Protection of human rights in cases of trafficking in persons
26 gennaio 2012
Trafficking (1) in Human Beings is a serious form of crime, violating basic human rights like freedom, dignity and integrity of a person (2). Trafficking puts its victims in the position of a slave, subordinated to the will of their exploiters and therefore is a heinous crime. Trafficking in persons boosted in end of 90-s and beginning of the years 2000 by pushing the enactment of the UN Convention on Trans-national Organized Crime, Second Protocol to prevent suppress and punish trafficking in persons in 2000 signed in Palermo, Italy, from where it inherited the name. The dimensions of trafficking as provided in the Palermo Protocol influenced the improvement of fundamental human rights documents signed after it, such as the EU Charter of Human Rights that list trafficking or forced labor as forms of slavery. National penal legislation in all signatory countries, including Albania, was reviewed subsequently in order to punish all forms of trafficking and properly protect victims in conformity to the convention. Five years later in 2005 the Council of Europe approved the Convention on Actions against Human Trafficking, of which Albania is again a signatory, to delineate more detailed criminal measures against the traffickers and exploiters and to extend the protection measures for victims of trafficking. The evolution of the provisions of the Albanian Penal Legislation, their role in the fight of trafficking and the new tendencies of exploitation to be addressed will be in the focus of this presentation.
Key Words: Council of Europe – CoE; Human Being – HB; Human Trafficking – HT; Trafficking in Persons – TIP; Trafficking of Human Beings – THB; UN Convention Second Protocol to prevent suppress and punish trafficking – the Convention; Victim of Trafficking – VoT.
1. Why is human trafficking a violation of human rights? If we accept as the framework of the modern penal legislation against trafficking in persons the UN Palermo Convention Second Protocol against Transnational Organized Crime signed in 2000 than let’s refer to the definition that the text of the Convention gives to this crime in Article 3:
(a) “Trafficking in persons” shall mean the recruitment, transportation, transfer, harboring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labor or services, slavery or practices similar to slavery, servitude or the removal of organs;
(b) The consent of a victim of trafficking in persons to the intended exploitation set forth in subparagraph (a) of this article shall be irrelevant where any of the means set forth in subparagraph (a) have been used;
(c) The recruitment, transportation, transfer, harboring or receipt of a child for the purpose of exploitation shall be considered “trafficking in persons” even if this does not involve any of the means set forth in subparagraph (a) of this article;
(d) “Child” shall mean any person under eighteen years of age.
Let’s look carefully at some of the elements of the trafficking as provided in the above-quoted definition and try to see them from a human rights’ prospective. Let’s start with the means used for the submission of the person quoted in paragraph (a): threat, force, deception, abuse of power, etc, for the purpose of exploitation of a person. That means that the essence of a trafficking situation is that the victim of trafficking is not free to decide on his or her own destiny. To the contrary their will is distorted or is suppressed in order to make the person do things which will be beneficial to another person.
If we look at the same paragraph at the purposes of exploitation they include sexual exploitation, forced labor, slavery and removal of organs.
If we agree that trafficking in human beings is what is the entirety of elements provided in the definition given above by the UN Convention just underlined we may find that trafficking in HB violates some of the fundamental rights of a person such as the right to freedom, the human dignity, the physical and moral integrity of a person, the prohibition of slavery and of forced labor. These are some of the fundamental rights directly violated by HT, but we may argue that other rights are violated as well such as the right to education, to work, to health care, etc, as a consequence of the trafficking situation.
