How Many Victims of Human Trafficking in the EU? A Statistical Quagmire

Dr. Vladislava Stoyanova

Postdoctoral Fellow, Faculty of Law, Lund University; Author of Human Trafficking and Slavery Reconsidered. Conceptual Limits and States’ Positive Obligations in Europe (Cambridge University Press, 2017)

On 19 May 2016 the Commission issued its first report (COM(2016) 267 final)) on the progress made in the fight against trafficking in human beings. As its title suggests, the report is based on Article 20 of the 2011 EU Trafficking Directive (Directive 2011/36/EU). The report has the objective to examine the progress made concerning prosecution of trafficking, protection of victims and prevention. It shows trends in trafficking, including statistical information. It is accompanied by a staff working document (SWD(2016) 159 final) that provides detailed factual information complementing the report.

Notably, this is not a report on the extent to which Member States have complied with the directive. Such a report is indeed required by Article 23 of the directive; however, despite the set deadline of 6 April 2015, so far the Commission has not issued a document assessing compliance. The Commission is late with its assessment with more than a year. A further report was due by 6 April 2016 on the circumstances of the use of services of trafficking victims. It has not been issued yet.

Focusing on the above mentioned progress report, it shows that according to the information submitted by Member States for the period 2013 – 2014 there were 15 846 registered victims of human trafficking. It is noted that this number is lower than the number recorded for the previous period 2010 – 2012. A clarification is immediately offered that ‘[a]lthough the data collection methods used for both periods are similar, it would not be advisable at this stage to compare the data, either between the two exercises or across individual years, due to possible differences in recording methods and legal definitions. For this reason, the discrepancy in the annual totals, and in particular the reasons why fewer victims of trafficking were registered, are issues that need to be explored and analysed further’ (page 5).

Indeed, the issue as to who is and who is not a victim of trafficking and who is registered and who is not registered as a victim of human trafficking are issues that have to be explored and analysed further. I plan to do this below. The Commission is correct that there might be differences in recording methods and legal definitions; however, the assumption that these differences will be somehow remedied so that we can get a clearer picture is far from warranted.

The number 15 846 refers to registered victims. Who are these registered victims? These are victims who are ‘both identified and presumed’ (page 4 of the report). It is clarified that some Member States have included both categories in their data collection, whereas others have only included one of the two categories. Already at this stage one starts to get suspicious about the data since it conflates different categories. Footnote 15 of the Commission report is indented to clarify the term ‘identified victim’: ‘[i]n accordance with the definition in the anti-trafficking Directive, the term “identified victim” refers to a person who has been formally identified by relevant authorities as a victim of trafficking.’ The text of the directive certainly does not deploy the term ‘identified victim’. It simply refers to victims and its Article 11(4) obliges the Member States to ‘take the necessary measures to establish appropriate mechanisms aimed at the early identification.’ The directive does not establish a separate legal status called ‘identified victim of human trafficking.’

The text of the earlier Directive 2004/81/EC (which concerns the immigration status of trafficking victims) does not refer to ‘identified victims’ either. It refers to victims who are holders of residence permits since they cooperate with the authorities in the fight against trafficking. Strangely, the Commission report does not even contain information about the number of such victims. This is very important information because when it comes to third country nationals, their formal identification as victims of human trafficking might not mean much and the assistance measures might not mean much if they cannot remain on the territory of the Member States. It should be also reminded here that the main EU Trafficking Directive (ie, the 2011 Directive) does not regulate the issue of the presence of victims on the territory of the Member States.

Footnote 15 of the Commission report continues to say that ‘[t]he term “presumed victim” is used for a victim of trafficking who has met the criteria of the EU Trafficking Directive but has not formally been identified by the competent authorities as a victim, or has declined to be formally and legally identified as a victim of trafficking [emphasis added].’ The term ‘presumed victims’ does not seem to be used here in the sense of Article 11(2) of the EU Trafficking Directive. The latter provision refers to individuals who have to be assisted and supported ‘as soon as the competent authorities have a reasonable-grounds indication for believing’ that they are victims. Neither is it used in the sense of Articles 5 and 6 of Directive 2004/81/EC, which refer to circumstances when the national authorities ‘take the view that a third country national may fall into the scope of this directive [i.e. may be a victim of trafficking]’ and extend a reflection period to this person. Rather ‘presumed victims’ appears hard to determine category in the way that it has been used in the report. In addition, it appears illogical how one can be a register victim (which implies some form of official recognition of one’s status) without being formally identified by the competent national authorities. As mentioned above, ‘presumed victims’ are included in the category of ‘registered victims’.

How do Member States after all formally identify individuals as victims of human trafficking? This is an important question if the Commission wants to ‘improve the reliability and comparability of data’ as stated on page 5 of its report. The Trafficking Directive does not stipulate which national authority has to be mandated with victim identification; its Article 11(4) simply says that ‘Member States should take the necessary measures to establish appropriate mechanisms aimed at the early identification of, assistance to and support for victims, in cooperation with relevant support organizations.’ Directive 2004/81/EC does not even have a provision about victim identification. It can be assumed from its provisions though that the national authorities responsible for criminal investigations and prosecutions identify victims by granting them a reflection period ‘so that they can take an informed decision as to whether to cooperate with the competent authorities’. Thus, in many EU Member States the authorities responsible for crime investigation and prosecution are mandated to identify victims. This is certainly problematic since eventually victim identification is intimately linked with crime investigation.

