ANNEX
THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty on European Union, and in particular
Article 29, Article 31(1)(e)
and Article 34(2)(b) thereof,
Having regard to the proposal from the Commission,
Having regard to the opinion of the European Parliament,
Whereas:
(1) Trafficking
in human beings is a serious crime, often committed in the Framework of
organised crime, and a gross violation of human rights.
(2) The
European Union is committed to the prevention of and fight against trafficking
in human beings, and to the protection of the rights of trafficked persons. For
this purpose, Council Framework Decision 2002/629/JHA of 19 July 2002 on
combating trafficking in human beings,
and an EU Plan on best practices, standards and procedures for combating and
preventing trafficking in human beings (2005/C 311/01)
were adopted.
(3) This
Framework Decision adopts an integrated and holistic approach to the fight
against trafficking in human beings. More rigorous prevention, prosecution and
protection of victims' rights, are major objectives of this Framework Decision.
Children are more vulnerable and therefore at greater risk of falling victim to
trafficking in human beings. All the provisions of this Framework Decision
should be applied in the light of the best interests of the child, in
accordance with the 1989 United Nations Convention on the Rights of the Child.
(4) The
2000 United Nations Protocol to Prevent, Suppress and Punish Trafficking in
Persons, especially Women and Children supplementing the United Nations
Convention against Transnational Organized Crime
and the 2005 Council of Europe Convention on Action against Trafficking in
Human Beings are crucial
steps in the process of enhancing international cooperation against trafficking
in human beings.
(5) In
order to meet recent developments in the phenomenon of trafficking in human
beings, this Framework Decision adopts a broader concept of what should be
considered trafficking in human beings than the Framework Decision 2002/629/JHA
and therefore includes additional forms of exploitation.
Within the context of
this Framework Decision, forced begging should be understood as a form of
forced labour or service as defined in the ILO Convention No. 29 concerning
Forced or Compulsory Labour of 29 June 1930. Therefore, exploitation of begging
falls within the scope of the definition of trafficking in human beings only
when all the elements of forced labour or services occur. In the light of the
relevant case-law, the validity of the eventual consent to perform such a
service should be evaluated case by case. However, when a child is concerned,
the eventual consent should never be considered valid.
The term “exploitation of criminal activities” should be understood
as exploitation of a person to commit, inter alia, pick-pocketing, shop-lifting
and other similar activities which are subject to penalties and imply financial
gain.
The definition also covers trafficking in human beings for the
purpose of the removal of organs, which can be linked with organ trafficking
and constitutes a serious violation of human dignity and physical integrity.
(6) The
levels of penalties in this Framework Decision reflect the growing concern
among Member States regarding the development in the phenomenon of trafficking
in human beings. Considering the gravity of the crime, penalties should
therefore be effective, dissuasive and proportionate. When, under this
Framework decision, a reference is made to surrender, such reference should be
interpreted in accordance with Council Framework Decision 2002/584/JHA of 13
June 2002 on the European arrest warrant and the surrender procedures between
Member States. When the offence is particularly grave, for example when the
life of the victim has been endangered or the offence has involved serious
violence or been committed against a particularly vulnerable victim, such as a
child, this should be reflected in more severe penalties.
(7) Victims
of trafficking in human beings should, in accordance with the basic principles
of the legal systems of the relevant Member States, be protected from
prosecution or punishment for criminal activities such as the use of false
documents, or offences envisaged in legislation related to prostitution or immigration,
that they have been compelled to commit as a direct consequence of being
subject to trafficking. The aim of such protection is to safeguard the human
rights of victims, to avoid further victimisation and to encourage them to act
as witnesses in criminal proceedings against the perpetrators. This safeguard
does not exclude prosecution or punishment for offences that a person has
wilfully committed or participated in.
(8) To
ensure successful investigations and prosecutions of offences of trafficking in
human beings, investigative tools which are used in organised crime or other
serious crime cases and that may include interception of communications, covert
surveillance including electronic surveillance, monitoring of bank accounts or
other financial investigations, should be made available to those responsible
for the investigation and prosecution of such offences.