To be more exact let’s extend the analysis on some of the most universally known documents of human rights both internationally and nationally. The UN Declaration of Human Rights3 in Article 1 provides the equal right to freedom and dignity of all people. The European Convention of Human Rights4 in Article 4 prohibits slavery and servitude. If we refer to the Albanian Constitution5 in Chapter 2 on Personal Rights and Freedoms, Article 26 provides for the prohibition of forced labor. No provisions on right to freedom or prohibition of slavery are found there. If we try to analyze the reasons why the Albanian Constitution has no guarantees for human freedom, on prohibition of slavery, on protection of human dignity or on human integrity we may attempt to give an answer by comparing the Constitution to the main inspiration source it has used which was the European Convention of Human Rights6 and we may find that similarly the Convention lacks those guarantees. Another reason of the absence of those guarantees in the Albanian law may also be that the stage of evolution of international law on human rights as well as the national constitutional laws in many countries in Europe was not so advanced as to provide guarantees on human freedom, human dignity and physical and moral integrity of the persons. The international law on human rights was not so rich in that respect at the end of the 90’s. The new massive waves of illegal migration and the increase of human trafficking have brought the international community to rediscover the importance of these fundamental rights at the verge of the new millennium. Thus if we look at subsequently signed documents of human rights dating after 2000 we see these rights properly reflected. Thus the 2000 EU Charter of Human Rights7 Chapter One Article 1 provides “Human Dignity” as a basic value. Article 3 provides the right to integrity of the person. Article 5 prohibits slavery and forced labor and includes Trafficking in human beings as an aspect of it. This is a novelty that is worth mentioning. To come to the final document that is the Council of Europe Convention on Action against Trafficking in Human Beings, signed in Warsaw in May 2005, which in the third paragraph of the Preamble clearly states that Trafficking in HB is a violation of Human Rights and especially of human dignity and integrity. Consecutively the fourth paragraph therein provides that THB may result in slavery for the VT. Comparing the EU Charter of HR and the CoE Convention on Action against THB to the UN Declaration of Human Rights or to the European Convention of Human Rights we clearly see a development in the international legislation in the sense of including trafficking as a violation of human rights and of more clearly defending some basic rights like freedom and dignity that trafficking in HB violates. This is an example when the evolution of international penal law8 has influenced on the improvement of the international human rights law, under the pressure of world change of after the 90’s. It would be advisable that the Albanian Constitution follows the same example and is reviewed in the same light to provide trafficking as a form of forced labour, to include the concepts of prohibition of slavery of HB, to include the values of freedom, dignity and integrity as basic human rights in its content, in order to be in line with the world modern human rights legislation.
2. What are the elements of the crime of human trafficking in the international law? The two basic documents I am going to refer for this purpose are the Palermo Convention Second Protocol Article 3 and the Council of Europe Convention on Actions against trafficking in persons Article 4 on the definition of trafficking in persons.9 These are the most influential international laws in effect in the world, in Europe and in Albania. The Albanian Penal Law has adopted the same definition of TIP as these international laws to provide trafficking in HB. In accordance with Article 3a of the UN Palermo Protocol against THB and Article 4 of the CoE Convention, trafficking in human beings consists of a combination of three basic components, each one followed by an explanatory list given in the definition:
the action of: “recruitment, transportation, transfer, harboring or receipt of persons”;
by means of: “the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person”;
for the purpose of exploitation, which includes “at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labor or services, slavery or practices similar to slavery, servitude or removal of organs”.
Several things maybe deducted on the features of Trafficking starting from such definition of the crime:
1.Considering the actions in my opinion they are not the essential part of the trafficking situation. That is if you force someone to act in a way which is beneficial to you even if you don’t transport, harbor or transfer them to another place or internationally, it must still be considered trafficking. I am thinking of cases when victims of trafficking are women, men or children that are exploited for sex, for forced labor inside the territory of a country where they live, by means of force and against their will. Therefore the list of actions provided for in the first paragraph of article 3 of the convention must be considered as orienting, but not exhaustive, in order to leave room to a wider application of the law;
2.Regarding the national or international nature of the crime I would say that the formulation of the Palermo convention is primarily planned to strike at international trafficking but is not limited to it. In my opinion this law can effectively be applied to strike at the international as well as at national exploitation of persons as victims of trafficking;
3.If we analyze the means used to traffic someone their essence is the deformation or the suppression of the will of the person in order to make him or her to do services or actions which are imposed by the trafficker. The verification of the suppression of will or of the distortion of will of the person exploited is essential to qualify him or her as a victim of trafficking. To the contrary if you cannot prove that a person is forced, or deceived or misguided in order to exercise prostitution, to cross the border illegally, to forge documents, etc, they may be qualified as offenders of the law but not as victims of trafficking and they will be held legally responsible for it. The verification of the means of force or deception turn the person trafficked into a slave and into a victim of crime and therefore into someone to be protected. Victims of trafficking cannot be held legally responsible for their actions as slaves;
4.Article 3b of the Palermo Convention as well as Article 4b of the CoE Convention followed by the European Court of Human Rights case law states that the consent of a victim of THB to a form of exploitation listed in article 3a or 4a respectively is irrelevant if any of the means referred to in Article 4a has been used. That means that if you force someone to exploitation even if you claim in court as a defendant that the victim consented to do this you will still be considered responsible for trafficking in HB;
5.The convention extends the forms of exploitation from sexual exploitation to forced labor, to practices similar to slavery, to organ removal, etc. This means that the law against trafficking is a useful tool to protect victims of sex trade as well as victims of bad forms of labor. This law protects people who have turned into slaves as a result of illegal migration, or who are sold for organ removal. The list provided is not exhaustive but is the minimum for trafficking cases;
6.The Convention is neutral to the sex of the victims and therefore protects not just women but also men from exploitation;
7.The convention is neutral to prostitution taking into consideration that different countries have different attitudes regarding it: some countries penalize prostitution (such as Albania) and some others don’t (like the Netherlands).
