Report | Doc. 13086 | 04 January 2013

Trafficking of migrant workers for forced labour

Committee on Migration, Refugees and Displaced Persons

Rapporteur : Ms Annette GROTH, Germany, UEL

Origin - Reference to committee: Doc. 12411, Reference 3736 of 24 January 2011. 2013 - First part-session

Summary

Human trafficking continues to grow on a massive scale. It can be seen as the fastest growing form of organised crime and the largest source of transnational crime profit. Virtually all countries are believed to be affected, as countries of origin, transit and/or destination.

It is important to not only focus on human trafficking for sexual exploitation, but also to look at the much broader dimension of the problem which is trafficking for forced labour. This includes the “sex industry”, the agricultural sector, the construction industry, the textile industry, the hotel and catering sector, the manufacturing sector, domestic slavery and servitude (including in diplomatic households) and forced begging. According to the International Labour Organization (ILO) global estimates, at least 20.9 million people in the world – three in every thousand – are trapped in forced labour and 44% of these people (9.1 million) are victims of trafficking.

Interpol estimates that only 5% to 10% of cases become known to the authorities and an even smaller proportion of the victims of human trafficking are identified. Women and girls are the most numerous and 90% of these victims are exploited in the private sector.

Despite the authorities’ growing awareness of the problem, this criminal activity remains a low risk business which can bring in high profits. It attracts criminal networks and individuals, and it is rare that the perpetrators and end-users are identified and convicted.

Cases of trafficking for forced labour, where migrants have been trafficked, are generally dealt with by the authorities primarily as smuggling issues and as violations of national immigration or labour law. This is a flawed approach, which puts victims in the position of criminals; it focuses on the wrong target and is an obstacle to effectively fighting traffickers and trafficking. Therefore, member States are encouraged to tackle the phenomenon from the angle of trafficking, while taking into account the particular vulnerability of the people concerned. They are also invited to review their immigration and return policies so as to ensure that persons trafficked for forced labour are treated primarily as victims in need of protection rather than violators of migration control.

A. Draft resolution

(open)

1. The Parliamentary Assembly is concerned about the massive scale of human trafficking. According to the International Labour Organisation (ILO), at least 20.9 million people across the globe – three in every thousand – are trapped in forced labour and 44% of these people (9.1 million) are victims of trafficking. Human trafficking can be seen as the fastest growing form of organised crime and one of the largest sources of transnational crime profit. Virtually all countries are believed to be affected, as countries of origin, transit and/or destination.

2. It is important to not only focus on human trafficking for sexual exploitation, but also to look at the much broader dimension of the problem which is trafficking for forced labour. This includes the “sex industry”, the agricultural sector, the construction industry, the textile industry, the hotel and catering sector, the manufacturing sector, domestic slavery and servitude (including in diplomatic households), forced begging and pickpocketing, and organ trafficking.

3. Interpol estimates that only 5% to 10% of cases become known to the authorities and an even smaller proportion of the victims of human trafficking are identified. Irregular migrants and forcibly displaced persons, and other groups such as the Roma are particularly vulnerable to trafficking, including for forced labour purposes. Women and girls are the most numerous victims and 90% of victims are exploited in the private sector.

4. This criminal activity remains a low risk business which can bring in high profits and attracts all levels of criminal networks or individuals taking advantage of the loopholes in national migration and labour market policies. The Assembly is concerned that the perpetrators and end-users are rarely identified and convicted. Few cases are prosecuted as trafficking offences.

5. Cases of trafficking for forced labour, where migrants have been trafficked, are generally dealt with by the authorities primarily as smuggling issues and as violations of national immigration or labour law. This is a flawed approach, which puts victims in the position of criminals, focuses on the wrong target and is an obstacle to effectively fighting traffickers and trafficking.

6. The Assembly recognises that it is essential to tackle the root causes of trafficking for forced labour, including the reduction of poverty and creation of employment opportunities in the countries of origin of trafficking victims. It also highlights the importance of education, vocational training and empowerment of potential victims, in particular women and girls. In addition, it is necessary to increase awareness of the risks of trafficking for forced labour and facilitate the effective reintegration of victims into society.

7. The Assembly is acutely aware of the importance of reinforcing co-operation and information sharing, including on best practices, between all those involved in anti-trafficking. These actors include national authorities of the counties of origin, transit and destination, judges, prosecutors, labour inspectors, police forces, border guards, representatives of civil society and trade unions.

8. Consequently, the Assembly recommends that Council of Europe member and observer States, as well as partners for democracy:

8.1. tackle the phenomenon of trafficking of migrant workers for forced labour, while taking into account the particular vulnerability of these persons, by:

8.1.1. putting in place a strong legal framework to prosecute end-users and perpetrators, including private households, and ensuring that all forms of forced labour are treated as criminal offences;

8.1.2. encouraging regular and co-ordinated inspections by organisations responsible for regulating employment, health and safety in sectors most at risk, encouraging workers to self-organise, and also associating employment agencies in actions against human trafficking;

8.1.3. strengthening the role of labour inspectors and allocating sufficient human and financial resources to allow them to effectively regulate employment, including domestic work and the functioning of informal businesses and workplaces, where forced labour practices are most prevalent;

8.1.4. taking steps to discourage demand for the services of trafficked persons for the purpose of forced labour, particularly in domestic services and in the agriculture, fisheries, construction, hospitality, care and cleaning sectors;

