Doc. 10397

17 January 2005

Draft Council of Europe Convention on action against trafficking in human beings

Report1

Committee on Equal Opportunities for Women and Men

Rapporteur : Mrs Vermot-Mangold, Switzerland, Socialist Group

Summary

Since 1997, the Parliamentary Assembly has called for the elaboration of a Council of Europe Convention fighting the new scourge of mankind – trafficking in human beings. Every year thousands of human beings, primarily women and children, fall into the hands of traffickers and end up sexually exploited, enslaved or having their organs removed. Profits are high and the risks for the traffickers are low, which has made trafficking in human beings almost as lucrative as drugs and arms smuggling, if not more.

The Committee of Ministers has just submitted a draft Convention on action against trafficking in human beings to the Assembly for opinion. The protection of the human rights of victims was meant to be at the heart of the Convention. Unfortunately, the current draft does not live up to expectations. It rather gives the impression of reflecting the member states’ desire to protect themselves from illegal migration instead of protecting victims of trafficking. In its current form, the Convention thus loses much of its force and ends up as not very convincing.

The Assembly should thus recommend a number of essential amendments to the draft Convention, so as to lessen states’ margin of appreciation and make the provisions of the Convention more binding, accord less importance to the domestic legislation of each state and to Community law in setting out the various concepts, place more emphasis both on the protection of victims and that of witnesses and family members and strengthen the provisions relating to the rights of victims.

I.       Draft opinion

1.       Coming in third place worldwide after drugs and arms, trafficking in human beings is a scourge which threatens the whole field of fundamental human rights and which must be eradicated. Despite the mobilisation of the authorities in all countries and the active involvement of various non-governmental organisations, the problem is still on the increase.

2.       Every year, thousands of human beings, primarily women and children, are the victims of trafficking carried out with the aim of sexual exploitation, slavery, forced labour, forced marriage or other purposes, both within and outside the borders of their countries. Trafficking in human beings has now reached such an unprecedented scale that it can be described without exaggeration as a new form of slavery. This is why measures are desperately needed to combat such trafficking, while at the same time paying constant attention to protecting its victims.

3.       The Parliamentary Assembly recalls that in 1997, in Recommendation 1325 on traffic in women and forced prostitution in Council of Europe member states, it asked the Committee of Ministers to draw up a European Convention on Trafficking in Women, open to non-member states. It explicitly repeated this request in its Recommendation 1545 (2002) on a campaign against trafficking in women.

4.       It welcomes the decision of the Committee of Ministers to draw up a European Convention on action against trafficking in human beings.

5.       It notes with satisfaction that the Preamble to the draft Convention explicitly refers to trafficking in human beings as a violation of human rights and as an offence to the dignity and the integrity of the human being.

6.       It wholeheartedly welcomes the extremely broad scope of the Convention, which covers all forms of trafficking, both national and transnational, and linked or not to organised crime.

7.       The Assembly is very pleased that the terms of reference given to the Committee of Experts responsible for drafting the text (CAHTEH) put particular emphasis on protection and assistance for victims, indicating that the goal pursued is the same as that proposed in its aforementioned Recommendation.

8.       It nevertheless regrets the fact that the current wording of the draft is far from guaranteeing effective and sufficient protection of victims, contrary to the objective pursued. The Assembly cannot avoid the impression that the Council of Europe member states are not willing to make the difference between illegal migration and trafficking in human beings. The measures for the protection of victims, which should be at the heart of the Convention, have become weaker in the course of the negotiations. The current draft Convention rather gives the impression of reflecting the member states’ desire to protect themselves from illegal migration instead of accepting that trafficking in human beings is a crime and that its victims must be protected. In its current form, the Convention thus loses much of its force and ends up as not very convincing.

9.       This comment applies in particular to the recovery and reflection period for victims (Article 13 of the draft Convention). The Assembly considers it necessary to provide for a minimum period during which victims can recover and decide, under optimum conditions, whether or not to co-operate with the judicial authorities. The criticism also applies to the excessively vague wording of Article 14 regarding the issuing of a residence permit. The same again holds for the provision on non-punishment of victims whose vague wording raises doubts as to the genuineness of the will to protect victims who have been forced to commit offences.

10.       The Assembly regrets the fact that civil society was not sufficiently closely involved in formulating the text and that the increased powers and recent enlargement of the European Union hampered any genuine negotiation process within the CAHTEH.

11.       The Assembly has long been warning against the pernicious consequences of “ŕ la carte conventions”, under which signatory states can declare themselves to be bound by some provisions but not by others. The Assembly therefore asks that the only reservation foreseen in Article 45 of the current draft of the Convention be deleted.

