Dr. Vladislava
Stoyanova
Postdoctoral
Fellow, Faculty of Law, Lund University; Author of Human Trafficking and Slavery Reconsidered.
Conceptual Limits and States’ Positive Obligations in Europe (Cambridge
University Press, 2017)
On 19 May 2016
the Commission issued its first report (COM(2016)
267 final)) on the progress made in the fight against trafficking in human
beings. As its title suggests, the report is based on Article 20 of the 2011 EU
Trafficking Directive (Directive
2011/36/EU). The report has the objective to examine the progress made
concerning prosecution of trafficking, protection of victims and prevention. It
shows trends in trafficking, including statistical information. It is
accompanied by a staff working document (SWD(2016)
159 final) that provides detailed factual information complementing the
report.
Notably, this is
not a report on the extent to which Member States have complied with the
directive. Such a report is indeed required by Article 23 of the directive;
however, despite the set deadline of 6 April 2015, so far the Commission has
not issued a document assessing compliance. The Commission is late with its
assessment with more than a year. A further report was due by 6 April 2016 on
the circumstances of the use of services of trafficking victims. It has not
been issued yet.
Focusing on the above
mentioned progress report, it shows that according to the information submitted
by Member States for the period 2013 – 2014 there were 15 846 registered
victims of human trafficking. It is noted that this number is lower than the
number recorded for the previous period 2010 – 2012. A clarification is
immediately offered that ‘[a]lthough the data collection methods used for both
periods are similar, it would not be advisable at this stage to compare the
data, either between the two exercises or across individual years, due to
possible differences in recording methods and legal definitions. For this
reason, the discrepancy in the annual totals, and in particular the reasons why
fewer victims of trafficking were registered, are issues that need to be
explored and analysed further’ (page 5).
Indeed, the
issue as to who is and who is not a victim of trafficking and who is registered
and who is not registered as a victim of human trafficking are issues that have
to be explored and analysed further. I plan to do this below. The Commission is
correct that there might be differences in recording methods and legal
definitions; however, the assumption that these differences will be somehow
remedied so that we can get a clearer picture is far from warranted.
The number 15
846 refers to registered victims. Who are these registered victims? These are
victims who are ‘both identified and presumed’ (page 4 of the report). It is
clarified that some Member States have included both categories in their data
collection, whereas others have only included one of the two categories. Already
at this stage one starts to get suspicious about the data since it conflates
different categories. Footnote 15 of the Commission report is indented to
clarify the term ‘identified victim’: ‘[i]n accordance with the definition in
the anti-trafficking Directive, the term “identified victim” refers to a person
who has been formally identified by relevant authorities as a victim of
trafficking.’ The text of the directive certainly does not deploy the term
‘identified victim’. It simply refers to victims and its Article 11(4) obliges
the Member States to ‘take the necessary measures to establish appropriate
mechanisms aimed at the early identification.’ The directive does not establish
a separate legal status called ‘identified victim of human trafficking.’
The text of the
earlier Directive
2004/81/EC (which concerns the immigration status of trafficking victims) does
not refer to ‘identified victims’ either. It refers to victims who are holders
of residence permits since they cooperate with the authorities in the fight
against trafficking. Strangely, the Commission report does not even contain
information about the number of such victims. This is very important
information because when it comes to third country nationals, their formal
identification as victims of human trafficking might not mean much and the
assistance measures might not mean much if they cannot remain on the territory
of the Member States. It should be also reminded here that the main EU
Trafficking Directive (ie, the 2011 Directive) does not regulate the issue of
the presence of victims on the territory of the Member States.
Footnote 15 of
the Commission report continues to say that ‘[t]he term “presumed victim” is
used for a victim of trafficking who has met the criteria of the EU Trafficking
Directive but has not formally been identified by the competent authorities as
a victim, or has declined to be formally and legally identified as a victim of
trafficking [emphasis added].’ The term ‘presumed victims’ does not seem to be
used here in the sense of Article 11(2) of the EU Trafficking Directive. The
latter provision refers to individuals who have to be assisted and supported
‘as soon as the competent authorities have a reasonable-grounds indication for
believing’ that they are victims. Neither is it used in the sense of Articles 5
and 6 of Directive
2004/81/EC, which refer to circumstances when the national authorities
‘take the view that a third country national may fall into the scope of this
directive [i.e. may be a victim of trafficking]’ and extend a reflection period
to this person. Rather ‘presumed victims’ appears hard to determine category in
the way that it has been used in the report. In addition, it appears illogical
how one can be a register victim (which implies some form of official
recognition of one’s status) without being formally identified by the competent
national authorities. As mentioned above, ‘presumed victims’ are included in
the category of ‘registered victims’.