8.1.5. combating corruption of public officials involved in trafficking offences;

8.1.6. ensuring that all relevant professionals, including judges and prosecutors, labour inspectors, law enforcement officials, border guards, immigration officials, staff working in immigration removal centres, local authorities staff, diplomatic and consular staff, health professionals and social workers receive comprehensive and multi-disciplinary training to identify victims of human trafficking for forced labour purposes and to assist and protect these victims in line with the Council of Europe Convention on Action against Trafficking in Human Beings (CETS No. 197);

8.1.7. ratifying and implementing, if they have not already done so, the Council of Europe Convention on Action against Trafficking in Human Beings and the International Labour Organization Convention concerning Decent Work for Domestic Workers;

8.2. review their immigration and return policies to bring them into line with the recommendations of the Council of Europe’s Group of Experts on Action against Trafficking in Human Beings (GRETA) so as to ensure that persons trafficked for forced labour are treated primarily as victims in need of protection rather than violators of migration control, by:

8.2.1. clearly identifying legal migration channels and disseminating accurate information on the conditions enabling legal entry and stay;

8.2.2. stepping up efforts to identify potential victims of trafficking, including at the border and in detention centres, by giving access to monitoring bodies and specialised organisations, including non-governmental organisations;

8.2.3. ensuring that potential victims of trafficking are not punished for immigration-related offences during the identification procedure;

8.2.4. facilitating the issuing of temporary and renewable residence permits on humanitarian grounds, if possible in conjunction with work permits, to migrants who are victims of trafficking;

8.2.5. guaranteeing the right of migrant domestic workers to an immigration status independent of any employer;

8.2.6. effectively granting victims of human trafficking a recovery and reflection period of at least 30 days to enable them to recover and escape the influence of traffickers;

8.2.7. ensuring victims access to the courts and guaranteeing their effective access to legal aid and interpretation services;

8.2.8. providing effective protection to victims co-operating in criminal proceedings;

8.2.9. considering special measures for the return of victims of trafficking as an integral part of anti-trafficking policy, by guaranteeing rights, safety, dignity and protection from re-trafficking in case of return or readmission and making use of assisted voluntary return programmes.

B. Draft recommendation

(open)

1. The Parliamentary Assembly refers to its Resolution …(2013) on trafficking of migrant workers for forced labour.

2. The Assembly notes that human trafficking, including for forced labour purposes, is a global phenomenon that affects all Council of Europe member States, as countries of origin, transit and/or destination. It is concerned that few victims of trafficking for forced labour are identified and that the perpetrators and end-users are rarely detected, prosecuted and convicted.

3. The Assembly welcomes the fact that the Committee of Ministers continues to invest efforts in fighting human trafficking, including for forced labour, in particular by supporting the Council of Europe’s Group of Experts on Action against Trafficking in Human Beings (GRETA), which monitors the implementation of the Council of Europe Convention on Action against Trafficking in Human Beings (CETS No. 197).

4. The Assembly invites the Committee of Ministers, in the context of the preparation of the programme of activities for 2014-2015, to give priority to the issue of fighting human trafficking, including for forced labour. In this context, it calls on the Committee of Ministers to:

4.1. examine the problem of obtaining comprehensive and coherent data on human trafficking, including for forced labour purposes, in order to remedy the current lack of reliable statistics, inviting GRETA to assist in this;

4.2. carry out training programmes for those active in dealing with trafficking issues, and in particular those involved in identifying and assisting victims among migrant workers (law enforcement and other officials, labour inspectors, members of trade unions and employer organisations, non-governmental organisations (NGOs) and others). In this work, the Committee of Ministers is invited to involve GRETA and explore the possibility of a joint programme with the European Union as part of its Strategy towards the Eradication of Trafficking in Human Beings 2012-2016;

4.3. invite the Group of States against Corruption (GRECO) and GRETA to examine the link between corruption and trafficking in human beings, including by undertaking itself, or by commissioning research on this issue, and ensuring that allegations of corrupt dealings by public officials are investigated promptly, thoroughly and impartially.

C. Explanatory memorandum by Ms Groth, rapporteur

(open)

1. Introduction

1. Human trafficking is not a new phenomenon; to a large extent it is about exploiting vulnerable individuals, often workers, whether women, children or men. Human trafficking is regarded today as the fastest growing form of organised crime producing considerable profits. Virtually all countries of the world are believed to be affected by the phenomenon. It is generally associated with the sex trade, but recently the international community has focused on a much broader dimension of the problem which is forced labour.

2. According to estimates from the International Labour Organisation (ILO), there are at least 20.9 million people – three in every thousand – trapped in forced labour in the world and 44% of these people (9.1 million) are victims of trafficking.

3. Our committee has been taking an interest in this issue for a number of years. In September 2010 it organised a hearing on the question, with contributions from several experts. Convinced of the importance of the subject, following the hearing the committee decided to draft a report. I was appointed the new rapporteur in June 2012 and held an exchange of views with experts during the September 2012 meeting.

4. We must acknowledge the existence of and resolutely combat this large-scale phenomenon which is rife in the very heart of Europe. As the President of the Council of Europe’s monitoring mechanism GRETA (Group of Experts on Action against Trafficking in Human Beings) stated, “A human being cannot be merchandise and Europe must be the guarantor of this rule of civilised society”.