12.       The Assembly also regrets that, firstly, the text has been drafted in such a way as to leave States a wide margin of discretion. It would be better for the Convention to leave less leeway for each state’s domestic legal system and Community law in defining the concepts. Secondly, the Assembly deplores the fact that some provisions in the draft are not binding which weakens the scope of the commitments entered into by states. In view of the gravity of the trafficking phenomenon addressed, the Assembly considers that all the provisions of such a Convention must be binding (cf. Articles 6, 7, 14 and 19 in particular).

13.       The Assembly welcomes that a monitoring mechanism has been established by the text. It considers a group of independent experts to be the right kind of body to effectively ensure the implementation of the Convention. The option chosen (GRETA), viz applying the same monitoring mechanism to all Parties, finds the Assembly’s approval. However, the Assembly considers that – the Convention being a Council of Europe Convention even if non-member states or the European Union may agree to be bound by it – GRETA should report to the Council of Europe Committee of Ministers. The Committee of Ministers should also retain the right to address recommendations to the Parties and the right to decide on amendments to the Convention.

14.       Consequently, the Assembly advises the Committee of Ministers to make the following amendments, which it considers essential, to the draft Convention:

i.       in Article 6:

a.       replace “such as” with “including”;

ii.       in Article 7:

iii.       in Article 8: delete “within available means”;

iv.       in Article 10:

e.       in paragraph 4, delete “and is unaccompanied”;

v.       in Article 12:

vi.       in Article 13:

vii.       in Article 14:

a.       reword the first three paragraphs as follows:

      (a) either so that they can take part in judicial or criminal proceedings concerning them, inter alia with a view to obtaining compensation;

      (b) or where their stay is necessary owing to their personal situation, particularly in cases where they have suffered or are liable to suffer serious abuse such as physical or sexual violence, or renewed trafficking.

viii.       in Article 15:

ix.       in Article 16: in paragraph 2, add after the words “dignity of that person” the phrase “, following a risk and security assessment,”;

x.       in Article 19: replace “consider adopting” by “adopt”;

xi.       in Article 20 a.: in the English version replace “producing a fraudulent” by “forging a”;

xii.       in Article 23 paragraph 4: add “and/or in which its victims were exploited” after “trafficking in human beings”;

xiii.       in Article 24 a.: delete the adjective “gross”;

xiv.       in Article 26: replace the provision with the following: “Victims of trafficking shall not be detained, charged or prosecuted on the grounds that they have unlawfully entered or are illegally resident in countries of transit and destination, or for their involvement in unlawful activities of any kind to the extent that such involvement is a direct consequence of their situation as victims of trafficking.”;

xv.       in Article 27 paragraph 3:

xvi.       in Article 28:

xvii.       in Article 29, paragraph 1, last sentence: replace “should” with “shall”;

xviii.       in Article 31: replace indent (f) with the following: “by anyone placed under its authority or effective control, situated in a territory over which it exercises authority or effective control”;

xix.       in Article 38, paragraphs 6 and 7: replace “Committee of the Parties” with “Council of Europe Committee of Ministers”;

xx.       in Article 45, delete “, with the exception of the reservation of Article 31, paragraph 2”.

15.       Furthermore, the Assembly recommends, in the interests of terminological clarity, replacing the words “also taking gender equality aspects into consideration” in Article 1 paragraph a. and in Chapter III with “guaranteeing gender equality”, and deleting the word “aspects” from the heading of Article 17, which would thus read “Gender equality”.

16.       Lastly, in connection with the reservations expressed by the European Community as represented by the European Commission, the Assembly would stress that it is expressing its opinion on the draft as submitted to it and that in any case it would consider any proposal from the Commission at this stage in the preparation of the Convention as having been submitted out of time. In any case, the Assembly insists that the member states of the European Community should be subject to the same monitoring mechanism as all other states parties to the Convention.

17.        The Assembly emphasises that it is not certain that it will be able to maintain its support for the Convention if the most important amendments proposed, those which concern the protection of victims of trafficking and those which insist on the binding nature of the Convention’s provisions, are not adopted by the Committee of Ministers.

II.       Explanatory memorandum by Mrs Vermot-Mangold, Rapporteur

A.       Introduction

1.       The Committee of Ministers has invited the Assembly to give an opinion on the draft European Convention on action against trafficking in human beings produced at the seventh and pen-ultimate meeting of the Ad hoc Committee on Action against Trafficking in Human Beings (CAHTEH) from 7 to 10 December 2004.