This results in refusals to formally identify victims if there is no basis for initiation or continuation of criminal proceedings, a problem exposed with the recent judgment L.E. v. Greece Application No. 71545/12 delivered by the European Court of Human Rights on 21 January 2016.[1] In other Member States, the immigration authorities might be mandated to identify victims of human trafficking. A relevant example in this respect is the United Kingdom, where the UK Border Agency identifies migrants as victims of human trafficking. In this way, crime investigation and victim identification are clearly separated. Against this diversity of national practices, it might be difficult to get a comparable date and even clear idea who is a registered victim of human trafficking in the EU.

Certainly, the problem is not only one of procedure, but also of substance. The EU Trafficking Directive defines human trafficking and determines the minimum scope of criminalization. However, the Member States can interpret trafficking more expansively. An example to this effect is Bulgaria where the crime of human trafficking is interpreted in an exceedingly wide way which leads to high number of prosecutions and victims.[2] The Commission itself does not seem to be particularly clear about the conceptual limits of trafficking either. It defines it as ‘the buying, selling and exploitation of adults and children [emphasis added]’ (page 2 of the report). In this way, it subsumes exploitation under the definition of human trafficking.

However, on page 7 of the report the Commission observes that ‘[w]hile it is important to stress that not all exploitative situations in the EU labour market are a result of trafficking in human beings, some may be. In these cases all victims of trafficking for labour exploitation must be properly identified and helped.’ Here, a distinction appears to be made between trafficking and exploitative situations. Overall, though, there is no clear distinction between the two. It is thus hard to advance measures which can tackle each phenomenon. Perhaps, even more disturbingly, all the efforts have been focused on human trafficking (in whichever way it is interpreted in different jurisdictions). Little attention has been paid on severe forms of labour exploitation. As a consequence, the EU Fundamental Rights Agency in its 2015 report Severe Labour Exploitation: Workers Moving within or into the European Union. States’ Obligations and Victims’ Rights warned that

While trafficking has attracted much attention, the severe exploitation of workers in employment relationships – which may or may not occur in a context of trafficking – has not. This difference in the level of attention is reflected by an institutional setting in which specialised actors are available to deal with trafficking cases but not with cases of severe labour exploitation.    

Finally, what has been the impact of the newest trafficking instrument, i.e. the 2011 Trafficking Directive? Is it indeed the case, as the Commission suggests, that ‘with the correct and full implementation of the EU Directive, Member States will ensure the prevention of the crime, the prosecution of the perpetrators and most importantly, the protection of victims’ (page 15 of the report)? This is highly doubtful. The data from the report is not particularly promising. In addition, the data itself is very confusing which hampers clear understanding of the phenomenon that we have to address.   

Barnard & Peers: chapter 25

JHA4: chapter I:7

Photo credit: notitarde.com

---

[1] Vladislava Stoyanova, ‘L.E. v. Greece: Human Trafficking and the Scope of States' Positive Obligations under the ECHR’ 3 European Human Rights Law Review (2016) 290.

[2] Vladislava Stoyanova, ‘The Crisis of a Legal Framework: Protection of Victims of Human Trafficking in the Bulgarian Legislation’ The International Journal of Human Rights (2013); Vladislava Stoyanova, ‘The Crisis of a Definition: Human Trafficking in Bulgarian Law’ 15(1) Amsterdam Law Forum (2013).

Violence against women: what will be the impact of the EU signing the Istanbul Convention?

Steve Peers

The scourge of violence against women is a serious human rights abuse and the worst form of sex discrimination. Several years ago, the Council of Europe (a body different from the EU) drew up the Istanbul Convention on this issue. It came into force in 2014, and currently applies to 20 countries, including 12 EU Member States (for ratification details, see here). Today, the EU Commission proposed that the EU sign and then conclude the Convention. What practical impact will that have on violence against women?

If the EU does sign and conclude (ie ratify) the Treaty, it will be the second human rights treaty binding the Union. The first is the UN Convention on the Rights of Persons with Disabilities. While most attention has been focussed on the EU’s attempt to accede to the European Convention on Human Rights (ECHR), which was essentially thwarted by the EU’s Court of Justice (CJEU) in 2014 (as discussed here), the EU’s capacity to sign up to other human rights treaties is also relevant. While the EU cannot sign up to older international human rights treaties, like the UN Covenants, because they are only open to States, newer treaties (like the Istanbul Convention) expressly provide for the EU to sign up to them – if it wishes.

Impact of EU ratification

Like many international treaties, the Istanbul Convention is a ‘mixed agreement’, meaning that (if the EU ratifies it), the treaty will bind both the Union and its Member States. EU ratification should have six main effects (I’ve updated this list from the previous post on the reasons why the EU should ratify).

First of all, the EU’s ratification of the Convention could provide encouragement to its Member States, as well as non-Member States of the EU, to ratify the Convention. It would increase the prominence of the Convention worldwide, perhaps inspiring changes to national law and regional treaty-making outside Europe. It should be noted that the treaty is open for signature to non-EU countries: the 19 Council of Europe countries not in the EU (8 of them have ratified it already), as well as the 4 non-European countries (plus the Holy See) which took part in drawing it up.

Do you live in a country which hasn’t ratified the Convention? You can sign up to a campaign for the UK to ratify the Convention here. Please let me know of any other campaigns in the UK or any other country, and I’ll list them with a link in an Annex to this post.