5. All too often, cases of trafficking for forced labour, where migrants have been trafficked, are generally dealt with by the authorities primarily as smuggling issues and as violations of national immigration or labour law. This flawed approach, which puts victims in the position of criminals, focuses on the wrong target and is an obstacle to the effective fight against traffickers and trafficking.

2. Acknowledging the magnitude of the problem

2.1. The concept of forced labour

6. It is essential to fully acknowledge the magnitude of the problem. For several years, studies and work on human trafficking have focused on sexual exploitation. However, human trafficking for forced labour purposes assumes various forms, not necessarily of a sexual nature. In its reports, GRETA, has underlined the need for States to focus not only on human trafficking for sexual exploitation, but to also look at trafficking for labour exploitation purposes

7. This report looks at the phenomenon of trafficking of migrant workers for forced labour. Throughout this report, the concept of “forced labour” is used in a broad sense. While this approach (which is also the one followed by the ILO) does not cover all aspects of human trafficking or other exploitation practices,

it does capture the full realm of trafficking of migrant workers for labour and sexual exploitation purposes, including domestic slavery and servitude.

8. The United Nations Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime (“the UN Palermo Protocol”) and the Council of Europe Convention on Action against Trafficking in Human Beings (“Council of Europe Anti-Trafficking Convention”) use a different approach by referring to the concept of “forced labour” in a narrow sense as one of the possible forms of exploitation.

9. Article 4 of the European Convention on Human Rights (ETS No. 5, “the Convention”) prohibits forced labour without defining it. The authors of the Convention took as their model the Forced Labour Convention, which describes as “forced or compulsory labour” “all work or service which is exacted from a person under the menace of any penalty and for which the said person has not offered himself voluntarily”.

The European Court of Human Rights endorsed this definition in the Van der Mussele v. Belgium case

and subsequently reiterated this finding in its judgments in the cases of Siliadin v. France

and C.N. and V. v. France.

2.2. A phenomenon on a massive scale

10. Globalisation and information technology have profoundly changed the economy and society. On the one hand, they have generated economic growth, employment and development, but on the other they have been accompanied by major challenges such as widening gaps between the haves and have-nots, a rise in income inequality, poverty, the informal economy and unprotected work.

In this context, human trafficking has continued to grow and has become a massive-scale phenomenon which some call “modern-day slavery”.

11. Reliable data on the number of victims of human trafficking for forced labour, including migrant workers, is missing. This lack of accurate statistics is primarily due to the “hidden” nature of the phenomenon, as only few trafficking cases are detected and consequently investigated or prosecuted under this charge. In addition, there are differences in data collection at national level, with some member States counting victims of all alleged trafficking cases for forced labour, others counting only cases prosecuted under this charge, and others including only cases where perpetrators were convicted. That said, there nonetheless exist estimates that are indicative of the scale of the phenomenon.

12. According to ILO estimates published in 2012,

there are at least 20.9 million people – three in every thousand – trapped in forced labour in the world. Women and girls are the most numerous victims (55%). 90% of victims are exploited in the private sector, by individuals or enterprises (22% are victims of forced sexual exploitation and 68% in economic activities such as agriculture, construction, domestic work or manufacturing). The European Union and the developed economies

account for 7% of victims of forced labour (76% of whom are victims of sexual exploitation according to the European Commission), and a further 7% are to be found in other European countries and the Commonwealth of Independent States (CIS). Human trafficking of European Union citizens within the European Union itself is believed to be increasing.

13. The ILO estimates that 44% of persons trapped in forced labour are victims of trafficking, representing 9.1 million people. Irregular migrants and the 42.5 million forcibly displaced persons worldwide are particularly easy prey for traffickers.

14. Human trafficking presents the fastest growing form of organised crime and the largest source of profit in transnational crime. The profits are estimated at US$32 billion per year.

2.3. European and international response: a strengthened legal framework

15. Today, forced labour is forbidden by international law, European law, constitutional law, criminal law, labour law and administrative law in virtually all countries. Nonetheless it persists. Despite the efforts of governments, international organisations and civil society, human trafficking remains a global problem. In response to growing concern, several international and European legal instruments have been added to those already in existence.

16. The main instrument at international level is the UN Palermo Protocol, which includes the first internationally recognised definition of human trafficking. The second UN Palermo Protocol against the smuggling of migrants by land, air and sea (supplementing the United Nations Convention against transnational organised crime), which entered into force on 28 January 2004, is also relevant.

17. The Council of Europe Anti-Trafficking Convention, adopted in 2005, presented the first comprehensive and legally binding text on this matter at European level. The convention adds a new dimension by placing the emphasis on human rights and the protection of victims. It is important to note that this convention is also open to ratification by non-member States of the Council of Europe and by the European Union. It has been ratified by 37 member States to date.

18. The European Union has also adopted two Directives relating to this issue, notably Directive 2004/81/EC on residence permits for human trafficking victims

and Directive 2011/36/EU on preventing and combating trafficking in human beings and protecting its victims (EU Anti-Trafficking Directive).

The latter adapts the European Union legal framework to the majority of the standards enshrined in the Council of Europe Anti-Trafficking Convention. European Union member States are required to transpose this Directive into national law by 6 April 2013. In June 2012, the European Commission presented the European Union Strategy towards the eradication of trafficking in human beings (2012-2016).

