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Doc. 9809
19 May 2003
Migration connected with trafficking in women and prostitution
Opinion
Committee on Migration, Refugees and Demography
Rapporteur for opinion: Mrs Tana de Zulueta, Italy, Socialist Group
I. Conclusions of the Committee
The Committee on Migration, Refugees and Demography shares the principles laid down in the draft resolution and draft recommendation, and in particular that: a) the issue of migration connected with trafficking in women and prostitution should be addressed with a human rights approach; b) addressing poverty and other root causes of clandestine migration is an essential instrument to prevent trafficking; c) similarly, Council of Europe member states should establish transparent and clear channels for legal migration, which would have preventive effects on trafficking; d) member states should reinforce the legal framework and international co-operation to fight against trafficking, with the aim of apprehending and prosecuting the traffickers while protecting and assisting the victims.
II. Amendments to the draft resolution on behalf of the Committee
Amendment 1
In paragraph 5, replace the word "legitimate" with "legal" (in the English version).
Amendment 2
In paragraph 9 B i., replace the word "legitimate" with "legal" (in the English version).
Amendment 3
At the end of paragraph 9 B v., add the following sentence: "The person concerned should be entitled to lodge an appeal with suspensive effect on deportation against the refusal to issue or renew such residence permit;".
Amendment 4
At the end of paragraph 9 C ii., add the following part of a sentence: ", including through the support and/or organisation of information campaigns addressed to potential victims of trafficking, especially in risk areas, schools and other places of education and socialisation".
Amendment 5
In paragraph 9 D ii., after sub-paragraph a., add a new sub-paragraph b. with the following sentence: "introduce the offence of trafficking in their criminal law;"
Amendment 6
In paragraph 9 E iv., replace "and counselling" with ", counselling and vocational training, in the host country and/or in the country of origin, if they return to such a country".
Amendment 7
At the end of paragraph 9 E, add a new sub-paragraph vi. with the following sentence: '"enable the relevant courts to order offenders to pay compensation to victims of trafficking.".
III. Amendment to the draft recommendation on behalf of the Committee
Amendment 1
In paragraph 3, after i., add a new sub-paragraph ii. reading as follows: "make sure that the Council of Europe Convention on trafficking in human beings includes provisions aiming at: a) introducing the offence of trafficking in the criminal law of Council of Europe member states; b) harmonising the penalties applicable to trafficking; c) ensuring the effective establishment of jurisdiction over traffickers or alleged traffickers, including by facilitating extradition and the application of the principle aut dedere aut iudicare in all cases concerning trafficking".
IV. Explanatory memorandum by Mrs de Zulueta
1. The Committee on Migration, Refugees and Demography supports the preliminary draft recommendation and the preliminary draft resolution, and congratulates Mrs Zwerver, Rapporteur for the Committee on Equal Opportunities for Women and Men, for her excellent work and the commitment she has shown is this important issue.
2. The Committee on Migration Refugees and Demography has adopted several reports on migration connected with trafficking in human beings, which have led to the adoption by the Assembly of Recommendation 1211 (1993) on clandestine migration: traffickers and employers of clandestine migrants and Recommendation 1467 (2000) on clandestine immigration and the fight against traffickers. In addition, the Committee has recently dealt with the issue of trafficking of young people (Recommendation 1596 (2003) on the situation of young migrants in Europe, Rapporteur: Mr Yáñez-Barnuevo) and trafficking connected with forced labour and slavery (exchange of views of 4 October 2002 in Brussels with Mr Meulders, Director of the Centre for the reception and assistance to the victims of trafficking, Liège).
3. The Committee on Migration, Refugees and Demography shares the principles laid down in the draft resolution and draft recommendation, and in particular that: a) the issue of migration connected with trafficking in women and prostitution should be addressed with a human rights approach; b) addressing poverty and other root causes of clandestine migration is an essential instrument to prevent trafficking; c) similarly, Council of Europe member states should establish transparent and clear channels for legal migration, which would have preventive effects on trafficking; d) member states should reinforce the legal framework and international co-operation to fight against trafficking, with the aim of apprehending and prosecuting the traffickers while protecting and assisting the victims.
