The proposed framework decision is an initiative of the Swedish Presidency. It follows on from measures already agreed at EU, UN and Council of Europe level. It specifically repeals and re-enacts with additional provisions an EU framework decision agreed in 2002 which created the offences of trafficking in human beings for the purposes of sexual exploitation, labour exploitation or removal of organs. In addition to criminal law provisions there are provisions governing non-punishment and prosecution, investigation and prosecution, victim support, prevention and monitoring.
As members of the committee are aware from the briefing provided the proposed framework decision is, in addition to the 2002 framework decision, also based on the provisions in the Council of Europe Convention on Action Against Trafficking in Human Beings.
As is the case with the other proposals before the committee today, the proposed framework decision is on the agenda of the forthcoming JHA Council Meeting on 30 November and 1 December. The measure was referred to the committee as the intention was that general political agreement on the measure would be reached at the JHA Council next week. We have now been advised by the Presidency that next week will provide an opportunity for the Council to have an orientation debate on the issue. The matter will, in any event, have to be re-examined in the context of the Lisbon treaty provisions. I will obviously revert to the committee again as the measure develops under the Lisbon treaty.
Articles 1 to 5 set out the criminal justice provisions. These mirror the analogous provisions in the original framework decision, with some updating to either bring them into line with other international instruments or go beyond the provisions in those instruments. Many of the provisions are already covered by the Criminal Law (Human Trafficking) Act 2008.
Article 1 defines trafficking in human beings. This definition has been expanded from that contained in both the original framework decision and in the Council of Europe Convention Against Trafficking in Human Beings to include begging or the "exploitation of criminal activities". The latter term is defined in the preamble as exploitation of a person to commit, inter alia, pick-pocketing, shop-lifting and other similar activities which are subject to penalties and imply financial gain. Article 2 mirrors the same article in the 2002 framework decision. It provides that the instigation of, aiding and abetting or attempt to commit an offence of trafficking in human beings is punishable. Article 3 sets out the penalties to be applied by member states. The penalty for the substantive offence is a maximum of at least between five and ten years imprisonment. A maximum period of at least ten years is to be applied in the aggravating circumstances set out in Article 3.2. Under Article 3.3, the offences of instigation, aiding and abetting or attempt must be punishable by effective, proportionate and dissuasive criminal penalties, which may include surrender. Article 4 provides for the liability of legal persons. Article 5 sets out the sanctions to be imposed on legal persons. They are a restatement of the provisions in the 2002 framework decision.
Article 6 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. The provision is to be implemented in accordance with the basic principles of the legal system in member states. The provision is similar to that contained in Article 26 of the Council of Europe convention. Article 7 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 of 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, such as those used in organised crime or other serious crime cases, 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.
Article 8 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 where the offence is committed against one of its nationals or a person who has his or her habitual residence in its territory. Article 9 provides for assistance and support to victims. Assistance and support is to be provided to victims before, during and for an appropriate time after criminal proceedings. Article 9 contains mandatory provisions in respect of provision of assistance and support where there are reasonable grounds to indicate the person is the subject of a trafficking offence, together with provisions for early identification, in co-operation with support organisations.
Article 10 deals with the protection of victims of trafficking in criminal investigations and procedures. The measures are in addition to any set out in the framework decision on the standing of victims in criminal proceedings. Provision is made for victims to have access to legal counselling and, in accordance with the role of victims in the relevant justice system, legal representation. Where appropriate and in accordance with the basic principles of its legal system, the identity of a victim of trafficking in human beings acting as a witness will not be disclosed. Provision is made for the protection of victims of trafficking on the basis of an individual risk assessment.
Article 11 sets out the general provisions on assistance, support and protection measures for child victims taking account of the best interests of the child. Where there is uncertainty as to the age of a person and there are reasons to believe that the person is a child, the person is presumed to be a child and receives the assistance and protections available to children.
Article 12 provides for assistance and support to child victims of trafficking in human beings. In addition to the assistance and support provided to adult victims in Article 9, member states are obliged to take specific actions in respect of child victims in the short and long term with regard to their physical and psycho-social recovery, following an individual assessment and taking account of the child's views, needs and concerns. Assistance and support is to be provided to the child's family where this is appropriate and possible and when the family is in the territory of the member state.
Article 13 deals with the protections of child victims of trafficking in human beings in criminal investigations and proceedings. These measures apply in addition to those set out in Article 10 in respect of adult victims. They include the appointment of a special representative for the child where the holders of parental responsibility are precluded from representing the child due to a conflict of interest between them and the child victim, or where the child is unaccompanied. Article 13.3 sets out the measures to apply in criminal investigations. They include early interviews in premises designed for the purpose, to be carried out by or through professionals trained for this purpose. Child victims may be accompanied by their legal representative or, where appropriate, an adult of their choice. Interviews may be videotaped and the videotape may be used as evidence in criminal court proceedings according to the rules under national law. In addition, child victims of trafficking may be heard in the courtroom without being present through the use of appropriate communication technologies.
Article 14 covers prevention in terms of discouraging demand. Provision is made for information and awareness raising campaigns, research and education programmes aimed at raising awareness and reducing the risk of people, especially children, becoming victims. The promotion of regular training for officials likely to come into contact with victims and potential victims is advocated. Provision is also made for member states to consider taking measures to criminalise the use of the services of a trafficked victim where the user knew that the person is a victim of a trafficking offence. Article 15 requires member states to establish national rapporteurs or equivalent mechanisms. I thank the committee for its attention and welcome the fact it is here to discuss this.