2.       The Committee of Ministers had mandated the CAHTEH committee of experts to formulate the text of the Convention under the Committee’s authority. The exact terms of reference were to:

“- put a special focus on the human rights of the victims of trafficking and design a comprehensive framework for the protection and assistance of victims and witnesses, also taking gender equality aspects into consideration, as well as on the effective prevention, investigation, prosecution and on international co-operation;

- define a monitoring mechanism to ensure compliance of States Parties with the provisions of the Convention;

- take into account the standards of the Council of Europe in the fields of human rights, criminal law and judicial co-operation which are specific to this offence, in particular on the basis of existing legal instruments dealing with trafficking in human beings and those dealing with other serious forms of crime which are related to it;

- take into account the existing universal and regional international legal instruments dealing with trafficking in human beings; in particular the Committee should take the Protocol to prevent, suppress and punish trafficking in persons, especially women and children, supplementing the United Nations Convention against transnational organised crime as the basis of its work, with a view to improving the protection afforded by it and to developing the standards contained therein. Moreover, it should abstain from altering the Protocol's definition of “trafficking in human beings” and should, if possible, integrate it as such among the provisions of the future European Convention.”

3.       The Assembly recalls that in its Recommendation 1325 (1997) it expressed its alarm at the recent considerable expansion in trafficking in women and forced prostitution in Council of Europe member States. It was worried about the increasing involvement of organised criminal groups in these lucrative crimes, which these groups used as a basis for financing and expanding their other activities, such as drugs and arms trafficking and money laundering. It noted that this development had led to a deterioration in the treatment of trafficked women, bordering on slavery. In this Recommendation it asked the Committee of Ministers to draw up a Convention on trafficking in women and forced prostitution open to Council of Europe non-member States. This Convention should in particular organise “a certain degree of assistance and protection for victims of trafficking, especially those willing to testify in court. This should also include physical protection if necessary, and in any case the granting of temporary residence permits as well as legal, medical and psychological assistance”.

4.       While noting that the number of victims had increased considerably in recent years, the Assembly reiterated its request for such a Convention in its Recommendation 1545 (2002) on a campaign against trafficking in women. This text also recommended that the Convention “focus on assistance to and the protection of victims of trafficking, by obliging the states parties to grant legal, medical and psychological assistance to such victims, by ensuring their physical safety and that of their families, and by granting special residence permits to victims on humanitarian grounds, and permanent residence permits to those willing to testify in court and in need of witness protection”.

5.       Moreover, in its latest recommendation on the subject, namely Recommendation 1610 (2003) on migration connected with trafficking in women and prostitution, the Assembly stressed the importance of drawing up a Convention which would bring added value to other international instruments with its clear human rights and victim protection focus and the inclusion of a gender perspective.

6.       This is why I can only welcome the Committee of Ministers’ initiative in preparing a Convention which, moreover, has maximum scope because it covers all forms of trafficking, both national and transnational, linked or not to organised crime, and is applicable to women, men and children.

7.       Nevertheless, I do regret the weak wording of the Convention in its current state, and consider that the text not only falls short of the terms of reference given by the Committee of Ministers but also ignores the Assembly’s recommendations. The main problem with the draft Convention is that it provides insufficient protection for victims and witnesses. In fact, the Committee of Ministers, passing on the Assembly’s recommendations, had asked the experts to “put a special focus on the human rights of the victims of trafficking and design a comprehensive framework for the protection and assistance of victims and witnesses”. The primary aim could not be clearer. I consider that, unfortunately, the draft has failed to tackle these concerns. I would refer, for instance, to the wording of Article 13 and 14 of the Convention on the recovery and reflection period for victims and on the issuing of residence permits, respectively. It should be unnecessary to reiterate that every year thousands of human beings, most of them women and children, are the victims of trafficking. This phenomenon has reached such an unprecedented scale that it can be described without exaggeration as a new form of slavery. I am puzzled at the attitude of the CAHTEH experts, who in my view have not taken these indisputable facts sufficiently into account.

8.        The Convention neatly avoids making any reference to the thorny issue of prostitution, no doubt because there are diametrically opposed views in the different Council of Europe member states on how to deal with it. However, it is a fact that most victims of trafficking in human beings end up being forced to prostitute themselves or being otherwise sexually exploited. In other words, there is undeniably a link between prostitution and trafficking in human beings which deserves to be taken into consideration, in particular when a client, knowing that a prostitute is a victim of trafficking, nevertheless uses his or her services.

9.       Regarding the general structure of the text, I note that too many of the provisions are optional, which further undermines the scope of the State’s commitments. Other provisions are worded too generally, leaving excessive leeway for domestic or Community law, in defining the concepts. I am adamant that such provisions have no place in this Convention, and would urge the experts to amend the text accordingly. This means, inter alia, that the reservation foreseen in Article 45 of the current draft of the Convention should be deleted.

10.       In connection with CAHTEH’s negotiating procedure, I find it unfortunate that the members of civil society, who undeniably have in-depth experience of the subject given their day-to-day work with the victims, were not more closely associated with the process of formulating the draft. Furthermore, I am unhappy that the Commission of the European Communities, in some of its fields of competence, has stood in the way of an open negotiating procedure among the 46 Council of Europe member States.

