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European Union: Trafficking in Human Beings and Protection of Victims

(Apr. 28, 2011) In early April 2011, the European Union adopted Directive 2011/36/EU on Preventing and Combating Trafficking in Human Beings and Protecting Its Victims, 2011 (OFFICIAL JOURNALOF THE EUROPEAN UNION (L101) 1 (Apr. 15, 2011)). The Directive replaces the 2002 Council Framework decision on human trafficking and expands the concept of trafficking to include additional forms of exploitation such as “forced labour or services, including begging, slavery or practices similar to slavery, … or the exploitation of criminal activities, or the removal of organs.” (Id.) As the preamble elucidates, in regard to begging, the validity of consent must be examined on a case-by-case basis, according to the relevant case law. If begging involves a child under the age of 18, then consent must not be considered valid under any circumstances. “Exploitation of criminal activities” involves the exploitation of a person to commit shoplifting, pick-pocketing, and drug trafficking, inter alia. The new broader concept also includes trafficking in persons for the purpose of removal of organs, “which constitutes a serious violation of human dignity and physical integrity.” (Id.)

The Directive requires that EU Members take measures to ensure that in addition to punishing the offense of human trafficking, they also punish inciting, aiding and abetting, or attempting to commit the offense by imposing a maximum penalty of imprisonment of at least five years. The Directive provides for aggravating circumstances and a punishment of at least 10 years of imprisonment when the offense was committed against a particularly vulnerable person, such as a child; when it deliberately put at risk the life of the victim; or when the trafficking was committed with the use of force. The EU Member States must ensure that investigations or prosecutions of human trafficking offenses are not conditional on reporting or application by the victim and that legal persons can also be held responsible for such offenses.

The Directive provides, in the matter of jurisdiction over prosecution of the offenses, that EU Members are required to establish jurisdiction based on the territoriality principle or the nationality of the offender. If an EU Member intends to establish jurisdiction on additional grounds, including when trafficking was committed for the benefit of a legal person established in its territory, then it must inform the European Commission.

In regard to victims, a basic principle included in the Directive is that national authorities must not prosecute or impose penalties on victims for being involved in criminal activities against their will. EU Members must provide assistance and support to victims before, during, and after criminal proceedings, and that support must not be made conditional on the willingness of the victim to cooperate during the investigation or trial. Assistance and support measures include basic standards of living to ensure subsistence, safe accommodation, medical treatment if necessary, and translation services as needed. For the victims' protection during criminal investigations and proceedings, EU Members must provide legal counseling and representation free of charge. In addition, they must offer victims appropriate protection through access to witness protection programs. Special rules are provided on assistance and protection when the victim is a child.

The Directive also provides for compensation to the victims of trafficking. Finally, the Directive requires EU Members to establish national reporters or other mechanisms for monitoring trends in trafficking incidents, gathering statistics, and reporting.

The deadline for transposition of the Directive into national law is April 6, 2013. Thus, EU Members have a two-year period to ensure implementation of the Directive within their domestic legal frameworks. (Id.)