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Regional Law and Standards
At the regional level, the Council of Europe and the European
Union are the two institutions that draft legally binding law
on trafficking in persons, which would be applicable to some of
the countries of Central and Eastern Europe
and the Commonwealth of Independent States. In addition, both
the Organization for Security and Cooperation in Europe (OSCE)
and the Stability Pact for South Eastern Europe
create what can be termed politically-binding documents which
form anti-trafficking policy and standards for the region. More
information about the European Human Rights system, human rights
documents and enforcement mechanisms can be accessed from the
International Law section of this site.a
Contents:
The Council of Europe
The Council of Europe (COE) is a regional intergovernmental organization
that focuses on issues emerging in the larger European arena.
The European human rights legal system is based on treaties and
is elaborated and explained by other non-binding documents, such
as resolutions and directives. As is the case with the United
Nations, the instruments serve as guidelines to member States
on the obligation to protect women from violence, including trafficking
in women. The legal sources for the Council of Europe’s
human rights obligations are contained in two treaties: the Convention
for the Protection of Human Rights and Fundamental Freedoms
(European Convention) (ETS No. 5) and the European
Social Charter (ETS No. 35).
The European Convention sets forth the principle of nondiscrimination
(Article 14) and guarantees the right to life (Article 2), the
right to liberty and security of person (Article 5) and the right
to be free from torture, inhuman or degrading treatment (Article
3). The European Social Charter includes the right to work, including
the equal right to work, the right to just work conditions and
the right to safe and healthy work conditions, and the right to
social and economic protection. The European Convention
also sets forth a woman’s right to an effective legal remedy
before a national authority if her human rights are violated.
(Article 13).
In addition to the Council of Europe treaties, recommendations
by the Committee of Ministers and the Parliamentary Assembly also
have the force of law for member States. Both the Committee of
Ministers and the Parliamentary Assembly have issued specific
recommendations on the issue of trafficking in women and children,
which articulate COE policy. The Council of Europe reiterates
many of the standards articulated by the United Nations on trafficking,
but also promulgates specific recommendations for member States,
related to trafficking in Europe.
In 1991, the Committee of Ministers adopted Recommendation
No. R (91) 11 “on Sexual Exploitation, Pornography and
Prostitution of, and Trafficking in, Children and Young Adults”
which includes recommendations to Member States to take specific
measures related to the problem of trafficking. Such measures
should include the ratification of international treaties, the
introduction of legislation to allow the prosecution and punishment
of traffickers and the improvement of information exchange across
borders. While these recommendations are important, it was not
until 1997 that the Council of Europe articulated the extent of
the problem of trafficking in Europe
and the complexity and interconnectedness of the measures required
to protect trafficked persons and prosecute traffickers.
COE Parliamentary Assembly Recommendation
1325 (1997) “on traffic in women and forced prostitution
in Council of Europe member States” is a response to a “dramatic
increase in recent years in the traffic in women and forced prostitution
in Council of Europe member states . . . [and] the deterioration
of the treatment of trafficked women, bordering on slavery, which
has resulted from this development.”
The Parliamentary Assembly defines trafficking in women and forced
prostitution as “any legal or illegal transporting of women
and/or trade in them, with or without their initial consent, for
economic gain, with the purpose of subsequent forced prostitution,
forced marriage, or other forms of forced sexual exploitation.
The use of force may be physical, sexual and/or psychological,
and includes intimidation, rape, abuse of authority
or a situation of dependence.” This definition of trafficking
in women is narrower than the one later adopted by the United
Nations in the 2000 Trafficking Protocol in that it equates trafficking
in women with sexual exploitation, but it extends protection to
women who consent to some of the activities present in a case
of trafficking. Recommendation 1325 also defines trafficking
as “a form of inhuman and degrading treatment and a flagrant
violation of human rights” and not merely a criminal act.
Finally, Recommendation 1325 urges member States to take specific
actions, including the following: conducting awareness raising
campaigns, training immigration staff, creating dedicated police
structures, granting residence permits to victims of trafficking,
organizing legal, medical and psychological assistance for trafficking
victims, providing aid in reintegration, creating telephone help
lines and support centers for victims and granting non-governmental
organizations access to court to increase the effectiveness of
prosecution efforts.