11.       I regret that CAHTEH did not take on board the proposals submitted to it by the Assembly Committee on Equal Opportunities between Women and Men in October 2004, apart from, and this is a matter for satisfaction, its reference to the fact that trafficking in human beings is a violation of human rights and its preference for a monitoring mechanism implemented by a group of independent experts. It is very important that the member states of the European Community should be subject to the same monitoring mechanism as all other States parties to the Convention.

12.       All in all, I have been wondering about the appropriateness of such a Convention as it stands. Confident that the Committee of Ministers and CAHTEH will show the requisite wisdom, I would advise them to amend the text as follows.

B.       Comments article by article of the draft Convention

13.       Article 6 – Measures to discourage the demand

This provision lays down a positive obligation on Parties to adopt or reinforce measures intended to discourage the demand that encourages all forms of exploitation of persons.

I note that this provision comprises a list of examples of such measures.

However, in order that the stated aim of this article be achieved, I am of the opinion that the measures described should be obligatory for Parties, and I would suggest an additional measure to discourage users of the services of victims of trafficking by introducing the prospect of criminal sanctions, ie by making such behaviour a criminal offence and providing for the appropriate sanctions. I also suggest a rewording of point d) to stress the unacceptable nature of any discrimination based on gender (not just the ill-fated consequences of such discrimination).

I therefore suggest the following amendments to Article 6:

“To discourage the demand that fosters all forms of exploitation of persons, especially women and children, that leads to trafficking, each Party shall adopt or strengthen legislative, administrative, educational, social, cultural or other measures, including:

a)       research on best practices, methods and strategies;

b)       raising awareness of the responsibility and important role of media and civil society in identifying the demand as one of the root causes of trafficking in human beings;

c)       targeted information campaigns involving, as appropriate, inter alia, public authorities and policy makers;

d)       preventive measures, including educational programmes for boys and girls during their schooling, which stress the unacceptable nature of discrimination based on sex and its disastrous consequences, the importance of gender equality and the dignity and integrity of every human being.

e)       provisions criminalising and punishing the intentional use of the services of victims of trafficking.”

14.       Article 7 – Border measures

The aim of this provision is to tighten border controls, with due regard for international commitments concerning the free movement of persons. That being said, there is a perhaps a danger that such controls would ultimately constitute an obstacle to the particular right of every individual to seek asylum on the territory of a Party.

In order to avoid any ambiguity, I consider that a reference to the right of asylum should be included in paragraph 1, worded as follows:

“Without prejudice to international commitments in relation to the free movement of persons and to the right of asylum, Parties shall strengthen […]”

Furthermore, paragraphs 3 and 4 impose an obligation – also stipulating the corresponding sanctions – on commercial carriers to ascertain that passengers are in possession of the travel documents required for entry into the receiving State.

I cannot see the value of any such measure in terms of action against trafficking in human beings. On the contrary, I consider this measure as potentially infringing the right of asylum in practice. I would therefore suggest purely and simply deleting both paragraphs.

Lastly, I would recommend replacing “consider strengthening” with “strengthen” in paragraph 6, which would become paragraph 4.

15.       Article 8 – Security and control of documents

      I note that the expression “within available means” in effect eliminates the binding nature of this provision. I would therefore recommend deleting it.

16.       Article 10 – Identification of the victims

Such identification is crucial for the upholding of the victim’s human rights and the prosecution of the traffickers. I welcome the fact that such identification should be assigned to “persons who are trained and qualified” (paragraph 1). I am concerned about the fact that account will also have to be taken of the specific characteristics of women and children in identification procedures, e.g. during interviews with the presumed victim, in situations which are most definitely traumatic. I would therefore propose amending paragraph 1 accordingly.

However, in view of the difficulties inherent in such identification, the risks run by victims of trafficking and, by repercussion, the risk that the perpetrators of the offences described hereafter might escape any prosecution, individuals refused the status of victim and ordered to be deported should be able to appeal before an independent and impartial authority.

I would also note that the reference to the protection of individuals against being removed from the territory of a Party until his or her identification as victim is linked to Article 18 of the Convention concerning the criminalisation of trafficking in human beings; in other words it is to be read from the point of view of its criminal aspects. However, the identification process, which takes place before any protection is afforded to the victim, cannot be linked to the existence of any criminal proceedings. In order to avoid any possible confusion, it would be better to delete the reference to Article 18 of the Convention.

