|Council of Europe Convention|
|Committee of the Parties|
|GRETA Restricted access|
|Committee of the Parties Restricted access|
DGI/DGII (2003) 001
Strasbourg, 19 March 2003
prepared by the Secretariats of the
Directorate General of Legal Affairs – DGI
and the Directorate General of Human Rights – DGII
A. The Council of Europe and Equality between Women and Men
B. The Council of Europe and Legal Cooperation and Technical Assistance Activities in the field of Combating Corruption, Organised Crime and Money Laundering
C. The Stability Pact Task Force on Trafficking in Human Beings
1. Work of the Council of Europe in the field
2. Work of the Council of Europe in the framework of the Stability Pact for South-East Europe
B. The pilot project on “Criminal Law Reform on Trafficking in Human Beings in South-eastern Europe”
I. MEETING IN BUCHAREST (24-26 OCTOBER 2001)
B. Recommendations for Amendments to the draft Legislation with respect to Trafficking in Persons in Romania,
C. Recommendations for Amendments to the draft Legislation with respect to Trafficking in Persons in Moldova
D. Issues addressed by the Council of Europe
E. Romania action plan to implement the legislation
F. Moldova Action Plan To Implement The Legislation
II. MEETING IN CHISINAU (12-14 DECEMBER 2001)
B. Conclusions of the seminar
III. MEETING IN STRASBOURG (18-20 FEBRUARY 2002)
B. Conclusions of the Third Meeting held in Strasbourg, 18-20 February 2002
C. Expert opinion on the emergency ordinance, no. 112; dated 30 August 2001 (appendix 5)
II. Meeting in Bucharest
C. National actions plans to implement legislation
IV. Meeting in Chisinau
B. Law enforcement
C. Capacity building
V. Meeting in Strasbourg
A. Priorities in the action plans
B. Identify training needs
Appendix I - RECOMMENDATION No. R (2000) 11 OF THE COMMITTEE OF MINISTERS TO MEMBER STATES ON ACTION AGAINST TRAFFICKING IN HUMAN BEINGS FOR THE PURPOSE OF SEXUAL EXPLOITATION
APPENDIX 2 PROTOCOL TO PREVENT, SUPPRESS AND PUNISH TRAFFICKING IN PERSONS, ESPECIALLY WOMEN AND CHILDREN, SUPPLEMENTING THE UNITED NATIONS CONVENTION AGAINST TRANSNATIONALORGANIZED CRIME
II. Protection of victims of trafficking in persons
III. Prevention, cooperation and other measures
IV. Final provisions
APPENDIX 3 - Law on the Prevention and Combat of Trafficking in Human Beings.
APPENDIX 4 - New Provision on Trafficking In Human Beings in the Criminal Code of The Republic of Moldova
APPENDIX 5 - EMERGENCY ORDONANCE no. 112 from 30 August 2001 referring to the punishment of some actions committed abroad by Romanian citizens or by persons without citizenship residing in Romania
The Council of Europe is a political organisation, which was founded on 5 May 1949 by ten European countries in order to promote greater unity between its members. It now numbers 44 European states.1
The main aims of the Organisation are to promote democracy, human rights and the rule of law, and to develop common responses to political, social, cultural and legal challenges in its member states. Since 1989 it has integrated most of the countries of central and eastern Europe and supported them in their efforts to implement and consolidate their political, legal and administrative reforms.
The Council of Europe has its permanent headquarters in Strasbourg (France). By Statute, it has two constituent organs: the Committee of Ministers, composed of the Ministers of Foreign Affairs of the 44 member states, and the Parliamentary Assembly, comprising delegations from the 44 national parliaments. The Congress of Local and Regional Authorities of Europe represents the entities of local and regional self-government within the member states.
The European Court of Human Rights is the judicial body competent to adjudicate complaints brought against a state by individuals, associations or other contracting states on grounds of violation of the European Convention on Human Rights.
We would like to thank all the people that supported and made possible the realisation of this pilot project, in particular the Danish authorities, for their generous contribution ensured its viability.
We would also like to thank the Romanian and Moldavian authorities which agreed to launch the project in their country and without whom none of this would be possible.
We also thank the many participants in this project - ministry representatives, legal authorities and NGOs who, thanks to their concern and dynamism, assured the project's success. Their commitment and hard work during the seminars confirmed their determination to fight this plague and defend human rights.
We are truly grateful to the international experts Ms Giammarinaro, Mr Havemann and Mr Koster who showed an unfailing commitment and availability. They greatly contributed to the success of this project by sharing their experiences and offering their much appreciated advice.
We also wish to thank Ms Konrad, Chair of the Stability Pact Task Force on Trafficking in Human Beings and her assistant Ms Nadrai. Their co-operation and support proved to be invaluable in the set up of this project.
The consideration of equality between women and men, seen as a fundamental human right, is the responsibility of the Steering Committee for Equality between Women and Men (CDEG). The experts who form the Committee (one from each member State) are entrusted with the task of stimulating action at the national level, as well as within the Council of Europe, to achieve effective equality between women and men. To this end, the CDEG carries out analyses, studies and evaluations, defines strategies and political measures, and, where necessary, frames the appropriate legal instruments.
For further information on activities concerning equality between women and men, contact:
Division Equality between Women and Men
Directorate General of Human Rights
Council of Europe
67075 STRASBOURG CEDEX
Tel: +33 3 88 41 23 39
Fax: +33 3 90 21 49 18
The action of the Council of Europe against corruption, organised crime and money laundering follows a multidisciplinary approach and is based on three pillars which are inter-related: setting European standards (through the elaboration of a series of legal instruments such as conventions, recommendations, resolutions, etc), monitoring compliance with these standards (e.g. GRECO for corruption, PC-R-EV for money laundering) and strengthening capacities against these criminal phenomena through technical cooperation (PACO Programme against corruption and organised Crime in South-eastern Europe, Octopus programme and others).
For further information on technical assistance activities in the field of combating corruption, organised crime and money laundering, please contact:
Economic Crime Division
Directorate General of Legal Affairs
Council of Europe
67075 STRASBOURG CEDEX
Tel: +33 3 90 21 45 06
The growing importance of the problem, particularly in the Balkans, but also in many other OSCE participating States, and the tragic consequences of the phenomenon for thousands of vulnerable persons - especially women and children, led to the decision - at the Inaugural Meeting of the Stability Pact Working Table 3 in Oslo on 13/14 October 1999 - to make trafficking issues one of the priorities within the OSCE and the Stability Pact for South Eastern
Europe and to the establishment of the TF on Trafficking in Human Beings in June 2000 ( Inaugural Meeting: 18 September 2000 in Vienna).
One of the main objectives of the SPTF is to enhance and further strengthen regional co-operation among the various anti-trafficking actors in the Balkan region and beyond, among the IOs active in the region and among the governments of the countries in the region. It aims to assist key actors in South Eastern Europe to better address human trafficking and associated human rights abuses by agreeing on priority areas of concern (awareness raising, training and capacity building, law enforcement co-operation, victim assistance and protection, return and reintegration assistance, relevant legislative reform, prevention) and by co-operating on anti-trafficking activities in the field. It acts as a clearing house, fostering co-ordination among the relevant actors and providing necessary information, assisting in the effort to strengthen regional co-operation among governments, IOs and NGOs.
The Council of Europe has been involved for several years in the fight against trafficking in human beings. The 44 member States of the Organisation, 19 of which are countries of Central and Eastern Europe, include countries of origin, transit and destination of the victims of trafficking. The effects of trafficking directly concern all these countries. The Council of Europe has, through the work of a Group of Specialists, identified the most urgent areas for action in this field, which have been worked out by a consultant, in a comprehensive Plan of Action. This Plan suggests reflection and research guidelines with a view to making recommendations to the member States on legislative, judicial and police aspects, on plans designed to assist, support and rehabilitate the victims and on preventive and educational programmes.
A seminar was organised in June 1998, focusing on the role of NGOs in combating this phenomenon. This topic attracted the collective concern of the Heads of State and Government of the member States at the Strasbourg Summit held in October 1997: the final declaration adopted at this summit clearly classifies all forms of sexual exploitation of women as being a threat for citizens’ security and democracy in Europe. In order to raise awareness among media professionals on the issue of the portrayal of women in the media and its possible impact on traffic in human beings, the CDEG organised in 1998 a joint seminar with the Steering Committee on the Mass Media (CDMM) on good and bad practices regarding the image of women in the media: the case of trafficking in human beings for the purpose of sexual exploitation. The proceedings of this seminar are available on request.
Aware of the need for standard-setting work in this field, the Steering Committee for equality between women and men (CDEG) prepared a Recommendation to member States on the issue of trafficking in human beings. The text was adopted by the Committee of Ministers on 19 May 2000 (Recommendation No. R (2000) 11 on action against trafficking in human beings for the purpose of sexual exploitation. Cf. Appendix 1). As a follow-up to this recommendation, the CDEG envisaged the possibility to draft a Convention in this field. This idea was supported by the Parliamentary Assembly and the Secretary General of the Council of Europe, and on 6 February 2002, the Committee of Ministers of the Council of Europe gave the CDEG terms of reference to study the feasibility of a European Convention on combating traffickings in human beings.
As a part of the Council of Europe’s contribution to the Stability Pact for South-East Europe, an information campaign on the risks of trafficking in human beings for the purpose of sexual exploitation was launched in Albania in June 1999. Networks for trafficking in human beings, already well-established in Albania, had targeted Kosovar refugee women and young girls in order to lure them into their activities. This information and prevention campaign, mainly directed at the refugee women during the summer, was extended to several Albanian regions in autumn 1999. It was organised in co-operation with the United Nations High Commissioner for Human Rights as well as with the assistance of the International Organisation for Migration and NGOs.
Also in the framework of the Stability Pact, an International Seminar on “Co-ordinated action against trafficking in human beings in South Eastern Europe: towards a regional action plan” was held in Athens from 29 June to 1 July 2000. The seminar was co-financed and co-sponsored by the High Commissioner for Human Rights of the United Nations and by Japan. It was organised in partnership with the OSCE/ODIHR and the International Organization for Migration. Recommendations for actions to be undertaken at national level were adopted, including launching national action plans against trafficking. Elements for a Regional Action Plan against trafficking in human beings were prepared and adopted.
A compilation of the main legal instruments and analytical reports dealing with trafficking in human beings at international, regional and national levels was prepared for the seminar and is available on request.
Finally, as a part of the Council of Europe contribution to the aims of the Stability Pact Task Force on Trafficking as well as of the Stability Pact Initiative against Organised Crime (SPOC), the Council of Europe (Directorate General for Human Rights in partnership with Directorate General I – Legal Affairs / PACO Programme) implemented a pilot project in Romania and Moldova. These countries were chosen, because they were, among the countries in South Eastern Europe, seriously affected by trafficking in human beings. They had relevant experience to share with regard to measures against trafficking, they were aware of the need to enhance cooperation with neighbouring countries and they recognised the need to strengthen and harmonise legislation.
This project, entitled “criminal law reform on trafficking in human beings in South-Eastern Europe” was to contribute to the effective criminalisation of trafficking in human beings at the regional level and to ensure protection of victims’ human rights in accordance. Three meetings were organised. The first took place in Bucharest on 24-25-26 October 2001. Legal requirements under relevant international and regional instruments (Recommendation No. R (2000)11 of the Committee of Ministers of the Council of Europe on Action against trafficking in human beings for the purpose of sexual exploitation. Cf. (Appendix 1) and the UN Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially women and children (Appendix 2) were discussed and the existing national legislation in both Romania and Moldova were analysed by two Council of Europe experts.
In Chisinau, where the second meeting was organised (12-14 December 2001), the participants discussed on how implementing the legislations and in Strasbourg (18-20 February 2002) the third and last meeting was dedicated to the implementation of the recommendations adopted in Chisinau and the implementation of the national action plans. The aim was, by the end of this pilot project , to help Moldova and Romania to strengthen their legislation and their cooperation with each other, and improve their capacities to implement relevant international and regional agreements. You will find herewith the outcome of the three meetings
On 23-24 November 2001, the Council of Europe in cooperation with the Stability Pact Task Force on Trafficking in Human Beings also organised a regional training course on criminal law reform on trafficking in human beings in Belgrade. This training course aimed at establishing a framework for the necessary legislative reforms taking into account relevant international instruments. The main objective was to ensure that the preparation, adoption and implementation of comprehensive legislation cover all aspects of trafficking in human beings according to European and other international standards. These aspects include effective prosecution and punishment of traffickers, as well as protection of victims. During this meeting, the Council of Europe informed the participants that the experience of the project held in Romania and Moldova would be repeated throughout South-eastern Europe to ensure a sub-regional approach in criminal law reform
This meeting was the first activity in the implementation of the pilot project entitled “criminal law reform on trafficking in human beings in South-Eastern Europe”. Romania and Moldova had already draft laws on trafficking, and the purpose of this first meeting was to analyse these draft laws and, if necessary, propose amendments in the light of existing international standards (Recommendation No. R (2000)11, Appendix 1) of the Committee of Ministers of the Council of Europe on Action against trafficking in human beings for the purpose of sexual exploitation and the UN Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially women and children). The Romanian draft law entitled “Law on the Prevention and Combat of Trafficking in Human Beings” (Appendix 3) had already been adopted by the Chamber of Deputies and was before the Senate. The draft articles of the Moldavian Penal Code (Appendix 4) concerning trafficking in human beings and trafficking in children were under examination by the Legal Affairs Committee of the Moldavian Parliament and it was expected that they would be adopted by the Parliament before the end of 2001.
The second purpose of the meeting was to analyse the situation in practice with participants from both countries and, in order to prepare the second meeting in Moldova (Chisinau), make proposals concerning the implementation of the legislation by both countries. The examples of good practice and lessons learned presented by Maria Grazia Giammarinaro, judge in the Criminal Court of Rome, Italy, and by Roelof Haveman of the University of Leiden, the Netherlands, Council of Europe experts were listened to with great interest by the participants. At the beginning of the workshop, participants from both countries, where individual prostitution is a crime, were reluctant about the idea of decriminalising it. The examples given, particularly the Dutch example, provoked informal discussions between participants. At the end of the workshop, most of them had realised that in order to enable victims of trafficking to bring legal proceedings against the offenders, it was important at least to establish a clause of non-punishment for victims of trafficking who committed such a crime. Amendments to the draft laws were proposed by the Council of Europe experts after discussion with the participants, most of whom had been involved in the drafting.
The Romanian draft legislation is quite comprehensive and not only criminalizes trafficking in human beings but also regulates the prevention of trafficking as well as protection and assistance for the victims of trafficking. The amendments proposed by the Council of Europe experts will be taken into account when drafting the Enforcement Regulations. The Romanian authorities have asked for Council of Europe assistance in drafting these Enforcement Regulations.
The draft Criminal Code of the Republic of Moldova criminalizes trafficking in human beings and in children. There is no specific primary or secondary legislation concerning the prevention of trafficking nor protection and assistance for the victims of trafficking. The Moldavian authorities asked for Council of Europe assistance in preparing specific legislation on those items. They stressed the fact that all actions concerning prevention of trafficking and protection and assistance of victims required financial resources that their country lacked.
The analysis of the Romanian and Moldavian drafts enabled the Council of Europe experts to identify the key elements of comprehensive, consistent and effective legislation on trafficking in persons, especially women and children. Participants from both countries drafted an action plan to implement the legislation. The participation of NGOs in the workshop added to the quality of discussions and enabled NGOs from both countries to establish contacts and strengthen their ties. Both the Romanian and Moldavian authorities showed their willingness to take into account the specific recommendations made by the Council of Europe experts concerning their draft legislation. The Moldavian authorities were very interested to have suggestions and recommendations by the Council of Europe experts for the preparation of primary or secondary legislation on the prevention of trafficking as well as on protection and assistance for the victims of trafficking.
By Dr. Maria Grazia Giammarinaro, judge in the criminal court of Rome, Italy and Dr. Roelof H. Haveman, senior lecturer (international) criminal law and criminal procedure, Leiden university, The Netherlands
We are impressed by the efforts undertaken to draft legislation on trafficking in persons which meets the requirements of the Protocol to Prevent, Suppress and Punish trafficking in Persons, especially women and children, supplementing the United Nations Convention against Transnational Organized Crime (hereinafter: the Protocol).
The criminal law can be placed in the civil law tradition, which is dominant on the European Continent, as opposed to the common law tradition. Even more important, and connected to this division into law traditions although not entirely identical, is the conclusion that both countries have an inquisitorial process model, instead of an adversarial model which is dominant in Anglo-Saxon countries. This is important to observe, as these traditions and process models are not easy to mix; each tradition, each process model is consistent in itself, in which each and every element has a crucial place, and cannot be replaced by an element out of the other tradition and model without changing other elements thereof.