Recommendation
No. R (2000) 11
of the Committee of Ministers “on action against trafficking
in human beings for the purpose of sexual exploitation”
articulates a need to “establish a pan-European strategy
to combat [trafficking in human beings] and protect its victims,
while ensuring that the relevant legislation of the Council of
Europe's member states is harmonized and uniformly and effectively
applied.” Thus, this recommendation urges member States
to “review their legislation and practice with a view to
introducing, where necessary, and applying the measures described
in the appendix to this recommendation.” The appendix includes
a definition of trafficking substantially equivalent to that found
in Recommendation 1325 (1997), above, and sets forth specific
measures related to the following areas of concern: Prevention
(awareness-raising, education, training); Assistance to and Protection
of Victims (victim support, legal action, social measures for
victims of trafficking in countries of origin, right of return
and rehabilitation); Penal Legislation and Judicial Cooperation;
Coordination and Cooperation (nationally and internationally).
Member States are also urged to take coordinated action using
a multidisciplinary approach and to encourage cooperation between
national authorities and NGOs, in countries of origin, transit
and destination.
In 2002, the Parliamentary Assembly adopted
Recommendation
1545 (2002) “on the campaign against trafficking in
women,” which includes strong language about the far-reaching
harms of trafficking:
Trafficking in women is a phenomenon which
is a violation of human rights and the basic principles of rule
of law and democracy. . . Trafficking is a human rights issue
as it entails the violation of women’s dignity and integrity,
their freedom of movement and, in some cases, their right to life.
As far as the individual is concerned, it affects the very foundations
of human rights: the equal dignity of all human beings. Trafficking
should be considered a crime against humanity.
Recommendation 1545 (2002) broadens the previous Council of Europe’s
definition of trafficking in the European context. It states
that “trafficking is a very complex subject which
is closely linked to prostitution and hidden forms of exploitation,
such as domestic slavery, catalogue marriages and sex tourism.”
This recommendation reiterates many of the specific measures
mentioned in Recommendation No. R (2000) 11, above, calling on
Member States to “develop common policies and actions covering
all aspects of this problem: comprehensive statistics and research
into the causes and mechanisms of trafficking, law enforcement,
prevention, protection of victims, repression and awareness-raising
and information campaigns,” but also includes other actions.
For example, the Parliamentary Assembly urges governments to appoint
national rapporteurs on trafficking, to criminalize sex tourism
and the mail-order bride industry, to remove legal restrictions
on the movement of women to Western Europe, to penalize those
who knowingly use the services of a victim of trafficking, to
provide legal assistance to trafficking victims and to elaborate
a European convention on trafficking in women.
The Stability Pact Task Force on Trafficking in Human Beings
hosts a website with links to Council
of Europe Basic Documents in the area of trafficking.
The European Union
The European Union (EU), like the Council of Europe, has also
addressed the issue of trafficking in women. Since the European
Union is based on principles of democracy, the rule of law and
human rights, it creates law and policy on human rights issues
for member States. Most of the work of the European Union in
the area of trafficking has focused on increasing international
law-enforcement cooperation, through Europol, funding of anti-trafficking
initiatives, through the STOP and DAPHNE programs, and the adoption
of resolutions. European Union resolutions, adopted by the European
Parliament, are not legally binding for member States, but carry
strong persuasive force.
In 1997, the European Union issued the Council
Joint Action to combat trafficking in human beings and sexual
exploitation of children, a legally-binding document for member
States. The Joint Action defines trafficking as “any behavior
which facilitates the entry into, transit through, residence in
or exit from the territory of a Member State for gainful purposes
with a view to the sexual exploitation or abuse of the adults
or children involved . . .” Sexual exploitation of adults
is defined “at least the exploitative use of the adult in
prostitution,” indicating that trafficking in women is generally
equated with forced prostitution, but could include other more
severe forms of sexual exploitation. The Joint Action specifies
that EU member States are to ensure that national law views the
acts set forth above as criminal, protect victims who serve as
witnesses, assist victims and their families, coordinate and cooperate
in investigations and judicial proceedings and exchange information
useful to investigation and prosecution with other member States.