I would therefore suggest the following wording for paragraph 2:

“2.       Each Party shall adopt such legislative or other measures as may be necessary to identify victims as appropriate in collaboration with other Parties and relevant support organisations. Each Party shall ensure that, if the competent authorities have reasonable grounds to believe that a person has been victim of trafficking in human beings, such a person shall not be removed from its territory until the identification process as victim of an offence provided for in article 18 of this Convention has been completed by the competent authorities and shall benefit from the assistance provided for in Article 12, paragraphs 1 and 2. The persons concerned shall be granted the right of appeal before an independent and impartial authority against the decisions taken.”

I note that paragraph 4 sets out measures to be taken by Parties where they have to deal with cases of unaccompanied child victims of trafficking. One also wonders whether these special protection measures should be extended to “accompanied” children – after all, it is not inconceivable for a trafficked child to have been trafficked either together with or even by a parent or other family member or legal guardian. I would therefore request that such measures be made applicable to all children, and consequently propose deleting the phrase “and is unaccompanied”.

17.       Article 12 – Assistance for victims of trafficking

This provision stipulates that states should adopt the necessary measures to assist victims in their physical, psychological and social recovery. The provision lists the minimum measures that should be offered to all victims, irrespective of whether they are lawfully resident within the state’s territory or not, such as standards of living capable of ensuring their subsistence and emergency medical care (paragraph 1).

Nonetheless, I find it regrettable that medical assistance (paragraph 3) and access to the labour market, vocational training and education (paragraph 4) should be restricted to victims lawfully resident within the territory of a Party, thereby excluding those in an unlawful situation. Both the right to health and the possibility to work and satisfy one’s basic needs independently are factors of human dignity. Accordingly, all victims should benefit from such measures. I believe that the reference to the lawful presence of a victim within the territory of a Party should be removed. Consequently, in the event of family reunification (Article 15.4), family members should also be entitled to these measures.

I would propose rewording paragraph 6, because as it stands it suggests that assistance for non-child victims might be made conditional on their testifying in court. Furthermore, I would suggest deleting the rest of the paragraph on the issuing of a residence permit, as this matter is addressed by Article 14 on residence permits.

In addition, I believe that it is essential to stipulate that the persons concerned should give their consent to the measures in question, having been informed in advance of the services to which they are entitled.

Lastly, I wish to underline that each category of victims will have its own specific characteristics and due account must be taken of this.

I would thus suggest the following wording for Article 12:

1.       Each Party shall adopt such legislative or other measures as may be necessary to assist victims, and members of the victim’s family, if necessary, in their physical, psychological and social recovery. Such assistance shall include at least:

(a)       standards of living capable of ensuring their subsistence, through such measures as: appropriate and secure housing, psychological and material assistance;

(b)       access to emergency medical treatment;

(c)       translation and interpretation services, when appropriate;

(d)       counselling and information, in particular as regards their legal rights, in a language that the victims can understand;

(e)       assistance to enable their rights and interests to be presented and considered at appropriate stages of criminal proceedings against offenders.

2.        Each Party shall satisfy the safety and protection needs of victims, and, if necessary, of their family members.

3. In addition, each Party shall provide necessary medical or other assistance to the victims lawfully resident within the territory of the Party concerned who do not have adequate resources and need it.

4.        Each Party shall adopt the rules under which allow victims lawfully resident within the territory of the Party concerned shall be authorised to have access to the labour market, vocational training and education.

5.        Each Party shall take measures, where appropriate and under the conditions provided for by its national law, to co-operate with non-governmental organisations, other relevant organisations or other elements of civil society committed to the assistance to victims.

6.        Each Party shall adopt such legislative or other measures as may be necessary to ensure that assistance to a child victim is not made conditional on the child’s willingness to act as a witness. This provision is without prejudice to the possibility for a child victim to benefit from a residence permit issued to victims who cooperate with the competent authorities, when the legislation of a Party provides for this possibility for minors. In this case, the Party concerned shall ensure that the procedure is appropriate to the age and maturity of the child.

7.       For the application of the provisions set out in this Article, each Party shall ensure that services are provided on a consensual and informed basis, with due account being taken of the age and sex of the victim and specific needs of children in terms of housing, education and care.”

18.       Article 13 – Recovery and reflection period

This provision grants victims a period within which to recover and reflect on whether they wish to co-operate with the competent authorities. I welcome the fact that the Convention makes provision for such a period, enabling victims to remain without conditions within the territory of a state for a minimum length of time. However, the margin of appreciation left to states with regard to the duration of this period could invalidate the desired effects of victim protection and combating trafficking. In practice, it is widely viewed that providing victims with a safe environment will facilitate their recovery and help them make fully informed decisions, including those relating to co-operation with the judicial and criminal law authorities in the prosecution of traffickers and possible claims for compensation. The length of this period must take due account of these different objectives. In Italy, where there is a similar procedure, experience suggests that the more time a victim is given to reach a decision, the more he or she will be likely to co-operate with the authorities2. In this respect a period of three months would appear to be sufficient. I also note that a three-month period is stipulated in the Declaration adopted at the 3rd Regional Ministerial Forum of the Stability Pact for South-East Europe in Tirana on 11 December 2002. What is more, the Group of Experts on Trafficking in Human Beings set up by decision of the European Commission on 25 March 2003 for its part recommends a period of at least three months in its 16 April 2004 opinion.

