Legal – Criminal Framework on preventing Human trafficking

Legal – Criminal Framework on preventing Human trafficking

di Ismail Zejneli

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Summary.

Human traficking is a global issue present in every country. The countries in the region are not an exception from this global phenomena and the research conducted in national and international level shows a constant growth in some countries while in others it is less present.

Human traficking represents a serious violation of human rights, violation in two directions: by the trafickers while conducting the traficking and by the state after the victim is saved from traficking. While being traficked the rights of the victim are violated extremly and women are victimized tremendously. For example: there is violation of the right of free movement, prohibition of torture and inhuman treatment, security and safety of the person etc.

Human traficking represents a violation of human rights, including the international stadard of a person to be free. Having in mind that this is an absolute right no derogation is permitted in no sicrumstance and by no authority.

Human rights are part of a range of relations between individuals obliged to act toward one another. These human relations exist regardless of the law or the understanding of anyone.

Whith the general understanding of human traficking as a violation of human rights, states should fulfill their obligations and take stronger measures in preventing and developing strategies to defend human rights in cases of human traficking.

The crime of human traficking is treated in different perspectives depending from the actors and institutions involved. Lately, states and international organizations have expressed their intention to treat human traficking as a violation of basic human rights. This approach as its own final goal the recognition and protection of the human rights of traficked persons. Therefore, with the continuous development of strategies against human traficking and international efforts to stop this practice, there are efforts to identify state obligations and develop an additional strategy in the overall war against traficking, the one of the protection from violations of human rights of the potential victims of traficking.

In dealing with the complex nature of human trafficking the criminal part of the legal system should look for new methods and means for the discovery, prevention, fight and efficient process of cases of human trafficking. In this regard, efforts should be made for legislative reform of the criminal law and criminal procedural law as well as efforts for strengthening the protection of human rights of the persons involved.

1. It is well known that no society was and will never be immune from crime, as a negative social behavior, regardless of the time or its social-political regulation. Even today, each society organized in the state, undertakes preventive measures, to inhibit people to commit crimes, through different institutions: e.g. (family, school, social welfare organizations, as well as other non-governmental units and media). There is no hesitation that this process of combating criminality is a complex course of action, however, it is indispensable. On the other hand, one shouldn’t expect that the preventive-educational process, while being crucial, will hamper and completely eradicate criminality.

Some authors are right when arguing that crime is as old as the history of civilization, having marched hand in hand, since human development has passed through times with events associated with various types of violence and crime. The mystery of crime and its punishment has been a training objective of many scholars, philosophers, and authors. There is not much professional literature in Albanian language related to the phenomenon of crime, its causes, forms, and prevention. The professional scientific research on the phenomenon of crime in Albanian language started late compared to other countries. The reasons for this flounder are complex, and have a long history. Nevertheless, the topics related to crime, its causes, consequences and prevention, have been considered as crucial, and a subject of literary and artistic works by many authors in the Albanian world from renaissance to the present. They have treated the subject of crime, and its consequences, about the Albanian community, from critical and artistic point of view, respectively, in most of their works, as in poetry, prose, novels and in plays. They argued in these works about particular negative and criminal phenomena, which have been considered as an obstacle in the national development of the Albanian nation’s civilization, cultural and scientific development. The most extensive works written by these authors included: revenge murder; extortion; fraud, marriage based on old customs; rivalry; jealousy; regional, religious and class division. In this regard, the best examples are the plays written by Naim Frasheri, Sami Frasheri, Çajupi, Migjeni, Fishta, Agolli, Kadare, as well as other Albanian authors.

Nowadays, one of the most common types of crime are: human trafficking, corruption, money laundering, drug dealing and immigrant smuggling etc.

Human trafficking is considered as one of the most crucial and global issue that has affected all states. The regional countries are also affected by this global occurrence, and the research carried out, both in local and international level, has shown that some countries have a steady increase in the number of trafficking in persons than the others.

Trafficking in persons represents a violation of fundamental human rights and freedoms. Knowing that this is an absolute right, it doesn’t abide any restraints from anyone.