The European Parliament has issued a number of resolutions on
the issue of trafficking in women, including the “resolution
on the communication from the Commission to the Council and the
European Parliament 'For further actions in the fight against
trafficking in women' (COM(1998) 726 - C5-0123/1999
- 1999/2125(COS)) of May 2000. This resolution calls on the European
Union to develop a clear legal basis for fighting all forms of
violence against women, including trafficking, and to “decide
on the full communautarisation of a European policy on the fight
against trafficking in human beings and on the related issues
of migration and asylum, in particular the right of asylum in
response to gender related oppression and persecution.”
The resolution emphasizes the need for member States to improve
criminal legislation, to improve coordination and cooperation
at both the national and international level, to appoint national
rapporteurs on trafficking and to provide victims with specific
services, including legal counseling, housing and employment assistance.
The European Union has also addressed the issue of trafficking
from the standpoint of immigration policy and asylum law. With
increased cooperation between EU member States, the need arose
to develop a common approach to immigration procedure, border
controls and asylum policy. European member States have been
undergoing a process of harmonization of their asylum procedures,
generally with the aim of tightening regulations and limiting
the number of asylum seekers. Some human rights activists have
argued that the harmonization process has had a negative impact
on addressing the problem of trafficking since decreased opportunities
to immigrate legally lead to an increase in the need for traffickers’
services. In February 2002, however, in the face of increased
trafficking, the European Union drafted a Proposal
for a Council Directive “on the short-term residence
permit issued to victims of action to facilitate illegal immigration
or trafficking in human beings who cooperate with the competent
authorities,” COM(2002) 71 final, 2002/0043
(CNS). The aim of the proposal is the creation of a directive
that would introduce a residency permit to be issued to adult
victims of trafficking or illegal immigration who are third-country
nationals. The victims would be granted a 30-day period in which
to consider whether they will cooperate with national authorities
in the prosecution of traffickers. During this period, the trafficked
person would be eligible for aid, in the form of housing, medical
and psychological care and other forms of social assistance.
The proposal also calls for the possibility of issuing a short-term
(six month) residency period for those victims who cooperate with
authorities. The purpose of introducing such a residency permit
is to combat illegal immigration, and therefore the proposal does
not include measures about victim protection, witness protection
or combating organized crime. Victim protection and witness protection
are addressed as matters of European and national law.
The issue of trafficking has also been raised in the context
of the European Union accession process. While all EU member
States are affected by the problem of trafficking in women, labor
migration patterns flow from Central and Eastern European countries,
including EU candidate countries, to Western Europe. Thus, it
has become an important criterion for accession for candidate
countries to bring their law and policy on the issue of trafficking
in line with international and European standards. Further information
about the European Union accession process generally is available
on this website in the section that discusses the European Human
Rights system.
The European Union website includes a page with an
overview of EU strategies and actions. While
the site does not include links to all EU resolutions on trafficking,
it does include information about funding and work at the UN and
Council of Europe levels.
The European Council on Refugees and Exiles (ECRE), an umbrella
organization of 73 refugee-assistance agencies located in 30 countries,
hosts a site on European
Union documents related to trafficking and immigrant smuggling.
The Organization for
Security and Cooperation in Europe
The Organization for Security and Cooperation in Europe
(OSCE) is not strictly a human rights body and therefore cannot
create binding obligations for national governments. Nevertheless,
the OSCE recognizes the importance of ensuring human rights protection
in order to achieve security in Europe.
The OSCE has recognized that the transition period in many CEE
and CIS countries has brought about increased violence against
women and the emergence of trafficking.
The Moscow
Concluding Document of 1991 creates political obligations,
though not legal obligations, for OSCE Member States “to
seek to eliminate all forms of violence against women, and all
forms of traffic in women and exploitation of prostitution of
women including by ensuring adequate legal prohibitions against
such acts and other appropriate measures.”