Moreover, victims will only be able to feel they are indeed in security if they are informed in person that they will be afforded protection for a given period of time and allowed to remain in the country. What is at stake is not only the protection of the victim, but also, largely, the success of the proceedings against the traffickers and therefore, ultimately, eradication of this phenomenon. Bearing in mind the desire to strengthen victims’ sense of security, they should be given a regular residence permit.

In conclusion, I would like to stress, following the recommendations of many NGOs such as Amnesty International and Anti-Slavery International, that the period in question should be at least three months and that a regular residence permit be issued to victims. Nevertheless, I understand the economic difficulties inherent in respecting this period, and so, as a compromise, I would point out that I could live with a minimum period of thirty days.

In addition, children should be given access to education.

I would therefore invite the CAHTEH and the Committee of Ministers to take the following stance:

“1.       Each Party shall provide in its internal law a recovery and reflection period of at least thirty days, when there are reasonable grounds to believe that the person concerned is a victim. Such a period shall be sufficient for the person concerned to recover and escape the influence of traffickers and/or to take an informed decision on co-operating with the competent authorities. During this period, it shall not be possible to enforce any expulsion order against him or her. This provision is without prejudice to the activities carried out by the competent authorities in all phases of the relevant national proceedings, and in particular when investigating and prosecuting the offences concerned. The authorities shall issue the persons in question with a residence permit covering this period.

2.       During this period, the persons referred to in paragraph 1 of this Article shall be entitled to the measures contained in Article 12, paragraph 1 and 2.1 and children shall have be granted access to education.”

19.       Article 14 – Residence permit

I would point out straightaway that the wording of paragraph 1 is rather vague, inviting the Parties to consider the “possibility” of issuing residence permits to victims of trafficking.

I see no objection to making the provision of a residence permit conditional on the victim’s personal situation or his or her co-operation in an investigation or criminal proceedings. I propose that this be extended to cases where the victim is seeking compensation. I suggest that the wording of the article be made more precise in order to avoid, once again, any possibility of a restrictive interpretation of the conditions in question. However, I would ask for states to be obliged to issue such a permit to individuals finding themselves in the situations set out, as well as those finding themselves in a particularly vulnerable personal situation. The Committee also suggests that the duration of the stay be brought into line with Article 8.3 of Council Directive 2004/81/EC of 29 April 20043, namely at least six months.

Consequently, I propose the following wording for Article 14:

“1.       Each Party shall provide victims with a renewable residence permit of at least six-month’ length:

      (a) either so that they can take part in judicial or criminal proceedings concerning them, inter alia with a view to obtaining compensation;

      (b) or where their stay is necessary owing to their personal situation, particularly in cases where they have suffered or are liable to suffer serious abuse such as physical or sexual violence, or renewed trafficking.

Residence permits for child victims shall in all cases be issued in accordance with the best interests of the child. If a child victim participates in judicial proceedings, the Party concerned shall ensure that the procedure is appropriate to the age and maturity of the child.

2.       The residence permit shall be renewed on expiry of the six-month period provided that the conditions set out in paragraph 1 are still fulfilled. Residence permits for child victims shall be renewed until such time as a lasting solution has been found.

3.       Parties shall envisage issuing a permanent or long-term residence permit where the victim is in a particularly vulnerable personal situation”;

…

6.       Each Party facilitates family reunion throughout the period of legal residence of victims, in particular for unaccompanied children.”

20.       Article 15 – Compensation and legal redress

This provision leaves it to states to specify the conditions under which victims may benefit from free legal aid. In my view, it is essential for a victim, in order to decide whether or not to initiate proceedings of whatever sort, and even more so in the context of foreign legislation, to be informed of his or her rights in a language he or she can understand. As Amnesty International and Anti-Slavery International have pointed out, victims of trafficking should have access to justice, including all internationally recognised forms of reparation – compensation, restitution, rehabilitation, satisfaction and guarantees of non-repetition. Legal assistance should also be granted if necessitated by the victim’s situation.

I propose that paragraphs 1 and 2 of Article 15 be worded as follows:

“1.       Each Party shall ensure that victims have access, from their first contact with the competent authorities, to information on relevant court and administrative proceedings, in a language which they can understand. They shall also have access to the justice system in order to obtain reparation.

