Combating trafficking in human beings

This framework decision aims to approximate the laws and regulations of European Union (EU) countries in the field of police and judicial cooperation in criminal matters relating to the fight against trafficking in human beings. It also aims to introduce common framework provisions at European level in order to address issues such as criminalisation, penalties and other sanctions, aggravating circumstances, jurisdiction and extradition.

ACT

Council Framework Decision 2002/629/JHA of 19 July 2002 on combating trafficking in human beings.

SUMMARY

Since the adoption in 1997 of a joint action by the Council concerning action to combat trafficking in human beings and the sexual exploitation of children, a considerable number of initiatives have been developed at both national and regional levels. The Vienna Action Plan and the Tampere European Council called for additional provisions to further regulate certain aspects of criminal law and criminal procedure.

Moreover, in December 2000, at the signing conference in Palermo, Antonio Vitorino, a Member of the Commission acting on behalf of the Community, signed the United Nations Convention against Transnational Organised Crime and the two Protocols against trafficking in persons and the smuggling of migrants by land, air and sea.

With this framework decision, the Commission wishes to complement the existing instruments used to combat trafficking in human beings, including the:

• French initiatives on facilitation of unauthorised entry, movement and residence relating to the smuggling of migrants (Directive 2002/90/EC and Framework Decision 2002/946/JHA);
• STOP and Daphné action programmes;
• European Judicial Network;
• exchange of liaison magistrates.

The Commission takes the view that trafficking in human beings is a crime against the person with a view to the exploitation of that person.

Article 1 defines the concept of trafficking in human beings for the purpose of labour or sexual exploitation. EU countries must punish any form of recruitment, transportation, transfer or harbouring of a person who has been deprived of his/her fundamental rights. Thus, all criminal conduct that abuses the physical or mental vulnerability of a person will be punishable. The victim's consent is irrelevant where the offender's conduct is of a nature that would constitute exploitation within the meaning of the framework decision, that is, involving the:

• use of coercion, force or threats, including abduction;
• use of deceit or fraud;
• abuse of authority or influence or the exercise of pressure;
• offer of payment.

Instigating trafficking in human beings and being an accomplice or attempting to commit a crime will be punishable.

Penalties provided for by national legislation must be "effective, proportionate and dissuasive." By setting the maximum penalty at no less than eight years of imprisonment, the Commission makes it possible to apply other legislative instruments already adopted for the purpose of enhancing police and judicial cooperation, such as Joint Action 98/699/JHA on money laundering, the identification, tracing, freezing, seizing and confiscation of the instrumentalities and the proceeds from crime and Joint Action 98/733/JHA on making it a criminal offence to participate in a criminal organisation. A custodial sentence will only be imposed in the circumstances where the:

• victim's life has been endangered;
• victim was particularly vulnerable (for example, due to his/her age);
• crime is committed within the framework of a criminal organisation as defined by Joint Action 98/733/JHA.

In addition, the framework decision introduces the concept of criminal and civil liability of legal persons in parallel with that of natural persons. Legal persons will be held liable for offences committed for their benefit by any person acting either individually or as part of the organ of the legal person, or who exercises a power of decision.

Penalties on legal persons will be "effective, proportionate and dissuasive"; they will include criminal or non-criminal fines and specific sanctions, such as a temporary or definitive ban on commercial activities, a judicial dissolution measure or the exclusion from public benefits or advantages.

Child victims of trafficking are entitled to special assistance, in accordance with Framework Decision 2001/220/JHA on the standing of victims in criminal proceedings.

In order that the crime does not go unpunished because of a conflict of jurisdiction, the decision introduces criteria on jurisdiction. An EU country will have jurisdiction where the:

• offence is committed on its territory (territoriality principle);
• offender is a national (active personality principle);
• offence is committed for the benefit of a legal person established in the territory of that EU country.

The second criterion is particularly important for countries that refuse to extradite their nationals, since they must take the necessary measures to prosecute their nationals for offences committed outside their territory.

This framework decision repeals Joint Action 97/154/JHA as regards combating trafficking in human beings.

The framework decision is applicable to Gibraltar.

RELATED ACTS

Report from the Commission to the Council and the European Parliament of 2 May 2006 based on Article 10 of the Council Framework Decision of 19 July 2002 on combating trafficking in human beings [COM(2006) 187 final – Not published in the Official Journal].

Communication from the Commission to the European Parliament and the Council of 18 October 2005 – Fighting trafficking in human beings: an integrated approach and proposals for an action plan [COM(2005) 514 final – Not published in the Official Journal]. This communication aims to strengthen the commitment of the EU to preventing and combating trafficking in human beings. The Commission is seeking to further reinforce the commitment of the EU and its countries to preventing and combating trafficking in human beings committed for purposes of sexual or labour exploitation, and to protect, support and rehabilitate victims. It believes that trafficking in human beings cannot be effectively tackled unless an integrated approach is adopted, based on respect for human rights and taking into account the global nature of the problem. Such an approach calls for a coordinated policy response particularly in the areas of freedom, security and justice, external relations, development cooperation, employment, gender equality and non-discrimination.

Last updated: 03.03.2011