Joint Statement by the International Helsinki Federation for Human Rights (IHF)
and Anti-Slavery International
Concerned by the fact that despite various efforts to tackle the problem of trafficking in human beings, this form of trans-national organised crime remains widespread, we welcome the intention of the OSCE Action Plan to address the problem of trafficking in human beings (hereinafter THB) comprehensively, including the protection of victims, the prevention of THB and the prosecution of those who facilitate or commit this crime.
We strongly support the OSCE Ministerial Council’s Decision No.6 (2001) which called on participating States to sign and ratify the United Nations Convention against Transnational Organised Crime, and its Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children.
However, we are concerned by the fact that so far States have responded to trafficking in line with the Protocol mainly through adopting measures enabling better investigation and prosecution of the crime.
The Protocol also clearly outlines core elements for the support, assistance and protection of victims of trafficking (Articles 6 and 7) as well as for the prevention of trafficking (Article 9). Unlike the criminal provisions in this Protocol, which are binding for State Parties, the human rights provisions are discretionary under the Protocol and State Parties are only obliged to "consider implementing" them "in appropriate cases". As a result, when States come to implement the Protocol in national legislation the protection and support components are often diluted or ignored completely.
We are convinced that any serious attempt to combat trafficking must be based on effective legislative measures, a multidimensional approach, attention to the root causes aimed at effective preventive measures and including the establishment and implementation of minimum standards for protection and support to trafficked persons, which incorporate the measures outlined in the UN Protocol and in the High Commissioner's for Human Rights Recommended Principles and Guidelines on Human Rights and Human Trafficking.
We therefore cal on the OSCE Ministerial Council for full implementation of the OSCE Action Plan to Combat Trafficking in Human Beings in OSCE participating Sates with a particular focus on the following areas:
Legislative action
In many cases, trafficked persons have irregular immigration status and are then identified as ‘undocumented’ or ‘illegal migrants’ or, those trafficked into prostitution, simply as ‘prostitutes’. In most of the destination countries those who are not recognized as possibly having been trafficked, face deportation and possibly detention in immigration facilities. We believe that adequate legislative measures ensuring effective identification of trafficked persons must be created in order to ensure trafficked person’s access to justice.
· OSCE AP Point 1.1 recommends the adoption of legislative measures as may be necessary to establish the conduct set forth in Article 3 of the UN Protocol. We see the recognition of the internationally agreed upon definition of “trafficking in human beings” for all purposes as first and elementary step to effectively address trafficking in persons.
· Keeping in mind that many OSCE participating States recognise trafficking in human beings as a criminal offence only if the purpose of trafficking is sexual exploitation, we strongly encourage States to include trafficking for forced labour as a criminal offence with punishment appropriate to the seriousness of the crime committed. The UN Protocol itself states that exploitation shall included, 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.
· We believe that States should adopt all necessary legislative measures to make it a crime to withhold, conceal, damage or destroy another person’s passport or other identity document in order to restrict their freedom of movement or maintain their labour or service (in line with Article 21 of the 1990 Migrant Worker’s Convention).
· Furthermore, we encourage States to ensure that victims of trafficking into all labour sectors are not subject to criminal proceedings solely as a direct result of them having been trafficked and/or immediately deported (in line with point 1.8 of the OSCE AP).
· In addition to adopting and implementing legislative measures, States should ensure that government agencies responsible for the administration of justice develop and effectively implement a law enforcement model for interviewing undocumented migrants to ensure appropriate questions are asked to ascertain if they have been trafficked. Guidelines for interviewing undocumented migrants should be developed by experienced law enforcement officials working on these cases in conjunction with agencies such as NGOs working with migrants and trafficked persons (in line with points 3.2 and 3.3 of the OSCE AP).
· States should provide immediate access to basic support and assistance measures for all trafficked persons regardless of their readiness to co-operate with authorities in investigations. (In line with Article 6 of the UN Protocol and point 4.2 of the OSCE AP) (see below).
Prevention of trafficking in human beings: addressing root causes of trafficking
Bearing in mind the wide range of factors contributing to the recent flourishing of trafficking in human beings we believe that any serious attempt to prevent trafficking must go beyond awareness raising in countries of origin. We believe that only an effective and strategic tackling of the root causes of trafficking both in countries of origin and destination can prevent this crime in a sustainable way.
