DRAFT COMMENTS/ NOT FOR PUBLICATION
4, Rue de Pascale, B-1040 Bruxelles
174, Rue Joseph II, B-1000 Bruxelles
COMECE-Commission of the Bishops’ Conferences of the European Community
-Working group on Migration-
42, Rue Stévin, B-1000 Bruxelles
4, Rue de Pascale, B-1040 Bruxelles
8, Chaussée de Haecht, B-1210 Bruxelles
The above-named organisations represent Christian churches throughout Europe, Roman Catholic, Orthodox, Protestant and Anglican, as well as church agencies particularly concerned with migrants and refugees.
We appreciate the European Commission’s initiative to come forward with 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. This Proposal corresponds to recommendations issued by different international organisations on the fight against trafficking in human beings.
We share the main concerns of the European Commission, i.e. the increase in illegal immigration, in its two most odious forms, namely the growth of networks of smugglers acting for non-humanitarian reasons and the exploitation of foreign nationals in the form of trafficking in human beings.
We realise that the proposed Directive introduces a residence permit and is not concerned with protection of either witnesses or victims, as this is neither its aim nor its legal basis; we would nevertheless like to bring up a number of concerns. We refer to a letter that was sent to Mr. De Brouwer on January 21st, 2002, following a discussion paper on the topic.
Paragraph d: “measure to enforce an expulsion order” means any measure taken by a Member State to enforce the decision of an administrative and (add) judicial authority ordering the expulsion of a third-country national.
There is no objective basis to limit the scope of this Directive to adults only. As rightly mentioned in the commentaries, the victims of trafficking in human beings are very often minors. They should also be covered by the scope of this Directive. But it is up to the Member States to grant other types of residence permits to minors, insofar as they guarantee a more favourable treatment (Article 6).
We would like to add that this Directive shall be without prejudice to the granting of residence permits on humanitarian grounds to victims who do not or who cannot cooperate with the authorities.
Member States shall apply this Directive without discrimination on the grounds of sex, race, colour, ethnic or social origin, genetic characteristics, language, religion or belief, political or other opinion, membership of a national minority, wealth, birth, disability, age or sexual orientation and (add) nationality.
We appreciate the involvement of Non-Governmental Organisations in the information to be provided to victims. The information should be provided in a language understood by the victim.
As far as the reflection period is concerned, a 30-day duration seems appropriate in some cases, but may have to be longer in other cases. We urge for the inclusion of a so-called “hardship” clause of three months for traumatised victims, for whom a 30 days-delay will not be sufficient.
The formulation of paragraph 4 is too vague.
We appreciate that Member States shall attend to the special needs of the most vulnerable, but would like to add “with special attention to the most traumatized”. Moreover, specialized centres should deal with the special needs of the most vulnerable. Physical protection and physical security of the victims should be assured at all times.
The article stipulates that Member States shall ensure that victims have access to suitable accommodation, emergency medical and psychological treatment and medical care that cannot be postponed, and to the necessary support in the form of social welfare and means of subsistence if they do not have sufficient resources. We urge to put adequate financial means at the disposal of social service centres that are providing these services.
Article 10.1 stipulates that the authority must decide on three elements:
- first, whether the presence of the victim is useful;
- second, whether the victim has shown a clear intention to cooperate;
- third, the victim must have severed all links with the smugglers and traffickers.
We have four main concerns regarding this article 10.1:
- if the presence of the witnessess is not useful anymore to the authorities, the witnesses’ rights to obtain a short-term residence permit disappear and they can be sent back to their home country;
- that a decision will be taken by the authority responsible for the investigation or prosecution only, apparently without any consultation with other organisations, such as Non-Governmental Organisations. By their work in the field, NGOs can offer a valuable contribution in an independent body, set up for this purpose;
- it is necessary to establish clear and objective criteria as to what is considered “useful presence” and “clear intention to cooperate”. On what grounds will the authorities decide whether or not the presence of the victim is useful?
- it should be up to the witnesses to choose whether they prefer female officials in charge of the investigation.
10.3 As an incentive towards cooperation with the authorities, a renewed permit after the initial 30 days should be no less than 6 months, and a possibility for a longer term permit should be foreseen.
