Dr Matilde Ventrella, Senior
Lecturer in Law, University of Wolverhampton (UK)
On October 17th,
the European Commission published the mid-term Report on the implementation of
the EU strategy towards the eradication of trafficking in human beings (THB)
and a Communication on the application of Directive 2004/81 on the residence
permit issued to third country nationals who are victims of human trafficking
or the subject of an action to facilitate illegal immigration and who cooperate
with competent authorities. In this analysis, I will first examine the
mid-term report, I will then examine the Communication on the application of
Directive 2004/81 and I will draw my final considerations.
2. The mid-term report on the implementation
of the EU strategy towards the eradication of trafficking in human beings
The Report
focuses on the policies and laws that the EU is implementing and on the
progress made from 2012 to the third quarter of 2014.
The
Commission’s report states that the first step to take in order to address THB
is implementing Directive 2011/36/EU on the criminal law aspects of the issue. This
Directive, for the first time, recognises THB as a gender specific phenomenon
and that women and men are often victimised for different purposes (paragraph
3). The Directive requires Member States
to investigate and prosecute perpetrators (Article 9) and to give adequate
protection to victims. The mid-term Report emphasises that 25 Member
States have communicated the transposition of the Directive in full and it
states that Member States shall take full responsibility to eradicate this
serious criminal activity. Their
priority should be identifying victims and giving them adequate protection. The Commission has clearly explained how
victims should be identified by publishing the “Guidelines for the
Identification of Victims of THB”. The Guidelines stated that the early
identification of victims is crucial as it enables investigative and police
authorities to better investigate THB and prosecute the perpetrators. For this purpose, consular services and
border guards should offer regular training to their officers to enable them to
identify victims and potential victims.
The Guidelines also stressed that consular services and border guards
should consider cooperation agreements to facilitate the identification of victims. The Guidelines emphasised that cooperation
should be developed with organisations such as Non-Governmental Organisations
and special attention should be given to child victims of THB.
Also, the
mid-term Report explained that adequate protection to victims could be given by
demand reduction and awareness-raising programmes. Particular attention should be focused on
combating violence against women and gender inequalities as these are root
causes of THB. The Commission has
launched a study on the gender dimension of THB which should be published in
the second half of 2015.
Since THB is a
serious form of organised crime, the Commission called for cooperation and
partnership between EU Member States. The
Commission encouraged ‘Member States’ operation in the field of internal
security’, the support from Europol to Member States’ action and the adoption
of ‘annual operational action plans on each priority area identified by the
Council’. The Council has identified THB
as one of the priority of the EU Serious and Organised Crime Policy Cycle.
The report
also pays particular attention to civil society. In the Commission’s view, it is essential to
involve civil society and for this purpose, it launched in 2013 the EU Civil
Society Platform against THB in Member States and selected non-EU countries. The Civil Society Partnership meets every 2
years, bringing together over 100 civil society organisations specialised in
THB in Member States and four non Member States (Albania, Morocco, Turkey and
Ukraine).
Finally, the
Commission called for more cooperation between EU Member States and
non-European countries in order to identify all forms of THB. The Commission referred to an action oriented paper (AOP) adopted by the Council in 2009. The AOP emphasised the importance of dialogue
with third countries to fight against THB and it supported ‘international
effort in this field advocating at various UN fora the prevention of THB, THB
victim protection and assistance’... ‘international cooperation and
coordination on THB’. The AOP also
highlighted that EU agencies such as Eurojust, Europol, Frontex and FRA should
be consulted when the EU takes action to cooperate with non-EU countries to
fight against THB.
The Justice
and Home Affairs (JHA) agencies (CEPOL, Eurojust, Europol, the European Asylum
Support office (EASO), the European Institute for Gender Equality (EIGE), FRA
and Frontex) have annexed to the Commission mid-term Report, a joint action report
carried out in between October 2012 and September 2014. The Annex stated that these agencies should
work together ‘in a more coherent and comprehensive manner, taking synergies
and avoiding duplication of effort’.
However, the Annex did not explain clearly how they have to undertake
their tasks. The Report explained that
JHA agencies shall have the aim of dismantling criminal groups in cooperation
but there is not any concrete proposal.
In other terms, the Annex simply explained that all the JHA agencies
have done, was organising meetings, trainings and conferences but no concrete
actions against criminal organisations have been undertaken.
JHA agencies were established for different
purposes. Consequently, I believe their
tasks should be clearly differentiated. Example: the European Asylum Support office
(EASO) should not have the same tasks as Europol because the EASO was set up to
improve the implementation of a Common European Asylum System, whilst Europol
was established to support Member States’ investigation of cross-border
crime. The Annex did not explain how these
agencies should fulfil their objectives and how they should ensure coordination
while avoiding overlapping. I believe
that the JHA agencies should have pushed for reforms. The Annex should have explained whether it is
desirable to reform Europol’s scope, in order to strengthen cooperation with
non European countries as THB is a cross-border crime committed in the EU and
outside the EU. It has been reported
that migrants smuggled by sea are exposed to THB during their trips and when
they reach their countries of destination.
This is because they cannot repay the price of their journey. Therefore, they are threatened by their
smugglers and eventually they become victims of THB (see reports by the UN, the IOM and the Global Initiative). Furthermore, recent research undertaken by
Italian journalists has found out that people smuggled by sea are often victims
of traffic of organs since, when they cannot repay the price for their journey,
they are left with no choice than selling their kidneys and corneas to
smugglers.
What role should JHA agencies play in
detecting these dangerous criminals within and outside the EU? The Commission’s mid-term Report and the JHA
agencies’ Annex, are full of good intentions and fine words but they are inconclusive,
as there are no concrete proposals.
