This initiative is similar in many respects to a framework decision which was discussed by the joint committee in November 2009 but lapsed as agreement was not reached on the measure prior to the entry into force of the Lisbon treaty.
Under Article 3.1 of Protocol 2 annexed to the Treaty of Lisbon, Ireland may notify the President of the Council of the European Union that it wishes to take part in the adoption and application of this proposed directive within three months of the date of publication of the proposal. In the alternative, we can opt into the measure after it has been adopted but in that event we will not be able to influence the content of the measure. The three-month period to take part in the adoption and application of the measure expires on 12 July 2010.
I will set out briefly the main provisions of the proposed directive, given that many of them are very similar or identical to the measure previously discussed. Article 1 sets out the aim of the directive, that is, to establish minimum rules concerning the definition of criminal offences and sanctions for trafficking in human beings and introduce common provisions to strengthen the prevention of the crime and the protection of its victims.
Articles 2 to 6, inclusive, set out the criminal justice provisions, many of which are already covered by the Criminal Law (Human Trafficking) Act 2008. Article 2 defines trafficking in human beings. Article 3 provides that the instigation of, aiding and abetting or attempting to commit an offence of trafficking in human beings is punishable. Both provisions are an exact replica of the text previously discussed by the committee.
Article 4 sets out the penalties to be applied by member states. The penalty for the substantive offence is a maximum of at least five years imprisonment. A maximum period of at least ten years is to be applied in the aggravating circumstances set out in Article 4.2. Under Article 4.3, if an offence is committed by a public official in the performance of his or her duties, this is to be regarded as an aggravating circumstance. The offences of instigation, aiding and abetting or attempt must be punishable by effective, proportionate and dissuasive criminal penalties, which may include surrender under Article 4.4.
Article 5 provides for the liability of legal persons. Article 6 sets out the sanctions to be imposed on legal persons. They are a restatement of the provisions in the 2002 framework decision dealing with this issue and in the measure which lapsed last year.
Article 7 is a non-punishment clause. It provides for the possibility of not prosecuting or imposing penalties on victims for their involvement in unlawful activities to the extent they have been compelled to become so involved.
Article 8 deals with the issue of investigation and prosecution. It imposes a mandatory obligation on member states to provide that an investigation or prosecution will not be dependent on a report or accusation made by a victim and allows for the possibility for criminal proceedings to proceed in the event that the victim withdraws his or her statement. Provision is made for the availability of effective investigative tools for those responsible for investigating or prosecuting trafficking offences. There is a mandatory obligation on member states to train those responsible for investigation or prosecution. Again, Articles 7 and 8 are a restatement of the provisions in the measure which lapsed.
Article 9 requires member states to establish jurisdiction over offences in defined circumstances. The main additional circumstances over and above those provided for in the 2002 framework decision is that jurisdiction must be established where the offender has his or her habitual residence in its territory or the offence is committed against one of its nationals or a person who has his or her habitual residence in its territory.
Article 10 provides for assistance and support to victims. The main difference with the text which lapsed is the addition of a provision at Article 10.3 that assistance and support for victims should not be made conditional on their willingness to act as a witness. Since the text was published, the provision has been supplemented to state that this assistance and support is to be provided unconditionally, at least during the reflection period, for those who do not reside lawfully within the state.
Article 11 deals with the protection of victims of trafficking in criminal investigations and procedures. Article 12 sets out the general provisions on assistance, support and protection measures for child victims of human trafficking taking account of the best interests of the child. Article 13 provides for assistance and support to child victims of trafficking in human beings. Again, the provisions are similar to those in the draft instrument which lapsed before the Lisbon treaty was adopted.
Article 14 deals with the protection of child victims of trafficking in human beings in criminal investigations and proceedings. The main substantive difference with the previous text is that it is under Article 14.1 for competent authorities, as opposed to judicial authorities, to appoint a special representative for child victims where the holders of parental responsibility are precluded from representing the child. This amendment has been made during negotiations to cater for the differing systems in member states for appointing child representatives.
Article 15 sets out the preventative measures to be applied by member states. Article 16 requires member states to establish national rapporteurs or equivalent mechanisms to conduct assessments on trends in the trafficking of human beings, measure results and report thereon. Again, the provisions are similar to those in the draft instrument which lapsed.
Article 17 repeals Framework Decision 2002/629/JHA without prejudice to the obligations of member states relating to the time limits for transposition into national law.
Article 18 provides that member states shall bring into force the laws, regulations and administrative provisions necessary to comply with this directive by 30 months from adoption at the latest. The 30-month timeframe for implementation has been amended from two years in the text which was published. In addition, member states shall transmit to the Commission the text of the provisions transposing into national law the obligations imposed by this directive.
Article 19 provides that by five years from adoption, rather than four years in the text which was published, the Commission shall submit a report to the European Parliament and the Council assessing the extent to which member states have taken the necessary measures to comply with this directive. I thank the joint committee for its attention.