A serious obstacle to making recommendations to the law in books – that is the law as it is written down in code books and other legislative products – is that the law in action – that is the law as it appears in everyday practice – can be entirely different from the law in books. Law in books cannot be reviewed without taking into consideration the legal and social context in which the law in books functions. All recommendations therefore have to be interpreted in the light of everyday practice. Bearing in mind these objections, we would like to recommend that the proposal is amended as follows.
Recommendations with respect to the draft legislation of Romania
In Art. 2, giving the meaning of the phrase ‘exploitation of a person’ for the proposed law, the element under letter (e) of ‘engaging in other such activities that violate fundamental human rights and liberties’ has to be deemed as too wide an element of crime. It adds to the vagueness of the crime, as it is no longer unequivocally foreseeable for citizens what conduct exactly constitutes a criminal offence, and as such may be considered to be at variance with the principle of legality, which asks for clear and unequivocal definitions of crime. It should be noted that, considering the wording of the law and its place in the law, the definition of exploitation is a constituent element of the crime rather than a mere suggestion for judges as to how to explain the words ‘exploitation of a person’.
Consent: this is a useless clause, as the prosecutor has to prove the means, which are per definition non consensual; any further enquiry into consent is irrelevant. It moreover adds to the vagueness of the definition, as it for instance suggests that the accused is not entitled to a full defence, and therefore not to a fair trial. We recommend deleting the whole of article 16.
As a second best option with respect to the clause regarding consent, the wording in the Romanian law should follow the wording in the Protocol, that is that the consent of a victim of trafficking in persons to the intended exploitation shall be irrelevant where any of the ‘means’ have been used, taking into consideration the Travaux Préparatoire to the Protocol, in which it is stated that this clause should not be interpreted as imposing any restriction on the right of the accused person to a full defence and to the presumption of innocence, nor should it be interpreted as imposing on the victim the burden of proof. Admissibility rules with respect to evidence do not fit into the inquisitorial system of evidence, in which the judge should have access to all possible evidence, and make his or her choice on the probative value of the evidence.
The fact that prostitution as such is a crime, and therefore persons who engage in prostitution are liable to criminal (or administrative) sanctions must be considered as a serious threshold for women to press charges against the trafficker. The same pertains to the crime of crossing a border illegally. Both criminalisations are a serious obstacle for victims to testify against the trafficker, which has to be deemed very undesirable, in particular in the light of the fact that the main aim of the law is to make the prosecution of traffickers in human beings easier by making it easier for victims to testify. With respect to illegal border crossing, the threshold is heightened even more as it is not only crossing the border of Romania which constitutes the crime, but all borders, irrespective of where they are in the world. We recommend the abolition of the criminalisation of prostitution as such; this is generally seen as the main obstacle for victims to press charges against traffickers, which should outweigh moral standpoints on prostitution as being a criminal act. It should be reminded in this respect that no member State of the European Union has criminalised prostitution as such, despite serious moral objections against prostitution in many of these member States.
The second best alternative in this respect would be to incorporate a clause in the law which says that victims of trafficking shall not be prosecuted for being involved in prostitution – as has been proposed in the Romanian law in Art. 20 – but also that they will not be prosecuted for having illegally crossed the border. It should be borne in mind however that these stipulations will contribute to prosecutions only in a very few cases, if any.
The stigmatising of victims of trafficking should be avoided. In this respect it should be remarked that the ‘Centres for (…) Victims of Trafficking in Human Beings’ (Art. 32 of the proposed law) should be renamed, as the proposed label identifies the persons in these shelters – if known to the public, which in itself should be avoided – as victims of trafficking, which in practice means: as prostitutes.
The penal legislation on the possibilities for victims to obtain compensation in whatever form in Romania has not been under consideration. However, we recommend that the legislation on this issue be carefully examined to make it as easy as possible for victims to get compensation, in particular from the trafficker, as this may be considered an important incentive for victims to co-operate with a criminal procedure against traffickers.
By Dr. Maria Grazia Giammarinaro, judge in the criminal court of Rome, Italy and Dr. Roelof H. Haveman, senior lecturer (international) criminal law and criminal procedure, Leiden university, The Netherlands
1 General remarks
We are impressed by the efforts undertaken to draft legislation on trafficking in persons, which meets the requirements of the Protocol to Prevent, Suppress and Punish trafficking in Persons, especially women and children, supplementing the United Nations Convention against Transnational Organized Crime (hereinafter: the Protocol).
The criminal law in Moldova can be placed in the civil law tradition, which is dominant on the European Continent, as opposed to the common law tradition. Even more important, and connected to this division into law traditions although not entirely identical, is the conclusion that both countries have an inquisitorial process model, instead of an adversarial model which is dominant in Anglo-Saxon countries. This is important to observe, as these traditions and process models are not easy to mix; each tradition, each process model is consistent in itself, in which each and every element has a crucial place, and cannot be replaced by an element out of the other tradition and model without changing other elements thereof.
A serious obstacle for making recommendations to the law in the books – that is the law as it is written down in code books and other legislative products – is, that the law in action – that is the law as it appears in everyday practice – can be entirely different from the law in books. Law in books cannot be reviewed without taking into consideration the legal and social context in which the law in books function. All recommendations therefore have to be interpreted in the light of everyday practice. Bearing this in mind, we would like to recommend that the proposal is amended as follows.
The presupposition when recommending amendments regarding Moldova is that the existing provisions in the criminal code, Art. 116 (3), in force since 18th August 2001, shall be replaced by the ‘Proposed Regulation of Trafficking in Human Beings and Related offences for the Draft Criminal Code of the Republic of Moldova’, Articles 163 (trafficking), 164 (slavery and slavery like conditions), 165 (forced labour), 231 (prostitution), 395 (Removal, theft of or damage of documents), 396 (falsified documents) and 398 (illegal crossing of a state border). If this presupposition appears to be false, the first and most important recommendation is, to present to parliament a draft for new provisions regarding trafficking as soon as possible, according to the aforementioned draft.
A second general recommendation is that the amendments to the criminal law are incorporated into a more encompassing law, which also addresses prevention of trafficking in persons, and the assistance and re-integration of victims of trafficking in persons.
2 Specific Recommendations with respect to the draft legislation in Moldova
In art. 163 para 1, after the words ‘physical or psychological violence’ the words ‘non-dangerous for a person’s life and health’ should be deleted. These words imply that violence exists which is not dangerous for a person’s health. As a second argument we would like to point out the fact that, by excluding in this article violence which is dangerous for a person’s life, also the ‘threat’ of violence which is dangerous for a person’s life is excluded from criminal liability, this not being incorporated in the article as a constituent element of crime.
As a consequence of deleting the words ‘non-dangerous for a person’s life and health’, in art. 163 para 2 the words ‘accompanied by dangerous violence for a person’s life, physical or psychological health’ can be deleted as an aggravating circumstance, as this will be covered by para 1.
In Art. 163 para 1, the description of commercial and non-commercial sexual at least includes exploitation in prostitution and in the pornographic industry. As a consequence, explicit mention of the latter only adds to confusion with regard to the crime definition, as law enforcement officers, prosecutors and judges will look for a special meaning in these words, which in fact does not exist. The criminal law should restrict itself to the necessary elements.
The paragraph on the purpose of ‘using a person in criminal activities’ is too wide a description, and compared to the other purposes of trafficking, not of a comparable gravity; it comprises also petty crimes for instance.
The crime of prostitution must be considered as a serious threshold for women to press charges against the trafficker, as is the crime of crossing a border illegally. It is a serious obstacle for victims to testify against the trafficker, especially when considering the fact that the main aim of the law is to make the prosecution of traffickers in human beings easier by making it easier for victims to testify. We recommend the abolition of the criminalisation of prostitution as such; this is generally seen as the main obstacle for victims to press charges against traffickers. This should outweigh moral standpoints on prostitution as being a criminal act. It should be recalled in this respect that no member State of the European Union has criminalised prostitution as such, despite serious moral objections against prostitution in many of these states.
The second best alternative in this respect would be to incorporate a clause in the law which says that victims of trafficking shall not be prosecuted for being involved in prostitution nor for having illegally crossed the border. If this is the choice for Moldova, the proposed provision has to be changed in the sense that, rather than ‘a person who has engaged in prostitution’ will not be prosecuted, it is the person ‘who (allegedly) has been the victim of trafficking for the purpose of sexual exploitation’. By doing so, this exclusion from prosecution is linked to the wording of the article on trafficking. It should be borne in mind however that these stipulations will contribute to prosecutions only in very few cases, if any.
3 General recommendation
The penal legislation on the possibilities for victims to get compensation in whatever form in Moldova has not been under consideration. However, we recommend that the legislation on this issue is carefully examined to make it as easy as possible for victims to get compensation, in particular from the trafficker, as this may be considered an important incentive for victims to co-operate with a criminal procedure against trafficker.
4 General Recommendations on Legislation
The following Recommendations aim to identify the key elements of a comprehensive, consistent and effective legislation on trafficking in persons, especially women and children. Most of them are inspired by Recommendation No R (2000)11 of the Committee of Ministers of the Council of Europe on Action Against trafficking in human beings for the purpose of sexual exploitation, adopted on 19 may 2000. The recommended provisions could be included in a specific law regarding trafficking, or could be incorporated in the criminal code, in the code of criminal procedure, in the legislation on immigration and/or other relevant laws. The Recommendations cover a range of issues that normally require primary legislation or enforcement regulations, because they involve criminal provisions, include new rights or imply budgetary aspects.
Bearing in mind the different national legislation on trafficking, the Recommendations specifically address new subjects, as identified by international documents and standards that need new legislation or imply some changes in the current legislation at the national level. Other aspects of the struggle against trafficking, such as information and public awareness campaigns, establishment of specialized units for investigation and prosecution, institution building, training and capacity building, normally requiring ministerial decrees, decisions of relevant public institutions, actions of public agencies or associations, will be addressed in the second workshop which will take place in the Republic of Moldova (12 to 14 December 2001), focusing on implementation of legislation.
States should incorporate in national legislation a specific crime covering all forms of trafficking, according to the Protocol to Prevent, Suppress and Punish Trafficking in persons, especially Women and Children, supplementing the United Nations Convention against transnational organized crime. The crime should include acts such as recruitment, transportation, transfer, harbouring or receipt of person, means such as threats, force or other forms of coercion, abduction, fraud, deception, abuse of power or of a position of vulnerability, and a wide range of illicit purposes, not only sexual exploitation but forced labour or services, slavery or practices similar to slavery, servitude, removal of organs. The criminal law should state that the recruitment, transportation, transfer, harbouring or receipt of a child under 18, for one of the illicit purposes mentioned above, shall be considered trafficking, even if this does not involve any of the means of coercion, deception or abuse.
States should penalize activities of organized criminal groups, by establishing as criminal offences attempting and participating in acts of trafficking, as well as organising and directing other persons to commit trafficking, and should establish higher penalties when the crime of trafficking is committed by an organized criminal group. States should establish sanctions that have a deterrent effect and are in proportion to the gravity of the crime of trafficking. States should establish rules governing extra-territorial jurisdiction to permit and facilitate the prosecution and conviction of persons who have committed offences relating to trafficking in human beings, irrespective of the country where the offences were committed, and including cases where the offences took place in more than one country.
States may consider establishing a clause of non-punishment for victims of trafficking who committed offences such as illegal border crossing, holding false passports or prostitution (where it is not yet decriminalised). National legislation should establish seizure and confiscation of proceeds and instruments of trafficking, as well as financial investigation aimed at confiscation. National legislation should ensure the right to compensation to victims of trafficking, for physical, psychological and material damages. Confiscated assets could be used to establish a mechanism aimed to compensate the victims effectively, and provide them with services, e.g. through a special fund fed by confiscated assets, and/or by fines paid by traffickers who were convicted in criminal proceedings. States could establish public funds as subsidiary compensation mechanisms, if the trafficker’s assets are not sufficient or if no assets are found.
6 Victims’ Rights in criminal proceedings
In order to enable victims’ views and concerns to be presented and considered in criminal proceedings, States should provide victims with information concerning at least their rights and duties. In addition, national legislation should state that the victims can be assisted by a trusted person during the hearings and other relevant stages of criminal proceedings. States should ensure free legal representation or at least facilitate access to legal representation. States should protect the privacy of the victim. In particular, national legislation should state that the court sessions shall not open to the public when the victim is under 18. In any other case, upon request of the victim, the court can order a session in camera.
7 Residence status of trafficked persons
States should allow trafficked persons to stay on their territory for a period of at least three months. If the person makes a statement in criminal proceedings, she/he should be granted a residence permit at least for the duration of such proceedings. The residence permit should imply at least the right to medical, psychological, social assistance and legal counselling, in connection with social assistance programmes and in co-operation with NGOs. States should give appropriate attention to humanitarian considerations, such as danger to personal safety in case of repatriation, and grant permanent residence permits on these grounds.
8 Protection of and assistance to trafficked persons
States should establish special funds for implementing assistance and social integration programmes, including housing, medical psychological and material assistance, training, education and job opportunities, counselling and information, in particular about victims’ rights. States should establish appropriate mechanisms, criteria and standards for the functioning of shelters and assistance programmes, based on co-operation with NGOs. At least when trafficked persons give testimony, States should ensure their safety for the duration of criminal proceedings through police protection of the victims and their families. In the most serious cases, special programmes should be applied, providing for replacement and change of identity, if necessary.
Encourage Local Authorities to fund raise and support local shelters and activities to carry the efforts of Anti-trafficking;
Review the composition and the rules of procedure for the Task Force Committee, which implements the Anti-Trafficking National Plan. Increase the membership of NGOs to this Committee;
Establish by special regulations (secondary legislation if necessary), Specialised Units handling Anti-Trafficking procedures within the Ministry of the Interior, Police stations in all countries, Prosecutor General and Local Prosecutors’ offices;
Establish Contact Points (Liaison Officers) at the Cross Border Points through the Border Police system, which at the same time liaise with NGOs and other government agencies;
Integrate the financial investigation procedures within the criminal investigation procedures in Trafficking cases to enable the possibility of “frozen assets” and strengthen the existing legal framework;
Regulate a special budget to be able to respond to the needs of legislation implementation. Budget can be composed of State budget, Donations and Confiscation of Crime Proceeds;
Encourage the establishment of Special programmes within the Ministry of Health in coordination with NGOs and other government agencies to respond to monitoring and deal with sexually transmitted diseases, sex education and issues of new mothers where they are Trafficking victims;
Encourage the establishment of Small and Medium Enterprises where Trafficking Victims can be employed and earn their living;
Revise and Update the Initial and Continuous Training Programmes (Institute of Magistrate Curriculum) for Judges and Prosecutors in relation to the new legislation and international standards;
Ratify and adopt the following international instruments:
Convention on data protection (ETS 108)
Convention on money laundering, search, seizure and confiscation of proceeds from crime (ETS 141)
United Nations Convention on Transnational Organised Crime, including its Protocols
Increase public awareness in general and education through:
A street Law Book “what shall I do if I am already a victim or if I should become a victim”
National and international TV Programmes where victims and others related to anti-trafficking work speak about facts and procedures;
Integration of “Special Sessions” on trafficking in the elementary and high school curricula;
Encourage the establishment of “Anonymous Victims’ Talk Club”.
Increase and establish Training Programmes throughout the country related to procedures carried out by:
Medical and Psychological Counselling
Social Assistance and how to integrate into society
The established “confidante”
Increase and Establish Institutional Co-operation:
Establish a Local Network of Government and NGOs liaison for each country
Set up and participate in the Regional Network composed of Ministry of Justice, Ministry of the Interior and International and local NGOs;
Make mutual assistance more efficient;
Increase the Contacts and Co-operation with Western countries (especially where victims are landed) to enable a better application of the legislation and acquire further legal and technical expertise.