The extent of THB remains unknown, in particular the number of victims
of smuggling who eventually become victims of THB and traffic of organs. However, the Commission mid-term report
published, for the first time, statistical data on victims and traffickers for
the years 2010 to 2012. These data are
based on the Statistical Working Paper published by Eurostat. The working paper provided data based on the
total of victims or ‘presumed victims’ identified by the Member States. Presumed victims are those people who have
met the criteria to be identified as victims on the basis of Directive
2011/36/EU
but who have not been formally identified by relevant authorities or who have
refused to be identified as such.
According to the data, it is estimated that over the years 2010-2012,
30.146 victims or presumed victims were registered in the 28 Member
States. 80% of registered victims were
female, 45% of victims were of the age of 25 or older, 36% of registered
victims were aged 18-24 years old, 17% of victims were in between 12-17 years
old and 2% of all victims accounted children aged 0-11 years old. However, THB concerning EU citizens prevails
in the statistics and only victims from five non EU countries were identified (Nigeria,
China, Brazil, Russia and Algeria). Victims
who are hiding within Member States or who have been smuggled by sea and
eventually have become victims of THB, have not been identified. The number of these people remains unknown. The Commission’s report stated that it is a
priority to identify victims but only by reinforcing investigations within the
EU and outside the EU, victims can be seriously identified. Understanding the links of criminals can
facilitate the identification of victims coming from many African
countries. Nevertheless, no steps have
been taken in this direction.
3. Analysis of the Communication from the
Commission on the application of Directive 2004/81
The Commission
analysed how Directive 2004/81 has been implemented by Member States. The Directive states that victims of THB and victims of smuggling
of migrants may be granted a residence permit if they decide to cooperate with
law enforcement authorities to contribute to detect criminals. However, in the case of smuggling, EU Member
States retain the discretion to apply the Directive. The issue of a residence
permit is limited to cases where the victims are willing to cooperate with
police. However, Member States have the option to grant a residence permit to
all victims, even if they are not willing to cooperate. The lack of an
obligation to grant a residence permit in cases of non-cooperation is
inconsistent with Directive 2011/36, which requires Member States to give THB
victims support and assistance even if they are not cooperating with the
police.
The Commission
stated that it is very important to identify victims ’for the effective
application of the Directive’ and inform them of their rights ‘to initiate a
recovery process and to reflect before
deciding whether to cooperate with the authorities’. However,
the Commission has reported that, in the legislation of Member States,
it is unclear whether the information is provided to officially identify
victims or also to presumed victims. I
think presumed victims should be given the information as it could be a way to
give them the opportunity to escape from the traffickers and start a programme
of recovery.
The Commission
has also reported that Member States are issuing low numbers of residence
permits in exchange for cooperation and, only in exceptional circumstances, the
residence permit is issued beyond the willingness of victims to cooperate. When I interviewed police officers and
members of the civil society in Rimini (Italy), I found out that THB can be
seriously defeated if victims and presumed victims are granted an unconditional
residence permit. This is because such a
residence permit is reassuring and it puts victims and presumed victims in the
position to report the criminals without any constraints. In addition, an unconditional residence
permit will interrupt the vicious circle victims become trapped in, when the
investigations are concluded and their residence permit expires. They become vulnerable and again easy targets
for traffickers. Conversely, victims
with an unconditional residence permit will integrate in the new society and
will not be vulnerable to trafficking anymore.
By adopting this method, police authorities in Rimini have defeated THB
and police authorities in Siracusa (Italy) have detected some criminal
organisations smuggling people from Egypt to Italy. Police authorities in
Siracusa explained that the whole phenomenon of smuggling of migrants by sea
cannot be defeated by isolated actions of national police as it requires
investigations outside the EU and they would welcome more involvement of JHA
agencies.
The Commission is very concerned about the
rare use of the issue of an unconditional residence permit and intends to
engage in bilateral exchanges with Member States in order to improve the
correct application of the Directive. It
also intends to implement the Task Force Mediterranean established in 2013 with
the aim to prevent the death of migrants at sea. This is very welcome as it seems that
finally, the strong connections between THB and smuggling of migrants by sea
have been fully recognised. However,
even the Communication on the Task Force Mediterranean is disappointing because
it is not clear what concrete action and external cooperation agencies such as
Europol and Eurojust can take in the fight against these two crimes. It promoted cooperation with third countries
and a global approach on immigration but no reforms have been proposed.
4.
Conclusions
The Commission
reports have depicted a situation within Member States which will not
contribute to defeat or at least reduce THB.
Furthermore, in the Communication on Directive 2004/81, the Commission
has reported how Member States are neglecting to issue residence permit to
victims of THB. The Commission has shown
its intention to ensure the situation improves and one hopes progress will be
made in the issue of residence permits.
It is also
believed that agencies such as Europol should be given relevant investigative
powers within the EU and outside the EU. I am aware that a reform as such requires the
consent of Member States as it can be adopted on the basis of Article 87 of the
Treaty on the Functioning of the European Union (TFEU). However, Member States only seem focused on
protecting their borders as if the fight against THB would not contribute to
protect their borders by reducing irregular migration! Italy has communicated that the Mare Nostrum Operation will be suspended
and other Member States are not making efforts to prevent this suspension by
cooperating with Italian authorities in rescuing and hosting migrants at sea. Not only there is no willingness to cooperate
in investigations and grant residence permits to victims, but Member States do
not even want to rescue migrants at sea from drowning. If this situation will continue, victims of
THB will increase as will the number of victims of the connected crime of
smuggling of migrants by sea.