Secondly, ratification could, as regards this Convention at least, address the argument that the EU has ‘double standards’ as regards human rights, insisting that Member States, would-be EU Member States and associated countries should uphold human rights standards that the EU does not apply itself. If the EU is perfectly able to ratify the Istanbul Convention, but chooses not to, what moral authority does it have to urge any countries to do so?

Thirdly, ratification of the Convention should enhance its role in EU law, because it could more easily be used as a parameter for the interpretation and validity of EU legislation. While there’s no general EU criminal law on violence against women (on the case for such a law, see here), there are other relevant EU rules. In particular, the Commission proposal refers to EU free movement law, substantive EU criminal law relevant to violence against women, EU immigration and asylum law, and the EU law on crime victims’ rights, applicable from last autumn (on the content of the crime victims’ law, see discussion here). It should also mean that the Convention will already bind those EU Member States which had not yet ratified it, as regards those provisions within EU competence. The proposal is based on EU competence over victims’ rights, and would apply (if agreed) to every Member State covered by the crime victims’ law – meaning every EU country except Denmark.

In practical terms, that should mean that (for instance), EU law must be interpreted to mean victims receive a residence permit based on their personal situation, if the authorities consider it necessary (Article 59(3) of the Convention). That would apply to citizens of other Member States and their (EU or non-EU) family members, in all 27 Member States covered by the proposal. It would also apply to non-EU citizens in general, in the Member States which apply EU law on non-EU migration (ie the 25 Member States other than the UK, Ireland and Denmark, which have mostly opted out of such laws).  

For asylum cases, Article 60 of the Convention makes clear that gender-based violence is a ground of persecution. This is more explicit than the EU’s qualification Directive, which says that ‘gender-related aspects shall be given due consideration’, with further reference in its preamble to specific practices like genital mutilation. (Note that the UK and Ireland are covered by the first-phase qualification Directive, which has less precise wording on this issue; so the EU’s ratification of the Convention might have more influence in these countries).

As regards victims of domestic violence crimes (of any nationality and residence status), Chapter IV of the Convention, concerning support and protection, could in particular have an impact on the interpretation of the crime victims’ Directive in each Member State.

Fourth, since the CJEU will have jurisdiction to interpret those provisions of the Convention which fall within the scope of EU competence, this could promote a uniform interpretation of those provisions within the EU.  

Next, the relevant provisions of the Convention will be more enforceable if the EU ratifies it. While the CJEU ruled in the Z case that the UN Disabilities Convention did not have direct effect, and might rule the same as regards the Istanbul Convention, at least that Convention would have ‘indirect effect’ (ie the obligation to interpret EU law consistently with it), and the Commission could bring infringement actions against Member States which had not applied the Convention correctly, as regards issues within the scope of EU competence. Ensuring the enforceability of the Convention is all the more important since it does not provide for an individual complaint system.

Finally, ratification would subject the EU to outside monitoring as regards this issue, and avoid the awkward scenario of its Member States being monitored as regards issues within EU competence – meaning that the Convention’s monitoring body would in effect to some extent be monitoring whether EU Member States were complying with EU law.

Conclusion

For all the above reasons, the EU’s planned ratification can only be welcomed. It may not, by itself, prevent any act of violence from being committed, but it may accelerate a broader process of ratification (and corresponding national law reform) on this issue. And it may have the important practical impact of helping victims receive support or protection, particularly in the context of the law on crime victims, immigration or asylum.

Barnard & Peers: chapter 25, chapter 26

JHA4: chapter II:4, chapter I:5

Crime victims: does EU law now confer extra rights?

Steve Peers*

*This analysis is adapted from the forthcoming 4^th edition of EU Justice and Home Affairs Law

Most crimes have victims. Those victims are often not only devastated by the impact of the crime, but also frustrated by the insensitivity of the criminal justice system towards their concerns. To address this, back in 2012 the EU adopted a Directive on crime victims’ rights, which Member States must comply with by today’s date. This law replaces a previous EU law on the subject, a Framework Decision dating back to 2001. What is different about the new rules? How much impact could they have on victims’ rights in practice?

Previous law: the Framework Decision

The Framework Decision had to be applied in phases between March 2002 and March 2006. It defined a ‘victim’ broadly, as meaning ‘a natural person who has suffered harm, including physical or mental injury, emotional suffering or economic loss, directly caused by acts or omissions that are in violation of the criminal law of a Member State’. According to the CJEU rulings in Dell’Orto and Eredics, in light of this definition, the Framework Decision did not apply to legal persons as victims. Nor did it require Member States to make legal persons criminally liable for their acts (Giovanardi).

It applied to ‘criminal proceedings’ defined in accordance with national law, and the Court of Justice confirmed in Katz that this included private prosecutions. But the CJEU also ruled (in Gueye and Salmeron Sanchez) that it did not harmonize substantive criminal law, such as domestic violence legislation.

As to the substance, the Framework Decision provided first of all generally for ‘respect and recognition’ for crime victims, requiring that each Member State ensure that victims have a ‘real and appropriate role in its criminal legal system’, that they ‘are treated with due respect for the dignity of the individual during proceedings’ and that they ‘recognise the rights and legitimate interests of victims’. In the case of ‘particularly vulnerable victims’, there was an obligation to provide ‘specific treatment best suited to their circumstances’. Member States also had to make provision for victims to supply evidence, but to refrain from questioning them any more than necessary. Bringing these points together, the ‘most vulnerable’ victims had to able to testify in a manner which protected them from the effects of giving evidence in open court, by means compatible with national legal principles.