Promote the inclusion of the draft legislation in the new criminal code taking into consideration the Bucharest workshop;
Draft specific legislation on prevention, rehabilitation and social reintegration;
Develop a mechanism aimed at implementing legislation on the protection of witnesses and victims;
Develop a mechanism for the compensation of victims of trafficking based on a special compensation fund fed by the assets confiscated;
Improve legislation on the co-operation between public authorities and non-governmental organisations;
Provide for training of personnel involved in preventing and combating trafficking (social workers, prosecutors, judges, lawyers, border police, criminal police, local public administration officials);
Establish specialised structures within the Ministry of Internal Affairs, border guard troops’ department and Prosecutor’s office;
Establish shelters for victims of trafficking;
Organise public awareness campaigns, including through the media;
Convention on data protection (ETS 108)
Convention on money laundering, search, seizure and confiscation of proceeds from crime (ETS 141)
United Nations Convention on Transnational Organised Crime, including its Protocols;
Nomination of liaison officers for the SECI Centre on Transborder Crime;
Development of contacts between governmental institutions and non-governmental organisations in South-Eastern Europe in the countries of origin, transit and destination;
Active participation with the Stability Pact, especially:;
Anti-trafficking Task Force;
SPAI (Stability Pact Anti-corruption Initiative);
* * *
The second meeting was held in Chisinau (Moldova) (12-14 December). It gathered, as the first meeting, Romanian and Moldavian experts and two experts of the Council of Europe. Representatives of different relevant ministries, justice, interior, social affairs, international organisations present in the country and NGOs also participated in this seminar
It focused on the implementation of legislation in both Romania and Moldova. Issues discussed during this second regional meeting included good practices in other countries and matters related to the implementation of current legislation. In addition to this, discussions were held with respect to the ongoing process of drafting new legislation, or amending the current criminal law legislation of both countries.
During this meeting, recommendations were provided to the Moldavian authorities on the drafting of specific legislation (primary or secondary) concerning the prevention of trafficking and the protection and assistance of victims
Following the first regional meeting on discussing and drafting legislation, held in Bucharest, Romania (24-27 October 2001), which gathered national experts from Romania and Moldova with Council of Europe experts in the field of trafficking in human beings (THB), a second follow-up meeting was held in Chisinau, Moldova from 12-14 December 2001.
The Council of Europe experts stressed the fact that in order to effectively combat and prevent trafficking in human beings, long-term measures need to be taken as the only guaranteed structural tools to ensure a decent level of social and economic development, which will diminish and limit the risk of trafficking. They also stressed the need for developing international co-operation in the field. Taking that into account, the national groups of experts (Working Groups) made recommendations on short and mid-term measures that could be taken with regard to prevention, investigation and prosecution of trafficking as a criminal offence, and with regard to assistance and protection of victims - not only the victims who were trafficked outside the country, but also those who are trafficked inside the country.
At this workshop, the Council of Europe was represented by the international experts in the area of anti-trafficking Dr. Maria Grazia Giammarinaro (Expert) from Italy, Mr. Dagmar Koster (Expert) from the Netherlands, Ms. Anne-Marie Faradji (Administrator) from the Council of Europe Directorate of Human Rights and Ms. Ardita N. Abdiu (Administrator) from the Council of Europe Directorate of Legal Affairs
The following are the summarised list of issues/recommendations addressed by the working groups.
The participants agreed on the fact that there is a general need to disseminate information with respect to the danger of becoming a victim of trafficking. The actual means of providing information as well as the information itself should be adapted according to the area where the information will be disseminated. Hence, a distinction should be made between the (methods of dissemination of) information in rural and urban areas. In this respect, specific attention should be paid to the rural areas where the communication of information appears to be more difficult.
The following suggestions were made in this respect:
to involve the relevant actors (e.g., police, social workers, medical staff, employment agencies, teachers, schools, churches, local authorities, local NGOs, local youth NGOs);
to enhance the development of NGOs networks;
to make use of the available mass media, press, and new information technologies, such as TV, Internet, newspapers, etc.;
to develop school curricula consisting of interactive methods of teaching, by including the following topics:
Specific THB preventive programmes as part of the compulsory curriculum in schools, which should be taught on continuing basis and in all levels of school education;
Sexual education; and Gender equality training and education to fight stereotypes.
to promote peers’ group education (i.e., children inform children, teens inform teens etc.); and
to promote and develop mobile and flexible information services (e.g. info bus).
The working group considered that specific attention should be given to the possibility that perpetrators are not always aware of the consequences and the risks deriving from their actions resulting in THB. Awareness raising programmes for those who could become, or are potential perpetrators, is important as another tool of prevention.
The group felt that information dissemination on the danger of trafficking should not only be directed to those who can be potential victims or potential traffickers, but also to the public in general, in order to raise awareness with regard to the risks and features of THB. This is of specific importance with regard to rural areas, where promotion of such activities could be arranged through local authorities and local NGO’s.
Noting the existence of a negative perception of the general public towards the law enforcement agencies’ work, the group recommended that regular presentations on these activities, and on the success stories, based on real examples out of the practice of law enforcement, should be given. This process will contribute to increase the public trust over the law enforcement agencies work, as well as increase the transparency of, and thus the understanding of their work.
Also, the group stressed that the media have a responsibility for providing accurate and precise information with relevance to all aspects of migration in general and of THB more particularly, including information on living and working conditions abroad.
The group noted the obvious and eminent need to identify and categorise victims in order to collect general information with regard to trafficking. Such identification and categorisation can be arranged through a process of using questionnaires, which are prepared by the law enforcement agencies and provided to (possible) victims on a case-by-case basis;
The group noted that the state of mind of the victims is most of the times psychologically affected (post traumatic stress disorder). For this reason, the group suggested that psychologists, social workers, victim’s representatives and other professionals (multi-disciplinary teams) should also be present in and during the criminal proceedings stages;
The group emphasised that social workers should provide information on the legal aid that victims can receive prior and during the criminal proceedings; in this respect, a vade mecum of names, contacts and addresses would come in convenient;
When the victim is a minor, special methods and modalities should be applied with regard to the evidence gathering and application of investigatory techniques. Closed doors sessions of court proceedings as well as anonymity guarantees (through identity restrictions) and protection should be provided. In addition to this, the group suggested that the presence in the court of the victim as a witness should be limited as much as possible, her/his lawyer could be present in her/his place.
Obstacle: Nevertheless, the group felt that these special provisions with respect to the position of minor victims should not inflict with the right to a fair trial:
“Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.” Art 6. Convention for the Protection of Human Rights and Fundamental Freedoms.
Furthermore, due attention should be paid to the fact that these special provisions could hamper the investigation proceedings and the court proceedings.
The group felt that rules of procedure should provide for the use of audio-visual facilities for hearing victims/witnesses, and that such rules could resolve issues with respect to the anticipated evidence.
Obstacle: In some legal systems, the presence of the victim in the court hearing is a legal requirement.
The group suggested that specific investigatory techniques could be used (respecting the provisions of the European Convention for the safeguard of individual freedoms and the defence of Human Rights) such as electronic surveillance, phone tapping, bugging, observation etc, in order to enhance the availability and the credibility of evidence;
Also, the group felt that different techniques of investigation should be applied when dealing with the offender (defendant), and when dealing with children. It was suggested that guidelines and “lists of questions to be asked” to the defendant and victims could be drawn as general methodological instructions to be used by police and prosecutors;
It was emphasised by the group that financial investigation should be considered as an essential part of the operational phase along with the criminal proceedings.
The group discussed that confiscation of crime proceeds needs a clear strategy on seizure itself as well as on the use of the follow up procedures when dealing with these proceeds. Part of these assets could go to a general public benefit fund, and part of it could go to the victim[s] of the crime.
Obstacle: Nevertheless, it might be necessary that complicated issues such as how the division of the assets (value) can occur, and/or which could be the general list of the beneficiaries (e.g., social workers, special forces police, special training, prosecutors office, in addition to the list of victims and/or their families), should be addressed and resolved first.
Victim Related Items
The group suggested that social protection and legal assistance for victims could be ensured through mechanisms, which can facilitate and improve the victim’s situation during the hearing, investigation, trial proceedings and re-integration process. Such mechanisms can be NGO run programmes. Nevertheless, securing the funding for these programmes still appears difficult to be achieved. Special attention should be given also to minor victims, and the children of the victims, including here other members of the victim’s family;
The group emphasised that the (existing) police protection system can be improved through providing protection upon the request of the victims or their families.
Obstacles: The group stressed that issues such as the difficulties of implementing the relevant legislation with respect to the police protection should be considered and dealt with. In this respect it was mentioned that families of victims and witnesses often still feel too threatened to even ask for special protection by the police. Another shortfall brought by the group was the fact that there are cases where the number of such requests is increased, but resources available to handle these requests are limited.
The group agreed that in order to establish and/or recognise the position as a (potential) victim, not only legal aspects should be considered, but also medical and psychological related aspects should be used as complementary tools.
The victims need special forms of assistance, which should be provided by a multi-disciplinary composed team of assistance providers.
-The group recommended that the actual assistance programmes to the victims should be individualised according to the victims’ needs and their profiles, based on individual assessments.
It was agreed by the group that particular attention should be paid to the existence of an intolerant attitude of society towards the victims of THB, specifically victims of forced prostitution. This problem could be dealt with through prevention mechanisms. Another possible solution in this respect could be reconsidering the criminalisation of prostitution and the adoption of measures to preserve the anonymity of the victim when reintegrated into the society, as well as the confidentiality of her background and history.
The group suggested that due respect should be given to the fact that intolerance towards victims of sexual exploitation could lead to additional legal problems for these victims. Even when the victim was trafficked for sexual exploitation she is in many cases considered to be a former “prostitute”, hence she “is no longer entitled to her rights”.
It was suggested that the item of assistance and special protection of victims, especially when dealing with issues of victims return, reintegration and rehabilitation should not only be addressed and approached on the national level, but on the regional and the international level as well.
The group reiterated again the importance and the role that governmental Specialised Units could play in the process of capacity building on the national and the regional level. The group suggested that it shall be considered that Specialised Units of Police, Prosecutors Teams or Joint teams of Prosecutors and Police are put in place in order to implement and improve the legislation and proceedings. It should also be considered that these Specialised Units should be built within a hierarchical system of the central and the local government.
The group suggested that specialised “chambers” or judges’ teams could be used to try cases of trafficking. Also, a continuing legal education can be provided in order to train judges who are or will be members of these “chambers”
Obstacle: Nevertheless, it was mentioned that establishing specialised chambers or teams of judges could be difficult to realise in practice, and could have implications for the right to a fair trial.
The group suggested that on the national level co-ordinating mechanisms between different governmental institutions and ministries shall be established, strengthened and improved, not only for the initial implementation of the (legal) measures provided for, but also for the further implementation of the chosen national strategies and action plans on anti-trafficking.
The group suggested that training action plans need to be drawn to ensure a proper implementation and application of legislation and rules, by considering Joint Training for all actors in the field, taking into account the required multi-disciplinary approach of the issue (social and public institutions), where the main goal is to promote a common and mutual understanding.
The group emphasised the need to identify the areas and the groups (training beneficiaries), who should receive specific training in anti-trafficking issues. The group also suggested that training modules should be prepared in each area and for each group (i.e., prosecutors, police, judges, social workers, private attorneys and NGOs).
The group suggested that the training modus operandi should be both initial and continuing, where the components of it shall include also domestic law, regional legislation, international law and standards set up by it, including here bi-lateral and multilateral agreements.
The group also proposed that journalists should be trained in order to avoid sensationalism when reporting on THB and to provide clear and accurate information on the issue.
It was noted that there is an apparent need to train the NGO’s which are involved in this field , on how to work and co-ordinate within an international environment.
The group suggested that additional or/and extra-school-curricula activities shall be launched in order to build and strengthen the abilities of youth organisations to inform and train potential victims and perpetrators of THB through self-confidence building, enhancement of their participation in society and through providing job opportunities.
Miscellaneous/Other Issues Addressed
It appears that there is a limited possibility for NGOs to execute their tasks and their activities due to the lack of official accreditation. The existing laws on the formal recognition of NGOs (for being officially considered a specialised NGO in the field), should be properly implemented and should be clarified, both with regard to the procedure and to the requirements set therefore. Also, it is necessary that monitoring mechanisms need to be in place in order to monitor (at a certain level) the NGO’s position and the scope of their activities.
The last meeting of the Pilot Project was held in Strasbourg (18-20 February 2002). Council of Europe’s experts and Romanian and Moldavian’s experts as well as representative of NGO were present. The meeting had two main objectives.
First, the Council of Europe’s experts will assess the implementation of the recommendations adopted at the last two meetings in 2001 and the implementation of action plans of both countries. The experts will then present victims’ legal status with regard to protection and prevention. The Council of Europe’s experts will also review western countries (Greece, Italy Germany Netherlands, Belgium, France) models of legislations on prostitution, prevention measures and victims’ protection programmes. Victims’ legal status will also be approached (protection and prevention aspects) in the contexts of destination countries, transit countries. Finally, international and regional cooperation and other aspects of the Criminal law reform will be discussed.
Secondly, the Council of Europe experts will assess training areas and components for training action plans will be identified.
i Law reform process
The following issues are issues to be considered as next steps that need to be taken while reforming and updating the legislation:
Establish general legal framework for undercover agents operations in order to implement the special provision stipulated by the law on THB
Finalise the draft of new legislation on organised crime provisions, police protection of victims and witnesses, personal data protection
Establish special rules allowing to use confiscated assets for public services including assistance to victims of trafficking and for effective compensation
Finalise the implementation regulations on law on THB
Inclusion of law enforcement related secondary legislation
Legislation provisions with respect to the Special investigatory means
Specific provisions that provide undercover operators when handling investigation of trafficking.
ii Prevention and assistance to victims
In order to strengthen the capacitates with respect to prevention and assistance to victims and in order to implement the existing primary legislation the following issues need to be considered: Establishment vocational programmes for women and persons at high risk, spread in disadvantaged areas:
Implementation the national plan by the ministry of development in a comprehensive way in order to include people at risk
Establishment a national employment plan according to the UE employment strategy and equal opportunities policy under the 4th pillar
Improve co-operation between public authorities and NGOs in particular by:
organising joint trainings and capacity building programmes
favouring common approach to evaluation of financial needs and organisational tools
Addressing the county councils in charge of the organisation of the programmes a directive concerning:
standards for the organisation of the assistance to victims,
the possibility of using other sources in addition to public fund
the opportunity to establish partnership on a regular basis with NGOs in order to run reception centres and assistance programmes
Set up shelters near the borders which can provide employment opportunities, mediation and vocational training
iii Capacity building
With respect to the capacity building the working group felt that the following issues should be taken into consideration when handling training as the basis of the capacity building process:
Training for judges and prosecutors on the phenomenon of THB, in particular on gathering evidence, seizure of assets of criminal proceeds and all the aspects of ratification and application of international instruments
Elaborate case law in order to improve law making, as well as the interpretation and enforcement the new legislation.
iv International co-operation
In order to ensure and develop a clear network of international cooperation the following issues need to be considered during the entire coordination and cooperation process:
Establish mechanisms to facilitate access to investigating information from other countries
Establish an official list of NGOs in order to improve the co-operation with police authorities of different countries and the use of facilities (i.e. shelters, assistance activities)
Support exchange of experiences, good practices and networking of NGOs from different countries, in particular from countries of origin and destination
Better and broader use of the SECI Centre resources in particular for improving the exchange of investigative information
Establish a specific project in the PACO programme on connection between corruption and trafficking, in particular concerning the different types of corruption involved in THB, and undue benefits for public officials and authorities in origin, transit and destination countries
Define common criteria for data collection and assessment of the trends in international trafficking
Exchange information, ideas and experiences among countries with different legislations on prostitution, in particular with the view to elaborate strategies to reduce the demand of sexual services
Aspects of research and assessments:
aspects of international cooperation
aspects of victim’s protection
On the basis of the actions identified in the National Plan of Action to Combat Trafficking in Human Beings, the participants in the workshop agreed on giving priority to the following aspects when considering the execution of the Action Plan (aspects are put in bold). As an annex to these priorities, some more details and concrete activities are indicated.
i Harmonisation of national legislation according to the international legal instruments and standards in the area of Trafficking in Human Beings.
A Second Draft of an overall THB provision is currently under discussion in Parliament. CoE Experts comments expressed during the first and second workshop meetings are included. When the discussion in the second draft will be finalised, further assessment must be done.
Amendment to legislation as to prosecute the traffickers and not the victims
The issue of including a non-discrimination clause in the THB provision, as well as in the illegal border crossing provision, still needs to be addressed, whilst the non-discrimination clause with respect to pimping and prostitution should be revised in accordance with UN Protocol Standards.
Amending the legislation as to ensure adequate assistance and support to victims when willing to co-operate as witnesses
The inclusion of a reflection period for potential victims of THB in the legislation with regard to the assistance and support to victims needs to be considered.
Amending the legislation as to enable relevant judicial bodies ordering damage compensations for the benefit of victims
The possibility to order for damage compensation for victims is included in the second draft, so attention should now be paid to the actual implementation of that provision in the judicial practice. In this respect training and adequate information is to be provided to the judiciary.
ii Training of agencies and personnel on the application of the new legislation.