How do Member
States after all formally identify individuals as victims of human trafficking?
This is an important question if the Commission wants to ‘improve the
reliability and comparability of data’ as stated on page 5 of its report. The
Trafficking Directive does not stipulate which national authority has to be
mandated with victim identification; its Article 11(4) simply says that ‘Member
States should take the necessary measures to establish appropriate mechanisms
aimed at the early identification of, assistance to and support for victims, in
cooperation with relevant support organizations.’ Directive
2004/81/EC does not even have a provision about victim identification. It
can be assumed from its provisions though that the national authorities
responsible for criminal investigations and prosecutions identify victims by granting
them a reflection period ‘so that they can take an informed decision as to
whether to cooperate with the competent authorities’. Thus, in many EU Member
States the authorities responsible for crime investigation and prosecution are
mandated to identify victims. This is certainly problematic since eventually
victim identification is intimately linked with crime investigation.
This results in
refusals to formally identify victims if there is no basis for initiation or continuation
of criminal proceedings, a problem exposed with the recent judgment L.E.
v. Greece Application No. 71545/12 delivered by the European Court of Human
Rights on 21 January 2016.[1] In other Member
States, the immigration authorities might be mandated to identify victims of
human trafficking. A relevant example in this respect is the United
Kingdom, where the UK Border Agency identifies migrants as victims of human
trafficking. In this way, crime investigation and victim identification are
clearly separated. Against this diversity of national practices, it might be
difficult to get a comparable date and even clear idea who is a registered
victim of human trafficking in the EU.
Certainly, the
problem is not only one of procedure, but also of substance. The EU Trafficking
Directive defines human trafficking and determines the minimum scope of
criminalization. However, the Member States can interpret trafficking more
expansively. An example to this effect is Bulgaria where the crime of human
trafficking is interpreted in an exceedingly wide way which leads to high
number of prosecutions and victims.[2] The Commission itself
does not seem to be particularly clear about the conceptual limits of
trafficking either. It defines it as ‘the buying, selling and exploitation of
adults and children [emphasis added]’ (page 2 of the report). In this way, it
subsumes exploitation under the definition of human trafficking.
However, on page
7 of the report the Commission observes that ‘[w]hile it is important to stress
that not all exploitative situations in the EU labour market are a result of
trafficking in human beings, some may be. In these cases all victims of
trafficking for labour exploitation must be properly identified and helped.’
Here, a distinction appears to be made between trafficking and exploitative
situations. Overall, though, there is no clear distinction between the two. It
is thus hard to advance measures which can tackle each phenomenon. Perhaps,
even more disturbingly, all the efforts have been focused on human trafficking
(in whichever way it is interpreted in different jurisdictions). Little
attention has been paid on severe forms of labour exploitation. As a
consequence, the EU Fundamental Rights Agency in its 2015 report Severe
Labour Exploitation: Workers Moving within or into the European Union. States’
Obligations and Victims’ Rights warned that
While trafficking has attracted much attention, the severe
exploitation of workers in employment relationships – which may or may not
occur in a context of trafficking – has not. This difference in the level of
attention is reflected by an institutional setting in which specialised actors
are available to deal with trafficking cases but not with cases of severe
labour exploitation.
Finally, what
has been the impact of the newest trafficking instrument, i.e. the 2011
Trafficking Directive? Is it indeed the case, as the Commission suggests, that
‘with the correct and full implementation of the EU Directive, Member States
will ensure the prevention of the crime, the prosecution of the perpetrators
and most importantly, the protection of victims’ (page 15 of the report)? This
is highly doubtful. The data from the report is not particularly promising. In
addition, the data itself is very confusing which hampers clear understanding
of the phenomenon that we have to address.
Barnard &
Peers: chapter 25
JHA4: chapter
I:7
Photo credit: notitarde.com
[1]
Vladislava Stoyanova, ‘L.E. v. Greece:
Human Trafficking and the Scope of States' Positive Obligations under the ECHR’
3 European Human Rights Law Review (2016) 290.
[2]
Vladislava Stoyanova, ‘The Crisis of a
Legal Framework: Protection of Victims of Human Trafficking in the Bulgarian
Legislation’ The International Journal of Human Rights (2013);
Vladislava Stoyanova, ‘The Crisis of a Definition: Human Trafficking in
Bulgarian Law’ 15(1) Amsterdam Law Forum (2013).