(9) While
Directive 2004/81/EC
provides for the issue of a resident permit to victims of trafficking in human
beings who are third-country nationals, and Directive 2004/38/EC
regulates the exercise of the right to move and reside freely in the territory
of Member States by citizens of the Union and their families, including
protection from expulsion, this Framework Decision establishes specific
protective measures for any victim of trafficking in human beings.
Consequently, this Framework Decision does not deal with the
conditions of their residence in the territory of Member States or any other
issue falling within the Community competence.
(10) Victims of trafficking in human
beings need to be able to exercise their rights effectively. Therefore
assistance and support should be available to victims before, during and for an
appropriate time after criminal proceedings. The assistance and support
provided should include at least a minimum set of measures that are necessary
to enable the victim to recover and escape from their traffickers. The
practical implementation of such measures should, on the basis of an individual
assessment carried out in accordance with national procedures, take into
account the conditions and needs of the person concerned.
A
person should be provided with assistance and support as soon as there is a
reasonable grounds indication that he/she might have been trafficked and
irrespective of his/her willingness to act as a witness.
Assistance
should be provided unconditionally until the competent authorities have taken a
final decision with regard to the reflection period and the residence
permit, or otherwise acknowledge that the person is a victim of trafficking in
human beings. If, after the completion of the identification process or the
expiration of the reflection period, the person is not considered eligible for
a residence permit or does not otherwise have lawful residence in the country,
the Member State concerned is not obliged to continue providing assistance and
support to that person on the basis of this Framework Decision.
Where
necessary, considering circumstances such as that medical treatment is ongoing
due to severe physical or psychological consequences of the crime, or that the
safety of the victim is at risk due to his/her statements in criminal
proceedings, assistance and support should continue for an appropriate period
after the criminal proceedings.
(11)
The Council Framework
Decision of 15 March 2001 on the standing of victims in criminal proceedings
(2001/220/JHA) establishes a set of victims' rights in criminal proceedings,
including the right to protection and compensation.
In addition victims of trafficking in human beings should be given
access to legal counselling and to legal representation, including for the
purpose of claiming compensation. The purpose of legal counselling is to enable
victims to be informed and receive advice about the various possibilities open
to them. Legal counselling and legal representation should be provided free of
charge at least when the victim does not have sufficient financial resources in
a way which is consistent with internal procedures of Member States. As child
victims in particular are unlikely to have such resources, legal counselling
and legal representation would in practice be free of charge to them.
Furthermore, on the basis of an individual risk assessment carried out in
accordance with national procedures, victims should be protected from
retaliation, from intimidation, and from the risk of being re-trafficked.
(12) Victims of
trafficking in human beings, who bear the consequences of the abuse and
degrading treatment, such as sexual exploitation, rape, slavery-like practices
or the removal of organs, which is commonly related to the trafficking crime,
should be protected from secondary victimisation and further trauma during the
criminal proceedings. To this end victims of trafficking in human beings should
receive appropriate treatment, based on the individual needs of each victim,
during criminal investigations and proceedings. The individual needs assessment
should take into consideration circumstances such as age, pregnancy, health,
disability or other personal conditions, as well as the physical and
psychological consequences of the criminal activity to which the victim has
been subjected. Whether and how the treatment is applied is to be decided in
accordance with grounds defined by national legislation, rules of judicial
discretion, practice and guidance, on a case by case basis.
(13) In addition to
measures available to all victims of trafficking in human beings, each Member
State should ensure that specific assistance, support and protective measures
are available to child victims. These measures should be provided in the best
interests of the child and in accordance with
the UN Convention on the Rights of the Child.
Where the age of a person subject to trafficking in human beings is uncertain,
and there
are reasons to believe he/she is below the age of 18 years, that person should
be presumed to be a child and receive immediate assistance, support and
protection.
Assistance and support
measures to child victims should aim at their physical and psycho-social
recovery and at a durable solution for the person in
question.
Considering that child victims of trafficking in human beings are
particularly vulnerable, additional protective measures should be available to
protect the child during interviews in the course of criminal investigations
and proceedings.
(14) Each Member
State should establish and/or strengthen policies to prevent trafficking in
human beings including measures to discourage the demand that fosters all forms
of exploitation by means of research, information, awareness raising, and
education. In such initiatives each Member State should adopt a gender
perspective and a child rights approach.