Key priorities include setting up national law-enforcement units on human trafficking and the creation of joint teams to investigate cross-border trafficking cases.

3. Profile of trafficking for forced labour

3.1. Patterns of human trafficking

19. Human trafficking consists of three basic components, which are the perpetrator’s action (including recruitment and transportation), the means (such as the threat or use of force or other forms of coercion, or the abuse of power or of a position of vulnerability), and the purpose (which is exploitation).

The European Court of Human Rights noted that human trafficking, by its very nature and aim of exploitation, treats human beings as commodities to be bought and sold and put to forced labour, and involves the use of violence and threats against victims, who live and work under poor conditions.

20. Thus human trafficking means more than the organised movement of persons for profit. Whereas smuggling of migrants is confined to voluntary and unlawful cross-border transport of people in return for direct or indirect financial or other material benefit, the ultimate purpose of human trafficking is the exploitation of the individual concerned.

Nevertheless, many victims of trafficking initiate contacts with traffickers, despite being aware of the real conditions of their promised life or “work” before reaching a destination. On the other hand, many smuggled migrants end up in severe exploitation, although not having initially been lured by false pretences. Consequently, “[a]n individual can be smuggled one day and trafficked the next”.

21. Trafficking of migrant workers for forced labour generally follows a three-stage pattern: recruitment, transportation and exploitation.

22. The recruitment phase often involves traffickers using means of coercion, deception and sometimes even abduction. The deception factor is important since it is this that distinguishes victims of human trafficking for forced labour purposes from people who simply work in poor conditions.

23. The transportation stage may involve criminal offences such as forgery of documents, bribery of officials, and violation of immigration and border control legislation, and coercion of victims, illegal detention and confiscation of identity papers.

24. Although there is no authoritative interpretation of the term “exploitation” on the international level, the exploitation phase generally includes the following features: low or no pay; long/excessive working hours; no paid leave/sick leave/breaks; virtually non-existent safety arrangements and dangerous working conditions; sub-standard housing; discrimination, physical and psychological threats, intimidation, isolation, etc.

3.2. Activity sectors

25. Several sectors are particularly affected by this phenomenon: these include the so-called “sex industry”, the agricultural sector, the construction industry, the textile industry, the hotel and catering sector, the manufacturing sector, domestic slavery and servitude (including in diplomatic households) and forced begging.

26. As stated by Maria Grazia Giammarinaro, OSCE Special Representative and Co-ordinator for combating trafficking in human beings, regarding domestic slavery and servitude, “Trafficking for the purpose of labour exploitation is commonly perceived as less invasive and damaging than trafficking for sexual exploitation. While in some cases this might be true, trafficking for domestic slavery or servitude is often just as devastating an experience, with long-term and serious consequences. … This invisible exploitation must become a concern for all of us. It could be taking place next door, in our own social environment”.

27. Trafficking for domestic exploitation, which exists all over the world, primarily affects women and girls, migrants and au pairs. Like all forms of exploitation, domestic slavery and servitude are difficult to detect, and the fact that the person exploited lives in a private household makes such detection even harder. Victims generally live in the house of the family that is exploiting them and are therefore at their disposal and mercy night and day and are totally dependent upon them. There is also disconcerting evidence of foreign diplomats abusing their immunity to keep domestic workers in slave like conditions.

The chores they are given include cleaning, ironing, cooking and child-minding. Often the victims receive almost no remuneration (or indeed no remuneration at all), have excessive working hours, their identity papers are confiscated and, in the best of cases, they have only limited freedom of movement. Many are psychologically abused and constantly criticised and humiliated and others are physically abused. Holidays and a private life are non-existent.

28. The fight against domestic slavery and servitude has to overcome a particular difficulty: the fact that there is no common definition of domestic work and that there are different perceptions of this phenomenon depending on the cultural context. Few States have regulated this labour sector which, as it is often linked to the family concept, is usually not covered by the existing legal frameworks. The fact that domestic work is rarely recognised as work in its own right makes this sector particularly vulnerable to exploitation. Furthermore, since domestic work is carried out in the homes of private individuals, labour inspectors have virtually no access. Lastly, the very few cases of domestic slavery brought before the courts are rarely described as cases of human trafficking, but rather as abuse of vulnerability, undeclared employment or withholding of identity documents.

29. The new ILO Convention concerning Decent Work for Domestic Workers (ILO Convention on Domestic Workers)

sets basic rights and labour standards for domestic workers, including daily and weekly rest hours, entitlement to minimum wage and to choose the place where they live and spend their leave. States parties should also take protection measures against violence and should enforce a minimum age. In addition, workers have a right to a clear communication of employment conditions which should in case of international recruitment be communicated prior to immigration. The convention was adopted in June 2011 and will enter into force in 2013 following its ratification by the Philippines in August 2012.

3.3. European countries mainly affected

Main countries of origin	Main countries of transit	Main countries of destination
Albania	Albania	Austria
Armenia	Belgium	Belgium
Belarus	Bulgaria	Bosnia and Herzegovina
Bulgaria	Czech Republic	Czech Republic
Czech Republic	France	Denmark
Estonia	Germany	France
Georgia	Greece	Germany
Hungary	Hungary	Greece
Latvia	Italy	Italy
Lithuania	Poland	Netherlands
Poland	Slovak Republic	Poland
Republic of Moldova	Turkey	Spain
Romania	Ukraine	Switzerland
Russian Federation		Turkey
Slovak Republic		United Kingdom
Ukraine

3.4. Routes and means of recruitment

30. Europol notes that the routes used by traffickers vary considerably and are rapidly adapted to changes in demand and any new obstacles.

