1. Human Trafficking – legal definitions by EU law:
It is a crime to recruit, transport, harbour or receive people in order to exploit them when any of the following methods have been used: threat, force, coercion, fraud, deception, abuse of power or vulnerability or giving / receiving money to/from someone who controls.
If any of these methods have been used, it is still a crime, even if the victim has consented. Vulnerability means when someone has no real or acceptable alternative to submitting to abuse.
If the victim is a child (under the age of 18), it is still a crime to exploit them, even without these methods being used. Check below for further information on child victims.
Exploitation includes sexual exploitation (e.g. in the context of prostitution, forced marriage or pornography), forced labour including begging or slavery, criminal activities, removal of organs.
Most relevant legal texts:
See Article 2 of Directive 2011/36/EU on preventing and combating trafficking in human beings and protecting its victims
2. Assistance and Support to Victims of Human Trafficking: EU law
(see point #3 on child victims if the victim appears to be under 18)
For all victims of human trafficking, wheather EU citizens or not:
- Help starts as soon as there is evidence that the person may be a victim. The authorities should investigate quickly. Help is available whether the victim wants to cooperate with criminal proceedings or not.
- The victim must be informed of their legal rights and what help is available. They have the right to say yes or no to assistance.
- Help must be adequate. This includes the basics to live, appropriate accommodation , medical treatment, psychological assistance, counselling, information, translation services to help with documentation, interpretation services to help with conversations, legal advice and representation and witness protection if necessary.
- Extra help must be given when the victim has health issues, including pregnancy, a mental condition or a disability.
- A victim who has suffered serious violence (physical, psychological or sexual) has the right to extra help. They have the right to ask for compensation.
- A victim has special rights during criminal proceedings.
A victim from a non-EU nation has the right to:
- A reflection and recovery period to decide if they want to cooperate with the authorities. They cannot be deported and must have access to care during this period.
- A residency permit of +6 months if they cooperate with criminal proceedings. This is normally extended while criminal proceedings continue.
A victim from non-EU nation who obtains a residency permit has the right to:
- Help to recover and normalise. This can include education & right to work.
- Help to prepare to return to their home country.
- A trafficking victim from a non-EU nation has all these rights, even if they entered the EU illegally.
- A trafficking victim from a non-EU nation does not have the right to stay indefinitely. A nation may give them this right, but EU law does not say this.
Most relevant legal texts:
Paagraph 17 and Article 11 & 12 of Directive 2011/36/EU on preventing and combating trafficking in human beings and protecting its victims https://ec.europa.eu/antitrafficking/sites/antitrafficking/files/directive_thb_I _101_15_april_2011_1.pdf
Articles 3, 6, 7, 9, 11 &12 of Directive 2004/81/EC on the residence permit issued to third country nationals who are victims of trafficking in human beings or who have been the subject of an action to facilitate illegal migration, who cooperate with the competent authorities.
https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32004L004L0081&from=EN
3. Human Trafficking & Children : EU Law
European Union law states:
A child is anyone under the age of 18. Where someone could be a child but there is no proof, the authorities must assume that they are a child.
A child victim is always classed as extra vulnerable so deserves extra care.
A child cannot give legal consent. It automatically counts as trafficking when a child is controlled in order to be exploited (even if the child said that they were willing).
A child victim must receive short and long term support to enable recovery.
A child victim (foreign or national) must receive education.
Where a parent / guardian cannot or should not help, a child victim should be given a guardian or representative to defend their interests.
Where appropriate & possible, the family of a victim should also receive help.
A child victim has the right to free legal counseling and representation.
Interviewing of a child victim should take place as quickly and efficiently as possible, in a suitable venue, with trained professionals, ideally only one professional.
The child victim can have their representative or an adult they choose with them.
Interviews of a child victim may be video recorded. It should be possible for the court hearings to take place without the public being there or for the child also not to be in the courtroom. Communication technology allows for the child victim to speak while being elsewhere.
It must be assumed that the child victim is vulnerable to further victimization, intimidation or retaliation and so must be given appropriate protection.
Strong efforts must be made to find the family of an unaccompanied child (obviously where the family are not involved in the exploitation).
Strong efforts must be made to fight child see tourism and sex abuse.
Most relevant legal texts:
Articles 13, 14, 15 & 16 of Directive 2011/36/EU on preventing and combating trafficking in human beings and protecting its victims
https://ec.europa.eu/antitrafficking/sites/antitrafficking/files/directive the I 101 15 april 2011 1.pdf
Article 10 of Council Directive 2004/81/EC on the residence permit issued to third country nationals who are victims of trafficking in human beings
or who have been the subject of an action to facilitate illegal immigration, who cooperate with the competent authorities.
https://eur-lex.europa.eu/legal-content/EN/TXTPDF/?uri=CELEX:32004L0081&from=EN
4. Prosecution and legal Proceedings Directives
The first place to start when considering advocating for a survivor when they enter the legal system is with the national/local government. Social services, pro-bono legal counsel services and other anti-trafficking organizations should be contacted for suggestions of what services and provisions are available. The following provisions are the minimum services and support that each EU member state is required to provide for individuals when involved in legal proceedings.
Basic Provisions for Legal Proceedings
A victim cannot be prosecuted for their involvement in criminal activities during their exploitation. Investigation and prosecution is not dependent on a victim reporting Jurisdiktion is determined by the nationality of the offender (i.e.. exploiter) or the location of the offence.
Access to information about their trial, decision and sentencing
The EU directives state that victims have the right to know information pertaining their trial, any decisions made on services, verdicts and trial outcomes. Assessing the individual’s level of education and understanding is also provided for.
Translation and language discrimination
No individual should be denied the opportunity to testify, services or any information pertaining to their case due to speaking a not widely spoken language. These are also no grounds of issues surrounding translation to cause the case to take an unnecessarily long time to be processed.
Reimbursement of expenses related to a criminal proceeding
Victims of exploitation involved in court proceedings are offered provisions to protect them from having to pay for legal services and associated costs of taking a case to court.
Privacy and protection during court proceedings (e.g. the trafficker (s), criminal networks)
When taking part in a legal proceeding, the directives provide caution on the physical and emotional strain that may be place on victims. Court systems are not generally trauma informed. Provision for risk assessments of the potential challenges the victim faces and how the court proceedings is operated is included in the directives. This includes protection against secondary victimisation e.g. by avoiding unnecessary repetition of interviews or questions about private visual contact between victims and defendants.
Right to witness protection
Victims are provided protection and privacy from traffickers and other potentially harmful individuals before, during and after a court proceeding.
Most relevant legal texts:
Directive 2012/29/EU of the European Parliament and of the council on establishing minimum standards on the rights, support and protection of victims of crime: https://eur-lex.europe.eu/legal-content/EN/TEXT/?uri=celex%3A32012L0029
Directive 2011/92/EU of the European Parliament and of the council on establishing minimum standards on preventing and combatting trafficking in human beings and protecting its victims: https://eur-lex.europe.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2012:315:0057:0073:EN:PDF
*The following provisions are for adults. Please see document on children victims for provision related to minors.
**source: European Freedom Network