In 2000, the Ministerial Council adopted Decision
No. 1, Enhancing The OSCE’s Efforts To Combat Trafficking
In Human Being (MC(8).DEC/1), in which the OSCE agreed to
strengthen its activities to combat trafficking and called upon
all OSCE institutions to develop and implement anti-trafficking
programs. In addition, the OSCE committed to
take necessary
measures, including by adopting and implementing legislation,
to criminalize trafficking in human beings, including appropriate
penalties, with a view to ensuring effective law enforcement response
and prosecution. Such legislation should take into account a
human rights approach to the problem of trafficking, and include
provision for the protection of the human rights of victims, ensuring
that victims of trafficking do not face prosecution solely because
they have been trafficked.
On the issue of the provision of victim services, the language
used by the Ministerial Council is weaker, stating that the OSCE
would “consider adopting legislative or other appropriate
measures, such as shelters, which permit victims of trafficking
in persons to remain in their territories, temporarily or permanently,
in appropriate cases; . . . and developing policies concerning
the provision of economic and social benefits to victims as well
as their rehabilitation and reintegration in society.”
The commitments of the OSCE were reiterated by a later Ministerial
Council decision, Decision
No. 6 (MC(9).DEC/6) of December 2001.
The OSCE has also created a number of working documents, which
can be informative to advocates working on legislative change.
The OSCE background paper Trafficking
In Human Beings: Implications for the OSCE, (1999/3), for
example, defines OSCE commitments to combat trafficking and includes
an overview of international standards, which obligate States
to prevent violations of human rights, to investigate violations,
to take appropriate action against the violators, and to afford
remedies and reparation to those who have been injured as a consequence
of such violations. The background paper provides an analysis
of the status of implementation of anti-trafficking measures in
the OSCE region. The background paper is also available in Russian:
Проблема
контрабанды
людей: задачи
ОБСЕ.
The OSCE Reference
Guide for Anti-Trafficking Legislative Review, created in
September 2001, provides a comprehensive view of the types of
legislation necessary for an effective anti-trafficking policy.
The guide addresses prevention, prosecution and protection and
assistance for victims, providing international standards, examples
of national legislation and recommendations for legal initiatives
that fall within each broad topic. The Reference Guide is also
available in Russian: Руководящие
Принципы по
Пересмотру
Законодательства
против Торговли
Людьми.
and in Serbian: Priručnik
za Reviziju Zakonske Regulative protiv Trgovine Ljudima.
The trafficking unit of the OSCE Office for Democratic Institutions
and Human Rights has a website,
which includes links to key documents that address anti-trafficking
policy and initiatives.
The Stability
Pact for Southeastern Europe:
Task Force on Trafficking in Human Beings
The Stability Pact for Southeastern Europe
was adopted by European Union initiative in 1999 with the aim
of strengthening the countries in Southeastern Europe
“in their efforts to foster peace, democracy, respect for human
rights and economic prosperity in order to achieve stability in
the whole region.” The Stability Pact partners include the European
Union member States, countries in the region (Albania, Bosnia-Herzegovina,
Bulgaria, Croatia, Czech Republic, FYR Macedonia, Hungary, Poland,
Romania, Slovakia, Slovenia, Yugoslavia, Turkey and Moldova),
non-EU members of the G-8 (U.S., Canada, Japan and Russia), Norway,
Switzerland, other international organizations, such as the UN,
OSCE, Council of Europe, NATO, and world financial institutions,
such as the World Bank. The work of the Stability Pact is organized
under three Working Tables; the first addresses democratization
and human rights, the second addresses economic reconstruction
and the third focuses on security issues. The Stability Pact
addresses the problem of trafficking through the Task Force on
Trafficking in Human Beings, whose work arguably fits under both
Working Table I and III.
The Task Force on Trafficking in Human Beings is the division
of the Stability Pact for South Eastern Europe (SEE), which serves
a clearinghouse function, gathering the expertise of different
institutions and experts dealing with trafficking in human beings.