The necessary institutions to provide such training are already in place and are willing to co-operate in the organisation of training activities on the basis of multi-disciplinary participation. Concrete proposals for training courses to be organised need to be made and considered with the relevant institutions/agencies/organs and groups involved. The plans should be presented for approval and funding, in order to ensure a strategic planning for future implementation of legislation. The concept of “Train-the-Trainers” will be taken into consideration in this respect. Training needs are considered to aim two target groups:
Multidisciplinary Groups (basic/introductory training)
Specific Groups (Specialist Training)
For this purpose, available information on new legal instruments and their implementation in practice, will efficiently and in time be disseminated. For this purpose, data bases containing this information need to be made available to all involved in this area.
iii Ensuring protection of victims of trafficking
Special Reception Centres
Special reception centres need to be established in the framework of the welfare agencies providing services for the reintegration of victims into social life. Also, specific provisions need to be put in place in order to be able to make a clear distinction between short term and long term victim’s assistance.
Victim’s assistance: legal counselling and other counselling
According to the participants, the legal provision on State Protection of the Victim, of Witnesses and other Persons who provide assistance in the Criminal proceedings, includes provisions on legal counselling. The implementation of these provisions should first be assessed.
Development of partnerships with NGO’s which are capable of contributing to the assistance of victims
Co-operation should be sought between governmental and non-governmental organisations in order to consider and determine the mutual responsibilities and activities with regard to the provision of an adequate level of assistance to victims and to join forces in this respect.
International co-operation with respect to victims’ assistance
International organisations in the field of victims’ assistance are involved and present potential resources in providing such assistance. In order to enhance the co-operation between those NGO’s, but also between those NGO’s and governmental organisations, setting up a network of NGO’s is to be considered. Such a network could be set up according to the features of already existing judicial networks. The network can be established via the Internet, through which existing web-sites can be interlinked. A responsible NGO for the co-ordination thereof should be nominated.
iv To ensure the public awareness of the dangers of trafficking in human beings
Some initiatives in this field have already started. However, inclusion of prevention measures in the school curriculum has not yet been provided for. The working group also noted that attention still has to be paid to prevention measures and issues of rehabilitation of the victims and their families. Although the institutional framework already exists, in parallel with the final stage of the primary legislation they need to be regulated and addressed in more details.
v Other issues
For the implementation of the Action Plan and the priorities set, the following aspects are considered to be a part of the implementation of each of the different stages thereof:
aspects of research and assessment;
aspects of international co-operation;
aspects of victim’s protection.
The group further noted that the next step that is expected to be taken is the drafting of the necessary secondary legislation, and to ensure the implementation of the primary legislation. The above mentioned issues and conclusions will be considered (if necessary and if relevant) during the finalisation of the drafting of the primary legislation.
The working group for Moldova, taking into consideration the actions as provided in the Action Plan and the priorities set in that respect, identified the following training needs in order to guarantee sustainability in the implementation and execution of these actions.
To carry out and implement an overall concept of the training strategy as described below, an NGO should be identified (nominated) as the responsible organisation for the entire training project. It should raise the necessary funds and conclude agreements with governmental and non governmental organisations for the actual development and for the organisation of the training courses.
Training needs can be identified on two levels: General Training and Specialised Training.
For both levels of training a system of training modules should be put in place. Based on the exact needs of the identified beneficiaries for training, participation in the different modules should be considered. The set of general training modules should have a multi-disciplinary approach, so as to guarantee the possible participation of all those persons, organs and institutions involved in the combat of trafficking in human beings in the training activities proposed, as well as to provide for a wide range of training topics. The availability of such a wide range of training topics will simplify and stimulate the exchange of knowledge and experience between the beneficiaries with various professional backgrounds, so that they are aware not only of the main features and basic concepts of all aspects with regard to (the fight against) trafficking, but also of the specific role and position of each of the organisations involved. The specialised training will treat specific topics and will thus focus on a limited field of participants with similar professional backgrounds.
vii General Training
On this level a range of introductory modules should be developed, focussing on different, more general aspects with regard to human trafficking. In principle these modules focus on a full multi-disciplinary participation, considering their general, introductory nature.
viii General modules
o General Knowledge Topics
A range of general modules explaining the phenomenon, characteristics and symptoms of human trafficking, treating the interdisciplinary aspects of the phenomenon and the position and status of the victims of trafficking. These modules should provide for basic/primary knowledge in the field and should include, amongst others, explanation on national and international legislation on combating trafficking in human beings (on a comparative basis), on the main features of jurisprudence in the field, as well as on related aspects such as victim protection and return and reintegration programmes.
Prosecutors, police, judges, legal counsels, social workers, employment agencies staff, psychologists, NGO’s, civil servants from the ministries of justice, internal affairs, foreign affairs, social affairs, labour, health and the department of border guards.
- Introduction to international law and standards.
- Introduction to and explanation of systems in other countries.
- Introduction to the domestic legislation.
o Law enforcement modules
This should include a range of modules, more specifically focussing on the aspects of law enforcement with regard to human trafficking. Notwithstanding this more specific focus, these modules should be of a general nature as well, providing basic information to the beneficiaries of the modules. Next to the prime beneficiaries, participation should be open for other participants from the beneficiaries listed above, with special interest for the topics treated.
Public prosecutors, police, staff members of the ministry of justice, judges and lawyers
Practical application of legislation.
Legal aspects (definitions, elements of the criminal offence etc.).
International co-operation with and between the police, border guards and NGO’s.
o Modules with regard to social aspects
This range of modules comprises modules dealing with general features of the social side of the phenomenon. Again, participation in these modules could be of interest to all beneficiaries listed above, in order to create mutual understanding of everyone’s role, task and position in the combat of human trafficking, and should thus be open to a wide group of beneficiaries.
Social workers, and others involved into the social work services.
Victims protection and assistance.
Compensation for victims.
Role of the social workers/services.
ix Specialised Courses
On this level, in-depth courses, intended for a specific target group of beneficiaries, should be developed. In principle, participation is limited to participants with a single professional background (f.e. police), but depending on the exact content of the module, participation of beneficiaries with a related professional background could be considered (f.e. police and public prosecutors). Considering the specialised nature of the modules proposed, participation should not be based on the concept of multi-disciplinarity.
o Modules for law enforcement agencies
In-depth courses on specific themes with regard to law-enforcement, of interest to the various possible target-groups of beneficiaries, identified below.
Police, public prosecutors, specialised units and border guards.
- The role of specialised units in the identification and investigation of THB activities, including aspects of co-operation with other units/agencies.
- Special procedures in THB cases and competencies of the respective units/agencies in this respect.
- Use of working techniques and methods for investigative work (f.e. falsification, financial investigation, etc.).
o Modules for the judiciary
Depending on the respective tasks and position within the judicial procedure, different topics can be identified for each of the professionals, being part of the judiciary.
- Presenting a case in court.
- Giving lead to the investigation.
- Gathering evidence.
Judges/ (Note of Dagmar Koster: I specifically asked for the need to include court personnel in the courses, but it was stressed that only judges (and prosecutors) have part in the judicial procedure. The tasks of the court (and PP-office) personnel are not of a judicial nature, but are purely assistance on a very basic level)
- Specificities of trying cases of THB.
- Evaluating and considering evidence.
- Assessing and estimating psychological aspects.
- The hearing of witnesses (including victims) and interrogation techniques.
o Modules for defence counsels
Given their specific task in the judicial procedure and considering the necessity to guarantee the principle of ‘equality of arms’, training should be provided for the defence counsels as well. Yet, exactly because of this different position, the expert wants to stress the need to provide for separate training to counsels and to judges c.q. prosecutors.
Specificities of legal assistance to perpetrators.
Specificities of legal assistance to victims and witnesses.
Representing a perpetrator in court.
Representing a victim/witness in court.
o Modules on victim protection and assistance
Although both governmental and non-governmental organisations are active in the field of victim protection and provide different sorts of assistance to victims, the need was stressed to provide for separate courses for both groups. This, because of the differences in competences and the mostly more wider range of activities of NGO’s. However, this does not exclude the possibility of participation of both groups of beneficiaries in the same module.
Social workers in the public service system
- Setting-up of individual assistance programmes for victims, taking into account the multi-disciplinary approach.
Practical modules on:
Making project proposals and presenting them for the goal of fund raising.
The fact that law and practice with regard to all aspects of prevention and repression of human trafficking are still under consideration and development does not preclude the necessity of an urgent and quick start of training on a short term. Training and education of all identified target groups on the actual situation and the aspects of law enforcement and victim protection with regard to human trafficking is also needed under the current situation. Considering the elapse of time before the possible start of a training project with the above-mentioned features, attention should be paid to the concept of train-the-trainers, in order to dispose of highly qualified and enough trainers in due course. This train-the-trainers programme could be organised in a separate project.
The working group for Romania, identified the needs of training and other components of its sustainability in the following structures:
In order to implement and finalise the strategy of training as concepted below, the institutions as the responsible organization already exist in Romania, and such institutions, should be the agencies assigned to fulfil and implement the training strategy. Nevertheless, the implementation of some of the components of the training could be assigned to specific specialised institutions subject to the coordination among training institutions, and other responsible governmental agencies. The responsible organization for the training, should be able to raise funds and conclude agreements with governmental and non governmental organisations for their joint approved training strategies within the below structure which should be further discussed prior it its elaboration. The training should be provided two main types of training categories: General Training and Specialised Training.
xi General training
Police officers, Prosecutors, Judges (Short term training); Social workers, NGO’s (long and short terms training); Psychologists and Psychiatrists (Internships in short term basis); Volunteers (Practical & Theoretical Long Terms training)
Ministry of Justice, Ministry of Interior, Ministry of Public Administration, The Bar association for defence lawyers.
Responsible officer, Specialists from each ministry. In addition to that, in the basis of the necessary expertise, internationals and nationals trainer pool should be foreseen to be established, in order to keep the sustainability of the process.
The format of each training shall be specifically set on basis of each Category or Group Category of training the Beneficiaries
Legal aspects of definition and elements of the THB
Legal aspects of the phenomenon of THB
Criminal procedure law
Domestic law aspects and their relevance to THB
International law aspect and their relevance (in country) with respect to THB
The levels of the training are based on the following groups established with the composition of interacting role players, which requires different level training:
1. Prosecutors, Judges and Police should receive advance training (I)
2. Police, NGO’s, Prosecutors, and Attorneys should receive advance training (II)
3. NGO’s, volunteers, social workers, and psychologists, and attorneys should receive basic training (III)
The mode of follow up for these three groups of training, by considering the required level of training, a “follow up” course should be foreseen for each group in order to tackle the practical issues evaluated before in the trainings.
xii Specialised training
Selected judges (handling THB cases), Selected Group of prosecutors (handling THB cases), Police officers in charge of THB cases, Personnel working into the Shelters (psychologists, sociologists), NGO’s (specialised staff and other selected personnel), defence attorneys (selected group of lawyers working into the Legal Aid clinics).
Ministry of Justice, Ministry of Public Order, NGO’s and specialised agencies of international organizations, and Bar associations.
Police (achieved initially by training the trainers)
Specialists on Interviewing and Interrogations
A team of multidisciplinary experts from NGO’s Police, and Prosecutors, as well as international organizations.
In order to set (and be able to evaluate the real needs) the training format for each of the above categories and the training areas, an assessment and an evaluation should be done prior to establishing the training format for each training course.
“Punishment of some actions, committed abroad by Romanian citizens or by persons without citizenship residing in Romania”
By Maria Grazia Gianmmarinaro
During the seminar in Strasbourg (18-20 February 2002) the experts of the Council of Europe confirmed their high appreciation for the Romanian Law on Trafficking in Human Beings that was passed on 21 November 2001. It is a comprehensive legislation, covering different aspects of the struggle against THB such as prevention, investigation and prosecution, victims assistance and protection.
The Law stipulates a definition of a new crime of THB, which is consistent with the international legal standards, in particular with the Palermo Protocol, identifies specific tasks of different administrations in the field of prevention, provides for specific tools of investigation and prosecution such as undercover agents operations, electronic surveillance and phone tapping, forfeiture of money and assets. The Law also establishes a national mechanism for victims’ assistance and special funds for county councils, aimed at financing the Centers for victims of THB.
A particular and problematic issue is related to the interference between the Law on THB and the legislation on immigration, including the recent Emergency Ordinance N. 112.
According to the experience of different countries, victim’s reporting to the police and acting as a witness is essential for prosecution, even when other means of investigation have been used, such as phone tapping, electronic surveillance, financial investigation.
Since in Romania the illegal border crossing is a crime, if the victim is a foreigner, e.g. a Moldavian citizen, she/he will be prosecuted for being an illegal alien. This is a serious obstacle to a successful prosecution in Romania, because it prevents the co-operation between the victim and the police or the prosecutor.
In addition, the Emergency Ordinance N. 112 stipulates that the entering or leaving a foreign state by the illegal passing of its borders, committed by a Romanian citizen, is considered as a criminal offence. This is a special rule of extraterritoriality, that the majority of national legislation stipulates only for a limited range of very serious crimes, e.g. crimes of terrorism, crimes of corruption committed by national public officials through abuse of power, or other crimes of comparable gravity.
The Emergency Ordinance implies a too wide scope of criminalisation. Concerning THB, when a Romanian victim of trafficking has passed illegally the borders of a country of transit or of destination, she/he will be prosecuted in Romania for this crime, once voluntarily o involuntarily returned or repatriated. This is an obstacle to the co-operation between the victims and the police authorities, and in general for the struggle against trafficking, not only in Romania but in every European country.
Though the struggle against trafficking is connected with the struggle against illegal migration, it should be clearly understood by the competent authorities that only the traffickers should be prosecuted for illegal border crossing, not the victims of THB.
A possible solution could be the adoption of an act, such as another Emergency Ordinance, stipulating a special clause of non liability for victims of THB.
A similar provision has been included in the Romanian Law on trafficking only for prostitution. Since in the Romanian legislation prostitution as such is a crime, art. 20 stipulates that a person who has committed the crime of prostitution shall have no liability for that crime if, before the beginning of the criminal investigation for the crime of THB, this persons reports the competent authorities and after the beginning of the investigation facilitates the arrest of the offenders.
A similar provision should be established also for illegal crossing of the Romanian border or of the borders of other countries, covering not only the cases of Romanian citizens that illegally enter other countries (according to the Emergency Ordinance n. 112), but also the cases of foreign citizens that illegally enter the Romanian territory.
It is not easy to identify who should be considered a victim of trafficking at an early stage of investigation, especially when the person at the beginning consented to migrate because of a misrepresentation of the real purpose of the traffickers, e.g. the promise of a regular job in the country of destination. But the existence of a legal requirement deriving from the clause of non liability implies that the competent authorities must investigate about every case of illegal border crossing, in order to find out if there is a case of trafficking behind the illegal border crossing, both in Romania and abroad. Inter alia, this could be a way to improve effective prosecution of trafficking.
The clause of non-liability for illegal border crossing, however, should be broader than the clause of non-liability for prostitution stipulated by art. 20 of the Romanian Law.
The formulation in art. 20 is too narrow. It does not apply when the victim decides to report to the police and acts as a witness after the beginning of the criminal proceedings, which on the contrary happens in many cases. In addition, it covers only the cases where the victim facilitates the arrest of the offenders. It should be required only that the person, in any stage of criminal proceedings, gives a piece of evidence of being a victim of THB. Sometimes the victims do not know enough to facilitates the arrest of the traffickers. Therefore any kind of contribution to prosecution (even though it is not of exceptional relevance) should be a sufficient legal requirement in order to ensure that the person shall not abuse of the clause of non-liability.
With recrudescence of trafficking in human beings, particularly women and children in European countries, the Council of Europe (Directorate General II - Human Rights in partnership with Directorate General I – Legal Affairse) as part of its contribution to the SPTF and SPOC aims, implemented a law reform pilot project in Romania and Moldova. Romania and Moldova were chosen because of their experiences of trafficking, their willingness to enhance cooperation with neighbouring countries and willingness to strengthen and harmonise their legislations. This project, titled “Criminal Law Reform on Trafficking in Human Beings in South-Eastern Europe” was to contribute to the effective criminalisation of trafficking in human beings at regional level and to ensure the protection of victims’ human rights in accordance. Three meetings were organised to implement the project on criminal law reform: Bucharest (24-26 October 2001), Chisinau (12-14 December 2001) and Strasbourg (18-20 February 2002).
The first meeting had two main objectives: analysis of both existing draft laws and of the situation of trafficking on the ground in order to make proposals for the implementation of legislations in both countries. Analysis of the Romanian and Moldavian draft laws enabled the experts from the Council of Europe to identify the key elements of comprehensive, consistent and effective legislations on trafficking in persons. After discussion with the participants, amendments to the draft laws were proposed by the experts from the Council of Europe (Ms Giammarinaro and Mr Haveman) in the light of existing international standards. (Recommendation No. R 2000 11 of the Committee of Ministers of the Council of Europe on Action against trafficking in human beings for the purpose of sexual exploitation and the UN Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially women and children).