31. When victims come from non-European countries, traffickers appear to prefer air travel using forged documents. Europol states that Chinese and Nigerian organised crime groups are proficient in producing falsified documents. Often they make victims stay beyond the period authorised by their visa. Sometimes, they abuse the asylum system to get victims into the country. Victims are told to request asylum once in the country, and then to abscond from the reception centres for refugees and asylum-seekers in order to meet those exploiting them as arranged.

32. The use of the Internet is rapidly expanding as a means of recruiting victims.

3.5. Case examples

33. The following list of case examples regarding trafficking of migrant workers for forced labour is far from exhaustive. The majority of cases are not reported, as the victims – silenced by inhumane conditions – have no access to the courts or fear reprisals.

34. In 2009, a network exploiting over 700 migrant workers from Bosnia and Herzegovina, Serbia and “the former Yugoslav Republic of Macedonia” on building sites was dismantled in Azerbaijan.

35. Several reports describe large-scale abuse of Slovak and Asian workers in forests in the Czech Republic in 2009 and 2010. There too, the work contracts were grossly misleading, accommodation conditions appalling, hunger omnipresent and wages minimal if not non-existent.

36. According to the 2011 GRETA report, human trafficking for forced labour was on the increase in Cyprus, in particular in the farming and domestic work sectors.

37. Up to August 2009, over 1 000 Chinese workers were found to have been victims of a trafficking ring which smuggled them into Germany as “speciality cooks”. Once they arrived in the country, their passports were confiscated and they were thrown into debt bondage, unable to leave until they repaid the massive debt amounting to €10 000 for obtaining a visa. In addition, their pay was illegally docked to pay for their sub-standard accommodation, food and transport, not to mention the fact that their pay was much lower than indicated in their contracts.

38. In the Netherlands, an asparagus grower was arrested in 2010 for human trafficking and the economic exploitation of 40 people, primarily Romanians, who were working on a farm in appalling conditions. The Dutch trade union federation FNV said that this case was by no means an exception.

39. In 2007, over 60 Tajik migrants were recruited by a local employment agency to work for a construction company in Poland. Once in the country the workers had to perform different work to that for which they had been hired and they never received a salary. The claim brought by the Bureau of Human Rights with the prosecutor’s office against the employment agency did not bring any results.

40. According to an ILO report, a study carried out in 2008 in the Republic of Moldova showed that 40% of Moldovan migrants had been victims of exploitation in the countries of destination, and almost 8% of all migrants had been victims of human trafficking for forced labour.

41. The Scandinavian countries, although less exposed to this phenomenon, are not immune. Several sectors, such as construction, the catering sector, domestic work and berry-picking, have been identified as areas where there is a risk of exploitation of irregular migrant workers.

42. The 2011 GRETA report on the Slovak Republic pointed out that most of the 57 and 41 victims identified in 2008 and 2009 were subject to transnational trafficking for forced labour purposes, particularly for sexual exploitation, domestic slavery and forced begging.

43. In the first half of 2011, six foreign nationals were identified as victims of sexual exploitation and forced labour in agriculture in Romania. The 2012 GRETA report on the country highlighted that Romanian nationals, including children, accounted for the vast majority of victims and were subject to transnational trafficking towards other European countries.

44. In October 2012, more than 30 Lithuanian workers were liberated after allegedly being trafficked into the United Kingdom. They were reportedly kept in debt bondage by a gangmaster company, forced to work up to 17 hours a shift, bussed to chicken farms throughout the country, sleeping for days at a time only in vans. In some weeks they were not paid at all and kept under control by Lithuanian “enforcers” with threats of violence and on occasion physical assault.

45. The ILO noted an increase in forced labour trafficking cases in the Russian Federation and Ukraine.

In 2008, the Russian police freed 49 irregular Uzbek migrants who were victims of exploitation sorting onions in a village outside Moscow. They had not been paid, were working 14 hours a day and their passports had been confiscated.

4. Prevention and protection of victims

4.1. Who are the victims?

46. As stated above, traffickers use various methods and networks to dupe their victims. However, we are not defenceless against this criminal activity. It is our duty as legislators to put in place measures and mechanisms to prevent human trafficking and protect the victims.

47. First of all, it is essential to identify the victims, who are a complex and varied group. It is clear that the very nature of this crime does not make this task easy. This becomes even more obvious when looking at Interpol’s estimate that only 5% to 10% of cases become known to the authorities and an even smaller proportion of the victims of human trafficking are identified.

48. The US Department of State estimates that, in 2011, the authorities identified 41 210 victims of human trafficking worldwide and 10 185 victims in Europe.

49. According to Europol, within the European Union, forced labour is largely associated with the illegal labour market and migrant communities. Irregular migrants and forcibly displaced persons are particularly vulnerable to exploitation. Most victims are women and children.

50. While the general public’s and the authorities’ awareness of the problem is increasing, the economic crisis and austerity measures across Europe have created the conditions for trafficking for forced labour to thrive, and the phenomenon is believed to be increasing within the European Union itself. Europol observes that these cases concern not only Poles, Lithuanians and Bulgarians, but also Portuguese and British nationals.

