The UN adopted in 2000 a Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children which have been ratified by 23 EU Member States and the remaining 4 have signed it. The European Community signed and approved the Protocol. There is also the 2005 Council of Europe Convention on Action against Trafficking in Human Beings which has been ratified by 11 EU Member States, including the UK, and 14 have signed it. According to the Commission the Convention “is regarded by experts as constituting the highest international standard to date (…). Implementing such measures would lead to significant improvements.”
Nevertheless, according to the Commission, the Convention has its weaknesses as well as the EU’s 2002 Framework Decision. Hence, the Commission has decided to put forward a Proposal for a Council Framework Decision on preventing and combating trafficking in human beings, and protecting victims, repealing Framework Decision 2002/629/JHA. The Commission’s proposal main aim is to further approximate EU Member States legislation and penalties.
However, the European Scrutiny Committee pointed out that several Member States are still in the process of ratifying the Council of Europe Convention on trafficking, and stressed that the Commission has said that such implementation will “lead to significant improvements.” Hence, the Committee has doubts if there is a need for further EU legislation. The Committee members believe that the full implementation of the 2002 Framework Decision and the Council of Europe Convention “might be a more effective means to counter trafficking in human beings and help victims than creating new legislative requirements.”
The Minister of State at the Home Office, Phil Woolas, has said to the European Scrutiny Committee that the Commission’s proposals for a new Framework Decision are broadly in line with existing UK policy on trafficking in human beings.
The Commission has amended the definition of the offence of trafficking in human beings in the draft framework decision to bring it into line with the definition in the 2000 UN Protocol and the 2005 Council of Europe Convention on Action against Trafficking in Human Beings.
The draft proposal provides for aggravating circumstances and higher penalties. Member States would be required to ensure that trafficking offences are punishable by imprisonment for a maximum term of not less than six years, ten years or twelve years depending on the circumstances. According to the European Scrutiny Committee “this might unacceptably fetter the discretion of the judiciary to decide sentence on the facts of each particular case.”
The Minister has said that the Government’s “(…) position is that the proposals, which lay down what the minimum terms should be for maximum penalties, would not interfere with the Court’s discretion given the current maximum sentence for trafficking offences in our domestic legislation (14 years). On that basis, we are prepared to accept this proposal.”
Member States would also be required to “provide for the possibility” of not prosecuting or imposing penalties on victims of trafficking for unlawful activities they have been involved in as a direct consequence of the trafficking offence against them such as the use of false documents.
The draft framework decision provides for possibility to prosecute EU nationals for crimes committed in other countries. Member States would be required to establish their jurisdiction over trafficking offences committed outside their territory.
The Commission’s proposal also contains new provisions on the protection of vulnerable victims of trafficking aimed at preventing secondary victimisation. Under the draft proposal, Member States would be obliged to provide victims with assistance, before, during and after criminal proceedings such as helping them to escape from the influence of offenders and providing them with shelters, medical and psychological assistance, information and interpretation services. Victims would be provided with free legal aid during the proceedings, including for the purpose of claiming financial compensation.
Moreover, Member States would be required to “consider taking measures to establish as a criminal offence the use of services which are the object of exploitation … with the knowledge that the person is a victim of an offence." The proposal would criminalized the use of services exacted from a person, with the knowledge that the person has been trafficked.
Under the draft framework decision Member States would be required to establish national Rapporteurs or equivalent mechanisms to monitor the implementation of the measures foreseen by the Framework Decision.
The proposal goes through the consultation procedure and unanimity is required at the Council for the proposal to be adopted. The EU Justice Ministers agreed on the principle of strengthening the framework decision against the trafficking of human beings. Nevertheless, the Justice and Home Affairs Council has identified several outstanding issues including the legal basis, the penalties' system as well as the issue of extra territorial jurisdiction and the issue of protection and assistance to victims.
