Supplementary reply to Recommendation 1211 (1993) on clandestine migration: traffickers and employers of clandestine migrants

13 September 1994

Doc. 7142

COMMUNICATION FROM THE COMMITTEE OF MINISTERS

Supplementary reply to Recommendation 1211 (1993)

on clandestine migration:

traffickers and employers of clandestine migrants

(adopted by the Committee of Ministers on 5 September 1994

at the 516th meeting of the Ministers' Deputies)

1. The Committee of Ministers recalls that, in its interim reply to Parliamentary Assembly Recommendation 1211 (1993) on clandestine migration: traffickers and employers of clandestine migrants, it informed the Assembly that it had requested the opinions of the European Committee on Crime Problems (CDPC) and of the European Committee on Migration (CDMG) on paragraph 9.iv of this Recommendation. On the basis of these opinions, which have now been received, the Committee of Ministers gives the following supplementary reply to this Recommendation.

2. It points out that at the 4th Conference of European Ministers responsible for Migration Affairs (Athens, 18-19 November 1993), the Ministers noted, in the Conclusions of the Conference, the importance of effectively addressing the problems of illegal immigration both through national measures and through continued intergovernmental cooperation. On the same occasion, they further underlined the need to strengthen international cooperation in combating clandestine immigration networks, especially when they are linked to organised crime. They also underlined that measures taken against employers of clandestine labour and against the criminals who exploit the situation of clandestine migrants need to be strengthened.

3. The Committee of Ministers notes that there is evidence of a growing international trend in favour of criminalising the traffic in and the employment of clandestine migrants, activities which often occur under conditions that breach the elementary rules of international law and human rights (particularly disguised slavery). It notes, moreover, that this trend is confirmed by international instruments drawn up, for example, by the International Labour Organisation (Convention No. 143 concerning Migration and Abusive Conditions and the Promotion of Equality of Opportunity of Migrant Workers, adopted on 24 June 1975) or being prepared in other fora, such as the European Union, the Vienna Group, and the Budapest Group, the follow-up structure to the European Conference on Uncontrolled Migration (Budapest, 15-16 February 1993).

4. Indeed, the Committee of Ministers recalls that this Conference adopted a certain number of recommendations concerning clandestine migration and the "criminalization" of the activities of traffickers and employers of irregular migrants. At this conference, the draft of a European Migration Convention providing for the punishment of traffickers was also introduced. In order to avoid overlapping, activities already undertaken in the framework of the Budapest Group should be taken into consideration. It should be noted, in this respect, that the Budapest Group has been granted observer status with the CDMG.

5. Concerning sanctions against traffickers and persons in an irregular situation, the Committee of Ministers notes that penal measures would have to be introduced into the national legislation, including the possibility of requiring the sanction being inflicted on another Contracting Party's territory. Certain member States have already introduced such provisions in their penal laws. As a preliminary step, the effectiveness of such measures could be examined.

With regard to the Parliamentary Assembly's proposal to make traffic in and employment of clandestine migrants a criminal offence, the Committee of Ministers believes that the dissuasive effect of such legislation could help to make the profit derived from such activity less attractive; however, the appropriate measures should be taken at national level. Indeed, international instruments exist already and are intended to encourage governments to adopt such legislation. The CDPC notes in its opinion that it is willing to support any such action in this area in the future, provided that the budgetary and staff resources are provided for additional action of this sort.

6. In view, in particular, of the experience gained in the application of the various above-mentioned legal instruments, the Committee of Ministers believes that the question of clandestine migration in general does not lend itself to an international convention of a penal character as proposed by the Parliamentary Assembly, particularly because of the large number of economic and political factors which cause this phenomenon. The Committee of Ministers favours instead measures - referred to in its interim reply - to prevent the flow of immigrants by taking action at an earlier stage, particularly by disseminating information in the countries which are a potential source of migration, on the difficulties which migrants can encounter in the countries of destination and, ultimately, by eliminating the causes themselves. Once they have arrived in the countries of destination, clandestine migrants should in all circumstances be treated in conformity with the rules of international law, human rights and human dignity.

The Committee of Ministers takes note of the Assembly's desire that a convention designed to combat clandestine migration should be drawn up, but considers that before a final decision could be taken to draw up a new instrument, work undertaken in other fora would have to be taken into consideration and certain legal and social aspects clarified.