2.       Each Party shall provide, in its internal law for the right to legal assistance for victims, and the right to free legal aid, inter alia during court proceedings, if necessitated by the victim’s situation. »

21.       Article 16 – Repatriation and return of victims

This Article covers both voluntary and non-voluntary return of victims of trafficking in human beings, while specifying that voluntary return is preferable.

I would nonetheless stress that the return of a victim is never risk-free. Drawing on the provisions regarding child victims (paragraph 7), we should ensure that adult victims also benefit from a prior risk and security assessment.

Paragraph 2 should therefore be worded as follows: “When a Party returns a victim to another State, such return shall be with due regard for the rights, safety and dignity of that person, following a risk and security assessment, and for the status of any legal proceedings related to the fact that the person is a victim, and shall preferably be voluntary.”

22.       Article 19 - Criminalisation of the use of services of a victim

I do not see the pertinence of this provision which leaves Parties free to decide whether or not to adopt measures to establish as criminal offences the use of the services of the victims of trafficking. However, such measures are indispensable in a complete system to combat trafficking and must be adopted. I therefore suggest that Article 18 be amended as follows:

“Each Party shall consider adopting adopt such legislative and other measures as may be necessary to establish as criminal offences under its internal law, the use of services which are the object of exploitation as referred to in Article 4 paragraph a of this Convention, with the knowledge that the person is a victim of trafficking in human beings.”

23.       Article 20 – Criminalisation of acts relating to travel or identity documents

I note a difference in meaning between the English and French versions of paragraph (a) of this Article. Given that the words “producing a fraudulent travel or identity document” refer to the fact of showing a false travel document to, for example, the competent authorities, this provision would in fact relate to victims of trafficking who are in possession of such a false document and are invited to show it. But the real aim, as highlighted by the French version “fabrication d’un document de voyage ou d’identité frauduleux” (manufacturing a false travel or identity document) is to prosecute the forgers. I would therefore propose the following English version: “Forging a travel or identity document”.

24.       Article 23 – Sanctions and measures

In order not to exclude any form of trafficking, I propose to include in paragraph 4 on the closure of establishments a provision that would also cover those in which victims are exploited, as follows:

“Each Party shall adopt such legislative or other measures as may be necessary to enable the temporary or permanent closure of any establishment which was used to carry out trafficking in human beings and/or in which its victims were exploited, without prejudice to the rights of bona fide third parties or to deny the perpetrator, temporarily or permanently, the exercise of the activity in the course of which this offence was committed.”

25.       Article 24 – Aggravating circumstances

In order to avoid any problem of interpretation, and above all, in the light of an attitude which has placed the victim’s life in danger, I suggest that the adjective “gross” in point a) be deleted:

“a. the offence has deliberately or through gross negligence endangered the life of the victim;”

26.       Article 26 – Non-punishment provision

I would point out that the effectiveness of the Convention is based in particular on the protection afforded to the victim and the latter’s confidence in the state authorities. There is no reason to depart from this approach in providing that victims will not be punished for any unlawful activities they have been led to commit in their position as victims of trafficking. It is not a question of granting them comprehensive criminal immunity, but rather of sparing them from any punishment for an unlawful act they might have been obliged to commit because of their situation.

I find the wording of this provision unacceptably vague, and would therefore propose the following version:

“Victims of trafficking shall not be detained, charged or prosecuted on the grounds that they have unlawfully entered or are illegally resident in countries of transit and destination, or for their involvement in unlawful activities of any kind, to the extent that such involvement is a direct consequence of their situation as victims of traffiking.”

27.       Article 27 – Ex parte, ex officio and interested third party applications

I wish to stress the contribution that civic society players can make in this field, especially by reporting instances of trafficking to the competent authorities, victims of which are not always in a position to. I would also stress that they might be allowed to take part in criminal proceedings.

I would therefore propose the following wording of paragraph 3:

“Each Party shall ensure, by means of legislative or other measures, in accordance with the conditions provided for by its internal law, to any group, foundation, association or non-governmental organisations which aims at fighting trafficking in human beings or protection of human rights, the possibility of initiating or commissioning investigations or prosecutions concerning the offence established in accordance with Article 18 of this Convention and the possibility of assisting and/or supporting the victim with his or her consent during criminal proceedings concerning the said offence established in accordance with Article 18 of this Convention.”

28.       Article 28 – Protection of victims, witnesses and collaborators with the judicial authorities

In my view, provision must also be made for protecting members of any groups, foundations and non-governmental organisations involved in one of the activities described in Article 27 paragraph 3.

Also taking into consideration that in certain cases victims of trafficking and their families may be exposed to intimidation and retaliation, and that only relocation to a place far away from their present home, possibly in another country, will be able to deter traffickers from such actions, I consider that there should also be provision for individuals under threat to be able to seek asylum or be resettled in another country.