The Romanian draft law titled “Law on the Prevention and Combat of Trafficking in Human Beings” (Appendix 1) had already been adopted by the Chamber of Deputies and was presented to the Senate. The draft legislation was quite comprehensive. It not only criminalised trafficking in human beings but also regulated the prevention of trafficking as well as protection and assistance for victims of trafficking. The first series of recommendations proposed by the experts consisted of a tightening in the definition of exploitation of a person (Art. 2 e), the elimination of the Art. 16 on Consent and as a second best option, a re-wording following the Protocol stating that, the consent of a victim of trafficking in persons to the intended exploitation shall be irrelevant where any of the ‘means’ have been used.
Another important recommendation related to the decriminalisation of prostitution. The second best alternative was the incorporation of a clause, which says that victims of trafficking shall not be prosecuted for being involved in prostitution as it was proposed in Art. 20. Also, they will not be prosecuted for having illegally crossed borders and in order to enable victims of trafficking to bring legal proceedings against offenders it is important to establish a clause of non-punishment for victims of trafficking that committed such a crime. Furthermore, stigmatisation of victims such as prostitutes should be avoided. For instance in Art. 32 of the proposed law ‘Centres for (…) Victims of Trafficking in Human Beings’ should be renamed. Finally, the experts recommended that consideration be made to the penal legislation on possibilities for victims to obtain compensation, as this may be considered an important incentive for victims to co-operate with a criminal procedure against traffickers.
Two general recommendations were emitted on the Moldavian draft legislation with respect to trafficking in persons. The first was that the experts recommended replacing existing provisions in the criminal code with the ‘Proposed Regulation of Trafficking in Human Beings and Related offences for the Draft Criminal Code of the Republic of Moldova’. But the first and most important recommendation is to present to parliament a draft of the new provisions regarding trafficking according to the afore mentioned draft. A second general recommendation was the incorporation of amendments to the criminal law into a more encompassing law that also addresses prevention of trafficking in persons, assistance and re-integration of victims of trafficking.
A specific recommendation proposed a deletion of words in Art 163. Words such as those which appeared misleading for definition of violence or confusing with regard to crime definition. Another important recommendation supported decriminalisation of prostitution or as a second best alternative, the incorporation of a clause which says that victims of trafficking shall not be prosecuted for being involved in prostitution but also, that they will not be prosecuted for having illegally crossed borders. This is to enable victims of trafficking to bring legal proceedings against offenders.
Following discussion and analysis, both countries drafted action plans. These national action plans follow the issues addressed by the Council of Europe concerning criminalisation, the victims’ rights in criminal proceedings, residence status of trafficked persons, and protection of and assistance to trafficked persons. In this sense, Romania’s national action plan encourages the regulation of a special budget to respond to the needs of legislation implementation, the institution of anti-trafficking procedures (Task Force Committee, contact points at border crossings, training programs) and the setting up of special programs of reinsertion and prevention (fund raising, shelters, public awareness, medical and judiciary counselling). It also promotes the reinforcement of international co-operation (ratification and adoption of international instruments).
To implement legislation the Moldavian action plan promotes the inclusion of the draft legislation in the new criminal code, taking into consideration the Bucharest workshop and the drafting of specific legislation on prevention, rehabilitation and social reintegration. It also promotes the development of a mechanism aimed at implementing legislation on protection, compensation of victims, the improvement of legislation on the co-operation between public authorities with NGOs and the setting up of special programs of reinsertion and prevention (training of personnel involved, the establishment of shelters, public awareness campaigns through the media). The national action plan finally encourages ratifying the international instruments.
The second meeting of the pilot project was held in Chisinau, Moldova. It gathered Romanian and Moldavian experts, two experts from the Council of Europe (Ms Giammarinaro and Mr Koster), relevant ministries, international organisations present in the country and NGO’s. This meeting focused on the implementation of legislation both in Romania and Moldova. The national groups of experts made recommendations on short and mid-term measures that could be taken with regard to prevention, investigation, prosecution of trafficking as a criminal offence and assistance and protection of victims who were trafficked outside the country and also for those who are trafficked inside the country. During this meeting recommendations were provided to the Moldavian authorities on the drafting of specific legislation (primary or secondary) concerning the prevention of trafficking and the protection and assistance of victims.
With regard to prevention of trafficking in human beings and especially the victims’ aspects, the working groups agreed to disseminate information (especially in rural areas) on the danger of becoming a victim of trafficking. In this respect, specific preventive programs should be organised involving relevant actors of civil society. To fight stereotypes and prevent victimisation compulsory curriculum should be developed in schools and specific training programs on gender equality should be organised. Medias should also be trained to provide accurate and precise information on all aspects of trafficking and especially on aspects of migration. Finally, awareness programs should also be aimed at potential perpetrators and at the general public. This process should contribute to increase the public trust over law enforcement agencies.
The major issues concerning law enforcement are related to the protection of victims. First, the group noted that psychologists, social workers and other professionals should assist victims during proceedings stages. Social protection ensured through mechanisms (NGO’s) and police protection should be available upon requests of victims or their families. They should also be provided with information on legal aid that victims can receive in criminal proceedings. In the case of minor victims, special methods and modalities should be applied (closed doors sessions, anonymity guarantees, protection, audio-visual facilities), while keeping in mind that these special provisions shouldn’t hamper the investigation proceedings. The group also felt that different techniques of investigation should be applied when dealing with the offender (defendant) and when dealing with children. Concerning identification of cases and victims, the group noted an urgent need to identify and categorise victims in order to collect more accurate information on trafficking. Specific investigator techniques could be used to investigate trafficking (electronic surveillance, phone tapping, etc.) to facilitate availability and credibility of evidence.
The group reiterated the importance and the role that governmental specialised units (police, judges, prosecutors or joint teams of prosecutors) could play in the process of capacity building at national and regional levels. In this regard, national level co-ordinating mechanisms between different governmental institutions and ministries shall be established, strengthened and improved for further implementation of legal measures. Finally, the group pointed out the importance of extensive training action plans for all actors in the field especially, the need to identify the areas and the groups (e.g. prosecutors, police, judges, social workers, private attorneys, NGO’s, journalists) who should receive specific training on anti-trafficking issues. Training programs should be both initial and continuing. Components should include domestic law, regional legislation, international standards and laws.
The last meeting of the Pilot Project was held in Strasbourg (18-20 February 2002). Experts from the Council of Europe, Romania and Moldavia were present as well as NGO representatives. The meeting had two main objectives. First the experts from the Council of Europe assessed the implementation of the recommendations adopted at the last two meetings in 2001 and the implementation of action plans of both countries, especially victims’ legal status with regard to protection and prevention. And secondly, training areas and components for training action plans were identified.
In the process of reforming and updating the legislations, the experts encourage considering some steps in the law reforms process. Such as the establishment of legal frameworks for special investigator means, the finalisation of drafts of new legislation on organised crime provisions, police protection of victims/witnesses and personal data protection. In order to strengthen theses capacities the experts consider that a national plan should be established to give equal opportunities (similar to the EU employment strategy) for women and persons at high risk. Public authorities and NGO’s should also co-operate to standardise assistance programmes (e.g. set up of shelters near borders) to victims and to fund raise. With respect to capacity building, the working group recommended that judges and prosecutors be trained on the phenomenon of trafficking and that law cases are elaborated to improve interpretation and enforcement of the new legislation. To ensure and develop a clear network of international co-operation the establishment of mechanisms (exchange of experiences, good practices, networking of NGO’s from different countries) needs to be considered during the entire coordination and co-operation process. Definition of common criteria for data collection and assessment of the trends of international trafficking should be initiated.
In the aim of combating trafficking in human beings, amendments to legislation as to prosecute traffickers and not victims still needs to be addressed. In this respect, the legislation should be amended as to ensure adequate assistance and support to victims when willing to co-operate as witnesses to enable relevant judicial bodies to order damage compensation for the victims’ benefits. To ensure protection of victims of trafficking, the experts encourage the set up of special reception centres for social reintegration of victims. In parallel to this, legal counselling, state protection (with co-operation of NGO’s) of victims and other witnesses should be included in the provisions of the legislation. NGO’s should be strongly involved in this process and be encouraged to build up networks. To ensure public awareness of the dangers of trafficking in human beings, prevention measures (school curriculum) and rehabilitation of victims should be addressed. The group further noted that the next step expected to be taken is the drafting of the necessary secondary legislation and the implementation of the primary legislation.
To carry out and implement training strategies as described below, an NGO should be identified (nominated) as the responsible organisation for the entire training project. Training needs can be identified on two levels: General Training and Specialised Training. For both levels of training, a system of training modules should be put in place based on the exact needs of the identified beneficiaries. The set of general training modules should have a multi-disciplinary approach so as to guarantee the possible participation of all persons, organs and institutions involved in the combat of trafficking in human beings.
General modules should include basic knowledge training on national and international legislation for combating trafficking in human beings. General modules should also include the main features of jurisprudence in the field as well as related aspects such as the victims’ protection, return and reintegration programmes. Modules on law enforcement and the social side of the phenomenon should be organised in order to generate understanding of everyone’s role, task and position in the combat of human trafficking. On the level of specialised courses, in-depth courses intended for a specific target group of beneficiaries should be provided (modules for law enforcement agencies, judiciaries, defence counsels, victims’ protection, assistance). Considering the lapse of time before the possible start of a training project, attention should be paid to the concept of train-the-trainers in order to dispose enough highly qualified trainers in due course.
The working group for Romania identified needs for two types of training: General training and Specialised training. Modules should comprise legal aspects of definition, elements of criminal procedure law, domestic law aspects, the relevance of the domestic law aspects to trafficking, international law aspects and the relevance of international law aspects to trafficking. Beneficiaries targeted are; prosecutors, judges, police, attorneys, NGO’s and social workers. Specialised training should be aimed at selected judges, groups of prosecutors, police officers, defence attorneys NGO’s and social workers. An assessment and an evaluation should be done prior to establishing the training format for each course to evaluate real needs, training formats and training areas.
The aim of the Pilot Project Criminal law reform on trafficking in human beings in Romania and Moldova was to help ensure the criminalisation of trafficking in human beings at regional level and to secure protection of victims’ fundamental rights in accordance with European and international standards. By the end of the pilot project Moldova and Romania should have consolidated their legislation, co-operation and improved their capacity to apply the relevant international and regional agreements.
In parallel to the Pilot Project the Council of Europe also held a regional training course on criminal law reform on trafficking in human beings in south-eastern Europe (Belgrade 23-24 November 2001) in co-operation with the Stability Pact Task Force on Trafficking in Human Beings. With this regional seminar Ms Konrad (Stability Pact) wished to give more visibility to the role played by the Council of Europe in the reform of criminal law on trafficking in Human Beings in the countries of this region.
The aim of this training seminar was to establish a framework for appropriate legislative reforms while taking into account relevant international instruments. This seminar was also aimed at the facilitation, the preparation, the adoption and the implementation of a comprehensive range of legislations covering all aspects of trafficking in human beings and complying with European and international standards. Two legal experts from each of the region’s countries attended the regional training course to study good practices and exchange views on common themes.
The regional training course and the results of the Pilot Project in Romania and Moldova enabled the Secretariat to develop the LARA Project. The objective of the project is to reach a harmonisation of the legislations in the region in order to better fight trafficking and better protect victims. With this intention the aim of this project is to ensure that trafficking in human beings constitutes a full criminal offence, that victims’ rights are protected throughout the region and that the relevant legislation develops accordingly and consistently. It aims to contribute to better co-ordination on trafficking and to real effectiveness of activities already undertaken. The project will be financed by voluntary contributions. As for the previous projects the LARA project will be carried out in co-operation with DG I. The countries involved are: Albania, Bosnia and Herzegovina, Bulgaria, Croatia, the “Former Yugoslav republic of Macedonia, Moldova, Romania, Slovenia, Serbia and Montenegro, UNMIK Kosovo.
(Adopted by the Committee of Ministers on 19 May 2000,
at the 710th meeting of the Ministers’ Deputies)
The Committee of Ministers, under the terms of Article 15.b of the Statute of the Council of Europe,
Bearing in mind that Europe has recently experienced a considerable growth of activities connected with trafficking in human beings for the purpose of sexual exploitation, which is often linked to organised crime in as much as such lucrative practices are used by organised criminal groups as a basis for financing and expanding their other activities, such as drugs and arms trafficking and money laundering;
Considering that trafficking in human beings for the purpose of sexual exploitation extends well beyond national borders, and that it is therefore necessary to establish a pan-European strategy to combat this phenomenon and protect its victims, while ensuring that the relevant legislation of the Council of Europe’s member states is harmonised and uniformly and effectively applied;
Recalling the Declaration adopted at the Second Summit of the Council of Europe (October 1997), in which the heads of state and government of the member states of the Council of Europe decided “to seek common responses to the challenges posed by the growth (…) in organised crime (…) throughout Europe” and affirmed their determination “to combat violence against women and all forms of sexual exploitation of women”;
Bearing in mind the European Convention for the Protection of Human Rights and Fundamental Freedoms (1950) and its protocols;
Bearing in mind the European Social Charter (1961), the Revised European Social Charter (1996) and the Additional Protocol to the European Social Charter providing for a System of Collective Complaints;
Bearing in mind the following recommendations of the Committee of Ministers to member states of the Council of Europe: Recommendation No. R (91) 11 on sexual exploitation, pornography and prostitution of, and trafficking in, children and young adults; Recommendation No. R (96) 8 on crime policy in Europe in a time of change, and Recommendation No. R (97) 13 concerning intimidation of witnesses and the rights of the defence;
Bearing in mind the following texts of the Parliamentary Assembly of the Council of Europe: Recommendation 1065 (1987) on the traffic in children and other forms of child exploitation, Recommendation 1211 (1993) on clandestine migration: traffickers and employers of clandestine migrants, Resolution 1099 (1996) on the sexual exploitation of children and Recommendation 1325 (1997) of the Council of Europe on trafficking in women and forced prostitution in Council of Europe member states;
Recalling also the Convention on the Elimination of all forms of Discrimination against Women (1979) and other international conventions such as the United Nations Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others (1949);
Considering that trafficking in human beings for the purpose of sexual exploitation, which mainly concerns women and young persons, may result in slavery for the victims;
Condemns trafficking in human beings for the purpose of sexual exploitation, which constitutes a violation of human rights and an offence to the dignity and the integrity of the human being,
Recommends that the governments of member states:
review their legislation and practice with a view to introducing, where necessary, and applying the measures described in the appendix to this recommendation;
ensure that this recommendation is brought to the attention of all relevant public and private bodies, in particular police and judicial authorities, diplomatic missions, migration authorities, professionals in the social, medical and education fields and non-governmental organisations.
I. Basic principles and notions
1. The basic notions should be as follows: trafficking in human beings for the purpose of sexual exploitation includes the procurement by one or more natural or legal persons and/or the organisation of the exploitation and/or transport or migration – legal or illegal – of persons, even with their consent, for the purpose of their sexual exploitation, inter alia by means of coercion, in particular violence or threats, deceit, abuse of authority or of a position of vulnerability.
On this basis, the governments of member States are invited to consider the following measures:
II. General measures
2. Take appropriate legislative and practical measures to ensure the protection of the rights and the interests of the victims of trafficking, in particular the most vulnerable and most affected groups: women, adolescents and children.
3. Give absolute priority to assisting the victims of trafficking through rehabilitation programmes, where applicable, and to protecting them from traffickers.
4. Take action to apprehend, prosecute and punish all those responsible for trafficking, and to prevent sex tourism and all activities, which might lead to forms of trafficking.
5. Consider trafficking in human beings for the purposes of sexual exploitation as falling within the scope of international organised crime, and therefore calls for co-ordinated action adapted to realities both at national and international levels.
III. Basis for action and methods
6. Take co-ordinated action using a multidisciplinary approach involving the relevant social, judicial, administrative, customs, law enforcement and immigration authorities and non-governmental organisations (NGOs).
7. Encourage co-operation, involving both national authorities and NGOs, between countries of origin, transit and destination of the victims of trafficking, by means of bilateral and multilateral agreements.
8. In order to ensure that these actions have a firm and reliable basis, encourage national and international research concerning, in particular:
· the influence of the media, and above all new information and communication techniques on trafficking in human beings for the purpose of sexual exploitation;
· the clients of the sex trade: trends in demand and their consequences for trafficking in human beings for the purpose of sexual exploitation;
· the origin of the phenomenon of trafficking and the methods used by traffickers.