In the well-known Pupino judgment, which concerned very young children who were allegedly abused in a nursery by their teacher, the Court of Justice unsurprisingly ruled that such victims must be considered ‘vulnerable’ pursuant to the Framework Decision – leaving aside the bigger question of whether all minors must be considered ‘vulnerable’. So these victims were entitled to the protection of a special procedure in which they did not have to give their testimony in court, as long as this was consistent with the right to a fair trial. But in the later judgment in X, concerning alleged sexual abuse of a child, the CJEU ruled that this did not entail an obligation to use those special procedures where in effect the victim was asking for their use as a means to overrule the discretion to bring proceedings which national law gave to prosecutors.

Similarly, in the Katz case, the Court ruled that a person bringing a private prosecution did not have the right to demand, in light of the generality of the Framework Decision, that he have the status of a witness; but nevertheless the Framework Decision required that he must be able to submit evidence in the proceedings in some form. The Court later clarified (in Gueye and Salmeron Sanchez) that this right to be heard in the proceedings entailed the possibility for the victim to describe what happened and to express an opinion, but not to insist on any particular penalty.

Next, victims had the right to receive information on a number of issues, inter alia on the conduct of the criminal proceedings following their complaint and on the release of the accused or convicted person, at least where there might be a danger to the victim. If victims were parties or witnesses, Member States had to take necessary steps to reduce any communication difficulties they face (presumably by providing for translation and interpretation; this fell short of the later EU Directive on translation and interpretation for suspects). Member States also had to ensure legal and non-legal aid was provided to victims who are parties, and that victims who were witnesses or parties might receive reimbursement of their expenses. (Compare to the proposal on legal aid for suspects, discussed here).

Victims’ privacy and safety had to be protected, inter alia from reprisals from the offender. This could entail special methods of giving testimony, ensuring lack of contact with the offender in court proceedings, and limiting photography of victims in courtrooms. The CJEU clarified in Gueye and Salmeron Sanchez that these rules aimed ‘to ensure that the ability of victims adequately to take part in the criminal proceedings is not jeopardised by the possibility that their safety and privacy is placed at risk’. But victims’ right to a private life didn’t mean that they could influence the penalties which courts could impose upon offenders, such as a mandatory injunction in domestic violence cases, since these provisions in the Framework Decision did not aim to regulate any indirect consequences to the victims’ private life stemming from the imposition of criminal penalties upon offenders.

Member States had to ensure that it was possible for the victim to receive a decision on compensation from the offender in criminal proceedings, unless in certain cases compensation is provided in another manner; and Member States had to return victims’ property that was not needed for the purpose of criminal proceedings. The Advocate-General’s opinion in Dell’Orto argued that the former right had to include compensation for pecuniary losses, and that any exception from the possibility to obtain a decision on compensation had to be limited to certain cases only and take place usually within the framework of the same proceedings which resulted in a conviction of the offender. As for the return of property, the opinion argued that the obligation to return it only applied where the ownership of the property was undisputed or had been established in criminal proceedings; otherwise the issue is a matter for civil law.

The Framework Decision also required Member States to ‘seek to promote penal mediation’ between victim and offender ‘for offences which it considers appropriate’. The CJEU clarified this obligation in Eredics: Member States had discretion to decide which offences are covered by such proceedings. While their discretion might be affected by a need to use objective criteria to decide on which cases to cover, it was not a breach of the Framework Decision to confine penal mediation to cases involving offences against the person, transport safety, or offences against property. Member States could equally exclude domestic violence cases from penal mediation (Gueye and Salmeron Sanchez).

There were specific provisions for victims who are resident in another Member State, and for cooperation between Member States. Finally, Member States also had to promote victim support organizations, train personnel in contact with victims (particularly police officers and legal practitioners), and ensure that intimidation of victims cannot occur in venues such as courts and police stations.

The Commission’s first report on the national transposition of most provisions of the Framework Decision was quite critical regarding the lack of reported national measures which fully met the specific requirements of the Framework Decision. Its second report concluded that implementation of the Framework Decision was still ‘not satisfactory’, due to the continued variations and omissions in national law and the decision of some Member States to implement the Framework Decision by non-binding means.

The 2012 Directive

From today’s date, the Directive has fully replaced the previous Framework Decision (except in Denmark, which had an opt-out). One difference with the previous rules is the legal effect of the law: unlike the Framework Decision, the Directive can confer directly effective rights on victims, rather than indirect effect only (as confirmed by the CJEU in Pupino).

Furthermore, there are a number of substantive changes to the rules, which overall increase the standard of protection for victims’ rights. First of all, the Directive contains a new provision on its objectives, including a general requirement of decent treatment, including non-discrimination; there is also a specific general rule on child victims (Art 1(2)). The definition of ‘victim’ now expressly includes family members in the event of a victim’s death (Art 2(1)(a); ‘family members’ are defined in Art 2(1)(b)). There are wholly new rules on the victim’s ‘right to understand and to be understood’ (Art 3), followed by greatly expanded rules on the victim’s right to receive information (Arts 4 to 6; compare to the ‘letter of rights’ Directive for criminal suspects).

