Council framework decision on combating trafficking in human beings

This framework decision aims to approximate the laws and regulations of the Member States in the field of police and judicial cooperation in criminal matters relating to the fight against trafficking in human beings. It also aims to introduce at European level, common framework provisions in order to address certain issues such as criminalisation, penalties and other sanctions, aggravating circumstances, jurisdiction and extradition.
ACT

Council Framework Decision 2002/629/JHA of 19 July 2002 on combating trafficking in human beings [Official Journal L 203 of 01.08.2002].
SUMMARY

Since the adoption in 1997 of a joint action by the Council concerning action to combat trafficking in human beings and the ***ual exploitation of children, initiatives have developed considerably in number at both national and regional levels. The Vienna Action Plan and the Tampere European Council called for additional provisions to regulate further certain aspects of criminal law and criminal procedure. The Framework Decision, an instrument introduced by the Amsterdam Treaty, should provide a better response to these priorities by gearing the EU for further enlargement.

Moreover, in December 2000, at the signing conference in Palermo, Antonio Vitorino, a Member of the Commission acting on behalf of the Community, signed the United Nations Convention against Transnational Organised Crime and the two Protocols against trafficking in persons and the smuggling of migrants by land, air and sea.

The Framework Decision, an instrument introduced by the Amsterdam Treaty, should provide a better response to certain priorities by gearing the EU for further enlargement. With this Framework Decision, the Commission wishes to complement the existing instruments used to combat trafficking in human beings, including:

* the French initiatives on facilitation of unauthorised entry, movement and residence relating to the smuggling of migrants;
* the STOP and Daphné action programmes;
* the European Judicial Network;
* the exchange of liaison magistrates.

The Commission takes the view that trafficking in human beings is a crime against the person with a view to the exploitation of that person.

Article 1 defines the concept of trafficking in human beings for the purpose of labour or ***ual exploitation. The Member States must punish any form of recruitment, transportation, transfer or harbouring of a person who has been deprived of his/her fundamental rights. Thus, all criminal conduct which abuses the physical or mental vulnerability of a person will be punishable.
The victim's consent is irrelevant where the offender's conduct is of a nature which would constitute exploitation within the meaning of the proposal, that is, involving:

* the use of coercion, force or threats, including abduction;
* the use of deceit or fraud;
* the abuse of authority or influence or the exercise of pressure;
* the offer of payment.

Instigating trafficking in human beings and being an accomplice or attempting to commit a crime will be punishable.

Penalties provided for by national legislation must be "effective, proportionate and dissuasive." By setting the maximum penalty at no less than eight years imprisonment, the Commission makes it possible to apply other legislative instruments already adopted for the purposes of enhancing police and judicial cooperation, such as Joint Action 98/699/JHA on money laundering, the identification, tracing, freezing, seizing and confiscation of the instrumentalities and the proceeds from crime and Joint Action 98/733/JHA on making it a criminal offence to participate in a criminal organisation. A custodial sentence will only be imposed in the circumstances where:

* the victim's life has been endangered;
* the victim was particularly vulnerable (for example, due to his or her age);
* the crime is committed within the framework of a criminal organisation as defined by Joint Action 98/733/JHA.

In addition, the Framework Decision introduces the concept of criminal and civil liability of legal persons in parallel with that of natural persons. Legal persons will be held liable for offences committed for their benefit by any person acting either individually or a part of the organ of the legal person, or who exercises a power of decision.

Penalties on legal persons will be "effective, proportionate and dissuasive"; they will include criminal or non-criminal fines and specific sanctions such as a temporary or definitive ban on commercial activities, a judicial dissolution measure or the exclusion from public benefits or advantages.

Child victims of trafficking are entitled to special assistance, in accordance with Framework Decision 2001/220/JHA on the standing of victims in criminal proceedings.

In order that the crime does not go unpunished because of a conflict of jurisdiction, the decision introduces criteria on jurisdiction. A Member State will have jurisdiction where:

* The offence is committed on its territory (territoriality principle);
* The offender is a national (active personality principle);
* The offence is committed for the benefit of a legal person established in the territory of that Member State.

The second criterion is particularly important for States which refuse to extradite their nationals, since they must take the necessary measures to prosecute their nationals for offences committed outside their territory.

This Framework Decision repeals Joint Action 97/154/JHA as regards combating trafficking in human beings.


The Framework Decision is applicable to Gibraltar.


REFERENCES

Act: Framework Decision 2002/629/JHA

Date of entry into force :01.08.2002

Deadline for implementation in the Member States: 01.08.2004