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The European Approach to the Protection of Trafficking Victims: The Council of Europe Convention, the EU Directive, and the Italian Experience

Published online by Cambridge University Press:  06 March 2019

Rosa Raffaelli

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The aim of this article is to analyze the European approach to the protection of trafficking victims and evaluate its potential for success. In light of the Italian experience, I will try to demonstrate that the protection offered by European law is too narrow, and therefore bound to be ineffective. I also endeavor to show that offering protection to all trafficked persons, independent of their willingness to cooperate with the justice authorities, is necessary in order to protect the victims human rights, and also to ensure the full implementation of criminal law.

Type
Articles
Information
German Law Journal , Volume 10 , Issue 3: Special issue - Germany's 1968 and the Law , 01 March 2009 , pp. 205 - 222
Copyright
Copyright © 2009 by German Law Journal GbR 

References

1 In particular, I make reference to the European Union instruments dealing with this issue, as well as to the Council of Europe's convention.Google Scholar

2 According to estimates, trafficking in people represents the third-largest source of profits for organized crime after drugs and weapons. See Melanie Orhant, Trafficking Exposed, 30 Population Today 4 (2002). According to the ILO, the global profits of trafficking are around 31.6 billion dollars per year. See Patrick Belser, Forced Labor and Human Trafficking: Estimating the Profits, 17 (Int'l Labor Office, Working Paper No. 57, 2005).Google Scholar

3 See Anne Gallagher, Human Rights and the New UN Protocols on Trafficking and Migrant Smuggling: A Preliminary Analysis, 23 Human Rights Quarterly 975 (2001).Google Scholar

4 See Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the UN Convention against Transnational Organized Crime, 15 December 2000, which entered into force on 25 December 2003.Google Scholar

5 See EC Directive 2004/81/EC of 29 April 2004, O.J. 2004, L 261, on the residence permit issued to third-country nationals who are victims of trafficking in human beings or who have been the subject of an action to facilitate illegal immigration, who decide to cooperate with the competent authorities.Google Scholar

6 Framework Decision 2002/629/JHA of 19 July 2002, O.J. 2002, L 203, on combating trafficking in human beings.Google Scholar

7 It is interesting to note that although in one of the first drafts of the Directive it was suggested to create minimum standards of protection for both smuggling and trafficking victims, mandatory measures were limited to trafficking victims. On the drafting history of the Directive, see Tom Obokata, EU action against trafficking in human beings: past, present and future, in Immigration and Criminal Law in the EU 402 (Elspeth Guild and Paul Minderhoud eds., 2006).Google Scholar

8 It seems worthwhile to highlight that in the preamble, the Directive makes reference to the principle of nondiscrimination. This is of utmost importance in the fight against human trafficking, especially with regard to gender-based discrimination. Gender equality might indeed require the adoption of measures that not only take into account the special needs of women and children, who are the majority of the victims of this crime, but also measures that better protect men and transgenders, to whom many States pay little or no attention. See Trafficking of men - a trend less considered, 1 Global eye on human trafficking 1 (2007). See also, David A. Feingold, Think Again: Human Trafficking, 150 Foreign Policy 26–32 (2005).Google Scholar

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10 National laws of some member States already provide for a reflection period for trafficked persons; however, its length varies from 15 days, as available in Denmark, to 90 days, as available in the Netherlands (so-called B-9 regulations). See Anne Gallagher, Triply Exploited: female victims of trafficking networks – strategies for pursuing protection and legal status in countries of destination, 19 Geo. Immigr. L.J., 99 (2004); Dutch National Rapporteur on THB, Trafficking in Human Beings - Fifth report of the Dutch National Rapporteur (2007). On national legislations of other States, see also Mohamed Y. Mattar, Incorporating the five basic elements of a model antitrafficking in persons legislation in domestic laws: from the UN Protocol to the European Convention, 14 Tul. J. Int'l & Comp. L. 357 (2006), and see also the materials available at www.protectionproject.org.Google Scholar

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13 See the European Parliament legislative resolution on 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, COM(2002) 71 - C5-0085/2002 - 2002/0043(CNS).Google Scholar

14 On the importance of protecting the victims’ families, see Katrina L. Baker, Don't forget the family: a proposal for expanding immediate protection to families of human trafficking survivors, 30 Fordham Int'l L.J. 836 (2007).Google Scholar

15 Decision 2003/209/EC of 25 March 2003.Google Scholar

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21 Council of Europe Convention on action against trafficking in human beings, 16 May 2005, CETS n. 197.Google Scholar

22 See the COE Convention Explanatory Report, para. 127, available at http://conventions.coe.int/Treaty/EN/Reports/Html/197.htm.Google Scholar