Victims have a ‘right to interpretation and translation’, which is much stronger than the rules on ‘communication safeguards’ in the previous Framework Decision. In fact, these rights are essentially a short version of suspects’ rights to information and translation, set out in the EU legislation referred to above. They also have a ‘right to access victim support services’, which again is much stronger than the rules on ‘specialist services and victim support organisations’ in the Framework Decision. On the other hand, the right to be heard for victims has not changed significantly.

A potentially important new right for victims is the right to review a decision not to prosecute (Art 11), although this does not go so far as to require all Member States to ensure a prosecution following every complaint by a victim (which some Member States provide for already in principle). While the ‘procedural rules’ for such reviews are determined by national law, Member States do not have any discretion as regards the underlying obligation to provide for such reviews, or to limit the substantive grounds which might be pleaded in such challenges. For instance, it should always be possible to argue that a decision not to prosecute was discriminatory, in light of the obligation to deal with victims and respond to victims’ complaints in a non-discriminatory manner (Art 1(1)). The preamble (recital 44) suggests that this right also applies ‘where a prosecutor decides to withdraw charges or discontinue proceedings’.

However, the Directive includes some special rules on this right. Where (under national law) the role of the victim is established only after a decision not to prosecute has been taken, only the victims of serious crime have such a right of review (Art 11(2); on the definition of ‘serious’ crime, see recitals 8 and 18 in the preamble). Also, the right of review does not apply to decisions taken by courts (recital 43 in the preamble), so victims have no right to review of a sentence, or to early release, although they have the right to information about such developments (Art 6).  The right to review ‘does not concern special procedures, such as proceedings against members of parliament or government, in relation to the exercise of their official position’ (Art 11(5)). Member States can also override the right to review in cases where a prosecutor decides not to prosecute following an out-of-court settlement (Art 11(3)).

Procedurally, victims must be given sufficient information about their right to review ‘without unnecessary delay’ (Art 11(3)). Normally the review must be carried out by a body independent of the body which decided not to prosecute (recital 43 of the preamble), but where the decision not to prosecute was taken by the highest prosecution authority and no review of that decision is possible under national law, the decision must be reviewed by the same authority (Art 11(4)). Implicitly, it is not necessary for a court to carry out the review, but that interpretation is questionable in light of the right of access to court in Article 47 of the Charter.

The Directive is silent on what happens if the review is successful. However, logically the principle of effectiveness of EU law requires that in this case, at the very least the prosecutors must reconsider their decision not to prosecute to the extent that it was flawed, and produce a fresh decision following that reconsideration.

Next, the Directive provides for safeguards in restorative justice services, in place of the prior rules on ‘penal mediation’ (Art 12; it follows that the case law on penal mediation is no longer relevant). But a series of rules (Arts 13-19) have not been fundamentally altered: the right to legal aid; the right to reimbursement of expenses; the right to the return of property; the right to a decision on compensation from the offender; the rights of victims resident in another Member State; the general right to protection; and the right to avoid contact with the offender.

Finally, there are a number of changes to other important rules: the rules on protection of victims during criminal investigations (interviews, legal assistance, medical examinations) have been expanded (Art 20); the right to privacy of victims has been elaborated further (Art 21); the provisions on victims with ‘specific protection needs’ have been hugely expanded (Arts 22-24); there are expanded provisions on the training of practitioners (Art 25); the rules on cooperation between Member States’ authorities have been expanded (Art 26(1)); and there are new provisions requiring Member States to make victims more aware of their rights (Art 26(2)).

Compared to the previous legislation, the Directive not only has stronger legal effect, but also has increased substantive rights for victims as regards: non-discrimination; the ‘right to understand and to be understood’; the right to receive information; the ‘right to interpretation and translation’; the ‘right to access victim support services’; the right to review a decision not to prosecute; safeguards in restorative justice services; protection of victims during criminal investigations; the right to privacy of victims; and victims with ‘specific protection needs’, including victims of hate crimes. The Directive is therefore likely to make a significant contribution to the protection of crime victims' rights in the EU - assuming, as always, that it is fully and correctly implemented.

See also: the Commission’s detailed guidance document concerning implementation of the Directive. 

Barnard & Peers: chapter 25

Photo credit: www.blogs.independent.co.uk

Denmark and EU Justice and Home Affairs Law: Details of the planned referendum

 

 

Steve Peers

Danish participation in cross-border criminal law measures is symbolised by 'The Bridge', the 'Nordic Noir' series about cross-border cooperation in criminal matters between Denmark and Sweden. But due to the changes in EU law in this field, that cooperation might soon be jeopardised. As a result, in the near future, Denmark will in principle be voting on whether to replace the current nearly complete opt-out on EU Justice and Home Affairs (JHA) law with a partial, selective opt-out. I have previously blogged on the implications of this plan in general terms, but it’s now clear exactly what this vote will be about.

First of all, a short recap of the overall framework (for more detail, see that previous blog post). Back in 1992, Denmark obtained an opt-out from the single currency, defence and aspects of JHA law (it’s widely believed that it also obtained an opt-out from EU citizenship, but this is a ‘Euromyth’). These opt-outs were formalised in the form of a Protocol attached to the EU Treaties as part of the Treaty of Amsterdam. The JHA opt-out was then amended by the Treaty of Lisbon.