9. Consider the establishment of research units specialising in trafficking in human beings for the purpose of sexual exploitation.
10. Take steps to develop, both at national and international level, data and statistics that will help to shed more light on the phenomenon of trafficking in human beings for the purpose of sexual exploitation and, if possible, compare the way the phenomenon is developing in the Council of Europe’s different member States.
i. Awareness-raising and information
11. Organise information campaigns with a gender perspective in order to increase public awareness of the hazardous situations that may lead to trafficking and the negative effects of such trafficking and, in particular, discredit the notion that there are easy gains to be made from prostitution; these campaigns should be directed at all parties concerned, particularly female immigration applicants and women refugees.
12. Organise information campaigns intended to discredit sex tourism and discourage potential participants from joining in such activities.
13. Provide appropriate information, such as documentation, videos and leaflets on trafficking in and the sexual exploitation of women, children and young persons to diplomatic representatives, public authorities, the media, humanitarian NGOs and other public and private bodies working in the countries of origin of potential victims.
14. Disseminate widely, in every country, information on the health risks associated with sexual exploitation.
15. Encourage and organise activities to make media professionals more aware of issues relating to trafficking in human beings for the purpose of sexual exploitation and the influence the media can have in this field.
16. Introduce or step up sex education programmes in schools, with particular emphasis on equality between women and men and on respect for human rights and individual dignity, taking into account the rights of the child as well as the rights of his or her parents, legal guardians and other individuals legally responsible for him or her.
17. Ensure that school curricula include information on the risks of exploitation, sexual abuse and trafficking that children and young people could face and ways of protecting themselves; this information should also be circulated to young people outside the education system and to parents.
18. Provide both boys and girls with an education that avoids gender stereotypes and ensures that all teachers and others involved in education are trained in such a way as to incorporate a gender dimension into their teaching.
19. Organise special training for social workers, as well as for medical, teaching, diplomatic, consular, judicial, customs and police personnel to enable them to identify cases of trafficking for the purpose of sexual exploitation and respond appropriately.
20. Introduce and/or develop training programmes to enable police personnel to acquire specialised skills in this field.
21. In particular, set up specific training programmes and exchanges of experiences in order to improve co-operation between the police and the NGOs specialising in victim protection.
22. Also introduce training programmes for immigration officials and frontier police so that they can contribute to prevention by making sure that persons travelling abroad, particularly young persons not accompanied by a parent or guardian, are not involved in trafficking.
iv. Long-term action
23. Combat the long-term causes of trafficking, which are often linked to the inequalities between economically developed countries and those that are less developed, particularly by improving the social status as well as the economic condition of women in the latter.
24. Take into account in economic, social, migration or other policies, the need to improve women’s condition and prevent trafficking in human beings and sex tourism.
25. Disseminate information on the possibilities of legal migration in order to make women aware of the conditions and procedures for obtaining visas and residence permits.
V. Assistance to and protection of victims
i. Victim support
26. Encourage the establishment or development of reception centres or other facilities where the victims of human trafficking can benefit from information on their rights, as well as psychological, medical, social and administrative support with a view to their reintegration into their country of origin or the host country.
27. In particular, ensure that the victims have the opportunity, for example through the reception centres or other facilities, to benefit from legal assistance in their own language.
ii. Legal action
28. Provide, where possible, victims of trafficking, particularly children and witnesses, with special (audio or video) facilities to report and file complaints, and which are designed to protect their private lives and their dignity and reduce the number of official procedures and their traumatising effects.
29. If necessary, and particularly in the case of criminal networks, take steps to protect victims, witnesses and their families to avoid acts of intimidation and reprisals.
30. Establish victim protection systems which offer effective means to combat intimidation as well as real threats to the physical security of the victims and their families both in countries of destination and countries of origin.
31. Provide protection when needed in the country of origin for the families of victims of trafficking when the latter bring legal proceedings in the country of destination.
32. Extend, where appropriate, this protection to members of associations or organisations assisting the victims during civil and penal proceedings.
33. Enable the relevant courts to order offenders to pay compensation to victims.
34. Grant victims, if necessary, and in accordance with national legislation, a temporary residence status in the country of destination, in order to enable them to act as witnesses during judicial proceedings against offenders; during this time, it is essential to ensure that victims have access to social and medical assistance.
35. Consider providing, if necessary, a temporary residence status on humanitarian grounds.
iii. Social measures for victims of trafficking in countries of origin
36. Encourage and support the establishment of a network of NGOs involved in assistance to victims of trafficking.
37. Promote co-operation between reception facilities and NGOs in countries of origin to assist the return and reintegration of victims.
iv. Right of return and rehabilitation
38. Grant victims the right to return to their countries of origin, by taking all necessary steps, including through co-operation agreements between the countries of origin and countries of destination of the victims.
39. Establish, through bilateral agreements, a system of financing the return of victims and a contribution towards their reintegration.
40. Organise a system of social support for returnees to ensure that victims are assisted by the medical and social services and/or by their families.
41. Introduce special measures concerned with victims’ occupational reintegration.
VI. Penal legislation and judicial co-operation
42. Enact or strengthen legislation on trafficking in human beings for the purpose of sexual exploitation and introduce, where necessary, a specific offence.
43. Introduce or increase penal sanctions that are in proportion to the gravity of the offences, including dissuasive custodial sentences, and allow for effective judicial co-operation and the extradition of the persons charged or convicted.
44. Take such steps as are necessary to order, without prejudice to the rights of third parties in good faith, the seizure and confiscation of the instruments of, and proceeds from, trafficking.
45. Facilitate police investigation and monitoring of establishments in which victims of trafficking are exploited and organise their closure if necessary.
46. Provide for rules governing the liability of legal persons, with specific penalties.
47. Provide for traffickers to be extradited in accordance with applicable international standards, if possible, to the country where evidence of offences can be uncovered.
48. Establish rules governing extra-territorial jurisdiction to permit and facilitate the prosecution and conviction of persons who have committed offences relating to trafficking in human beings for the purpose of sexual exploitation, irrespective of the country where the offences were committed, and including cases where the offences took place in more than one country.
49. In accordance with national laws concerning the protection of personal data, as well as with the provisions of the Council of Europe Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data, set up and maintain information systems which could be useful for the investigation and prosecution of trafficking offences.
VII. Measures for co-ordination and co-operation
i. At national level
50. Set up a co-ordinating mechanism responsible for drawing up the national policy on combating trafficking and organising a multidisciplinary approach to the issue.
51. Use this mechanism to encourage the exchange of information, the compilation of statistics and the assessment of practical findings obtained in the field, trends in trafficking and the results of national policy.
52. Use this mechanism to liaise with mechanisms of other countries and international organisations in order to co-ordinate activities, and to monitor, review and implement national and international strategies aimed at combating trafficking;
ii. At international level
53. As far as possible, make use of all the available international instruments and mechanisms applicable to trafficking, particularly regarding the seizure and confiscation of profits earned from trafficking.
54. Set up an international body to co-ordinate the fight against trafficking, with particular responsibility for establishing a European file of missing persons, in accordance with national laws concerning the protection of personal data.
55. Increase and improve exchanges of information and co-operation between countries at bilateral level as well as through international organisations involved in combating trafficking.
56. Governments are invited to consider signing and ratifying, if they have not already done so, the Council of Europe’s Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime (1990), the Revised European Social Charter (1996) and the Additional Protocol to the European Social Charter providing for a System of Collective Complaints (1995), the European Convention on the Exercise of Children’s Rights (1996), the Convention on the Elimination of all forms of discrimination against Women (1979) and its Optional Protocol (1999), as well as the United Nations Convention on the Rights of the Child (1989) and/or to consider withdrawing existing reservations to these instruments.
Governments are invited to incorporate into their national systems all the measures necessary to apply the principles and standards laid down in the Action Programme adopted at the 4th World Conference on Women (Beijing, 4-15 September 1995), and in particular Part IV.D, and the agreed conclusions adopted at the 42nd session of the United Nations Commission on the Status of Women, the resolution adopted regularly by the General Assembly of the United Nations on the Traffic in Women and Girls, the declaration adopted at the Ministerial Conference containing European Guidelines for Measures to Prevent and Combat Trafficking in Women for the Purpose of Sexual Exploitation (The Hague, 24-26 April 1997), as well as in the following recommendations of the Committee of Ministers to the member states of the Council of Europe: Recommendation No. R (80) 10 on measures against the transfer and the safekeeping of funds of criminal origin, Recommendation No. R (85) 11 on the position of the victim in the framework of criminal law and procedure and Recommendation No. R (87) 21 on assistance to victims and the prevention of victimisation.
The States Parties to this Protocol,
Declaring that effective action to prevent and combat trafficking in persons, especially women and children, requires a comprehensive international approach in the countries of origin, transit and destination that includes measures to prevent such trafficking, to punish the traffickers and to protect the victims of such trafficking, including by protecting their internationally recognized human rights,
Taking into account the fact that, despite the existence of a variety of international instruments containing rules and practical measures to combat the exploitation of persons, especially women and children, there is no universal instrument that addresses all aspects of trafficking in persons,
Concerned that, in the absence of such an instrument, persons who are vulnerable to trafficking will not be sufficiently protected,
Recalling General Assembly resolution 53/111 of 9 December 1998, in which the Assembly decided to establish an open-ended intergovernmental ad hoc committee for the purpose of elaborating comprehensive international convention against transnational organized crime and of discussing the elaboration of, inter alia, an international instrument addressing trafficking in women and children,
Convinced that supplementing the United Nations Convention against Transnational Organized Crime with an international instrument for the prevention, suppression and punishment of trafficking in persons,especially women and children, will be useful in preventing and combating
Have agreed as follows:
Relation with the United Nations Convention
against Transnational Organized Crime
1. This Protocol supplements the United Nations Convention against Transnational Organized Crime. It shall be interpreted together with the Convention.
2. The provisions of the Convention shall apply, mutatis mutandis, to this Protocol unless otherwise provided herein.
3. The offences established in accordance with article 5 of this Protocol shall be regarded as offences established in accordance with the Convention.
Statement of purpose
The purposes of this Protocol are:
(a) To prevent and combat trafficking in persons, paying particular attention to women and children;
(b) To protect and assist the victims of such trafficking, with full respect for their human rights; and
(c) To promote cooperation among States Parties in order to meet those objectives.
Use of terms
For the purposes of this Protocol:
(a) “Trafficking in persons” shall mean the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the 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. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs;
(b) The consent of a victim of trafficking in persons to the intended exploitation set forth in subparagraph (a) of this article shall be irrelevant where any of the means set forth in subparagraph (a) have been used;
(c) The recruitment, transportation, transfer, harbouring or receipt of a child for the purpose of exploitation shall be considered “trafficking in persons” even if this does not involve any of the means set forth in subparagraph (a) of this article;
(d) “Child” shall mean any person under eighteen years of age.
Scope of application
This Protocol shall apply, except as otherwise stated herein, to the prevention, investigation and prosecution of the offences established in accordance with article 5 of this Protocol, where those offences are transnational in nature and involve an organized criminal group, as well as to the protection of victims of such offences.
1. Each State Party shall adopt such legislative and other measures as may be necessary to establish as criminal offences the conduct set forth in article 3 of this Protocol, when committed intentionally.
2. Each State Party shall also adopt such legislative and other measures as may be necessary to establish as criminal offences:
(a) Subject to the basic concepts of its legal system, attempting to commit an offence established in accordance with paragraph 1 of this article;
(b) Participating as an accomplice in an offence established in accordance with paragraph 1 of this article; and
(c) Organizing or directing other persons to commit an offence established in accordance with paragraph 1 of this article.
Assistance to and protection of victims of
trafficking in persons
1. In appropriate cases and to the extent possible under its domestic law, each State Party shall protect the privacy and identity of victims of trafficking in persons, including, inter alia, by making legal proceedings relating to such trafficking confidential.
2. Each State Party shall ensure that its domestic legal or administrative system contains measures that provide to victims of trafficking in persons, in appropriate cases:
(a) Information on relevant court and administrative proceedings;
(b) Assistance to enable their views and concerns to be presented and considered at appropriate stages of criminal proceedings against offenders, in a manner not prejudicial to the rights of the defence.
3. Each State Party shall consider implementing measures to provide for the physical, psychological and social recovery of victims of trafficking in persons, including, in appropriate cases, in cooperation with non-governmental organizations, other relevant organizations and other elements of civil society, and, in particular, the provision of:
(a) Appropriate housing;
(b) Counselling and information, in particular as regards their legal rights, in a language that the victims of trafficking in persons can understand;
(c) Medical, psychological and material assistance; and
(d) Employment, educational and training opportunities.
4. Each State Party shall take into account, in applying the provisions of this article, the age, gender and special needs of victims of trafficking in persons, in particular the special needs of children, including appropriate housing, education and care.
5. Each State Party shall endeavour to provide for the physical safety of victims of trafficking in persons while they are within its territory.
6. Each State Party shall ensure that its domestic legal system contains measures that offer victims of trafficking in persons the possibility of obtaining compensation for damage suffered.
Status of victims of trafficking in persons in receiving States
1. In addition to taking measures pursuant to article 6 of thisProtocol, each State Party shall consider adopting legislative or other appropriate measures that permit victims of trafficking in persons to remain in its territory, temporarily or permanently, in appropriate cases.
2. In implementing the provision contained in paragraph 1 of this article, each State Party shall give appropriate consideration to humanitarian and compassionate factors.
Repatriation of victims of trafficking in persons
1. The State Party of which a victim of trafficking in persons is a national or in which the person had the right of permanent residence at the time of entry into the territory of the receiving State Party shall facilitate and accept, with due regard for the safety of that person, the return of that person without undue or unreasonable delay.
2. When a State Party returns a victim of trafficking in persons to a State Party of which that person is a national or in which he or she had, at the time of entry into the territory of the receiving State Party, the right of permanent residence, such return shall be with due regard for the safety of that person and for the status of any legal proceedings related to the fact that the person is a victim of trafficking and shall preferably be voluntary.
3. At the request of a receiving State Party, a requested State Party shall, without undue or unreasonable delay, verify whether a person who is a victim of trafficking in persons is its national or had the right of permanent residence in its territory at the time of entry into the territory of the receiving State Party.
4. In order to facilitate the return of a victim of trafficking in persons who is without proper documentation, the State Party of which that person is a national or in which he or she had the right of permanent residence at the time of entry into the territory of the receiving State Party shall agree to issue, at the request of the receiving State Party, such travel documents or other authorization as may be necessary to enable the person to travel to and re-enter its territory.
5. This article shall be without prejudice to any right afforded to victims of trafficking in persons by any domestic law of the receiving State Party.
6. This article shall be without prejudice to any applicable bilateral or multilateral agreement or arrangement that governs, in whole or in part, the return of victims of trafficking in persons.
Prevention of trafficking in persons
1. States Parties shall establish comprehensive policies, programmes and other measures:
(a) To prevent and combat trafficking in persons; and
(b) To protect victims of trafficking in persons, especially women and children, from revictimization.
2. States Parties shall endeavour to undertake measures such as research, information and mass media campaigns and social and economic initiatives to prevent and combat trafficking in persons.
3. Policies, programmes and other measures established in accordance with this article shall, as appropriate, include cooperation with non-governmental organizations, other relevant organizations and other elements of civil society.
4. States Parties shall take or strengthen measures, including through bilateral or multilateral cooperation, to alleviate the factors that make persons, especially women and children, vulnerable to trafficking, such as poverty, underdevelopment and lack of equal opportunity.
5. States Parties shall adopt or strengthen legislative or other measures, such as educational, social or cultural measures, including through bilateral and multilateral cooperation, to discourage the demand that fosters all forms of exploitation of persons, especially women and children, that leads to trafficking.
Information exchange and training
1. Law enforcement, immigration or other relevant authorities of States Parties shall, as appropriate, cooperate with one another by exchanging information, in accordance with their domestic law, to enable them to determine:
(a) Whether individuals crossing or attempting to cross an international border with travel documents belonging to other persons or without travel documents are perpetrators or victims of trafficking in persons;
(b) The types of travel document that individuals have used or attempted to use to cross an international border for the purpose of trafficking in persons; and
(c) The means and methods used by organized criminal groups for the purpose of trafficking in persons, including the recruitment and transportation of victims, routes and links between and among individuals and groups engaged in such trafficking, and possible measures for detecting them.
2. States Parties shall provide or strengthen training for law enforcement, immigration and other relevant officials in the prevention of trafficking in persons. The training should focus on methods used in preventing such trafficking, prosecuting the traffickers and protecting the rights of the victims, including protecting the victims from the traffickers. The training should also take into account the need to consider human rights and child- and gender-sensitive issues and it should encourage cooperation with non-governmental organizations, other relevant organizations and other elements of civil society.