It is known that trafficking in women represents a violation of fundamental human rights. This crime is also linked with forcing women to prostitution, and it involves a variety of acts, such as: fraud, deception, threat, abduction, rape, misuse, as well as restricting the freedom of movement for the purpose of exploitation.

Therefore, the sex that results from forced prostitution might be found as a “property” contest. The core of slavery comprises the practice of jailing women in unknown areas, by isolating them from social sources, so that they can be exposed to exploitation. Even though there is no description of slavery in ECHR, or in the general comments number 28 of article 8 of ECHR from the Committee of Human Rights (supervisory body), the comment points out that women are exposed to slavery while being trafficked; as regards to their requirements, article 8, state parties are responsible to report the Committee, on measures taken to ensure ending the trafficking in women and children as well as forced prostitution, within its borders or beyond borders. They are also accountable to inform on measures taken to ensure protection of women and children, (including here foreign women and children) from the slavery.

Despite, international trafficking in persons, there is also, domestic human trafficking, (not much attention has been paid to this phenomenon), involves the movement and exploitation of people within their country of residence, that is, moving from poor areas to richer parts. Trafficking in women is conditioned by various reasons: economic, social, housing conditions, family status, unemployment, divorce, etc.

 

2. The right to be free from slavery is considered as one of the most fundamental human rights. This right is violated in the case of trafficking. The applicable human rights instruments are: The International Covenant on Civil and Political Rights (Article 8); The European Convention on Human Rights (Article 4); The 1926 Slavery Convention; other conventions related to Slavery.

Some of the most important international conventions that prohibit and penalize trafficking in persons are the Convention for the Suppression of White Slave Trade; International Convention for the Suppression of the Traffic in Women and Children; Convention on the Suppression of Trafficking in Adult Women; Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others.

The domestic state acts should also consider seriously human rights. In addition, the Republic of Macedonia has placed a special chapter in its constitution, with the basic freedoms and rights of the individual and citizen.

Thus, Article 8 states the fundamental values of the constitutional order, so that, the basic freedoms and rights of the individual and citizen, recognized in international law and set down in the Constitution, are crucial.

The human right to physical and moral dignity is irrevocable. Any form of torture, or inhuman or humiliating conduct or punishment, is prohibited (Article 11). No person’s freedom can be restricted except by court decision or in cases and procedures determined by law, (Article 12, Constitution of Republic of Macedonia).

The Palermo Protocol has set up a new criminal-legal framework in combating trafficking in human beings. States are obliged to implement effective programs for legal reforms, to enforce laws, to prosecute the traders of human trafficking, as well as, to offer help and protection for the victims of human trafficking.

In 2000, Macedonia has made a step forward by signing the Convention against Transnational Organized Crime, also associated to Palermo Convention. And, in accordance with that, it was envisaged as a special provision in the article 418 of the Criminal Code.

Article 418 restates the definition given in article 3 of the protocol. These changes in the criminal code of the date April 2002, stipulate a minimum imprisonment, e.g. that an offender shall be punished from 4 to 8 years imprisonment, for trafficking in persons. Changes in the Criminal Code of 2009, within crimes against humanity and crimes against international law, stipulate sanctions for persons, dealing with human trafficking (Article 418-a); persons dealing with immigrant smuggling (article 418-b); persons organizing a group or other association to commit human trafficking, trafficking children or juveniles, smuggling of migrants, (Article 418-ç), Juvenile Trafficking.

 A person who by force, serious threat misleads or uses other forms of coercion, kidnapping, deceit and abuse of his/her own position or a position of pregnancy, weakness, physical or mental incapability of another person, or by giving or receiving money or other benefits in order to obtain agreement of a person that has control over other person or in any other manner, recruits, transports, transfers, buys, sells, harbors or accepts persons because of exploitation through prostitution or other forms of sexual exploitation, pornography, forced labor or servitude, slavery, forced marriages, forced fertilization, unlawful adoption, or similar relationship or illicit transplantation of human body parts, shall be punished with imprisonment of at least four years”.  (Article 418-a)

If the crime referred to in paragraph 4 of this article is committed by an official person while performing his/her duties, he/she shall be sentenced to imprisonment of at least eight years.