4. The Committee on Migration, Refugees and Demography, within the scope of its mandate and expertise, wishes to highlight some aspects mentioned in the report and propose amendments to the draft resolution and recommendation, with a view to reinforcing or articulating further the measures proposed by the Committee on Equal Opportunities for Women and Men.
A. Information campaigns for potential victims of trafficking connected with prostitution
Information campaigns addressed to potential victims of trafficking are an essential instrument of prevention. The International Organization for Migration (IOM) and the Stability Pact Task Force on Trafficking in Human Beings are active in this area, organising campaigns in schools and other places of socialisation and education, with a particular attention to regions with a high rate of unemployment and social problems. This activity should be further encouraged. Your Rapporteur therefore proposes to add a reference to the organisation of such campaigns, which are not mentioned in the draft resolution (see proposed amendment 4).
B. Legal framework on trafficking
i) Criminalisation. One of the main problems connected with trafficking is that only a few States have introduced provisions for the criminalisation of trafficking as such. Very often, instead, traffickers are prosecuted for related or similar offences, whose penalties are not commensurate to the gravity of the actions performed with trafficking. Your Rapporteur notes that paragraph 7 of the draft resolution – therefore in the introductory part of the text - urges states ‘to develop legislation for specific trafficking crimes and related offences’. The consistency of the text would be improved if this warning was clearly repeated in the part where the recommendations proper are made (under paragraph 9 D ii, see proposed amendment 5). Criminalisation is one of the principles set forth in the Protocol to prevent, suppress and punish trafficking in persons, especially women and children, supplementing the United Nations Convention against Organized Crime (Article 5).
ii) Avoiding jurisdiction gaps. The introduction of the offence of trafficking in all Council of Europe member states is one of the pre-conditions to avoid jurisdiction gaps. Given the transnational character of their networks, traffickers often operate from countries other than the country where their victims are staying. By so doing, they can avoid prosecution in several ways. For instance they may operate from a country which does not have an extradition agreement with the country where the victims are exploited. But even when there is an extradition agreement – as it is the case for the vast majority of Council of Europe member states, since 43 out of 45 have ratified the European Convention on Extradition1 – other conditions must be met. First of all, for traffickers to be extradited, it is necessary that the actions attributed to them be considered as offences by the law of both the country requesting extradition and the country where the alleged offender is found. The second pre-condition is that the offence is extraditable in both countries2. Finally, to avoid jurisdiction gaps, it is necessary that Council of Europe member states apply the principle aut dedere aut iudicare (hand over or try) with regard to trafficking. Pursuant to this principle, the refusal of an extradition request creates ipso facto an obligation for the State refusing the request to establish its own criminal jurisdiction, even if the offence has been committed abroad. Your Rapporteur wishes to stress that such principle, contained in a number of bilateral and multilateral extradition agreements, is not mentioned in the European Convention on Extradition. Furthermore, both the UN Convention against Transnational Organized Crime and the Council Framework Decision of 19 July 2002 on combating trafficking in human beings3 limit the applicability of the principle aut dedere aut iudicare to cases where a State refuses extradition on the grounds that the person to be extradited is its national4. Your Rapporteur believes that Council of Europe member states should make a clear undertaking to apply the principle aut dedere aut iudicare in all the cases where they turn down an extradition request relating to trafficking. Your Rapporteur believes that a reference to the importance of avoiding jurisdiction gaps should be made clear in the draft recommendation (see proposed amendment 1 to the draft recommendation).
iii) Harmonization of penalties relating to trafficking. Penalties for trafficking or related offences vary considerably among states. The above-mentioned transnational character of traffickers’ networks enables them to operate from countries where, even if apprehended, they would serve a moderate sentence. It is important therefore to introduce a reference to the need of harmonization of penalties relating to trafficking, as mentioned in the 2002 Brussels Declaration, recalled by Mrs Zwerver at paragraphs 18-19 of her report (see proposed amendment 1 to the draft recommendation). As to the level of the penalties, your Rapporteur wishes to highlight the progress made by the European Union: the above mentioned Council Framework Decision of 19 July 2002 on combating trafficking in human beings requests that penalties provided for by national legislation must be ‘effective, proportionate and dissuasive’; the maximum penalty should be set at no less than eight years of imprisonment.