At present, Denmark participates in: the EU policing and criminal law measures adopted before the entry into force of the Treaty of Lisbon; measures relating to the Schengen border control system (as  matter of international law, not EU law); the EU rules on visa lists (as a matter of EU law); and the EU’s Dublin rules on allocation of asylum applications, ‘Brussels’ rules on civil jurisdiction and legislation on service of documents (in the form of treaties with the EU). In contrast, Denmark does not – and cannot – participate in other EU rules on immigration and asylum law or cross-border civil law, or policing and criminal law rules adopted since the entry into force of the Treaty of Lisbon.

The Protocol on Denmark’s legal position either allows it to repeal its JHA opt-out entirely, or selectively. If it chooses to repeal the opt-out selectively, it would then be able to opt in to JHA measures on a case-by-case basis, like the UK and Ireland, although (unlike those states) it would remain fully bound by the Schengen rules. Indeed, those rules will then apply as a matter of EU law in Denmark, not as a matter of international law.

In practice, while Danish governments have promised for a while to hold a referendum on the JHA opt-out, the concrete plans to hold one in the near future were triggered in light of the planned EU legislation to replace the current rules establishing Europol, the EU police agency, with new legislation (on that proposal, see here).  This led to an agreement between the government parties and several opposition parties (excluding the far-right Danish Peoples’ Party) known as the ‘Agreement on Denmark in Europol’ (for the text, see here). This agreement states that the referendum will take place after the next general election (which must be held by September 2015), and no later than 31 March 2016. The ‘main reason’ for the referendum is to allow Denmark to opt in to the new Europol rules, but the parties also agreed to study whether Denmark should opt in to other EU civil, criminal and policing laws which currently don’t apply. However, the parties agreed that Denmark should not opt in to any EU immigration or asylum law (besides Schengen, which already applies).

This analysis has now been completed (see the text in Danish here), and the parties have agreed that Denmark would apply to opt in to 22 EU laws if the referendum is successful. Conversely, they have agreed not to opt in to 10 other EU laws.

As regards civil cooperation, the parties have agreed to opt in to large majority of EU measures, as regards: insolvency; payment orders; small claims; the European enforcement order; mediation; the Rome Regulation (on conflicts of law concerning contract); the Rome II Regulation (on conflicts of law concerning non-contractual liability); external relations; protection orders; inheritance; maintenance proceedings; parental responsibility; and account preservation orders. It should be noted that changes to the insolvency proceedings regulation are about to be formally adopted, and changes to the small claims rules will likely be agreed later this year; presumably the agreement also entails opt-ins to the existing legislation as amended.

In contrast, the parties agreed not to opt in to legislation on legal aid in cross-border proceedings, or to the Rome III Regulation on conflicts of law in divorce cases. Nor have they agreed yet on whether to opt in to the pending proposals relating to jurisdiction and choice of law over marital property, and the property of civil partnerships, in the event of relationship breakdown. In general, the recent agreement states that decisions to opt in to measures which have not yet been adopted depend on a future consensus of the relevant parties, or endorsement in a general election.

As for policing and criminal law, the parties agree to opt in to all measures concerning substantive criminal law and most measures concerning EU agencies and mutual recognition. In particular, they agree to opt into seven Directives, regarding: the European Investigation Order; protection orders; trafficking in persons; sexual abuse of children; cyber-crime; market abuse; and counterfeiting the euro. Conversely, they rule out opting in to the legislation on crime victims’ rights, the three Directives on suspects’ rights (concerning interpretation and translation, access to a lawyer and the right to information) and the rules on confiscation of criminal assets. They also rule out opting in to the legislation on EU funding in JHA matters.

They have partly agreed on future measures in this field, agreeing to opt in to the Regulations now under discussion on Europol and Eurojust (the EU prosecutors’ agency) and the Directive on passenger name records, but to opt out of the legislation establishing the European Public Prosecutor. The Commission has also proposed legislation on the European Police College, fraud against EU funds and drug trafficking, along with three more suspects’ rights measures (concerning childrens’ rights, the presumption of innocence and legal aid). Decisions on those measures will again depend upon on a future consensus of the relevant parties, or endorsement in a general election.

The parties’ clarification of their intentions provides useful certainty for the Danish public when it has the opportunity to vote on these issues. In general, in criminal matters Denmark would be participating in the EU measures assisting the prosecution, without any counterbalance by means of recent legislation regarding the rights of victims or suspects. Similarly it would still be participating in the Schengen rules on external border controls and the abolition of internal border checks, without any of the accompanying harmonisation of immigration and asylum law that applies to other Schengen States which are EU members. On the whole, Denmark would also be participating in more JHA legislation than the UK and Ireland – not just as regards full participation in Schengen (as is already the case), but also as regards the EU legislation on inheritance, account preservation, investigation orders, market abuse, currency counterfeiting and Eurojust, all of which one or both of the UK and Ireland have opted out of. On the other hand, the UK and Ireland have opted in to the EU legislation on crime victims’ rights, some of the legislation on suspects’ rights and the first phase of EU asylum law. Given that Ireland participates in the single currency, a Danish 'yes' to selective participation in JHA law would cement the UK's position as the chief non-participant in EU laws which bind most other Member States.

 

Barnard & Peers: chapter 26

All smoke and no fire in the EU strategy towards the eradication of trafficking in human beings

 

Dr Matilde Ventrella, Senior Lecturer in Law, University of Wolverhampton (UK)

 1.       Introduction

On October 17^th, the European Commission published the mid-term Report on the implementation of the EU strategy towards the eradication of trafficking in human beings (THB) and a Communication on the application of Directive 2004/81 on the residence permit issued to third country nationals who are victims of human trafficking or the subject of an action to facilitate illegal immigration and who cooperate with competent authorities.  In this analysis, I will first examine the mid-term report, I will then examine the Communication on the application of Directive 2004/81 and I will draw my final considerations.