Here again, particularly for traumatised victims, a longer term permit may prove essential, as it will be difficult to overcome the trauma, which is necessary to be able to testify against their traffickers.
10.4 With regard to family members, we refer to the Council Regulation of 23.11.1995 on the protection of witnesses in the framework of the fight against organised international crime, stipulating that protection offered to victims must also be extended, if necessary, to the parents, children and other close relatives of witnesses. Whilst this is possible for family members also present in the European Union Member States, we feel however that there is also a need, bigger even, to protect family members of victims, who have remained in the home country and for whom protection from traffickers’ possible revenge actions seems highly advisable.
We appreciate that Member States shall authorise the holders of a short-term residence permit to have access to the labour market, vocational training and education, thereby avoiding that they are being retrafficked. However, we think that family members of holders of a short-term residence permit should have access to the labour market, vocational training and education as well .
Medical and psychological care should be assured by specialized service centres.
Article 14: victims who are minors
In view of the special situation of minors, we agree that it is up to each Member State to take due account of the best interest of the child when applying the provisions of this Directive.
In case minors should be excluded from this directive, they should be given the opportunity to benefit from a residence permit on humanitarian grounds.
If a victim has to be returned to his/her country of origin, this return should take place with his/her full consent. We welcome Commissioner Vitorino’s proposal to launch a debate on the need for a common policy for the return of illegal residents (Green Paper). The Christian group will contribute in writing to this debate. We do hope that the development of a common return policy will be compatible with the need for protection under international and European law in the evolving common European asylum system.
Victims should be offered the perspective of a permanent stay when the prosecution of the criminal network has shown to be either successful or not successful.
A victim who has testified against his/her traffickers and has to return at the end of the judicial investigation might face retaliations once back in the home country, and should therefore be offered a permanent stay in case the prosecution has been successful.
The Parliamentary Assembly of the Council of Europe provides a recommendation stipulating that residence permits of a permanent nature are granted to victims of trafficking for those who are willing to testify in court and need protection, and of a temporary but renewable nature for all others on humanitarian grounds.
We refer to article 10: what exactly is believed to be fraudulent or wrongful complaint by the judicial authority?
What are the reasons relating to the protection of public order and national security?
Article 3 of the European Convention on Human Rights provides protection that cannot be limited due to public order and national security.
We believe that Non-Governmental Organisations can participate in the assessment of effectiveness of rehabilitation programmes.
Apart from the number of short-term residence permits issued, the proceedings initiated and their outcome, we think it is recommendable to have information on the countries where victims come from as well, in order to have a comprehensive overview of the phenomenon.
To conclude, we insist on the development of a Community policy that tackles the root causes of trafficking. Accession countries, both in their capacity as future members of the European Union and as countries of origin and/or transit should be involved from the very beginning in the shaping of this Proposal for a Council Directive. Root causes of trafficking should also be addressed in non-EU countries. We insist on a fair development co-operation policy whereby the fight against poverty and the promotion of human rights are crucial.
As far as funding is concerned, we plead for appropriate funding for organisations that are involved at the grass root level in anti-trafficking activities and for a quick and efficient decision-taking process as to the release of funds.
Brussels, May 2002
 Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children, supplementing the United Nations Convention Against Transnational Organized Crime, G.A. res. 55/25, annex II U.N. GAOR Supp. (n° 49) at 60, U.N. Doc. A/45/49 (Vol. I) (2001)
- Integration of the human rights of women and the gender perspective violence against women, report of the Special Rapporteur on violence against women, its causes and consequences, Ms. Radhika Coomaraswamy, on trafficking in women, women’s migration and violence against women, submitted in accordance with Commission on Human Rights Resolution 1997/44, Economic and Social Council, E/CN.4/2000/68
- Council of Europe, Parliamentary Assembly Recommendation 1545 (2002), 21.01.2002.
 Council of Europe Recommendation R.2000/11, paragraph 27, explanatory memorandum “trafficking of human beings for the purpose of sexual exploitation”
 Council of Europe, Parliamentary Assembly Recommendation 1545 (2002), 21.01.2002