c) National instruments: 1. Anti-trafficking instruments

1. Anti-trafficking instruments 

 

The Palermo Protocol in 2000 and the Council of Europe Convention in 2005, provided keys for States to implement or strengthen their legislation on human trafficking. Further, the European Union Directive in 2011, obliged Member States to transpose the provisions it includes into their national law.

 

As a result, the majority of United Nations Member States outlaw and regulate this crime. The Antislavery lawwebsite lists national instruments against modern slavery (human trafficking, forced labor, slavery, servitude, slavery-like practices). The interactive map dedicated to national laws and trafficking indicates that only Libya and Yemen do not have provisions on this form of crime.

 

→ Laws have been passed that criminalize all forms of trafficking and establish identification and referral mechanisms. For example:

 

FRANCE

BELGIUM

The French Penal Code (Section 1 bis: Trafficking in human beings – Articles 225-4-1 to 225-4-9) provides a framework for the offense of trafficking in human beings. Human trafficking has been criminalized since 2003, but itsdefinition has been modified by the law 2013-711to comply with European requirements.

 

The CESEDA (Section 1: Foreigners who are victims of human trafficking […] Articles L425-1 to L425-5) provides a framework for the acquisition of a residence permit for victims of trafficking.

Belgium has also had to adapt its legislation, and in particular its Penal Code, to the new international and European instruments.

 

The Law of April 29, 2013 amended Article 433 quinquies of the Penal Code by clarifying and expanding the definition of human trafficking. More recently, the Law of May 31, 2016 was amended in order to implement the European obligations regarding sexual exploitation of children, child pornography, trafficking in human beings and aiding illegal entry, transit, and residence.

CANADA

SWITZERLAND

Canada has also revised its human trafficking legislation (which came into force in 2005) through legislation amending the Criminal Code (S.C. 2005, c.43, S.C. 2012, c.15, etc.).

 

There are now four specific offenses related to trafficking in persons: Trafficking in persons (section 279.01), Trafficking in persons under the age of eighteen (section 279.011), Material benefit from trafficking in persons (section 279.02), Retention or destruction of travel or identification documents (section 279.03).

 

 

In Switzerland, various laws allow for intervention in situations of trafficking: The federal law of December 16, 2005 on foreigners and integration (LEI; RS 142.20) and the ordinance of October 24, 2007 (OASA; RS 142 201) on the admission, stay and exercise of a lucrative activity have made it possible to anchor the regulation of the stay of victims of human trafficking in Swiss law.

 

The completely revised version of the Federal Act of 23 March 2007 on Assistance to Victims of Crime (Victims Assistance Act, LAVI; RS 312.5) came into force on 1 January 2009. The LAVI constitutes the legal basis for the assistance to victims of human trafficking and for the subsidization of NGOs, providing specific assistance to victims on behalf of the cantons.

 

→ Some States have also been able to put in place action plans to combat trafficking and frame efforts. These are non-binding documents but demonstrate the willingness of the author states to combat trafficking through concrete and targeted actions:

 

→ Evaluation of the 2017-2020 Plan in October 2021:

  • The majority of the measures have been implemented
  • A third National Action Plan is planned on the basis of this assessment, which will focus on certain areas (labor exploitation, criminal prosecution, victim support, cybercrime) and will be more politically binding than the previous one.  

 

For these action plans to be implemented, they must be accompanied by the necessary budget and a timeline. However, it should be noted that insufficient resources have been allocated inn many countries. For example, in France, some civil society and institutional actors, such as the National Consultative Commission on Human Rights (CNCDH), deplore the lack of sufficient resources to effectively implement all of the measures.

 

Not all national transpositions are identical and many differences are visible in the protection of victims, the prosecution of traffickers and the prevention of trafficking. For example:

 

  • Although the three elements of trafficking in human beings are generally included, there are still differences. This is particularly the case with regard to the means (added means, different interpretation of abuse of vulnerability, etc.) and the different forms of exploitation (e.g. addition of forced marriage in Spain, or exploitation by means of working conditions or accommodation contrary to the victim’s dignity in France).

 

  • The indifference of the victims’ consent is not always enshrined for trafficking in human beings, even though it is the subject of article 3(b) of the Palermo Protocol. Few States include this in their provisions or legislation dedicated to trafficking, while others use their general law (general principle of law, case law, etc.), which is sometimes ineffective in cases of trafficking.

 

  • The principle of non-punishment of victims for offences and crimes allegedly committed in the course of their exploitation is present in some states such as Albania, Belgium, Cyprus, Ecuador, Egypt, Germany, Greece, Indonesia, Kenya, Lao People’s Democratic Republic, Malawi, Mexico, Northern Macedonia, Spain, Thailand, and Uruguay.

 

  • The penalties and aggravating circumstances may also be different depending on the legal provisions and also on the training of lawyers, magistrates, and the police.

 

See Report of the AJIRE Legal Clinic (Legal Analysis of the Integration of European Regulations) 2020/2021 on the implementation by Member States of the European Union directive on the fight against trafficking in persons (mandate given by the Ambassador for the fight against trafficking in human beings, Michel Veuthey) – PDF Report / Video of the presentation of the report

 

See OSCE. National Referral Mechanisms – Joining Efforts to Protect the Rights of Trafficked Persons: A Practical Handbook – Second Edition (January 2022), and Liu, G. (2017) ‘National Referral Mechanisms for Victims of Human Trafficking: Deficiencies and Future Development’, in McAuliffe, M. and M. Klein Solomon (Conveners) (2017) Ideas to InformInternational Cooperation on Safe, Orderly and Regular Migration, IOM: Geneva.

 

 GRETA, France, Second Evaluation Round, 2017, op.cit. at §47, p.13

 

Special Rapporteur on trafficking in persons, especially women and children, “Application of the principle of non-punishment” – Prof. Siobhán Mullally | FR | EN | ES

 

See
 – AMERICAN BAR ASSOCIATION, Taking on human trafficking: A role for every lawyer and every bar association,
 – COUNCIL OF EUROPE. Action against Trafficking in Human Beings. Lawyer’s Network.
 – INTERNATIONAL LABOUR ORGANIZATION. Judges, prosecutors and legal aid practitioners’ training on forced labour. Facilitator’s guide.