2.       The mid-term report on the implementation of the EU strategy towards the eradication of trafficking in human beings

The Report focuses on the policies and laws that the EU is implementing and on the progress made from 2012 to the third quarter of 2014. 

The Commission’s report states that the first step to take in order to address THB is implementing Directive 2011/36/EU on the criminal law aspects of the issue. This Directive, for the first time, recognises THB as a gender specific phenomenon and that women and men are often victimised for different purposes (paragraph 3).  The Directive requires Member States to investigate and prosecute perpetrators (Article 9) and to give adequate protection to victims.   The mid-term Report emphasises that 25 Member States have communicated the transposition of the Directive in full and it states that Member States shall take full responsibility to eradicate this serious criminal activity.  Their priority should be identifying victims and giving them adequate protection.  The Commission has clearly explained how victims should be identified by publishing the “Guidelines for the Identification of Victims of THB”.  The Guidelines stated that the early identification of victims is crucial as it enables investigative and police authorities to better investigate THB and prosecute the perpetrators.  For this purpose, consular services and border guards should offer regular training to their officers to enable them to identify victims and potential victims.  The Guidelines also stressed that consular services and border guards should consider cooperation agreements to facilitate the identification of victims.  The Guidelines emphasised that cooperation should be developed with organisations such as Non-Governmental Organisations and special attention should be given to child victims of THB. 

Also, the mid-term Report explained that adequate protection to victims could be given by demand reduction and awareness-raising programmes.  Particular attention should be focused on combating violence against women and gender inequalities as these are root causes of THB.  The Commission has launched a study on the gender dimension of THB which should be published in the second half of 2015.

Since THB is a serious form of organised crime, the Commission called for cooperation and partnership between EU Member States.  The Commission encouraged ‘Member States’ operation in the field of internal security’, the support from Europol to Member States’ action and the adoption of ‘annual operational action plans on each priority area identified by the Council’.  The Council has identified THB as one of the priority of the EU Serious and Organised Crime Policy Cycle.

The report also pays particular attention to civil society.  In the Commission’s view, it is essential to involve civil society and for this purpose, it launched in 2013 the EU Civil Society Platform against THB in Member States and selected non-EU countries.  The Civil Society Partnership meets every 2 years, bringing together over 100 civil society organisations specialised in THB in Member States and four non Member States (Albania, Morocco, Turkey and Ukraine). 

Finally, the Commission called for more cooperation between EU Member States and non-European countries in order to identify all forms of THB.  The Commission referred to an action oriented paper (AOP) adopted by the Council in 2009.  The AOP emphasised the importance of dialogue with third countries to fight against THB and it supported ‘international effort in this field advocating at various UN fora the prevention of THB, THB victim protection and assistance’... ‘international cooperation and coordination on THB’.  The AOP also highlighted that EU agencies such as Eurojust, Europol, Frontex and FRA should be consulted when the EU takes action to cooperate with non-EU countries to fight against THB.  

The Justice and Home Affairs (JHA) agencies (CEPOL, Eurojust, Europol, the European Asylum Support office (EASO), the European Institute for Gender Equality (EIGE), FRA and Frontex) have annexed to the Commission mid-term Report, a joint action report carried out in between October 2012 and September 2014.  The Annex stated that these agencies should work together ‘in a more coherent and comprehensive manner, taking synergies and avoiding duplication of effort’.  However, the Annex did not explain clearly how they have to undertake their tasks.  The Report explained that JHA agencies shall have the aim of dismantling criminal groups in cooperation but there is not any concrete proposal.  In other terms, the Annex simply explained that all the JHA agencies have done, was organising meetings, trainings and conferences but no concrete actions against criminal organisations have been undertaken.

 JHA agencies were established for different purposes.  Consequently, I believe their tasks should be clearly differentiated.   Example: the European Asylum Support office (EASO) should not have the same tasks as Europol because the EASO was set up to improve the implementation of a Common European Asylum System, whilst Europol was established to support Member States’ investigation of cross-border crime.  The Annex did not explain how these agencies should fulfil their objectives and how they should ensure coordination while avoiding overlapping.    I believe that the JHA agencies should have pushed for reforms.  The Annex should have explained whether it is desirable to reform Europol’s scope, in order to strengthen cooperation with non European countries as THB is a cross-border crime committed in the EU and outside the EU.  It has been reported that migrants smuggled by sea are exposed to THB during their trips and when they reach their countries of destination.  This is because they cannot repay the price of their journey.  Therefore, they are threatened by their smugglers and eventually they become victims of THB (see reports by the UN, the IOM and the Global Initiative).  Furthermore, recent research undertaken by Italian journalists has found out that people smuggled by sea are often victims of traffic of organs since, when they cannot repay the price for their journey, they are left with no choice than selling their kidneys and corneas to smugglers.  What role should JHA agencies play in detecting these dangerous criminals within and outside the EU?  The Commission’s mid-term Report and the JHA agencies’ Annex, are full of good intentions and fine words but they are inconclusive, as there are no concrete proposals.