3. A State Party that receives information shall comply with any request by the State Party that transmitted the information that places restrictions on its use.
1. Without prejudice to international commitments in relation to the free movement of people, States Parties shall strengthen, to the extent possible, such border controls as may be necessary to prevent and detect trafficking in persons.
2. Each State Party shall adopt legislative or other appropriate measures to prevent, to the extent possible, means of transport operated by commercial carriers from being used in the commission of offences established in accordance with article 5 of this Protocol.
3. Where appropriate, and without prejudice to applicable international conventions, such measures shall include establishing the obligation of commercial carriers, including any transportation company or the owner or operator of any means of transport, to ascertain that all passengers are in possession of the travel documents required for entry into the receiving State.
4. Each State Party shall take the necessary measures, in accordance with its domestic law, to provide for sanctions in cases of violation of the obligation set forth in paragraph 3 of this article.
5. Each State Party shall consider taking measures that permit, in accordance with its domestic law, the denial of entry or revocation of visas of persons implicated in the commission of offences established in accordance with this Protocol.
6. Without prejudice to article 27 of the Convention, States Parties shall consider strengthening cooperation among border control agencies by, inter alia, establishing and maintaining direct channels of communication.
Security and control of documents
Each State Party shall take such measures as may be necessary, within available means:
(a) To ensure that travel or identity documents issued by it are ofsuch quality that they cannot easily be misused and cannot readily be falsified or unlawfully altered, replicated or issued; and
(b) To ensure the integrity and security of travel or identity
(c) documents issued by or on behalf of the State Party and to prevent their unlawful creation, issuance and use.
Legitimacy and validity of documents
At the request of another State Party, a State Party shall, in accordance with its domestic law, verify within a reasonable time the legitimacy and validity of travel or identity documents issued or purported to have been issued in its name and suspected of being used for trafficking
1. Nothing in this Protocol shall affect the rights, obligations and responsibilities of States and individuals under international law, including international humanitarian law and international human rights law and, in particular, where applicable, the 1951 Convention and the 1967 Protocol relating to the Status of Refugees and the principle of non-refoulement as contained therein.
2. The measures set forth in this Protocol shall be interpreted and applied in a way that is not discriminatory to persons on the ground that they are victims of trafficking in persons. The interpretation and application of those measures shall be consistent with internationally recognized principles of non-discrimination
Settlement of disputes
l. States Parties shall endeavour to settle disputes concerning the interpretation or application of this Protocol through negotiation.
2. Any dispute between two or more States Parties concerning the interpretation or application of this Protocol that cannot be settled through negotiation within a reasonable time shall, at the request of one of those States Parties, be submitted to arbitration. If, six months after the date of the request for arbitration, those States Parties are unable to agree on the organization of the arbitration, any one of those States Parties may refer the dispute to the International Court of Justice by request in accordance with the Statute of the Court.
3. Each State Party may, at the time of signature, ratification, acceptance or approval of or accession to this Protocol, declare that it does not consider itself bound by paragraph 2 of this article. The other States Parties shall not be bound by paragraph 2 of this article with respect to any State Party that has made such a reservation.
4. Any State Party that has made a reservation in accordance with paragraph 3 of this article may at any time withdraw that reservation by notification to the Secretary-General of the United Nations.
Signature, ratification, acceptance,
approval and accession
1. This Protocol shall be open to all States for signature from 12 to 15 December 2000 in Palermo, Italy, and thereafter at United Nations Headquarters in New York until 12 December 2002.
2. This Protocol shall also be open for signature by regional economic integration organizations provided that at least one member State of such organization has signed this Protocol in accordance with paragraph 1 of this article.
3. This Protocol is subject to ratification, acceptance or approval. Instruments of ratification, acceptance or approval shall be deposited with the Secretary-General of the United Nations. A regional economic integration organization may deposit its instrument of ratification, acceptance or approval if at least one of its member States has done likewise. In that instrument of ratification, acceptance or approval, such organization shall declare the extent of its competence with respect to the matters governed by this Protocol. Such organization shall also inform the depositary of any relevant modification in the extent of its competence.
4. This Protocol is open for accession by any State or any regional economic integration organization of which at least one member State is a Party to this Protocol. Instruments of accession shall be deposited with the Secretary-General of the United Nations. At the time of its accession, a regional economic integration organization shall declare the extent of its competence with respect to matters governed by this Protocol. Such organization shall also inform the depositary of any relevant modification in the extent of its competence.
Entry into force
1. This Protocol shall enter into force on the ninetieth day after the date of deposit of the fortieth instrument of ratification, acceptance, approval or accession, except that it shall not enter into force before the entry into force of the Convention. For the purpose of this paragraph, any instrument deposited by a regional economic integration organization shall not be counted as additional to those deposited by member States of such organization.
2. For each State or regional economic integration organization ratifying, accepting, approving or acceding to this Protocol after the deposit of the fortieth instrument of such action, this Protocol shall enter into force on the thirtieth day after the date of deposit by such State or organization of the relevant instrument or on the date this Protocol enters into force pursuant to paragraph 1 of this article, whichever is the later.
1. After the expiry of five years from the entry into force of this Protocol, a State Party to the Protocol may propose an amendment and file it with the Secretary-General of the United Nations, who shall thereupon communicate the proposed amendment to the States Parties and to the Conference of the Parties to the Convention for the purpose of considering and deciding on the proposal. The States Parties to this Protocol meeting at the Conference of the Parties shall make every effort to achieve consensus on each amendment. If all efforts at consensus have been exhausted and no agreement has been reached, the amendment shall, as a last resort, require for its adoption a two-thirds majority vote of the States Parties to this Protocol present and voting at the meeting of the Conference of the Parties.
2. Regional economic integration organizations, in matters within their competence, shall exercise their right to vote under this article with a number of votes equal to the number of their member States that are Parties to this Protocol. Such organizations shall not exercise their right to vote if their member States exercise theirs and vice versa.
3. An amendment adopted in accordance with paragraph 1 of this article is subject to ratification, acceptance or approval by States Parties.
4. An amendment adopted in accordance with paragraph 1 of this article shall enter into force in respect of a State Party ninety days after the date of the deposit with the Secretary-General of the United Nations of an instrument of ratification, acceptance or approval of such amendment.
5. When an amendment enters into force, it shall be binding on those States Parties which have expressed their consent to be bound by it. Other States Parties shall still be bound by the provisions of this Protocol and any earlier amendments that they have ratified, accepted or approved.
1. A State Party may denounce this Protocol by written notification to the Secretary-General of the United Nations. Such denunciation shall become effective one year after the date of receipt of the notification by the Secretary-General.
2. A regional economic integration organization shall cease to be a Party to this Protocol when all of its member States have denounced it.
Depositary and languages
1. The Secretary-General of the United Nations is designated depositary of this Protocol.
2. The original of this Protocol, of which the Arabic, Chinese, English, French, Russian and Spanish texts are equally authentic, shall be deposited with the Secretary-General of the United Nations.
IN WITNESS WHEREOF, the undersigned plenipotentiaries, being duly authorized thereto by their respective Governments, have signed this Protocol.
The Parliament of Romania adopts the present law
The present Law regulates the prevention and combat of trafficking in persons, as well as the protection and assistance granted to trafficking victims. Such activities constitute a violation of human rights and a violation of individual dignity and integrity.
In the present law, the terms and expressions below have the following meaning:
The phrase “trafficking in persons” means the violations stipulated in articles 12 and 13;
The phrase “exploitation of a person” means:
performing forced labor or services, in violation of the legal requirements on labor conditions, pay, health and security;
keeping such persons in a state of slavery or using other ways to deprive a person of his/her freedom or to force the person into submission;
compelling a person to engage in prostitution, in pornographic performances for the production and distribution of pornographic material, or in other forms of sexual exploitation;
harvesting of human organs;
engaging in other such activities that violate fundamental human rights and liberties.
In order to combat trafficking in human beings efficiently, the public authorities and institutions listed in this Chapter, the non-governmental organizations (NGOs) and other representatives of the civil society shall engage, separately or in conjunction, as the case may be, in a sustained activity to prevent trafficking in human beings, especially women and children.
The Ministry of Foreign Affairs, the Ministry of Labor and Social Solidarity, the Ministry of Public Administration, the Ministry of Education and Research, the Ministry of Health and Family, the National Authority for Child Protection and Adoption, the Ministry of Interior, the Ministry of Justice as well as other governmental agencies with jurisdiction in the combat of trafficking in human beings, shall take the necessary steps to elaborate and enforce, within their own jurisdiction, the National Action Plan for Combat of Trafficking in Human Beings.
(1) The Ministry of Foreign Affairs shall draw up a list of countries with a high potential for trafficking in human beings, to be provided to involved institutions, upon request.
(2) Based on Law 123 / 2001 on the regime of foreign citizens in Romania, the Ministry of Foreign Affairs and the Ministry of Interior shall enforce the necessary steps to prevent access on the territory of Romania of foreign citizens in relation to whom there is strong evidence of involvement in trafficking of human beings, for the purpose of the this law.
(1) The Ministry of Labor and Social Solidarity, through its dedicated structures at central and territorial levels, shall work out and enforce special measures for the integration into the labor market of persons highly at risk of becoming trafficking victims, especially women in very poor areas and social outcasts.
(2) For persons highly at risk of becoming trafficking victims, the National Employment Agency shall develop information programs on topics related to the labor market and employee rights, vocational training programs, as well as information programs for employers in order for the latter to grant such persons priority in the hiring process.
(3) The Ministry of Labor and Social Solidarity, jointly with the Ministry of Public Finance, shall study the timeliness of working out measures to stimulate companies that hire both persons highly at risk of becoming trafficking victims and trafficking victims who have graduated from a vocational training course and shall make proposals for this purpose.
The Ministry of Public Administration shall create and disseminate documentary materials on the risks entailed by persons highly at risk of becoming trafficking victims.
The Ministry of Education and Research, with support from the other Ministries involved and in cooperation with NGOS that are active in the domain, shall develop educational programs for parents and children, especially groups highly at risk of becoming trafficking victims, with a view to preventing trafficking in human beings.
(1) The Ministry of the Interior, through its specialized structures and with support from other ministries, shall compile and update the database on the phenomenon of trafficking in human beings, shall monitor and make a periodical assessment of this phenomenon, that shall include both the trafficker and the trafficking victims, as well as the legal entities involved in trafficking in human beings.
(2) Publishing statistical information and assessment reports shall be the biannual task of the General Police Inspectorate, under the endorsement of the Minister of the Interior.
(1) The Ministry of Justice and the Public Ministry shall carry out periodical studies, based on their own information, with a view to identifying the causes that bring about and the conditions that facilitate trafficking in human beings.
Art. 11. In order to prevent trafficking in human beings, NGOs shall cooperate with the relevant ministries and shall organize awareness campaigns on trafficking in human beings and the risks entailed by its victims.
CHAPTER III – Violations
Section I - Trafficking in human beings violations
(1) Whoever recruits, transports, transfers, harbors or receives a person, through the use of threats or violence or the use of other forms of coercion, through kidnapping, fraud or misrepresentation, abuse of power or by taking advantage of that person’s inability to defend him-/herself or to express his/her will or by giving or receiving money or other benefits in order to obtain the agreement of a person who has control over another person with the intent of exploiting the latter, commits a criminal violation of this Law and shall be punished with 3 to 12 years imprisonment and denial of a number of rights.
(2) Whoever engages in trafficking in human beings under the following circumstances:
a) traffics two or more persons at the same time;
b) causes the victim to sustain serious bodily harm or serious health problems, shall be punished with 5 to 15 years imprisonment and denial of a number of rights.
(3) If the violation in this Article has resulted in the victim’s death or suicide, the offender shall be punished by 15 to 25 years imprisonment and denial of a number of rights.
Art. 13 –
(1) Whoever recruits, transports, transfers, harbors or receives a person aged between 15 and 18, with the intent of exploiting that person, commits the crime of trafficking in underage persons and shall be punished by 3 to 12 years imprisonment and denial of a number of rights.
(2) If the violation within paragraph (1) was committed against a person aged less than 15, the punishment shall be 5 to 15 years imprisonment and denial of a number of rights.
(3) If the violations within paragraphs (1) and (2) are committed with the use of threats or violence or of other forms of coercion, through kidnapping, fraud or misrepresentation, abuse of power or by taking advantage of that person’s inability to defend him-/herself or to express his/her will or by giving or receiving money or other benefits in order to obtain the agreement of a person who has control over another person, the offender shall be punished with 5 to 15 years imprisonment and denial of a number of rights in the case of paragraph (1) and 7 to 18 years imprisonment and denial of a number of rights in the case of paragraph (2).
(4) For the violations within paragraphs (1), (2) and (3) that have been committed in the conditions of Art. 12 paragraph (2) punishment shall be 5 to 15 years imprisonment and denial of a number of rights in the case of paragraph (1), 5 to 17 years imprisonment and denial of a number of rights in the case of paragraph (2) and 5 to 18 years imprisonment and denial of a number of rights in the case of paragraph (3), thesis 1 and 7 to 20 years imprisonment and denial of a number of rights in the case of paragraph (3), thesis 2.
(5) If the violations in this Article have resulted in the victim’s death or suicide, the offender shall be punished with 15 to 25 years imprisonment and denial of a number of rights, or life imprisonment.
Art. 14 –
Whoever commits the violations within Articles 12 and 13 as a member of an organized group or has obtained or produced, for him/herself or for others, significant material proceeds out of the commission of those violations shall receive 3 additional years to the maximum specific term of imprisonment.
(1) The attempt to commit the crimes within Articles 12-14 is also punishable.
(2) The act of organizing the commission of the crimes within this Chapter constitutes a crime and shall be punished like crimes committed in an organized manner.
Consent on the part of the trafficked person does not exonerate the offender from criminal liability.
Section II - Violations related to trafficking in human beings
(1) Whoever causes or allows, knowingly, directly or through an intermediary, the entry or stay on the Romanian territory of a non-Romanian citizen who is being trafficked as defined by this law:
a) by the use of fraudulent means, violence or threats or other forms of coercion, or
b) by abusing the special state of the trafficked person, which results from that person’s illegal or precarious situation of entry or stay in Romania or from pregnancy, a disease or disability or from a physical or mental challenge, commits a criminal offence and shall be punished for the crime of trafficking in human beings.
(2) Whoever commits the violations within paragraph 1 as a member of an organized group or repeatedly shall receive 2 additional years to the maximum specific term of imprisonment.
(1) Whoever exhibits, sells or disseminates, rents, distributes, produces or possesses with intent to disseminate, objects, films, photographs, slides, logos or other visual material that display sexual conduct or postures with a pornographic character, and show or involve persons aged less than 18 or imports or delivers such objects to a carrier or distributor for the purpose of selling or simply distributing such objects commits the crime of child pornography and shall be punished by 2 to 7 years imprisonment.
(2) Whoever commits the violations within paragraph 1 as a member of an organized group shall be punished by 3 to 10 years imprisonment.
(1) Money, valuables or any other assets obtained from the commission of the criminal offences stipulated in this Law or that have been used to commit these criminal offences as well as other assets as listed in Article 118 of the Criminal Code are subject to special forfeiture within the conditions established by this Article.
(2) Vehicles used to transport trafficked persons as well as lodgings that were used to accommodate those persons shall also be regarded as property used to commit the crime if they belong to the criminal offenders.
The trafficked person who has committed the crime of prostitution, stipulated in Article 328 of the Criminal Code, shall have no liability for that crime if, before the start of the criminal investigation for the crime of trafficking in human beings, this person has come forward and reported the crime to the competent authorities or if, after the start of the criminal investigation or after the identification of the criminal offenders this person facilitates the arrest of those offenders.
The criminal investigation into the crimes stipulated in this Law shall be the mandatory task of the prosecutor and the case shall be tried by a tribunal as a court of first instance.
Undercover officers can be used as provided by the law in order to gather the necessary information for the start of the criminal investigation.
(1) When there is strong evidence or data that a person preparing to commit one of the crimes stipulated in this Law or who has committed such a crime is using telecommunications or computer systems, the criminal investigation body can, with a prosecutor’s authorization, have access to those systems and carry out surveillance thereof for a specified period of time.
(2) The provisions in Articles 911 - 915 in the Criminal Procedure Code shall apply accordingly.
(1) Court sessions in cases involving crimes of trafficking in human beings within Article 13 and child pornography within Article 18 shall not be open to the public.
(2) Court proceedings in the conditions of paragraph 1 can be attended by the parties, their representatives, legal counsels as well as other persons whose presence is deemed necessary by the court.
