Observations by
the United Nations High Commissioner for
Human Rights and
the United Nations High Commissioner for
Refugees
on the
Proposal for an EU Council Framework
Decision
on Combating Trafficking in Human Beings
1. The United Nations High Commissioner for Human Rights (HCHR) and the United Nations High Commissioner for Refugees (UNHCR) wish, at the outset, to express their support for the work of the European Union against trafficking in human beings and related exploitation. They do so from the viewpoint of two United Nations bodies with different but complementary mandates in this area. Both organisations believe that the present proposal to strengthen common approaches to this issue through the adoption of a Council Framework Decision is an important and timely step forward.
2.
HCHR and UNHCR understand from the explanatory memorandum that the
proposed Framework Decision seeks to extend the obligations contained in the
recently adopted UN Protocol to Prevent, Suppress and Punish Trafficking in
Persons, Especially Women and Children, supplementing the United Nations
Convention Against Transnational Organised Crime (A/55/383). While supporting this effort, HCHR and UNHCR are concerned
that adopting an approach which differs from that contained in the United
Nations Protocol on Trafficking may weaken the link between the two
instruments. In addition, it is cause for concern that several aspects of the
proposed Framework Decision, in particular those dealing with protection of victims
and witnesses, fall considerably short of established international standards.
The lack of reference to even basic protective measures for victims and
witnesses of trafficking, as well as the omission of a saving clause concerning
asylum-seekers and refugees, may create an impression that such protections are
both unimportant and optional in the fight against trafficking.
3.
On 21 March 2001, the High Commissioner for Human Rights submitted to
the European Commission and the Swedish Presidency of the European Union a note
addressing the above issues in some detail with the view to assisting the
European Union in ensuring that this new regional instrument reinforces the
letter and spirit of existing international legal standards. It is not clear as
to whether the Council, in reviewing the Commission proposal, has considered
taking account of these key
concerns of HCHR. In the circumstances, HCHR and UNHCR are making the present
joint submission, on the basis of HCHR’s earlier comments, to urge the
Commission and the Member States of the European Union to ensure the proposed
Framework Decision’s compatibility with established international
standards. It is significant to note that most of the concerns of HCHR and
UNHCR regarding the main shortcomings of the proposed Framework Decision are
also shared by the European Parliament as evinced by its deliberations during
its session on 12 June 2001, including a call for incorporating the definition
of trafficking of the Palermo Protocol into the Framework Decision.
4. The
proposed Framework Decision contains only minimal provisions for the protection
of victims of trafficking. HCHR and UNHCR have taken note of the provisions of
the Council Framework Decision of 15 March 2000 on the standing of victims in
criminal proceedings yet believe that the special needs of trafficking victims
are not sufficiently covered by these provisions and, moreover, should have their place in a specific EU
instrument on trafficking in persons.
Therefore, HCHR and UNHCR urge the Commission and Member States to
consider the following issues for inclusion in a revised Article on this issue.
(i) Prosecution for status related offences
5. Victims
of trafficking should be protected from prosecution for the illegality of their
coerced entry or residence, or for the activities they may be coerced to
perform as a consequence of their status as trafficked persons. Victims of trafficking should, for
example, be able to use the fact of their being trafficked as a defence against
status-related offences.
(ii) Protection of and assistance to victims
6. In
order to promote uniformity and minimum standards, the protection and
assistance provisions of the United Nations Protocol on Trafficking should be incorporated
into the proposed Framework Decision as basic obligations. To this end, the proposed Framework
Decision should require EU Member States to provide for the physical safety of
trafficking victims within their territory, counselling and information as well
as basic measures for their physical and psychological recovery. The instrument should also provide for
adopting legislative or other measures that permit victims of trafficking to
remain in an EU Member State, temporarily or permanently, in appropriate cases.
In addition to providing a measure of safety, such a provision would encourage
victims of trafficking to co-operate with the authorities and thereby
contribute to achieving the law enforcement objectives of the Framework
Decision. It is important, in this
context, to note that victim protection must be considered separately from
witness protection, as not all victims of trafficking will be selected by
investigating and prosecuting authorities to act as witnesses in criminal
proceedings.