51. The Roma, and primarily women and children, are particularly vulnerable to exploitation, especially since the public authorities are often indifferent to their fate in several European countries. Exploited Roma children are often forced into begging. I have already addressed this issue in my report on Roma migrants in Europe (Doc. 12950). In Recommendation 2003 (2012) adopted on the basis of this report, the Assembly called on the Committee of Ministers to “analyse legislation and practices in member States aimed at criminalising begging and evaluate the impact of this on Roma and the implications under the European Convention on Human Rights, the revised European Social Charter and other Council of Europe standards”. It is regrettable that beggars are often viewed by the public authorities more as a problem than as people who need help.

52. An unknown number of Chinese nationals are victims of forced labour in Europe. They work mainly in catering or in “shops” or small textile factories. Nigerians are also victims of trafficking for forced labour, often in order to pay their debts for their entry into Europe.

53. In many potential cases of trafficking for forced labour, migration control measures prevail over anti-labour exploitation measures. Although not all victims of trafficking are necessarily undocumented workers, the exploited victims are often reluctant to identify themselves for fear of being sent back to their country of origin. An obvious example is the case of Dutch bus drivers who contacted the police, because they suspected that they were transporting victims of trafficking. As a consequence, a number of migrant women were arrested and subsequently expelled. The issue of forced labour was never investigated.

54. In most European countries, undocumented workers can have access to the courts and the latter are not required to report irregular migrants. Nonetheless, the threat that such a move can cause the victim’s deportation is all too real. Moreover, the Anti-Trafficking Convention stipulates that domestic law should provide for a recovery and reflection period of at least 30 days to enable victims to recover and escape the influence of traffickers. In this way, victims can, in full knowledge of the facts, reach a decision on co-operating with the competent authorities. The convention makes it clear that during this period no deportation measure may be taken against them.

55. With regard to protecting victims, very often irregular migrants, the question arises as to whether trafficking victim status provides them with a legitimate right to stay in the host country. While the co-operation of victims in investigations against traffickers generally gives them a right of temporary residence, this right ends once the investigations are complete and they then run the risk of being deported. It is important to take into account the many reasons why victims may legitimately fear returning to their country of origin, and in particular the fear of reprisals by members of criminal trafficking groups.

56. Co-operation of victims is an essential factor in effectively combating human trafficking for forced labour. This is why we must make every effort to ensure that victims are considered as such and treated with respect, not as irregular migrants. Their access to justice should be made easier and not made conditional on co-operation with criminal investigations.

4.2. Labour market policy

57. Regulations, the introduction of permits, monitoring and setting up arrangements for the surveillance of recruitment activities are essential for protecting workers against abusive and fraudulent practices which could lead to trafficking. Penalising only the employer in cases of forced labour practices leaves the trafficking network, comprising recruiters and associates, intact.

58. Legislation and other appropriate measures are required to ensure that all types of recruiters and associates can be monitored and prosecuted.

59. Clearly, efforts should be focused on promoting decent work, but it is also important to encourage workers’ self-organisation and representation. To this end, it is essential to provide information on workers’ rights and on the procedures for reporting abuse and suspected cases of forced labour. A much stronger and more active commitment is required to ensure full freedom of association and to facilitate the establishment of complaint procedures which are available and accessible to all workers, whatever their status. Labour inspectors have a key role to play in detecting cases of trafficking and exploitation. They have resources at their disposal which go beyond those of the police, especially as they are able, at any time and without prior notification, to visit all work places for inspection. In addition, employment agencies need to be associated in actions against human trafficking. Trade unions are also key players in the detection and prosecution of cases of trafficking of migrants for forced labour.

4.3. Migration policy

60. If the migration policies in place are restrictive and if would-be immigrants are not well-informed about legal immigration channels and opportunities for working abroad, these individuals become easy prey for traffickers. Migrants, especially women, are often employed in low-skilled and deregulated sectors which are particularly vulnerable to abuse and exploitation.

61. Moreover, the policy of criminalising the irregular entry and presence of migrants in Europe has an adverse effect on the readiness of victims to co-operate with the authorities since not only do they fear being deported, they also fear prosecution. The Council of Europe Commissioner for Human Rights expressed his concern regarding the trend to use a “language of criminalisation” and criminal law sanctions to control immigration and punish individuals and businesses which engage with irregular migrants.

This confirms and reinforces the negative image of irregular migrants, who are viewed as criminals simply because of their “irregular” situation.

62. The United Nations Special Rapporteur on the human rights of migrants goes further, stating that irregular immigration prevention policies can have the side effect of encouraging the expansion of trafficking and smuggling networks.

4.4. Social support and inclusion of victims

63. At present, the provision in the Anti-Trafficking Convention whereby “assistance to a victim is not made conditional on his or her willingness to act as a witness” is only rarely applied when the migration status is an issue. GRETA’s evaluation reports generally urge authorities to ensure that assistance measures provided for in law are not, in practice, made dependent on the victim’s readiness to co-operate with law enforcement agencies.

64. The repatriation of the victim following the criminal trial (even in cases where the victim has initiated proceedings, commenced rehabilitation or co-operated with the judicial authorities) does not encourage victims to come forward and report their exploiters, and may ultimately lead to renewed trafficking.