The extent of THB remains unknown, in particular the number of victims of smuggling who eventually become victims of THB and traffic of organs.  However, the Commission mid-term report published, for the first time, statistical data on victims and traffickers for the years 2010 to 2012.  These data are based on the Statistical Working Paper published by Eurostat.  The working paper provided data based on the total of victims or ‘presumed victims’ identified by the Member States.  Presumed victims are those people who have met the criteria to be identified as victims on the basis of Directive 2011/36/EU but who have not been formally identified by relevant authorities or who have refused to be identified as such.  According to the data, it is estimated that over the years 2010-2012, 30.146 victims or presumed victims were registered in the 28 Member States.  80% of registered victims were female, 45% of victims were of the age of 25 or older, 36% of registered victims were aged 18-24 years old, 17% of victims were in between 12-17 years old and 2% of all victims accounted children aged 0-11 years old.  However, THB concerning EU citizens prevails in the statistics and only victims from five non EU countries were identified (Nigeria, China, Brazil, Russia and Algeria).  Victims who are hiding within Member States or who have been smuggled by sea and eventually have become victims of THB, have not been identified.  The number of these people remains unknown.  The Commission’s report stated that it is a priority to identify victims but only by reinforcing investigations within the EU and outside the EU, victims can be seriously identified.  Understanding the links of criminals can facilitate the identification of victims coming from many African countries.  Nevertheless, no steps have been taken in this direction. 

3.       Analysis of the Communication from the Commission on the application of Directive 2004/81

The Commission analysed how Directive 2004/81 has been implemented by Member States.  The Directive states that victims of THB and victims of smuggling of migrants may be granted a residence permit if they decide to cooperate with law enforcement authorities to contribute to detect criminals.    However, in the case of smuggling, EU Member States retain the discretion to apply the Directive.   The issue of a residence permit is limited to cases where the victims are willing to cooperate with police. However, Member States have the option to grant a residence permit to all victims, even if they are not willing to cooperate. The lack of an obligation to grant a residence permit in cases of non-cooperation is inconsistent with Directive 2011/36, which requires Member States to give THB victims support and assistance even if they are not cooperating with the police.

The Commission stated that it is very important to identify victims ’for the effective application of the Directive’ and inform them of their rights ‘to initiate a recovery process and to reflect  before deciding whether to cooperate with the authorities’.   However,  the Commission has reported that, in the legislation of Member States, it is unclear whether the information is provided to officially identify victims or also to presumed victims.  I think presumed victims should be given the information as it could be a way to give them the opportunity to escape from the traffickers and start a programme of recovery.  

The Commission has also reported that Member States are issuing low numbers of residence permits in exchange for cooperation and, only in exceptional circumstances, the residence permit is issued beyond the willingness of victims to cooperate.   When I interviewed police officers and members of the civil society in Rimini (Italy), I found out that THB can be seriously defeated if victims and presumed victims are granted an unconditional residence permit.  This is because such a residence permit is reassuring and it puts victims and presumed victims in the position to report the criminals without any constraints.  In addition, an unconditional residence permit will interrupt the vicious circle victims become trapped in, when the investigations are concluded and their residence permit expires.  They become vulnerable and again easy targets for traffickers.  Conversely, victims with an unconditional residence permit will integrate in the new society and will not be vulnerable to trafficking anymore.  By adopting this method, police authorities in Rimini have defeated THB and police authorities in Siracusa (Italy) have detected some criminal organisations smuggling people from Egypt to Italy. Police authorities in Siracusa explained that the whole phenomenon of smuggling of migrants by sea cannot be defeated by isolated actions of national police as it requires investigations outside the EU and they would welcome more involvement of JHA agencies.

 The Commission is very concerned about the rare use of the issue of an unconditional residence permit and intends to engage in bilateral exchanges with Member States in order to improve the correct application of the Directive.  It also intends to implement the Task Force Mediterranean established in 2013 with the aim to prevent the death of migrants at sea.  This is very welcome as it seems that finally, the strong connections between THB and smuggling of migrants by sea have been fully recognised.  However, even the Communication on the Task Force Mediterranean is disappointing because it is not clear what concrete action and external cooperation agencies such as Europol and Eurojust can take in the fight against these two crimes.  It promoted cooperation with third countries and a global approach on immigration but no reforms have been proposed. 

4.       Conclusions  

The Commission reports have depicted a situation within Member States which will not contribute to defeat or at least reduce THB.  Furthermore, in the Communication on Directive 2004/81, the Commission has reported how Member States are neglecting to issue residence permit to victims of THB.  The Commission has shown its intention to ensure the situation improves and one hopes progress will be made in the issue of residence permits.

It is also believed that agencies such as Europol should be given relevant investigative powers within the EU and outside the EU.   I am aware that a reform as such requires the consent of Member States as it can be adopted on the basis of Article 87 of the Treaty on the Functioning of the European Union (TFEU).  However, Member States only seem focused on protecting their borders as if the fight against THB would not contribute to protect their borders by reducing irregular migration!  Italy has communicated that the Mare Nostrum Operation will be suspended and other Member States are not making efforts to prevent this suspension by cooperating with Italian authorities in rescuing and hosting migrants at sea.  Not only there is no willingness to cooperate in investigations and grant residence permits to victims, but Member States do not even want to rescue migrants at sea from drowning.  If this situation will continue, victims of THB will increase as will the number of victims of the connected crime of smuggling of migrants by sea.

 Barnard & Peers: chapter 26