(15) Directive
2009/52/EC of 18 June 2009 providing for minimum standards on sanctions against
employers of illegally staying third-country nationals
provides for penalties for employers of illegally staying third-country
nationals who, while not having been charged with or convicted of trafficking
in human beings, use work or services exacted from a person with the knowledge
that he/she is a victim of such trafficking. In addition to that, Member States
should take into consideration the possibility of imposing sanctions on the
users of any service exacted from a victim, with the knowledge that he/she has
been trafficked. This further criminalisation could include employers of
legally staying third-country nationals and EU nationals, as well as buyers of
sexual services from any trafficked person, irrespective of their nationality.
(16) National
monitoring systems such as National Rapporteurs or equivalent mechanisms should
be established by the Member States, in the way they consider appropriate according
to their internal organisation, and taking into account the need for a minimum structure
with identified tasks, in order to carry out assessments on trafficking in
human beings trends, measure the results of anti-trafficking actions, and
regularly report to the relevant national authorities.
(17) Since the
objective of this Framework Decision, namely to fight against trafficking in
human beings, cannot be sufficiently achieved by the Member States alone and
can therefore, by reasons of the scale and effects be better achieved at Union
level, the Union may adopt measures, in accordance with the principle of
subsidiarity as referred to Article 2 of the Treaty on European Union and as
set out in Article 5 of the Treaty establishing the European Community. In
accordance
with the principle of proportionality, as set out in the latter Article,
this Framework Decision does not go beyond what is necessary to achieve that
objective.
(18) This Framework
Decision respects fundamental rights and observes the principles recognised in
particular by the Charter of Fundamental Rights of the European Union and
notably human dignity, prohibition of slavery, forced labour and trafficking in
human beings, prohibition of torture and inhuman or degrading treatment or
punishment, the rights of the child, the right to liberty and security, freedom
of expression and information, protection of personal data, the right to an
effective remedy and to a fair trial and the principles of legality and
proportionality of criminal offences and penalties. In particular, this Framework
Decision seeks to ensure full respect for these rights and principles.
HAS ADOPTED THIS FRAMEWORK DECISION:
Article 1
Offences
concerning trafficking in human beings
1. Each
Member State shall take the necessary measures to ensure that the following
intentional acts are punishable:
The recruitment, transportation, transfer, harbouring or receipt of persons,
including exchange or transfer of control over that person, by means of threat
or use of force or other forms of coercion, of abduction, of fraud, of
deception, of the abuse of power or of a position of vulnerability or of the
giving or receiving of payments or benefits to achieve the consent of a person
having control over another person, for the purpose of exploitation.
2. A
position of vulnerability occurs when the person has no real or acceptable
alternative but to submit to the abuse involved.
3. Exploitation
shall include, as a minimum, the exploitation of the prostitution of others or
other forms of sexual exploitation, forced labour or services, including
begging,
slavery or practices similar to slavery, servitude, or the exploitation of
criminal activities,
or the removal of organs.
4. The
consent of a victim of trafficking in human beings to the exploitation,
intended or actual, shall be irrelevant where any of the means set forth in
paragraph 1 have been used.
5. When
the conduct referred to in paragraph 1 involves a child, it shall be a
punishable trafficking in human beings offence even if none of the means set
forth in paragraph 1 have been used.
6. For the purpose of this Framework Decision,
"child" shall mean any person below 18 years of age.
Article 2
Instigation,
aiding and abetting, and attempt
Each Member State shall take the necessary measures to ensure that the
instigation of, aiding and abetting or attempt to commit an offence referred to
in Article 1 is punishable.
Article 3
Penalties
1. Each
Member State shall take the necessary measures to ensure that an offence
referred to in Article 1 is punishable by penalties of a maximum of at least
between five and ten years of imprisonment.
2. Each
Member State shall take the necessary measures to ensure that an offence
referred to in Article 1 is punishable by penalties of a maximum of at least
ten years of imprisonment where it has been committed in any of the following
circumstances:
(a) the
offence has deliberately or by gross negligence endangered the life of the
victim;
(b) the
offence was committed by use of serious violence or has caused particularly
serious harm to the victim;
(c) the
offence was committed against a person who was particularly vulnerable, which,
in the context of this Framework Decision, shall include at least all child
victims;
(d) the
offence was committed within the framework of a criminal organisation within
the meaning of Framework Decision 2008/841/JHA.