65. In most countries, trafficking victims are given virtually no support, whether in terms of medical care, accommodation, transport, interpreting or legal aid and advice. Where such services are available, they are generally geared to victims of trafficking for sexual exploitation.

66. In many countries, there is limited or no labour inspection for the agricultural sector. Even where workplaces are subject to regular visits, inspectors do not always speak the appropriate language to communicate with workers, or the latter are given no opportunity to speak in private with the inspectors. Labour inspectors are well placed to both help identify victims and directly or indirectly support them through their work.

4.5. Examples of good practice in preventing human trafficking and protecting victims

67. The following examples, including action by the authorities, by trade unions and by NGOs, can be highlighted as good practice in terms of preventing human trafficking and protecting victims.

68. Belgium and Italy can serve as models in this sphere, as these countries recognise the victim status of migrants who have been subjected to human trafficking and issue temporary residence permits so as to enable them to file and pursue a complaint against those who have exploited them.

They can also obtain a long-term residence permit – which is not subject to agreeing to co-operate with the judicial authorities – where there is a threat to the safety of the victims.

69. The National Anti-Human Trafficking Agency published a practical guidebook on conducting prevention campaigns and in 2011 organised more than 1 250 events in Romania to raise awareness of human trafficking in education institutions.

70. The Armenian trade union confederation has produced a leaflet entitled “Beware of tempting offers” containing basic information for those considering migrating for employment, setting out the rules to be complied with before accepting a job.

The Spanish trade union confederation has taken several steps to defend the rights of migrants, in particular by opening information centres for migrant workers, providing them with, amongst other things, legal advice and language courses. Undocumented workers may also visit these centres and benefit from their services. In the United Kingdom, the Trades Union Congress (TUC) informs migrant workers about their rights in a leaflet entitled “Working in the United Kingdom: your rights”, available in several languages,

and has launched a website in Polish containing this information for potential migrants to the United Kingdom.

The International Trade Union Confederation has published a best practices manual for trade unions entitled “How to combat forced labour and trafficking”.

71. The Irish Migrant Rights Centre (IMRC) has published a leaflet entitled “Facts about migrant workers in Ireland” with the aim of providing society with accurate information so as to combat prejudice. The association ORCA (Organisation for Irregular Migrants) publishes a guide to migrant workers’ rights in Belgium, in several languages.

The Belgian NGO Payoke is helping to identify trafficking victims. Together with the NGOs Pag-asa and Sürya, it informs victims about their status and can request residence permits for victims and help them in judicial proceedings.

5. Prosecution

5.1. Who are the perpetrators?

72. Europol observes that as trafficking is one of the most lucrative forms of criminal activity, it attracts all levels of criminal groups from small-scale criminals to large international organised crime networks. Certain aspects of trafficking in Europe are largely supported by Russian and Albanian gangs and by the Italian mafia,

but Roma, Nigerians, Romanians, Chinese, Hungarians, Bulgarians and Turks are also involved.

In addition, an increasing number of women are active in trafficking networks.

73. Mostly, human trafficking is not the only activity carried out by these groups, which tend to engage in other criminal activities, including trafficking in arms and narcotics.

The organised crime groups involved in human trafficking co-operate with groups in other countries.

74. The criminals, or criminal groups, have different roles. Some are in charge of recruitment, others transport, forging documents, bribing the authorities responsible for controls, managing “accommodation” or collecting and distributing the profits. According to Europol, their methods have become less violent than in the past.

75. These criminal networks or individuals take advantage of the loopholes in national migration policies, combining legal and illegal activities. Despite growing awareness of the reality of trafficking for forced labour, this activity remains a low-risk criminal enterprise which can bring in high profits.

76. In addition to the need for increased prosecution and punishment of traffickers, it is important to reach the end-users of trafficking who are employing and exploiting migrant workers. Trafficking would not prosper if there was no demand. Sometimes, the perpetrators of trafficking and exploitation are single individuals, as is often the case with domestic slavery and servitude.

77. It is important to stress that traffickers would not be so “effective” in their dealings without the systematic support of corrupt officials (for example, at border controls and also in the context of victim protection programmes during criminal investigations). The OSCE Special Representative and Co-ordinator for Combating Trafficking in Human Beings quite rightly stated in her 2010 annual report that this aspect has been underestimated and she made a clear link between the countries rated among the most corrupt in Transparency International’s Corruption Perception Index and the major suppliers of trafficking victims. There should be studies into the link between corruption and trafficking in order to understand the extent of the role it plays in this criminal activity. Furthermore action needs to be taken against officials involved in this and any form of corruption.

5.2. The positive obligation to investigate and prosecute

78. The Anti-Trafficking Convention seeks to have treated as criminal offences human trafficking, the use, with full knowledge, of services of a victim of trafficking and acts relating to travel or identity documents. It also provides for sanctions that are “effective, proportionate and dissuasive”.

79. Importantly, the convention contains an obligation to provide for the possibility not to impose penalties on victims for their involvement in unlawful activities (non-punishment provision) and enables the authorities to investigate and prosecute offences under the Convention without the necessity of a complaint from the victim. In addition, authorities must take the necessary measures to provide effective and appropriate protection to victims (including during court proceedings), collaborators with the judicial authorities, witnesses and members of their families.

These principles were also included in the provisions of the European Union Anti-Trafficking Directive, which clearly states that trafficking victims shall not be prosecuted.

