* By Dr. Roberta Avellino
The role of the Council of Europe in areas, which affect the full enjoyment of human rights and fundamental freedoms, has always been of great significance. Consequently, the Council of Europe has also invested in its fight against trafficking in human beings with the protection and promotion of the fundamental human rights of the victims as its primary mission. In fact, the Council has been deemed as the ‘natural home for activities aiming to combat a phenomenon that constitutes a violation of people’s dignity’ (Council of Europe, 2002).
The 1950 European Convention on Human Rights and Fundamental Freedoms makes no explicit reference to trafficking in persons, however this crime fits very well under Article 4, which prohibits slavery, servitude and forced labour. The European Court of Human Rights receives applications of individual complaints about the breach of the Convention however, this may only be possible after the applicant has exhausted all domestic remedies within a period of six months from the last decision, as the very last resort. Once an applicant has submitted a complaint to the European Court of Human Rights, the final judgment of the court is then binding on the States party to the case (Article 46). The Court also examines alleged violations in order to ascertain the States’ fulfillment of their international obligations under the Convention as a living instrument, which must be interpreted within the viewpoint of present day conditions and contemporary circumstances (Soering v UK, para 90-91).
The Council of Europe and the fight against trafficking in persons
The most notable anti-trafficking initiative of the Council of Europe is undoubtedly the Convention on Action against Trafficking in Human Beings. Its main aims are to prevent and combat trafficking in persons, while ensuring gender equality; to protect the human rights of victims of trafficking through a designed comprehensive framework, whilst guaranteeing gender equality, alongside effective investigation and prosecution; and to promote international cooperation on action against trafficking in persons amongst States (Article 1). The Convention applies to all forms of trafficking in human beings, ‘whether national or transnational, whether or not connected with organized crime’ (Article 2).
The Parliamentary Assembly of the Council of Europe first brought the tentative possibility of drafting a European Convention on Action against Trafficking in Human Beings forward back in the nineties. Subsequently, an Ad Hoc Committee of Experts on Action against Trafficking in Human Beings (CAHTEH) was entrusted with the drafting of the Council of Europe Trafficking in Persons Convention (cf. Specific Terms of Reference, 2003), which process lasted from September 2003 up to February 2005. When the first draft of the Convention was presented to the Parliamentary Assembly for an official opinion, the Assembly proposed over 50 amendments to the draft convention. The majority of the amendments dealt with victim protection, as the Parliamentary Assembly observed that the drafting process was not inclusive of the organizations of civil society whilst the European Community representative ‘hampered any genuine negotiation process within CAHTEH’. Moreover, ratifying States were allowed wide margins of discretion and some provisions were merely optional to State parties and not enforceable in any way (Opinion of the Parliamentary Assembly No 253, 2005). The discussions in regards to the draft convention raised some rather controversial points, which steered the text to its final direction. The utmost difficulty was to strike the right balance between the two different approaches of providing protection to the victim in every way and on the other hand, that of prosecuting and punishing the traffickers.
The human rights-based approach was also debated, since there was no consensus of the fact that trafficking in human beings constitutes a violation of fundamental human rights. Although this principle is crucial for a treaty, which had the protection of human rights as its very essence, some experts insisted that a human rights violation could only be perpetrated by State officials. Furthermore, discussion points were raised as to the eligibility of victims who are granted residence permits by the State party to this convention. Should this be granted to all victims or simply to those who decide to cooperate with law enforcement personnel? Should the residence permit be granted on ‘humanitarian’ or ‘utilitarian’ grounds? One of the provisions within the draft convention was that of providing the rights to interested non-governmental organizations to initiate proceedings against traffickers, however, this was an impossible option under some national legal systems. Therefore, this provision was removed from the convention. This measure would have turned out to be a fundamental means to combat trafficking whilst the victim would have been spared of the procedural burdens (Progress Report, 2004 Art. II (b)).
Regardless of its bumpy beginnings, the Council of Europe Convention is deemed to be the first international treaty, which declares that the crime of trafficking in persons is in itself a violation of fundamental human rights and breaches the dignity and integrity of the human being. The convention also deals with the ‘demand-side’ of the crime and aims at reducing the demand by targeting actions and awareness campaigns towards ‘consumers’. It has also been noted that the adoption of the Council of Europe Convention in such a short time after the adoption of the UN Trafficking Protocol is seen as a step through, which the Council of Europe Convention ‘positions itself as a supplement to the Trafficking Protocol: a means of adding value to a regime that is implicitly recognized as an international minimum standard’ (Gallagher, 2010 p. 114).
What is the way forward?
Despite the long trail of historical treaties and international agreements about trafficking in persons by the Council of Europe and other intergovernmental organizations, unfortunately one may still observe the missing nexus between the legislative phase and the actual implementation thereof. Unfortunately, whilst a number of States have implemented such international legislation in domestic law, some others are still lagging behind due to hindrances, which very often range from the lack of resources, the lack of political will and even worse, the corruption of official personnel. Other hurdles include the lack of concrete data and information, the lacking ‘human rights’ approach, the criminalization of the victims of trafficking and the misjudgment of the crime of trafficking in persons for other related crimes. Henceforth, what is the upcoming role of the Council of Europe in the emergence of new trafficking tendencies? How may it encourage proper implementation of its anti-trafficking Conventions?
One must be aware of the development of different trends and types of trafficking in persons such as the trafficking of persons for begging, human tissue and human organs. In this respect, immediate attention and the raising of awareness are required to address these new realities in their specificities. This may be carried out through the adoption and implementation of explicit optional protocols to the Convention. Such protocols will definitely add on to the value of the main Convention, which symbolizes the political will of the Council of Europe to take action against trafficking in persons in a manner, which is contemporary, efficient and current. Indeed,
Trafficking in human beings constitutes a violation of human rights and is an offence to the dignity and the integrity of the human being. Therefore, it undermines the values on which the Council of Europe is based. (EU Ministerial Conference Declaration on Trafficking in Human Beings, 2009)
50 Years of Activity, The European Court of Human Rights Some Facts and Figures. European Court of Human Rights. (2010) p. 3
Convention for the Protection of Human Rights and Fundamental Freedoms, Nov. 4, 1950, Art. 33, 213 UNTS 221, as amended by Protocol No. 11, May 11, 1994, 33 ILM 960 (1994) (entered into force Nov. 1, 1998)
Council of Europe Action in the Field of Trafficking in Human Beings for the Purpose of Sexual Exploitation: An Emphasis on Victim Protection. (2002)
Draft Council of Europe Convention on Action against Trafficking in Human Beings. Council ofEurope(Parliamentary Assembly) Opinion No 253 (Opinion of the Parliamentary Assembly) (2005)
Draft Council of Europe Convention on Action against Trafficking in Human Beings: Progress Report. CM Documents RAP-EG (2004)3 (2004) Art. II (b)
European Convention on Action against Trafficking in Human Beings (adopted on the 16th of May 2005 and entered into force on the 1st of February 2008) CETS 197
Gallagher A. T. The International Law of Human Trafficking. Cambridge University Press,New York (2010) p.114
Soering v UK, 7 July 1989 Series A, 161 para 90-91
Specific Terms of Reference – Ad Hoc Committee on Action against Trafficking in Human Beings (CAHTEH) Council of Europe (Committee of Ministers) 838th Meeting, Appendix Four (2003)
The Council of Europe Convention on Action against Trafficking in Human Beings: the Human Rights approach: EU Ministerial Conference Declaration on Trafficking in Human Beings – Towards Global EU Action against Trafficking in Human Beings (2009)