3. Each
Member State shall take the necessary measures to ensure that an offence
referred to in Article 2 is punishable by effective, proportionate and
dissuasive criminal penalties, which may entail surrender.
4. Each
Member State shall take the necessary measures to ensure that the fact that the
offence has been committed by a public official in the performance of his or
her duties is regarded as an aggravating circumstance.
Article 4
Liability
of legal persons
1. Each
Member State shall take the necessary measures to ensure that legal persons can
be held liable for an offence referred to in Articles 1 and 2 committed for
their benefit by any person, acting either individually or as part of an organ
of the legal person, who has a leading position within the legal person, based
on:
(a) a
power of representation of the legal person,
(b) an
authority to take decisions on behalf of the legal person, or
(c) an
authority to exercise control within the legal person.
2. Member
States shall also ensure that a legal person may be held liable where the lack
of supervision or control, by a person referred to in paragraph 1, has made
possible the commission of the criminal offences referred to in Articles 1 and
2 for the benefit of that legal person by a person under its authority.
3. Liability
of a legal person under paragraphs 1 and 2 shall not exclude criminal
proceedings against
natural persons who are perpetrators, inciters or accessories in the offences
referred to in
Articles 1 and 2.
4. For
the purpose of this Framework Decision 'legal person' shall mean any entity
having legal personality under the applicable law, except for States or public
bodies in the exercise of State authority and for public international organisations.
Article 5
Sanctions
on legal persons
Each Member State shall take the necessary measures to ensure that a
legal person held liable pursuant to Article 4(1) and (2) is punishable by
effective, proportionate and dissuasive sanctions, which shall include criminal
or non-criminal fines and may include other sanctions, such as:
(a) exclusion
from entitlement to public benefits or aid;
(b) temporary
or permanent disqualification from the practice of commercial activities;
(c) placing
under judicial supervision;
(d) judicial
winding-up;
(e) temporary or permanent
closure of establishments which have been used for committing the offence.
Article 6
Non-prosecution
or non-application of penalties to the victim
Each Member State shall, in accordance with the basic principles of
its legal system, provide for the possibility of not prosecuting or imposing
penalties on victims of trafficking in human beings for their involvement in
criminal activities they have been compelled to commit as a direct consequence
of being subjected to any of the acts referred to in Article 1.
Article 7
Investigation
and prosecution
1. Each
Member State shall ensure that investigation into or prosecution of offences
referred to in Articles 1 and 2 is not dependent on the report or accusation
made by a victim and that criminal proceedings may continue even if the victim
has withdrawn his or her statement.
2. Each
Member State shall take the necessary measures to enable, where the gravity or
the nature of the act calls for it, the prosecution of an offence referred to
in Articles 1 and 2 for a sufficient period of time after the victim has
reached the age of majority.
3. Each
Member State shall take the necessary measures to ensure that persons, units or
services responsible for investigating or prosecuting offences referred to in
Articles 1 and 2 are trained accordingly.
4. Each
Member State shall take the necessary measures to ensure that effective
investigative tools, such as those which are used in organised crime or other serious
crime cases, are available to persons, units or services responsible for
investigating or prosecuting offences referred to in Articles 1 and 2.
Article 8
Jurisdiction
1. Each
Member State shall take the necessary measures to establish its jurisdiction
over an offence referred to in Articles 1 and 2 where:
(a) the
offence is committed in whole or in part within its territory; or
(b) the
offender is one of its nationals or has his or her habitual residence in its
territory; or
(c) the
offence is committed against one of its nationals or a person who has his or
her habitual residence in its territory; or
(d) the
offence is committed for the benefit of a legal person established in the
territory of that Member State.
2. A
Member State may decide that it will not apply or that it will apply only in
specific cases or circumstances, the jurisdiction rules set out in paragraphs
1(b) in relation to offences where the offender has his or her habitual
residence in its territory, 1(c) and 1(d) as far as the offence is committed
outside its territory.