(iii) Witness protection
7. Trafficked
persons who agree to testify against their traffickers are at considerable risk
of acts of retaliation by trafficking networks. Depending on the circumstances
on the case, such witnesses require appropriate protective measures, including
preventive measures during the investigation, in-camera hearings at the trial
stage, or the granting of temporary or permanent residence. The adoption of
separate measures for the protection of witnesses, while meeting their humanitarian
needs, can also help to maintain the integrity of asylum systems and procedures
in EU Member States.
(iv) Repatriation of trafficked persons
8. Safe,
and as far as possible, voluntary return must be at the core of any credible
protective strategy for trafficked persons. The draft Framework Decision should
include a provision on the return of trafficked persons in safety and dignity.
Such return should occur only after a proper identification of the protective
needs of trafficked persons, including in relation to measures for victims and
witness protection.
(v) Protecting the right of asylum
9. HCHR
and UNHCR acknowledge that being a victim of human trafficking normally does
not suffice to establish a valid claim for refugee status. However, this does
not exclude that, under exceptional circumstances, trafficked persons may be in
need of international refugee protection, for instance if the acts inflicted by the perpetrators
would amount to persecution for one of the reasons contained in the 1951
Convention definition, in the absence of effective national protection. For
such persons, HCHR and UNHCR strongly urge the Commission and Member States to
incorporate a “saving clause” into the proposed Framework Decision
which will maintain the right to submit an application for asylum, in
accordance with the 1951 Convention and the 1967 Protocol relating to the
Status of Refugees and other relevant international instruments. This clause
should state that “nothing in this Framework Decision shall adversely
affect the rights, obligations and responsibilities of States and individuals
under international law, including international humanitarian law and human
rights law and, in particular, the 1951 Convention and the 1967 Protocol
relating to the Status of Refugees and the principle of non-refoulement set out
therein.”
(vi) Remedies
10. Victims
of human rights violations, such as trafficking, have a right under international law to be
provided with access to adequate and appropriate remedies. The effective exercise of this right
requires that States provide trafficking victims with information on the
possibilities of obtaining remedies, including compensation for trafficking and
other criminal acts to which they have been subjected, and legal and other assistance
to enable them to obtain the remedies to which they are entitled.
11. Although a separate Framework Decision on combating the
sexual exploitation of children and child pornography is currently being
discussed, it is essential to acknowledge that the problem of child trafficking
is a distinct one requiring separate attention. The power of the Framework Decision to protect the rights and
interests of trafficked children would be strengthened through an explicit
reference to the fact that children have special rights under international
law, in particular the Convention on the Rights of the Child; that child
victims of trafficking have special needs that must be recognised and met by EU
Member States; that EU Member States are obliged to take measures to prevent
trafficking of children; and that in dealing with child victims of trafficking,
the best interests of the child (including the right to physical and
psychological recovery and social integration) are to be at all times
paramount. It is also important to ensure that the trafficked child is not
criminalised in any way (for example, through prosecution for status-related
offences) and that sensitive and appropriate measures should be taken to
reconcile the child with her or his family or to otherwise meet her or his best
interests.
12.
The acknowledged root causes of trafficking include economic factors
such as poverty, unemployment and indebtedness; social and cultural factors
such as violence against women and girls, gender discrimination in the family,
the community
and by the State; political and legal factors such as a lack of appropriate
legislation and public sector corruption; and international factors such as the
growing feminisation of labour migration, on the one hand, and increasingly
restrictive immigration policies of recipient countries, on the other. While it is clearly beyond the scope of
the proposed Framework Decision to address these issues in any depth, the lack
of any reference to prevention of trafficking is a source of concern for HCHR
and UNHCR.
13. The principle of non-discrimination is a
fundamental rule of international law and one of particular relevance to the
situation and vulnerabilities of irregular or illegal migrants. Measures aimed at prevention of
trafficking have been used in some situations to discriminate against women and
other groups in a manner amounting to a denial of their basic right to leave a
country and to migrate legally. The inclusion of a general non-discrimination
clause would go some considerable way towards ensuring that such discrimination
does not become an unintended side effect of the proposed Framework Decision.
27 June 2001
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