29.       Article 29 – Specialised authorities and co-ordinating bodies

I would recall the specific characteristics of action against trafficking and victim protection, which means that the persons responsible for such duties “must”, rather than “should”, have appropriate training and sufficient resources. I suggest that the Article be amended accordingly.

30.       Article 31 – Jurisdiction

I would refer to the very relevant comment made by Amnesty International and Anti-Slavery International that trafficking often takes place in situations of armed conflict and in post-conflict situations, even where there is an international presence4. Since the domestic authorities are generally in a state of collapse, this could leave the door open to traffickers, in total impunity. To compensate for such a situation, I would suggest adding a reference to cases in which a territory is under the administration or control of a third country, Party to the Convention, which should accordingly assume responsibility in this respect.

Accordingly, I recommend adding a further sub-paragraph to paragraph 1:

“(e)       by anyone placed under its authority or effective control, situated within a territory over which it exercises authority or effective control.”

31.        Article 38 - Procedure

I would like to recall that Council of Europe non-member states and the European Community can accede to this Convention. However, the Convention is closely linked to the Council of Europe. I thus consider that GRETA should submit its reports to the executive organ of the Council of Europe, the Committee of Ministers. The Committee of Ministers should also retain the right to address recommendations to the Parties, and the right to decide on amendments to the Convention. This is why paragraphs 6 and 7 should refer to the Committee of Ministers and not the Committee of the Parties.

32.        Article 45 - Reservations

I propose the following wording:

“No reservation may be made in respect of any provision of this Convention, with the exception of the reservation of Article 31, paragraph 2”.

C.        Conclusions

33.        I would emphasise that it is not certain that I will be able to maintain my support for the Convention if the most important amendments proposed, those which concern the protection of victims of trafficking and those which insist on the binding nature of the Convention’s provisions, are not adopted by the Committee of Ministers, as a Convention which does not have the protection of victims at its heart, makes their situation even more difficult.

Reporting committee: Committee on Equal Opportunities for Women and Men

Reference to Committee: Reference proposed by the Bureau on 10 January 2005

Draft opinion unanimously adopted by the Committee on 14 January 2005.

Members of the Committee: Mrs Minodora Cliveti (Chairperson), Mrs Rosmarie Zapfl-Helbling (1st Vice-Chairperson), Mr Per Dalgaard (2nd Vice-Chairperson), Mrs Anna Curdova (3rd Vice-Chairperson), Mrs Manuela Aguiar, Mr Oleksiy Baburin, Mr Denis Badré, Mrs Snježana Biga-Friganovic, Mrs Gülsün Bilgehan, Mrs Mimount Bousakla (alternate: Mrs Fatma Pehlivan), Mrs Beáta Brestenska, Mrs Krystyna Doktorowicz, Mrs Lydie Err, Mrs Maria Emelina Fernández Soriano, Mr George Foulkes, Mr Giuseppe Gaburro, Mr Pierre Goldberg, Ms Gultakin Hadjiyeva, Mrs Carina Hägg, Mr Aurelio Juri, Mrs Eleonora Katseli, Mrs Synnřve Konglevoll, Mrs Monika Kryemadhi, Mrs Minna Lintonen, Mr Khalid Mahmood, Mrs Danguté Mikutiene, Mr Paschal Mooney, Mrs Fausta Morganti, Mrs Hermine Naghdalyan, Mr Hilmo Neimarlija, Mrs Vera Oskina, Mrs Patrizia Paoletti Tangheroni (alternate: Mr Gianpietro Scherini), Ms Riorita Patereu, Mrs Antigoni Pericleous-Papadopoulos, Mrs Eleonora Petrova-Mitevska, Mr Leo Platvoet, Mr Jeffrey Pullicino Orlando, Mrs Valentina Radulović-Šćepanović, Mrs Claudia Roth, Mrs Marlene Rupprecht, Mr Össur Skarphédinsson, Mrs Svetlana Smirnova, Mrs Darinka Stantcheva, Ms Ágnes Vadai, Mrs Gisela Wurm.

N.B. The names of the members who took part in the meeting are printed in bold.

Secretaries of the Committee: Mrs Kleinsorge, Mrs Affholder, Ms Devaux

1 See Doc 10389: request for an opinion from the Committee of Ministers

2 See: Amnesty International and Anti-Slavery International: Comments on the revised draft European Convention against Trafficking in Human Beings (IOR 61/014/2004), p. 12.

3 Directive on the residence permit issued to third-country nationals who are victims of trafficking in human beings or who have been the subject of an action to facilitate illegal immigration, who cooperate with the competent authorities.

4 Cf Enhancing the Protection of the Rights of the Trafficked Persons: Amnesty International and Anti-Slavery International’s Recommendations to strengthen the provisions of the July 2004 draft European Convention against Trafficking in Human Beings (IOR61/016/2004), p. 11.