Doc 10433

25 January 2005

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

Opinion1

Committee on Legal Affairs and Human Rights

Rapporteur for opinion: Mr Kevin McNamara, United Kingdom, Socialist Group

I.       Conclusions of the committee

1. The Committee on Legal Affairs and Human Rights fully endorses the conclusions set out by the Committee on Equal Opportunities for Women and Men in its opinion and supports the amendments to the draft Convention it proposes.

2. The draft Convention is still not satisfactory, however, and falls far short of expectations. By refusing to call a spade a spade and clearly pinpoint what we are talking about - the absolute priority that must be given to introducing an effective instrument for combating trafficking perpetrated for the purposes of forced prostitution - and to concentrate on the protection of victims of trafficking, the draft as it stands misses the point and gives the impression that states are not prepared to distinguish between illegal migration and trafficking in human beings. We can only agree with the Committee on Equal Opportunities for Women and Men that the operative part does little to protect victims' rights. It is a telling revelation to find that the word "prostitution" appears only once in the entire draft Convention! Not sufficient attention is paid to bonded labour either, nor to exploitation of immigrants, to gang masters - often criminals - and others.

3. The Committee observes that, as it stands, the draft Convention does not do justice to the hopes that prompted it. The Committee can therefore legitimately ask itself whether, all things considered, the draft convention should not be referred back to the ad hoc Committee against Trafficking in Human Beings. It therefore agrees with the Committee on Equal Opportunities for Women and Men and likewise considers that the Assembly cannot continue to support the Convention unless the amendments it proposes are adopted by the Committee of Ministers. Accordingly, the Committee on Legal Affairs and Human Rights also intends to submit a number of amendments to the draft opinion, intended to strengthen the draft Convention as much as possible. Finally, it suggests that the Assembly makes the Committee of Ministers’ acceptance of the most important amendments proposed a condition for its support of the final draft Convention.

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II.        Proposed amendments to the draft opinion

The committee proposes the following amendments:

Amendment A :

In the draft opinion, paragraph 14, sub-paragraph v., after indent a. insert a new indent reading as follows:

Amendment B:

In the draft opinion, paragraph 14, sub-paragraph v., after indent a. insert a new indent reading as follows:

Amendment C:

In the draft opinion, paragraph 14, after sub-paragraph ix., insert a new sub-paragraph reading as follows:

Amendment D:

In the draft opinion, paragraph 14, sub-paragraph xiv., replace "or prosecuted" with ", prosecuted or submitted to any sanction".

Amendment E:

In the draft opinion, paragraph 14, after sub-paragraph xvii., insert a new sub-paragraph reading as follows:

Amendment F:

In the draft opinion, paragraph 14, sub-paragraph xviii., replace the words "replace indent (f)" by "add an indent (f)".

Amendment G:

In the draft opinion, paragraph 14, after sub-paragraph xviii., insert new sub-paragraph reading as follows:

Amendment H:

In the draft opinion, paragraph 14, after sub-paragraph xviii., insert the a new sub-paragraph reading as follows:

Amendment I:

In the draft opinion, paragraph 14, after sub-paragraph xix., insert a new sub-paragraph reading as follows:

Amendment J:

In the draft opinion, replace paragraph 17 by the following:

Amendment K:

In the draft opinion, after paragraph 17, insert the following new paragraph:

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III.       Explanatory memorandum

by Mr McNamara, Rapporteur for opinion

1. I fully share the analysis of the draft convention produced by the Rapporteur of the Committee on Equal Opportunities for Women and Men and congratulate her on doing an excellent job in following the drafting work on the convention so closely. I naturally support the amendments proposed in the draft opinion.

2. I should like, however, to put forward a few amendments to the draft opinion. The bulk of these are not designed to modify the proposed amendments, which I fully endorse, but to add new ones. Most of them are therefore additional proposals for changes to the actual text of the draft convention in respect of matters that I consider fundamental not only to the underlying logic of the convention but also to the future of the Council of Europe's work on conventions, both those it is currently drafting and those that it is likely to prepare in the future.

3. Without going into detail about my proposed amendments, I should simply like to present the most important ones:

-       Article 18 – Criminalisation of trafficking in human beings (amendment C)

4. Under this Article, the conduct provided for in Article 4 (a) of the convention must be established as a criminal offence "when committed intentionally". As the conduct in question concerns acts as serious as " the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation…", it seems to me completely superfluous to require that such acts be committed intentionally.

-        Article 31.2 – Jurisdiction (amendment G)

5. This paragraph of the draft convention, whereby each Party may declare that it " reserves the right not to apply [the jurisdiction rules] or to apply [them] only in specific cases or conditions" to one of its nationals, to all intents and purposes deprives the prospective convention of much of its effectiveness. It smacks too much of the present United States government’s attitude to international treaties.

-        Article 38 – GRETA (amendment H)

6. Council of Europe conventions traditionally provide for permanent supervisory machinery to ensure that their provisions are applied and the standards set out in them observed. In the case of the present convention, this role rests with GRETA, the Group of experts on action against trafficking in human beings. The committee considers that that machinery will be more effective if GRETA is a position to investigate collective complaints. The idea is to use, by analogy, a model based on the system that exists for the European Social Charter.

-        Article 40 – Relationship with other international instruments (amendment I)

7. The wording of this outwardly laconic Article betrays intentions that are, to say the least, ambiguous.

8. One cannot help thinking that paragraph 2 of the Article is in fact designed to draw a distinction between European Union member states and those not members of the EU. As the convention stands, the former group of states may not be subject to the same obligations as the latter. This provision is highly questionable and very dangerous to the convention's survival and effectiveness.

9. The Rapporteur is fully convinced that the draft convention should not contain any provision that, in one way or another, removes member states of the European Union from the scope of the convention, to the extent that there might be European Union rules governing matters covered by the convention.

10. There is a similar provision in the draft Convention on laundering, the financing of terrorism, search, seizure and confiscation of the proceeds from crime and in the draft Convention on the prevention of terrorism, and it was severely criticised by the Committee on Legal Affairs and Human Rights, which recommended its deletion in both cases. If the present draft convention is to ensure the harmonisation of measures taken and improve co-operation over action against trafficking in human beings throughout Europe, a provision enabling European Union member states to waive the provisions of the convention in one way or another would seem contrary to its object and purpose.

11. As it stands, Article 40 does not achieve the objective set out in the actual preamble to the draft convention, which quotes Article 1 of the Statute of the Council of Europe: the achievement of greater unity between its members. Quite the contrary. This is compounded by the fact that paragraph 1 presupposes that EU standards will inevitably take precedence.

12. It is therefore desirable that paragraph 2 be deleted completely.

13. In conclusion, I recommend that the Committee on Legal Affairs and Human Rights fully support the draft opinion submitted by Ms Vermot-Mangold on behalf of the Committee on Equality Opportunities for Women and Men.

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Reporting committee: Committee on Equal Opportunities for Women and Men

Committee for opinion: Committee on Legal Affairs and Human Rights

Reference to committee: Doc 10389 and Reference No 3042 of 24 January 2005

Opinion approved by the Committee on 25 January 2005

Secretaries to the committee: Mr Schokkenbroek, Mr Schirmer, Ms Clamer, Mr Milner

1 See Doc 10397 tabled by the Committee on Equal Opportunities for Women and Men.