80. The European Court of Human Rights, in its jurisprudence, goes a step further and its decisions are of crucial importance for the comprehensive anti-trafficking action within Europe. In its judgments in the cases of Siliadin v. France and Rantsev v. Cyprus and Russia, the Court held that member States have a positive obligation under Article 4 to put into place an adequate legislative and administrative framework to penalise and effectively prosecute servitude and forced labour, and to conduct an effective investigation into instances of potential exploitation once the matter has come to the attention of the authorities.

This approach was confirmed in the recent C.N. and V. v. France judgment.

5.3. Statistics on prosecutions

81. While the profits to be derived from human trafficking are considerable, it is rare for the perpetrators to be identified and consequently convicted.

82. According to US State Department estimates, in 2011, worldwide there were 7 206 prosecutions and 4 239 convictions for human trafficking, and 508 prosecutions and 320 convictions for forced labour trafficking. The figures within Europe were 3 162 prosecutions and 1 601 convictions for human trafficking, and 271 prosecutions and 81 convictions for forced labour trafficking.

83. The relatively small number of prosecutions and convictions for trafficking for forced labour seems to be at odds with the huge number of estimated victims. One of the problems derives from the fact that human trafficking is often “hidden” behind other criminal activities such as prostitution, irregular migration, etc., with the result that many cases, even where they are identified, are not prosecuted under the charge of trafficking.

84. However, in the absence of any standardised guidelines for data collection at European and international level, there are no global statistics on prosecutions for trafficking migrants.

5.4. Examples of good practice in the field of prosecution

85. The following examples of good practice show actions by the authorities and NGOs in terms of prosecution of perpetrators and access to compensation for victims.

86. By way of example, Belgian courts convicted a Chinese couple for the exploitation and trafficking of two Chinese migrant workers on the building site of their future restaurant and two people for economically exploiting a Turkish irregular migrant in their bakery.

87. Operation GOLF, jointly carried out by Europol and the British and Romanian police between 2007 and 2010 and co-financed by the European Union, led to the arrest of 126 people for trafficking and exploiting Romanian Roma children. A total of 272 victims were discovered.

88. Following the amendment of the Criminal Code to prohibit trafficking for both exploitation in the sex trade and forced labour, there has been an increase in prosecutions and convictions in the Russian Federation (in 2007, 139 investigations into trafficking cases took place, of which 35 related to forced labour). There has also been an increase in the number of investigations in Ukraine (three investigations in 2006, 23 in 2007).

89. In Romania, an integrated national human trafficking monitoring and evaluation system has been set up. The national anti-human trafficking agency has created a database for the police containing information on victims. In addition, effective sentences of traffickers went up in 2011, showing both victims and perpetrators that the latter are not untouchable.

90. In 2010, Strada International and Anti-Slavery International launched a project in 14 European countries to improve access to compensation for victims of trafficking.

6. Conclusion

91. Human trafficking has become a real pandemic affecting virtually every country in the world, either as a country of origin, transit or destination.

92. The international community and States have in recent years recognised the scale of the problem of trafficking for forced labour purposes. Numerous pieces of legislation have been adopted, and judges and prosecutors have been familiarised with this crime.

93. However, the problem persists and even increases. The considerable profits obtained by traffickers and exploiters are in themselves sufficient motivation to run the risks and to adapt their operation to overcome new obstacles. There are many and varied players, sources and victims, and demand is high.

94. The effective abolition of forced labour remains a challenge for Europe. The economic crisis reinforces the already significant vulnerability of irregular migrants and increases still further the number of migrants trafficked for this purpose. They are the ideal prey for unscrupulous traffickers who make them pay for their travel to Europe, via unlawful means, delivering them on their arrival to those who will exploit them.

95. We must not be naïve or deny what is happening. Our own countries are affected. The examples cited in this report, which are far from exhaustive, show this to be the case.

96. The fight against human trafficking can be won only if we work together, and not only in Europe, by adopting a holistic and proactive approach. The GRETA President emphasised the importance of empowerment strategies for victims for successfully fighting the phenomenon.

The solution is also to be found in a genuine capacity to constantly assess and re-assess the challenges we have to face, in particular by examining the impact of migration and labour policies on the protection of trafficking victims and on preventing this phenomenon.

97. While many States have adopted action plans to combat trafficking and have set up specialist units for this purpose, there are obvious shortcomings in this fight. There is still a dire lack of information and reliable statistics on the nature of trafficking, its victims, the perpetrators and their constantly evolving modi operandi. A better understanding would enable us to develop new, more appropriate prevention, prosecution and protection methods.

98. We must also take steps to promote decent work for all and strengthen the rights of workers in both countries of origin and of destination. Migrant workers are all too often in a vulnerable position and dependent on their employer. The more dependent they are, the more exposed they are to exploitation. This is particularly the case of victims of domestic slavery and servitude.

99. Our main challenge is to manage migration humanely and in such a way as to prevent exploitation. To this end we must firstly continue to tackle the main causes of migration, including irregular migration, namely poverty and wars or situations of armed conflict and generalised violence. Secondly, we must provide appropriate information to potential migrants. Thirdly, we need to take into account the gender perspective in providing assistance to victims. Fourthly, we must strengthen the role of labour inspectors and unions in the sectors which are likely to resort to forced labour, and, fifthly, step up co-operation, including cross-border co-operation, between the law enforcement authorities.