C. Legal status of victims in the host country
Your Rapporteur shares the approach of the Committee on Equal Opportunities for Women and Men that victims of trafficking should be granted residence permits on humanitarian grounds. Your Rapporteur believes that such residence permit should be of a minimum duration of 6 months and enable the holder to have access to healthcare, education, vocational training and the labour market. Its issuance should be independent of the co-operation in investigations or criminal proceedings against traffickers. It should be renewed as long as the conditions for its initial issuance persist. It should be possible to lodge an appeal against the refusal to issue or renew such residence permit. The lodging of an appeal should have a suspensive effect on deportation (see proposed amendment 3).
D. Assistance and protection for those who return to the country of origin
As the report points out, despite the lack of precise figures it is acknowledged that a large proportion of women who are trafficked for prostitution are nationals of Council of Europe member states (see section III). The concern and the response of the Council of Europe to the issue of trafficking, therefore, should aim at assisting and protecting victims in the host country as well as in the country of origin when they return or are returned to such a country. Investment is needed in the training of specialised staff dealing with victims of trafficking and in the establishment of structures and centres to provide them accommodation, counselling, or other assistance in the host country. It would be erroneous, however, to think that a victim of trafficking stops being vulnerable after she has come back to her country origin. As Mr Yáñez-Barnuevo says in his report on the situation of young migrants in Europe: ‘Once returned to their countries of origin, victims of trafficking may experience serious problems while trying to reintegrate in society: they may be rejected by their families, who are ashamed of their previous involvement in prostitution or other illegal activities. Often they do not have sufficient qualifications to find employment or they suffer from the consequences of trauma. Many of them fall prey of traffickers again’. Unfortunately, the follow-up of victims of trafficking returning to their countries of origin is to date still poor, despite efforts of the International Organization for Migration (IOM) and NGOs. Governments and the international community, including financial institutions, should be aware that investing in structures and personnel for the rehabilitation and reintegration of victims of trafficking in their countries of origin means not only improving the well-being of these women, but also investing in prevention of clandestine migration, in expanding the human capital of a country and improving the cohesion of society. Your Rapporteur believes that the draft resolution could be improved spelling out clearly that victims of trafficking have protection and assistance needs both in the host country and in the country of origin (this distinction is made in the report at paragraph 61, but not in the draft resolution). Your Rapporteur therefore proposes amendment 6 to the draft resolution.
E. Compensation of victims
Consistent with Recommendation No. R (2000) 11 of the Committee of Ministers, your Rapporteur believes that member States should enable the relevant courts to order offenders to pay compensation to victims of trafficking (see proposed amendment 7).
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Reporting Committee: Committee on Equal Opportunities for Women and Men (Doc. 9795).
Committee for opinion: Committee on Migration, Refugees and Demography.
Reference to Committee: No. 2598, Doc. 9003.
Opinion approved by the Committee on 5 May 2003.
Secretariat to the Committee: Mr Lervik, Mrs Nachilo and Mrs Sirtori-Milner.
1 Only Bosnia and Herzegovina and San Marino have not ratified the Convention. The text of the European Convention on Extradition (ETS No. 024) at http://conventions.coe.int.
2 Under the European Convention on Extradition are extraditable the ‘offences punishable under the laws of the requesting Party and of the requested Party by deprivation of liberty or under a detention order for a maximum period of at least one year or by a more severe penalty’ (Article 2.1.).
3 Council Framework Decision 2002/629/JHA, in Official Journal L 203, 01.08.2002.
4 See Article 16, paragraph 10 of the UN Convention and Article 6, paragraph 3 of the Council Framework Decision.