3. For
the prosecution of an offence referred to in Articles 1 and 2 committed outside
the territory of the Member State concerned, as regards paragraph 1(b), each
Member State shall, subject to its application of paragraph 2, take the
necessary measures to ensure that the establishment of its jurisdiction is not
subordinated to the condition:
(a)
that the acts are a criminal offence
at the place where they were performed or
(b)
that the prosecution can only be
initiated following a report made by the victim in the place where the offence
was committed, or a denunciation from the State of the place where the offence
was committed.
4. Member
States shall inform the General Secretariat of the Council and the Commission accordingly
where they decide to apply paragraph 2, where appropriate with an indication of
the specific cases or circumstances in which the decision applies.
Article 9
Assistance and support
to victims of trafficking in human beings
1. Each Member State shall take the
necessary measures to ensure that assistance and support is provided to victims
before, during and for an appropriate time after criminal proceedings in order
to enable them to exercise the rights set forth in Framework Decision 2001/220/JHA
of 15 March 2001 on the standing of victims in criminal proceedings, and in
this Framework Decision.
2. Each Member State shall take the
necessary measures to ensure that a person is provided with assistance and
support as soon as the competent authorities have a reasonable grounds
indication that he/she might have been subjected to an offence referred to in
Articles 1 and 2.
3. Each Member State shall take the
necessary measures to establish appropriate mechanisms aimed at early
identification, assistance and support to victims, in cooperation with relevant
support organisations.
4. Assistance and support measures
referred to in paragraph 1 and paragraph 2 shall include at least standards of
living capable of ensuring victims’ subsistence through measures such as
appropriate and safe accommodation and material assistance as well as necessary
medical treatment including psychological assistance, counselling and
information, and translation and interpretation services where appropriate.
Member States shall attend to victims with special needs.
Article 10
Protection of victims
of trafficking in human beings
in criminal
investigations and proceedings
1. The
protection measures referred to in this Article shall apply in addition to the
rights set forth in Framework Decision 2001/220/JHA.
2. Each Member State shall ensure that
victims of trafficking in human beings have access to legal counselling, and,
in accordance with the role of victims in the relevant justice system, to legal
representation, including for the purpose of claiming compensation. Legal counselling
and legal representation shall be free of charge when the victim does not have
sufficient financial resources.
3. Without prejudice to the rights of the
defence, each Member
State shall allow, if in accordance with the basic principles of its legal
system and where appropriate, that the identity of a victim of trafficking in
human beings acting as a witness is not disclosed.
4. Each Member State
shall ensure that victims of trafficking in human beings receive appropriate
protection on the basis of an individual risk assessment, inter alia by having
access to witness protection programmes or other similar measures, if
appropriate and in accordance with the grounds defined by national legislation
or procedures.
5. Without prejudice
to the rights of the defence, and according to an individual assessment by the
competent authorities of the personal circumstances of the victim, each Member
State shall ensure that victims of trafficking in human beings receive specific
treatment aimed at preventing secondary victimisation by avoiding, as far as
possible and in accordance with the grounds defined by national legislation as
well as with rules of judicial discretion, practice or guidance:
(a) unnecessary repetition
of interviews during investigation, prosecution and trial;
(b) visual contact between
victims and offenders including during the giving of evidence such as
interviews and cross-examination, by appropriate means including the use of
appropriate communication technologies;
(c) the giving of evidence
in open court;
(d) unnecessary questioning
concerning private life.
Article 11
General provisions on assistance, support
and protection measures
for child victims of trafficking in human
beings
1. Child victims of
trafficking in human beings shall be provided assistance, support and
protection taking into account the best interests of the child.
2. Each Member State
shall ensure that, where the age of a person subject to trafficking in human beings
is uncertain and there are reasons to believe that the person is a child, the
person is presumed to be a child in order to receive immediate access to
assistance, support and protection in accordance
with Articles 12 and 13.
Article 12
Assistance and support
to child victims of trafficking in human beings
1. The assistance
and support measures referred to in this Article shall apply in addition to the
provisions in Article 9.
2. Each Member State
shall take the necessary measures to ensure that the specific actions to assist
and support child victims of trafficking in human beings, in the short and long
term, in their physical and psycho-social recovery, are undertaken following an
individual assessment of the special circumstances of each particular child
victim, taking due account of the child’s views, needs and concerns.