The Task Force is then able to provide governments with a comprehensive
understanding of the inter-related challenges poised by the problem
of trafficking as well as best practices for anti-trafficking
activities. While the Task Force does not create law, it has
formulated important policy on national and regional counter-measures.
The focus of the work of the Task Force is on seven areas of concern:
awareness raising; training and exchange programs; law enforcement
co-operation; victim protection programs; return and reintegration
assistance; relevant legislative reform; and prevention. Although
the Task Force on Trafficking works closely with the governments
of southeastern European nations, its policy and recommendations
provide useful guidance for the creation of anti-trafficking law
and initiatives in other regions.
In December 2000, the Anti-Trafficking
Declaration of SEE was signed at a Regional Ministerial Forum
in Palermo, Italy by Government Ministers and representatives
of Albania, Bosnia and Herzegovina, Bulgaria, Croatia, the Federal
Republic of Yugoslavia, the former Yugoslav Republic of Macedonia,
Moldova, Romania, Slovenia, Turkey, Montenegro and Kosovo. The
Anti-Trafficking Declaration creates no legal obligations but
is a politically important document for the signatory countries.
By signing the Anti-Trafficking Declaration, the signatories “underline
the responsibility of the States to address the phenomenon of
trafficking in human beings by implementing effective programs
of prevention, victim assistance and protection, legislative reform,
law enforcement and prosecution of traffickers.” The Anti-Trafficking
Declaration also sets forth the commitment to coordinate national
efforts and to exchange information about national actions.
The Task Force on Trafficking in Human Beings issued guidelines
for national action plans to combat trafficking in human beings
in order to assist the signatory nations in addressing the problem
of trafficking in each county. Thus, subsequent to signing the
Anti-Trafficking Declaration, the governments of Albania, Bosnia
and Herzegovina, Croatia, Serbia, Montenegro, Macedonia, Moldova
and Romania all created National
Plans of Action which provide an analysis of the problem of
trafficking in women in each country, an overview of existing
legislation and set forth specific actions to be taken by government
structures.
In 2001, the Task Force created the Multiyear
Anti-Trafficking Action Plan for South
Eastern Europe, which outlines a co-coordinated,
multidisciplinary approach to combating trafficking in the region.
The Action Plan describes a core cluster of projects aimed at
victim protection and intended to be implemented cooperatively
by the Task Force, the International Organization for Migration
(IOM) and local NGOs. These core projects include the creation
of a regional clearing point to collect and analyze information
and statistics about current trafficking cases and to monitor
the response, the creation of a national referral system to assist
trafficked persons, the establishment of shelters and safehouses,
strengthening return and repatriation programs and conducting
an inventory of the current situation of and responses to trafficking
in SEE. The goal of the Action Plan is to create a “regional
network of counter-measures” to enhance the national action
plans, with a focus on the protection of victims through the establishment
and improvement of shelters and referral systems in the region.
In addition, the Task Force has recognized a need for improved
legislation and law enforcement policies as well as the necessity
of training and capacity building of relevant professionals.
Recently, the Task Force and regional government ministers
of Albania,
Bosnia and Herzegovina,
Bulgaria,
Croatia,
Hungary,
Serbia,
Montenegro,
Macedonia
and Kosovo agreed to adopt a victim-centered approach to trafficking.. Previously, they had focused mainly on law enforcement.
At the Third Regional Ministerial Forum of the Task Force, in
December 2002, the above-mentioned countries signed a Statement
on Commitments to Legalize the Status of Trafficked Persons in
which they agreed to improve the protection of trafficking victims,
through such actions as: improving the identification of trafficked
persons; refraining from immediate deportation of victims of trafficking;
referring possible victims to social assistance (shelters, health
case, legal advice); granting victims of trafficking status to
remain in state’s territory temporarily; issuing temporary
residence permits until completion of legal proceedings or when
appropriate; and developing witness protection programs.
The Task Force on Trafficking in Human Beings maintains a website
of Action
Plans and Projects, all of which can be accessed electronically.
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