The crime could be committed by each person, except for the form of the crime referred to in paragraph 4, of this article, which could be committed by an official person only.

As other rigorous trafficking in persons forms of crimes could be considered these cases: if the crime is committed to a juvenile, (article 418 ç), shall be sentenced with imprisonment of at least eight years. The most severe form of crime is stipulated in paragraph 2, of this article, a person who by force, serious threat misleads or uses other forms of coercion, kidnapping, deceit and abuse of his/her own position or a position of pregnancy, weakness, physical or mental incapability of another person, or by giving or receiving money or other benefits in order to obtain agreement of a person that has control over other person shall be punished with imprisonment of at least ten years.

Juvenile consent is not important to have this form of crime.

Apart from crimes mentioned, the Criminal Code of Republic of Macedonia also contains other provisions, by which the blood offences, where in most cases women are punished. These crimes are mainly stipulated in Chapter IX of the Criminal Code-Crimes against Sexual Freedom and Sexual Morals; Rape (Article 186); Statutory rape of a helpless person (Article 187); Statutory rape with misuse of position; Stimulating Prostitution (Article 191); Incest (Article 194).

In spite of Crimes against Marriage, Family and Youth, there is Bigamy (Article 195); and Extra-marital life with a juvenile, (Article 197).

The Criminal Code also contains other provisions, according to which the perpetrators (“Traders”) might be prosecuted of crime; Rape (Article 186); Misuse of official position and authorization (Article 353); Founding a slave relationship and transportation of persons in slavery (Article 418).

With the incrimination of human trafficking and the changes of the criminal legislation of Republic of Macedonia, the courts and prosecutors office, started to solve a considerable number of cases reported of Trafficking in persons.

A step forward, in regards to filing and accusation for criminals on crimes involving trade of women, presents the adoption of the law on the public prosecutor. Having in mind the experience and practice from a lot of European countries in this field, which showed that it is needed the redefinition of the role for criminal justice entities. With the new law of the Public Prosecutor in Republic of Macedonia, the position of the Public Prosecutors office was strengthened by enhancing its competences and by expanding its jurisdiction.

According to this law, a Session for prosecution of the criminals was included in the field of organized crime, and corruption, while, cases of trafficking in humans are treated in a special manner.

In practice there are many problems in the process of accusation of “Traffickers”. Consequently, according to the Code of Criminal Procedure, search should follow after taking victims statement. Therefore, it is of great importance giving legal assistance to the victim involved in human trafficking, during investigative procedure. Because of the fact that the victim implicated in human trafficking has the status of a victim conform to Article 12 of the Code of Criminal Procedure, and among other things, they have the right for protection. This is important, particularly when taking the official statement from the victim implicated in trafficking in women.

Other important element, through which, the right of victim is protected is the right to privacy, while court procedure, of those being implicated in human trafficking, they have the right to be informed with the provisions of the Article 221 of the Code of Criminal Procedure, that the “witness” is not obliged to answer peculiar questions, respectively, the person who, by giving his/her statement, would humiliate himself/herself or his/her close members, and that will cause a material damage.

Moreover, because of successful prosecution of criminals implicated in trafficking in persons, it is of great importance, that all the statements given from the victim should be carried out with the assistance of court interpreter, in accordance with the Article 7(2) of the Code of Criminal Procedure. In the past, there have been cases in Republic of Macedonia, when the victim who had the status of a witness, was not given the right to a court interpreter, an issue which had an effect in the completion of the case.

Except the criminal procedure legislation, a considerable achievement in regards to the legislative reforms in the country should be stated the adoption of the law on the foreigners (official gazette of Republic of Macedonia, #35/06 and 66/07) where, in many of its articles the conditions for gaining a temporary stay of the victim involved in human trafficking are regulated; the right for their adaptation is guaranteed; and the Law on Family (80/92, 9/96, 38/04 and 33/06).

