. However, such findings can only be made on a case by case basis.
86. It is therefore desirable to envisage to amend the Vienna Convention in order to reconcile respect for the rights asserted in the ECHR with the principles necessary to protect diplomats from pressures brought to bear by receiving states by providing namely the waiver of diplomatic immunity, for instance, in cases where an individual has an "arguable claim" to be the victim of a violation of a human right, committed by a diplomat outside the course of his or her official duties, that is to say only for the acts done in the framework of his private life.
b. Application of the European Conventions on Mutual Assistance in Criminal Matters (and protocol) and on Extradition (and protocols) and of the European Agreement on "Au Pair" Placement
87. They are also European Conventions and Agreements which could be used in the case of domestic slavery.
88. First, the European Convention on Mutual Assistance in Criminal Matters of 20 April 1959 which provides the widest possible mutual legal assistance with a view to obtaining evidence and interviewing witnesses, experts and defendants. This convention lays down the rules on execution of letters rogatory and its Additional Protocol, inter alia, extends the international co-operation to the service of documents concerning the enforcement of a sentence (suspension, conditional release …) and supplements the provisions on exchange of information concerning criminal records.
89. The European Convention on Extradition of 13 December 1957 provides for the extradition between states parties of individuals charged with an offence or wanted for the purpose of enforcing a sentence. The convention is supplemented by two additional protocols. The second of these includes provisions on judgments in absentia.
90. The European Agreement on "Au Pair" Placement of 24 November 1969 was concluded to avoid a number of problems posed by au pair placement and contains specific provisions on relations between the receiving family and the person placed au pair, who qualifies neither as a worker nor a student. This Agreement requires namely a written agreement, the respective obligations concerning working hours and leisure time, and the rules on payment of pocket money.
91. But is must be noted that these conventions are often inapplicable in cases of domestic slavery, as the countries incriminated are mostly non-European and are therefore not bound by their provisions.
92. Finally, States members of the Council of Europe must be encouraged to sign and ratify the Convention against Transnational Organized Crime and its additional protocols, in particular that on trafficking in persons, which proposes the first legal definition of trafficking for the purposes of economic and sexual exploitation.
c. Preparation of a domestic employment charter
93. A draft domestic workers' charter of rights has been proposed by the RESPECT network. This European network, established in 1998, brings together private individuals and migrant domestic workers' organisations (SOLIDAR in Belgium, Kalayaan in the United Kingdom, etc.) and its aim is to promote and uphold the rights of domestic workers, whatever their immigration status (legal or illegal).
94. By recognising that domestic work is proper work, a charter of this kind would help to restore the dignity of domestic workers. It should establish rules aimed at preventing situations of slavery, in particular the requirement of a genuine contract of employment and rules governing wages and working hours, not forgetting foreign domestic workers' rights to enter and reside in the host country.
Conclusion
95. It is not possible to broach the issue of domestic slavery without considering the broader issue of trafficking in human beings. The efforts to combat this traffic require not only individual, but also concerted action by states.
96. At national level, each state should make provision under its criminal law for a specific offence of enslaving and trafficking in human beings, establish appropriate, proportionate penalties for perpetrators, recognise the victim status of those who fall prey to traffickers and introduce protection and rehabilitation policies.
97. At international level, genuine co-operation between states should be instituted at the level of both the judiciary and the police. Such co-operation should also make it possible to counter the causes of trafficking in the countries of origin, in particular by fighting poverty through public development aid.
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Reporting committee: Committee on Equal Opportunities for Women and Men.
Reference to committee: Doc 8618, Reference No. 2478 of 28 January 2000.
Draft recommendation and draft order unanimously adopted by the committee on 26 April 2001.
Members of the committee: Mrs Err (Chairperson), Mrs Aguiar (1st Vice-Chairperson), Mr Hadjidemetriou (2nd Vice-Chairman), Mrs Keltosova (3rd Vice-Chairperson), Mrs Auken, Mrs Biga-Friganovic, Mrs Castro (Mrs Lopez-Gonzalez), Mrs Cryer, Mrs Dade, Mrs Dromberg, Mrs Druziuk, Ms Faldet, Mrs Freitag, Mrs Freyberg, Mrs Frimannsdóttir, Mrs Gatterer, Ms Granlund, Ms Gülek, Ms Hadjiyeva, Ms Herczog, Mrs Hornikova (Mr Mezihorak), Ms Jones (Mr Etherington), Mr Juri, Mrs Katseli, Mrs Kestelijn-Sierens, Mr Kiely (Mr Connor), Mrs Lakhova, Mrs Laternser, Mrs Mikutiene, Mr Neuwirth, Mr Olteanu, Mrs Paegle, Mrs Patarkalishvili, Ms Patereu, Mr Popovski, Mrs Poptodorova, Mrs Pozza Tasca, Mr Pullicino Orlando, Mr Riccardi, Mrs Roudy, Mrs Rupprecht, Mrs Serafini, Mr Volodin, Mrs Zapfl-Helbling (Mrs Vermot-Mangold), Mrs Zwerver.
N.B. The names of the members who took part in the meeting are printed in italics.
Secretaries of the committee: Mrs Nollinger, Ms Kostenko.