(3) In cases involving crimes stipulated in this Law, the hearing of a person aged less than 14 shall take place in the presence of one of the parents or the legal guardian or the foster parent the underage person has been entrusted for raising and education.
Art. 25 –
Upon the request of the victim, the Court can order a closed-doors session for cases based on Articles 12 and 17.
Art. 26 –
(1) Victims of the crimes stipulated in this Law, as well as other victims of these crimes, shall be granted special physical, legal and social protection and assistance.
(2) Victims of trafficking in human beings shall have their privacy and identity protected by this Law.
(3) Victims of the crimes stipulated in this Law are entitled to physical, psychological and social recovery.
(4) Underage victims of the crimes stipulated in this Law shall be granted special protection and assistance, as appropriate for their age.
(5) Female victims of the crimes stipulated in this Law, as well as females at high risk of becoming victims of such crimes shall be granted special social protection and assistance.
Upon request, and on Romanian territory, the Ministry of the Interior shall provide physical protection for victims of trafficking in human beings during the criminal procedures.
Romanian citizens, victims of trafficking in human beings and staying on the territory of other countries, shall be granted assistance, upon request, by the diplomatic missions and consular bureaus of Romania to those countries.
The Ministry of Foreign Affairs shall issue, within a reasonable period of time and without unjustified delays, through the diplomatic missions and consular bureaus of Romania, if need may be and with a view to repatriation, identification documents to Romanian citizens victims of trafficking in human beings.
(1) The Ministry of Foreign Affairs shall, through the diplomatic missions and consular bureaus of Romania, ensure the dissemination to the relevant persons, of information materials on the rights of victims of trafficking in human beings, as resulting from the laws of Romania and of the respective foreign country.
(2) It is the responsibility of Romania’s diplomatic missions and consular bureaus to provide foreign judicial bodies with information on Romanian regulations in the domain.
(3) The Romanian diplomatic missions and consular bureaus shall use own electronic media to publish information on Romanian and the respective country’s legislation in the domain as well as addresses of centers for the assistance and protection of victims of trafficking in human beings or other persons assimilated to that status.
(4) The ambassadors of Romania’s diplomatic missions and consular bureaus shall assign a special diplomat to be in charge of implementing the repatriation procedure for Romanian citizens victims of trafficking in human beings, as defined by this Law.
(5) The repatriation procedure for Romanian citizens victims of trafficking in human beings shall be developed by the Ministry of Foreign Affairs jointly with the Ministry of the Interior and the Ministry of Justice within 60 days of the enactment of this Law.
At all Romania’s border checkpoints, the Ministry of the Interior shall use its specialized structures to provide specially trained staff to identify and process victims, in order to refer them to specialized institutions.
(1) Upon request, victims of trafficking in human beings can receive temporary accommodation in Centers for Assistance and Protection of Victims of Trafficking in Human Beings, hereinafter called Centers, and which operate under the authority of county councils in counties Arad, Botoşani, Galaţi, Giurgiu, Iaşi, Ilfov, Mehedinţi, Satu-Mare and Timiş.
(2) The duration of the victim’s stay in such Centers shall be determined through a decision of the County Standing Delegation and shall not exceed 10 days.
(3) The duration of the victim’s stay in such Centers can be extended, upon request from law enforcement bodies, by up to 3 months or, as the case may be, for the duration of the criminal trial.
(4) The Centers are designed and equipped to provide civilized conditions for accommodation and personal hygiene, food, psychological and medical assistance.
Temporarily sheltered victims of trafficking in human beings shall be provided, by social workers from the local Council where the Center operates, with information and counseling towards the use of legal benefits for persons regarded as social outcasts.
Art. 34 –
(1) The Centers’ in-house regulations as well as their organizational structure shall be approved by the Minister of Public Administration and endorsed by the Minister of the Interior.
(2) The Centers’ staff shall be paid according to the law on the pay for employees in state-owned institutions.
(3) The Centers’ current and capital expenses shall be financed out of County Councils’ funds, stipulated in article 33 paragraph (1).
(1) County employment agencies, in those counties where the Centers are being set up and operate, shall organize, if possible, special short-term programs for the vocational initiation or training of sheltered victims.
(2) The agencies mentioned in paragraph 1 are also tasked to grant priority counseling and labor mediation services to victims of trafficking in human beings in order for the latter to find a job.
Victims of trafficking in human beings, Romanian citizens, can have priority access to social housing provided by Local Councils in their town of residence.
Romania assists foreign citizen victims of trafficking in human beings in returning to their country of origin without undue delay and provides them with full security transportation to the border of Romania, if not otherwise provided in bilateral agreements.
(1) For their physical security, foreign citizen victims of trafficking in human beings can be sheltered in the special Centers set up according to Law no. 123/2001 on the regime of aliens in Romania, and those requesting a form of protection in Romania can be sheltered in the centers especially set up according to Law no. 323/2001 on approval of Government’s Ordinance no. 102/2001 on the refugees’ status and regime in Romania.
(2) In those shelters victims of trafficking in human beings shall be informed, in a language they can understand, of the legal and administrative procedures enforced.
(3) Sheltered persons are entitled, according to paragraph 1, to psychiatric and psychological counseling and to medical and social assistance, in a language they can understand.
(1) In case the foreign citizen victims of trafficking in human beings have no identification documents or if they have lost them or have had them stolen or destroyed, they shall receive help from the Consular Relations Directorate within the Ministry of Foreign Affairs or from the competent bodies of the Ministry of Public Administration in acquiring a new passport or temporary identification document, as the case may be.
In case victims of trafficking are brought to Romania by a transportation company, in awareness of the illicit character of this activity, that company shall have the obligation to provide accommodation and meals for those victims for the duration established by the Ministry of the Interior and shall bear the costs of their transportation to the Romanian border, according to the law.
Also, underage persons accompanying victims of trafficking in human beings or who are themselves such victims are subject to the provisions on underage persons in Law No. 123/2001.
Associations and foundations that prove they have social service programs for the victims of trafficking in human beings such as: accommodation, food, psychiatric, psychological and legal counseling, medical assistance shall have priority in getting subsidies from the State budget or, as the case may be, from local budgets, as provided by law.
Victims of the crimes stipulated in this Law are entitled to receive information on the applicable legal and administrative procedures.
Persons stipulated in Article 44 are entitled to assistance for exercising their rights within the criminal proceedings provided by law, at all stages of the criminal trial and are also entitled to supply evidence for their demands and civil actions against persons who have committed the crimes stipulated in this law, where they are involved.
CHAPTER VI - International Cooperation
Through the present law, liaison officers shall be appointed within the Ministry of the Interior, as well as liaison magistrates at the level of prosecutors’ offices attached to tribunals, who shall be tasked with intelligence exchanges with their counterpart liaison officers or magistrates operating in other countries, so as to coordinate action during the criminal investigation.
For an exchange of criminal intelligence as stipulated in this Law, a point of contact shall be established within the Ministry of the Interior and at the prosecutor’s Office attached to the Supreme Court of Justice, with counterpart institutions from other countries.
(1) International transportation companies have the obligation to verify, on issuing the travel document, whether their passengers possess the required identification for entry in their transit or destination country.
(2) The obligation stipulated in paragraph 1 is also shared by the driver of the international road transportation vehicle on admitting passengers on board, as well as in the case of staff responsible for verifying travel documents.
CHAPTER VIII - Final Provisions
In order to identify the victims of trafficking in human beings, the officers of the Ministry of the Interior are allowed to organize controls in private or public institutions as well as on the premises of businesses, irrespective of their owner, under the law.
Within 60 days from the entering into force of this law, a Government Decision shall be adopted containing its Enforcement Regulations.
I, the undersigned Pop-Bârsan Călin, authorise this translation and I certify its exactity, according the Romanian document. My authorisation no is 1373/1999.
On Completion of the Criminal Code and the Criminal Procedure Code of the Republic of Moldova
The Parliament adopts the present Organic Law:
Article I, the Criminal Code of the Republic of Moldova, adopted by Law of the Soviet Socialist Republic of Moldova, on March 24, 1961(News of the Supreme Soviet of the SSR of Moldova, No. 10, Article 41, 1961) will be completed with Article 116(3), and has the following contents:
Article 116(3) Illegal Trafficking in Human Beings
Illegal trafficking in human beings, with or without their consent, committed with the purpose of profit,
Will be punished with a jail sentence of five to ten years, with or without the seizure of the property.
Illegal trafficking in human beings, with or without their consent, committed:
For forced labor of the person or for keeping him/her in slavery;
For using a person in armed conflicts;
For different forms of sexual exploitation of persons for using them in pornographic industry;
Following the prior agreement by a group of persons;
For luring into criminal activity;
For using a person for other loathsome purposes.
Will be punished with a jail term of between ten and fifteen years, with the seizure of the property.
Acts provided in Paragraphs 1 and 2 of the present article, committed:
Against two or more persons;
By abduction, abuse of power, abuse of office, deception or fraud;
Accompanied by violence endangering the victim’s life or health, or resulting in the death of the victim, or committed against a woman having a certain knowledge about her pregnancy or by taking advantage of the victim’s incapacity to defend herself;
For human organs or tissues transplant or drawing;
By a criminal organization,
Will be punished with a jail sentence of between 15 and 25 years, with the seizure of the property.”
Proposed Regulation of Trafficking in Human Beings and Related Offences for the Draft Criminal Code of the Republic of Moldova
Art. (163/1) Trafficking in Human Beings
The recruitment, transportation, transfer, harbouring or receipt of a person
of threat or use of physical or psychological violence non-dangerous for a person’s life and health, including through abduction, confiscation of documents and servitude for the repayment of a debt whose limits and lengths are not reasonably defined or
by abuse of power, by the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, or by abuse of a position of vulnerability
for the purpose of exploitation, including
commercial and non-commercial sexual exploitation, exploitation in prostitution and in the pornographic industry
forced labour or services
slavery and slavery-like conditions
using a person in armed conflicts
removal of organs or tissues
using a person in criminal activities
will be punished with imprisonment between seven and fifteen years.
Acts penalized in Par. 1 of the present article:
accompanied by dangerous violence for a person’s life, physical or psychological health;
against a pregnant woman;
by the use of torture, inhuman or degrading treatment to assure the person’s compliance or through rape, physical bondage, use of a weapon or threat of disclosure of confidential information to the person’s family and other persons as well as through other means;
committed by two or more people
repeatedly or against two or more persons within the same acts
will be punished with imprisonment between 10 and 20 years.
Acts penalized in Par. 1 and 2 of the present article,
committed within the framework of a criminal group or a criminal association
if death or serious bodily injury or permanent psychological damage to the person results
will be punished with imprisonment between 15 and 25 years or life detention.
The recruitment, transportation, transfer, harbouring, receipt or the giving of a child, receiving of payments or benefits to achieve the consent of a person having control over a child, for the purpose of:
(1) commercial and non-commercial sexual exploitation, exploitation in prostitution and in the pornographic industry;
(2) exploitation in forced labour or services;
(3) exploitation in slavery and slavery-like conditions, including illegal adoption
(4) using a child in armed conflicts;
(5) removal of organs or tissues;
(6) using a child in criminal activity
will be punished with imprisonment between 10 and 20 years.
Acts penalized in Par. 1 of the present article, accompanied by:
(1) physical and psychological violence against a child
(2) sexual abuse of the child, commercial and non-commercial exploitation;
(3) use of torture, inhuman or degrading treatment to assure the child’s compliance or rape, physical bondage, use of a weapon or threat of disclosure of confidential information to the child’s family and other persons;
(4) slavery and slavery-like conditions;
(5) use of child in armed conflicts;
(6) removal of organs or tissues
will be punished with imprisonment between 15 and 25 years or life detention.
Acts penalized in Par. 1 and 2 of the present article:
(1) if death or serious bodily injury or permanent psychological damage to the child results,
(2) committed within the framework of a criminal organization or criminal association;
(3) committed repeatedly;
(4) committed against two or more children within the same acts
will be punished with imprisonment between 20 and 25 years or life imprisonment.
Slavery and Slavery Like Conditions
Putting or keeping a person in a condition in which another person exercises rights of ownership over him/her; or causing the person through the use of force or coercion, deception or threat of violence to engage in or stay in a marital relationship
will be punished by imprisonment for a period of three to ten years with\ without the forfeiture of the right to hold certain positions or perform certain activities for a period of up to five years, with a fine in the amount of two hundred to six hundred times the minimum wage.
. Forced Labor
Forcing a person to perform a labor against his/her will or forcing to a compulsory labor, or keeping a person in servitude for the repayment of a debt whose limits and length are not reasonably defined; obtaining labor or services through coercion, deception, force or threat of force such that \the person reasonably believed no alternative existed
will be punished by imprisonment for a period of up to three years with a fine in the amount of two hundred to five hundred times the minimum wage.
(1) Prostitution, meaning practicing paid sexual relations with different persons,
will be punished by imprisonment for a period of up to five years with \without privation of the right to occupy certain positions or to exercise a certain activity for a term of up to three years
(2)A person who has engaged in prostitution against her will shall not be charged or penalized under this Article
Removal, theft, destruction, damage or concealment of documents or the theft of blanks, stamps or seals located at enterprises, institutions or organizations irrespective of the organization-judicial form of activity or the type of property if such acts have been committed for profit or other ignoble motives,
will be punished by a fine in the amount of up to four hundred times minimum wage or by imprisonment for the period up to three years.
Removal, destruction, damage, possession, concealment, theft from a person of passports or other important personal documents to prevent or restrain the person’s liberty or the person’s liberty to move
will be punished by a fine in the amount of up to three hundred times minimum wage or by imprisonment for the period up to two years.
The manufacture, sale, possession or use of falsified official documents which confer a privilege to or excuse the holder of the documents from obligations, or the manufacture or sale of a counterfeit stamp or seal or falsified blanks of enterprises, institutions or organizations irrespective of their organization-judicial form or their type of property
will be punished by a fine in the amount of up to three hundred times minimum wage or by imprisonment for the period up to two years.
(2) The same acts:
committed by a group of people;
when they cause substantial damage to state or public interests or the rights and legal interests of citizens;
combined with the manufacture, sale or use of a forged especially important document,
will be punished by a fine in the amount of two hundred up to six hundred times minimum wage or by imprisonment for the period of one up to five years.
(5) The action of the present article does not expand on foreign citizens, arrived in the Republic of Moldova without the necessary passport or without authorization to use the right asylum, accorded by the Constitution of Republic of Moldova and on victims of trafficking in human beings.
According to the provisions of the article 114, paragraph (4) from the Constitution of Romania,
The Government of Romania adopts the present emergency ordinance.
Art. 1 – (1) The entering or leaving a foreign state by the illegal passing of its borders, committed by a Romanian citizen or by a person without citizenship residing on the Romanian territory is considered as an offence and is punished with imprisonment from 3 months to 2 years.
(2) If the action that was mentioned in paragraph (1) was committed for the purpose of eluding the enforcement of a criminal sentence, the punishment is imprisonment from 6 months to 3 years.
(3) The attempt is punished.
Art .2 – (1) The action of the Romanian citizen or of the person without citizenship residing on the Romanian territory who recruits, guides or leads one or more persons for the purpose of the fraudulent passing of the frontier of a foreign state or who organises one or more of these illegal activities is considered as an offence and is punished with imprisonment from 2 to 7 years.
(2) The attempt is punished.
Art .3 - The initiation or the establishment of an association for the purpose of committing the offence mentioned in art. 2 or the adhesion or support by any means of such an association is punished with imprisonment from 3 to 10 years.
Art. 4 – The goods and values which served or which were meant to serve to the committing of the offences mentioned in art. 1-3 or which were obtained by committing these offences, if they belong to the offender, shall be confiscated.
Art. 5 – In the case of a Romanian citizen, convicted according to the provisions of the art.1-3, the issuing of his passport shall be rejected or by case, the right of using it shall be suspended for a period of 5 years.
Art.6 – The pursuit and the trial of the offences mentioned in the present normative act are performed urgently, according to the provisions from the Criminal Procedure Code referring to the pursuit and trial of some flagrant offences.
Minister of Justice,
Rodica Mihaela Stănoiu
Bucharest, 30 August 2001
1 Albania, Andorra, Armenia, Austria, Azerbaijan, Belgium, Bosnia and Herzegovina, Bulgaria, Croatia, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Germany, Georgia, Greece, Hungary, Iceland, Ireland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Moldova, Netherlands, Norway, Poland, Portugal, Romania, Russian Federation, San Marino, Slovakia, Slovenia, Spain, Sweden, Switzerland, “the former Yugoslav Republic of Macedonia”, Turkey, Ukraine, United Kingdom.