A provision that refers to domestic violence was incorporated to the amendments to the Law on Family of 2004, where, for the first time domestic violence, also protection and assistance provided to the victims of the domestic violence was clearly defined. This is significant having in mind the fact that most of victims of human trafficking in women and children are victims of domestic violence.

3. Trafficking in persons represents a serious violation of human rights, violation done in two directions: in one side, it is the criminals while trafficking, and/or the states after victim’s rescue. While being trafficked, the victim’s rights are seriously violated, and women are maximally victimized. Typical examples include: the victim’s right of free movement is violated; the right of protection from torture and inhuman treatment, the right to security of person, etc.

According to the results of the research conducted in the recent years, both in a regional or worldwide level, resulted that about 700.000 to 2 million women are trafficked from one country to another, from one region to the other, or from one continent to another one. Based on the model used by the IOM (Organization) in Kosova, with the interview conducted with 474 cases of women assisted from the year 2000 until 2005, it resulted that the trafficked women were from: Moldavia-214 cases, or 45%, Rumania-89 cases, or 19%, Ukraine-58 cases, or 12%, Kosova-53 cases, or 11%, Bulgaria- 28 cases or 6%, Albania-24 cases, or 5%, Russia-3 cases or 1%, Serbia-3 cases, or 1%, etc..

In the year 2003, 33 offences involving Trafficking in Persons were registered, committed by 63 offenders, 20 offences involving Prostitution mediation, committed by 25 offenders; some other offences involved deceit and permission of sexual acts, committed by 1 offender. In the transit center for the foreigners, of that year, 132 foreign citizens were accepted as victims of human trafficking.

During 2004, there were 67 offences registered, and those committed by 115 offenders, related to the above mentioned offences. In the transit center for the foreigners, of this year, the number of foreign citizens reduced to 12 as victims of human trafficking.

According to the data taken from State Statistical Office of Republic of Macedonia of 2009, the number of registered cases involving adult offenders for various offences was 15511, and compared to year 2008, it was an increase of about 0.3%. Also, in 2009 the number of delinquents convicted, perpetrators of crimes has increased to 12.1%.

The following chart presents info on the adult crime offenders registered at Regional Prosecution Offices of the Republic of Macedonia, regarding offences committed violating human rights and freedoms for the above mentioned periods.

Total

391

Regional Prosecution Office

 

Dibër

6

Kërçov

Ohër

30

Manastir

83

Prilep

34

Kavadarci

18

Gjevgjeli

/

Veles

1

K.Pallank

1

Kumanovë

39

Gostivar

5

Tetovë

42

Dellçev

1

Berovo

/

Radovish

3

S.Nikole

4

Strumic

8

Koçani

13

Shtip

13

Shkup

72

Shkup – Organized Crime

/

Resnje

9

Struga

9

We can notice from the chart that considering the period of time mentioned above the most persistent offences involving violations of human rights and freedoms, have been reported at the regional prosecution of Manastir, whereas, as regards to other regional prosecutions, particularly, Kërçovë, Gjevgjeli, Berovë and Shkup-Organized crime, of the period mentioned above, smaller numbers have been reported.

OSCE estimates that annually there are about 2000 to 2500 victims of human trafficking entering Macedonia, part of which remain in Macedonia. The estimates given by the OSCE are based on the data provided from non governmental organizations (NGO); international organizations dealing with this issue; as well as regional reports.

4. The crime of trafficking in persons has been addressed from different perspectives, depending on the actors or institutions involved. Recently, the states and the international organizations have expressed their pledge to address the human trafficking issue from the perspective of human rights.

This approach aims at recognition and protection of human rights of trafficked persons. Therefore, with the steady development of the strategies against trafficking in persons, and with the international efforts to combat and end this practice, additionally, we also have the supplementary strategy to combat the common issue of trafficking, applied by the states which will firstly identify the requirements to prevent the abuse of human rights of possible victims of trafficking.

The norms of criminal legislation are the indispensable tool for the operation of criminal justice, which performs its duties based on these norms. The decisions and decrees are based on the norms mentioned previously, and that they have the meaning of implementing the criminal law in the practice of criminal responsibility of the fight against criminality, as an essential aim of criminal policy.