While the push factors in countries of origin such as socio-economic and political instability, limited access to education and vocational trainings, lack of information, gender inequality and violence against women are often mentioned as root cause of trafficking, the pull factors in destination countries are usually not recognized as equally contributing to the current status quo.
· Therefore we support the OSCE Action Plan recommendation for improved research and collecting separate data related to women, men and children victims of trafficking as well as the recommendation for analysis of the root causes of THB and its economic consequences.
· We are convinced that the implementation of the OSCE Action Plan recommended measures to reduce the invisibility of exploitation in destination countries would be a significant step forward in addressing the root causes of trafficking in destination countries. Such measures could include intelligence gathering on the labour markets and addressing the problem of unprotected, informal and often illegal labour, with a view to seeking a balance between the demand for inexpensive labour and the possibilities of regular migration.
· We strongly encourage governments of OSCE participating States to consider the liberalization of their labour markets with a view to increase employment opportunities for workers with a wide range of skills as a measure to address root causes of trafficking. (in line with point 3.2 of the OSCE AP).
· Furthermore, we urge governments of the OSCE participating States to sign and ratify the UN Convention on the Protection of the Rights of All Migrant Workers and Their Families (1990), which we see as effective and complementary tool to measures recommended by OSCE Action Plan.
Protection and assistance
Recalling the Preamble Article of the UN High Commissioner's for Human Rights Recommended Principles and Guidelines on Human Rights and Human Trafficking, which states that: “Human rights of trafficked persons shall be at the centre of all efforts to prevent and combat trafficking and to protect, assist and provide redress to victims;” we would like to raise our concerns regarding an increasing trend of instrumentalising trafficked persons as tools of law enforcement. We are convinced that any serious attempt to address the situation of trafficked persons must go far beyond the current prevailing perception of trafficked persons as sources of information and potential witnesses, but should rather expressly protect these victims of a crime, who may have suffered grave human rights violations.
· The basic pre-condition for securing adequate assistance in countries of destination is a provision ensuring a residency permit for trafficked persons. A crucial aspect of the residency status is the immediate period of recovery, ‘reflection delay’, which enables a victim to consider the realities of their current situation and make an informed decision about whether or not they want to testify against the trafficker. (In line with point 8.1 of the OSCE AP). We are convinced that States should provide the right to a reflection delay for a period of no less than three months in cases where there are indications that the crime of trafficking has occurred.
While fully supporting the OSCE Action Plan to Combat Trafficking in Human Beings, Chapter V. ‘Protection and assistance,’ we also recommend that:
· States should provide a residency status of minimum three years available for any trafficked persons who have been victims of serious abuse/harm, who may be in danger of further human rights abuses (e.g. through stigmatisation, discrimination, risk of reprisals or likely to be re-trafficked) or who are assisting the investigation or prosecution of traffickers. States should ensure that the residency status allows the trafficked person full social inclusion (including access to education, vocational training and others as stated below)
- Adequate services must be provided during the temporary residency stay, such as appropriate housing (i.e. often a secret and secure shelter but not detention), counselling, information (especially concerning their legal rights) in a language the victim can understand and access to translators, legal assistance, medical assistance, assistance in psycho-social recovery, material (financial) assistance, education/training opportunities, employment opportunities (i.e. the right to work).
· Trafficked persons and those close to them must be protected from intimidation, threats and reprisals. Measures should include police protection/escorts as required, protection of family members at home, relocation of family members, ability to communicate with family members at home, in-court legal protections such as testimony by deposition/closed circuit camera, or in the absence of the defendant and confidentiality.
· States should consider permanent residency status available for trafficked person who have been a victim of serious abuse/harm, or if they are in danger of further human rights abuses (for example through stigmatisation, discrimination, risk of reprisals or likely to be re-trafficked) back in the country of origin. Trafficked persons should be informed of their right to asylum, and be granted asylum in appropriate cases.
· For trafficked persons who wish to go home, immigration services should ask whether they wish to be met by a local NGO/service provider and, in accordance with their wishes, contact local NGOs in countries of origin to assist those who return home. Immigration and police services should provide trafficked persons who want to return home with contact information for a law enforcement office in their country of origin so that they can contact the police if they are threatened by a trafficker.
· Immigration and police services in countries of destination should not reveal to authorities in countries of origin that a person has been trafficked without their explicit consent. This is especially important where there are concerns regarding the corruption of local officials, and particularly for those persons trafficked into prostitution, because of the stigmatisation associated with prostitution.