23 The Explanatory Report clarifies that secure accommodation is particularly important for victims, and makes reference to protected shelters as being especially suitable for trafficked persons. See para. 154, available at http://conventions.coe.int/Treaty/EN/Reports/Html/197.htm.Google Scholar

24 See CoE Parliamentary Assembly, available at http://assembly.coe.int/Documents/AdoptedText/ta05/EOPI253.htm.Google Scholar

25 See Ruth-Gaby Vermot-Mangold, Report to the Committee on Equal Opportunities for Women and Men (2005), Doc. 10397, available at http://assembly.coe.int/Documents/WorkingDocs/Doc05/EDOC10397.htm. See also, Anne Amiel, Integrating a human rights perspective in the European approach to combating the trafficking of women for sexual exploitation, 12 Buff. Hum. Rts. L. Rev. 5 (2006).Google Scholar

26 Article 14, para. 4 only states that if the victim applies for another kind of residence permit, the State shall take into consideration that he or she holds, or has held, the residence permit provided for in this article.Google Scholar

27 See Oberlies, Dagmar, II livello europeo, in Stop tratta. Atti del convegno internazionale 115 (On the Road Ed., 2002).Google Scholar

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30 Ad Hoc Committee on Action Against Trafficking in Human Beings (CAHTEH), set up by the Committee of Ministers on 30 April 2003.Google Scholar

31 See Assembly, Parliamentary, Recommendation 1695 (2005) on the Draft Council of Europe convention on action against trafficking in human beings, available at http://assembly.coe.int/Documents/AdoptedText/TA05/EREC1695.htm.Google Scholar

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33 See the Coe Campaign: Human Beings – Not for sale, which lasted from January 2006 to January 2008, available at http://www.coe.int/t/dg2/trafficking/campaign/Docs/Overview/Default_en.asp. At the moment, the Convention has been ratified by 20 States, while another 20 countries have signed the treaty, but have not yet ratified it.Google Scholar

34 See Dutch National Rapporteur on THB (note 9).Google Scholar

35 On the Trafficking Victims Protection Act, see April Rieger, Missing the mark: why the trafficking victims protection act fails to protect sex trafficking victims in the United States, 30 Harv. J.L. & GENDER 231, 241–3 (2007).Google Scholar

36 For instance, in Belgium. On the Belgian legislation on the protection of trafficked victims see the report of the Centre pour l'égalité des chances et la lutte contre le racisme, Les victimes sous les projecteurs (2006), available at www.diversite.be, and Jean-Pierre Jacques, Les étrangers victimes de la traite des ětres humains, 145 Revue du droit des etrangers 47 (2007).Google Scholar

37 See Gallagher, (note 9) 99.Google Scholar

38 See Law Decree 300/06, converted in Law 17/07, article 6. This amendment has been supported by most NGOs working in the field of trafficking: many of the victims that they currently assist recently became EU citizens, and although they might not need a residence permit, they still need all the protection and assistance that used to be linked to it.Google Scholar

39 Law 228/03, article 13.Google Scholar

40 Legislative decree no. 286/98.Google Scholar

41 Law Decree 477/96, article 5.Google Scholar

42 The data confirmed this belief: in the first two years of application of article 18, the number of criminal proceedings related to facts of trafficking and enslavement rose from 200 to 2930. See Maria Grazia Giammarinaro, Aspetti positive e nodi critici della normative contro la tratta di persone in 3 Questione Giustizia 457 (2005).Google Scholar

43 See Maria Grazia Giammarinaro, (note 19), 41.Google Scholar

44 The link between residence permits and assistance programs is clear: the permit itself is issued, according to article 18 (1), in order to allow the person to recover, to escape the influence and violence of the criminal organization, and to take part in the protection and assistance program; moreover, the permit can be withdrawn, if the person ceases to participate in the program.Google Scholar

45 “Violence” should be interpreted so as to include any form of coercion; however, according to a recent research, in some provinces the permit is only issued if the victim is subjected to physical violence. See Salvatore Fachile et al., La tratta di persone in Italia: le norme di tutela delle vittime 75 (2007).Google Scholar

46 Should there be a case where a person is exploited without the use of violence, article 18 would still be applicable, as long as the exploitation is “serious.” Article 18, therefore, also applies in cases of debt-bondage, for instance. See Maria Grazia Giammarinaro, Il permesso di soggiorno per motivi di protezione sociale previsto dall'art. 18 TU immigrazione, 4 Diritto immigrazione e cittadinanza 34, 39 (1999).Google Scholar

47 The law does not make any specific reference to the crime of trafficking, as in 1998 this phenomenon was usually linked to forced prostitution. Indeed, the first protective programs approved by the Minister for Equal opportunities were only applicable to victims of sexual exploitation; it is only since 2006 that these programs have been extended to victims of all forms of trafficking. See Fachile et al., (note 43), 101.Google Scholar