This importance of criminal-justice norms results by the fact that it regulates behavior that is considered generally dangerous and prohibited, they also define the criminal responsibility and other matters related to incriminating behavior

With the global recognition of trafficking as a violation of human rights, states must meet their obligations and take firm and effective measures to combat and prevent human trafficking, as well find strategies to protect human rights regarding cases of trafficking.

As regards to legal-criminal point of view, we can freely say that there is a harsh punishment policy on serious crimes. Certainly, legal norms determining these crimes and criminal sanctions have their own significance. But the key is that, these provisions must be implemented correctly in practice; the offenders should be punished; not much space for judicial interpretation when it comes to sanctions should be allowed and other hand there is no need for too radical approach to the same.

Strengthening systematic border controls; and strengthening the detection force of trafficking in the state borders with the tools available, as well as combating organizations or groups dealing with this criminal activity has a great effect in preventing these crimes.

International cooperation of state bodies is necessary to prevent illegal trafficking, which is confirmed by the practice of cooperation between neighboring states.

Facing the complex nature of trafficking in persons, criminal justice system, should seek new methods and ways, to detect; prevent; combat; and ensure effective process for this negative phenomenon.

Efforts to reform the criminal-procedure legislation should be encouraged, along with efforts to strengthen the protection of human rights and freedoms.

 

Bibliography

AA.VV., Kriminaliteti i organizuar, Tetovë, 2009.

ELEZI I. – HYSI V., Politika kriminale,Tiranë,2006.

HALILI R., Viktimiologjia, Prishtinë, 2007

HALILI R., Kriminologjia, Prishtinë, 2008,

LATIFI V., Politika kriminale ( ligjirata të autorizuara),Prishtinë, 2003, p. 129

NETKOVA B. – I. ZEJNELI I., Trafficking in Human Beings-Legal Aspects, Tetovë, 2007.

Written version of the presentation at the “International Conference: Penal protection of human dignity in the globalisation era, 11 – 13 September 2010, Prishtina, Kosova”.

.R. HALILI, Kriminologjia, Prishtinë, 2008, p. 10.

The well known criminologist Newman mentions the fear, as a reason for the public interest as regards to Crimes. Therefore, he sets forth some concrete results from research and surveys, conducted by many institutions and specialized agencies in the USA. According to his conclusions, 80% of the respondents are feared that during the night could be victims of any Crime; 78 % of them are not safe at home from the danger of crimes; whereas, 43 % of the respondents said that they or their close relatives have been victims of any violent act. The philosophers as Plato and Aristotle, in their works have treated the crime issue, particularly, the issue of stealing and murder. Also, other scholars, have treated the issue of Crime in their works, e.g.: Shën Augustini, Shën Toma Akuini, Thomas Moore, Hugo Gocius,Hobs, Monteskje, Zhan Zhak Ruso, Cesaro Bekarie, Jeremy Bentham, Ajselm Fojerbah, Qesaro Lombrozo, Enriko Feri, Rafaelo Garafalo, Sigmund Freud, Émile Durkheim, Franc.V.Listz , etc.

Ibidem.

R. HALILI, Viktimiologjia, Prishtinë, 2007, p. 97.

B. NETKOVA – I. ZEJNELI, Trafficking in Human Beings-Legal Aspects, Tetovë, 2007, p. 21.

Ibidem.

AA.VV., Kriminaliteti i organizuar, Tetovë, 2009, p. 184.

Ibidem, p. 214.

R. HALILI, Viktimiologjia, cit., page 97

Ibidem.

Statsiticki preg, nr. 2.1.10.24

Ibidem.

V. LATIFI, Politika kriminale ( ligjirata të autorizuara),Prishtinë, 2003, p. 129

Ibidem.

I. ELEZI – V. HYSI, Politika kriminale,Tiranë,2006. p. 96.

Ibidem. 

Written version of the presentation at the “International Conference: Penal protection of human dignity in the globalisation era, 11 – 13 September 2010, Prishtina, Kosova”.

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