3. Each Member State
shall take measures, where appropriate and possible, to provide assistance and
support to the family of the child victim of trafficking in human beings when
the family is in the territory of the Member State. In particular, each Member
State shall, where appropriate and possible, apply Article 4 of Council
Framework Decision 2001/220/JHA to the family.
Article 13
Protection of child
victims of trafficking in human beings
in
criminal investigations and proceedings
1. The
protection measures referred to in this Article shall apply in addition to the
provisions in Article 10.
2. Each
Member State shall take the necessary measures to ensure that in criminal
investigations and proceedings, in accordance with the role of victims
in the relevant justice system, judicial authorities appoint a special
representative for the child victim of trafficking in human beings where, by
national law, the holders of parental responsibility are precluded from
representing the child as a result of a conflict of interest between them and
the child victim, or where the child is unaccompanied.
3. Without
prejudice to the rights of the defence, each Member State shall take the necessary
measures to ensure that in criminal investigations of any of the offences
referred to in Articles 1 and 2:
(a) interviews with the
child victim take place without unjustified delay after the facts have been
reported to the competent authorities;
(b) interviews with the child
victim take place, where necessary, in premises designed or adapted for this
purpose;
(c) interviews with the
child victim are carried out, where necessary, by or through professionals
trained for this purpose;
(d) the same persons, if possible
and where appropriate, conduct all interviews with the child victim;
(e) the number of
interviews is as limited as possible and interviews are only carried out where strictly
necessary for the purpose of criminal proceedings;
(f) the child victim may be
accompanied by his or her legal representative or, where appropriate, an adult
of his or her choice, unless a reasoned decision has been made to the contrary
in respect of that person.
4. Each Member State shall take the
necessary measures to ensure that in criminal investigations of any of the
offences referred to in Articles 1 and 2 all interviews with the child victim
or, where appropriate, with a child witness, may be videotaped and that these
videotaped interviews may be used as evidence in criminal court proceedings,
according to the rules under its national law.
5. Each
Member State shall take the necessary measures to ensure, in criminal court
proceedings relating to any of the offences referred to in Articles 1 and 2,
that the child victim may be heard in the courtroom without being present,
notably through the use of appropriate communication technologies.
Article
14
Prevention
1. Each
Member State shall seek to discourage the demand that fosters all forms of
exploitation related to trafficking in human beings.
2. Each
Member State shall take appropriate actions such as information and awareness
raising campaigns, research and education programmes, where appropriate in
cooperation with civil society organisations, aimed at raising awareness and
reducing the risk of people, especially children, becoming victims of
trafficking in human beings.
3. Each
Member State shall promote regular training for officials likely to come into
contact with victims and potential victims, including front-line police
officers, aimed at enabling them to identify and deal with victims and
potential victims of trafficking in human beings.
4. Without
prejudice to Community law, each Member State shall consider taking measures to
establish as a criminal offence the use of services which are the object of
exploitation as referred to in Article 1 with the knowledge that the person is
a victim of an offence referred to in Article 1.
Article 15
National Rapporteurs or equivalent
mechanisms
Member States shall take the necessary
measures to establish National Rapporteurs or equivalent mechanisms. The tasks
of such mechanisms shall include the carrying out of assessments on trafficking
in human beings trends, the measuring of results of anti-trafficking actions
and reporting.
Article 16
Territorial scope
This Framework Decision shall apply to
Gibraltar.
Article 17
Repeal of Framework Decision 2002/629/JHA
Framework Decision 2002/629/JHA on
combating trafficking in human beings is repealed.
Article 18
Implementation
1. Member
States shall take the necessary measures to comply with this Framework Decision
by [30 months from adoption].
2. By
[30 months from adoption], Member States shall transmit to the General
Secretariat of the Council and to the Commission the text of the provisions
transposing into their national law the obligations imposed on them under this Framework
Decision. The Council will, by [four years from adoption] at the latest, on the
basis of a report reflecting this information and a written report transmitted
by the Commission, assess the extent to which Member States have taken the
necessary measures in order to comply with this Framework Decision.
Article 19
Entry into force
This Framework
Decision shall enter into force on the day of its publication in the Official
Journal of the European Union.
Done at
Brussels,
For
the Council
The
President
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