48 NGO's or public social services are tasked with designing a detailed protection and reintegration program, specifically tailored for each trafficking victim. The program subsequently forms part of the dossier that the Questore evaluates.Google Scholar

49 See Avviso n. 9, at http://www.pariopportunita.gov.it/Pari_Opportunita/UserFiles/PrimoPiano/avviso_9.pdf.Google Scholar

50 These procedures are clearly described in article 27 of the Presidential Decree no. 394/1999, which contains the regulations that refer to article 18.Google Scholar

51 These NGO's must be enrolled on a special register, according to article 52 of legislative decree 286/98.Google Scholar

52 See David Mancini, Traffico di migranti e tratta di persone 77 (2008). Moreover, once the trial begins, the victim can be called to testify, and in this case he/she has a duty to act as a witness, as in Italy everyone who is called as a witness in a criminal trial has the duty to testify.Google Scholar

53 See Maria Grazia Giammarinaro, (note 19) 39.Google Scholar

54 See Virgilio, Maria, The instrumental use of article 18, in Article 18: protection of victims of trafficking and fight against crime 219 (2002).Google Scholar

55 See Mascellini, Francesca, I programmi di assistenza per le vittime di tratta previsti dal DPR 237/05, in Gli Stranieri (2006), 15; Franco Prina, La tratta di persone in Italia: il sistema degli interventi a favore delle vittime 203 (2008); Brattoli, Bruno, Lotta alla tratta dei minori: dall'articolo 18 del TU sull'immigrazione alla nuova I. 228/03, in 3 Cittadini in crescita 11 (2003).Google Scholar

56 See Fachile, et al., (note 43), 101. For an example of this application of the law, see the Judgment of the TAR Trentino Alto Adige, no. 128 (2 April 2003), in which the Tribunal confirmed the decision to withdraw the permit issued to a victim who had ceased to cooperate, and retracted her statements at trial. Judgment published in 2 Foro amministrativo TAR 1178 (2003).Google Scholar

57 Consiglio di Stato, Judgement no. 6023/2006, published in Diritto Immigrazione e Cittadinanza, 2006, p. 215.Google Scholar

58 See the Minister Directive n. 11050 (28 May 2007).Google Scholar

59 See Circolare Ministero degli Interni, n. 300/C/2000/526/P112.214.18/1∧div, adopted on 4 August 2000; n. n. 11050/M(8), adopted on 28 May 2007.Google Scholar

60 See Consiglio di Stato, Judgement no. 6023/2006, published in Diritto Immigrazione e Cittadinanza 215 (2006).Google Scholar

61 Until 2004, the permit was issued making reference to “social protection.” However, this permit did not ensure the protection of trafficked persons’ privacy and made it possible to identify them. Therefore, article 27 has been amended and the permit is now issued making reference merely to “humanitarian grounds” (like any other permit granted to persons who are entitled to subsidiary protection).Google Scholar

62 See Report, available at http://www.dirittiepariopportunita.it/Pari_Opportunita/UserFiles/Il_Dipartimento/Relazione_ex_Art18.pdf. It is important to note that every year, around 80 persons voluntarily decide to return in their home country: in this case, repatriation takes place with the help of NGO's and of the IOM, and the persons are offered help in the organization of the journey and the reintegration into society. See Osservatorio sulla prostituzione e sui fenomeni delittuosi ad essa connessi, Relazione sulle attività svolte, primo semestre 2007 74 (2007).Google Scholar

63 This number includes both the residence permits that have been issued and those that have been merely renewed.Google Scholar

64 According to the Ministry of Justice's statistics, between 2004 and 2005 the police registered reports against 2,217 persons, who had allegedly committed the crime of enslavement, while 1,051 persons were reported for exploiting child prostitution. In the same years, 648 persons were arrested for these crimes, but charges were brought only against 355 of them. See data, available at http://www.osservatoriotratta.it/download/LIBRO%20FENOMENO_DEF2%20-%20tab4%20-%20dati.pdf.Google Scholar

65 Moreover, traffickers are sometimes accused of crimes other than trafficking itself, such as migrant smuggling or exploitation of prostitution, if there is insufficient evidence of the crime of enslavement.Google Scholar

66 See the hearing of Piero Luigi Vigna at the Parliamentary Anti-mafia Commission on the 25 February 2004, available at http://www.camera.it/_dati/leg14/lavori/stenbic/30/2004/0225/s020.htm, 9–10.Google Scholar

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70 Padovani, Tullio, Prostituzione e tratta, in Stop tratta. Atti del convegno internazionale 46 (On the Road Ed., 2002).Google Scholar