8.Referring to Article 3c of the Palermo Convention copied by Article 4c of the CoE Convention “the recruitment, transportation, transfer, harboring or receipt of a child for the purpose of exploitation shall be considered trafficking in human beings even if this does not involve any of the means set forth in subparagraph (a) of this article”. That means that the exploitation of a child is considered trafficking even if the child is not forced or deceived to be a labor slave, a sex slave, to be sold or bought, or to be removed the body organs. The reason is because a child is considered not fully capable by the law to decide on what is good or bad for his life for his health for his growth and his well-being. Therefore the protection given to children from exploitation by the two conventions is higher than that given to adult victims of trafficking.
By all of these elements we can conclude that the definition given to the crime of trafficking in the international law is wide and includes a long category of exploitations. This tool can be successfully used against sexual and labor exploitation; it can be used against international trafficking as well as against national trafficking. The law takes under protection the most vulnerable people who are in need of a job or of income, but by having no protection and no information become prey to the worst criminals who exploit them as tools for making money. These conventions provide the instruments for national legislation systems to defend human freedom and dignity, to protect people from the worst forms of exploitations, to put the criminals in jail and take their assets away.
It is my opinion that the definition of trafficking in the international conventions is long, explanatory and complicated. Taking into consideration that it is often used to shape national legislation it could be simplified or distilled into a concise and simple formula. This maybe a suggestion for the national legislators as well, to adopt a formulation that is simple and easy to be implemented.
From the three elements provided for in the definition of trafficking I would say that the elements of means used and of purposes of exploitation are fundamental to qualify a crime as trafficking. To the contrary the actions taken don’t seem to be so essential and they could simply be provided as facilitation or creation of premises for exploitation.
3. The crime of Trafficking in the Albanian Penal Law. The Albanian Penal Code10 has been revised twice after the adoption of the UN Palermo Protocol to provide the crime of trafficking accordingly. The first revision was done in 2001 by Law no. 8733 dated 24.1.2001, which introduces three separate articles for THB crimes in the Albanian Penal Code, of which I am going to quote the first one:
Article 110/a – Trafficking in Persons
Trafficking in persons, for purposes of material or other benefit is punished by imprisonment from 5 to 15 years. The same crime when committed in collaboration with others or more than once or through ill-treatment and coercion, through physical or psychical violence on the victim in order to perform different actions, or when it brings about serious consequences for the health is punished by imprisonment of no less than 15 years and when it has brought about death by life imprisonment.
Similarly it is provided new Article 114/b – Trafficking of women for prostitution, which punishes that crime by imprisonment of 7 to 15 years a new Article 128/b – Trafficking of Children, which punishes that crime by ten to 20 years of imprisonment.
The same articles in the Penal Code have been revised by Law No. 9188 dated 12.2.2004 in the following way:
Article 110/a – Trafficking in persons
The recruitment, transport, transfer, hiding or reception of persons through threat or the use of force or other forms of compulsion, kidnapping, fraud, abuse of office or taking advantage of social, physical or psychological condition or the giving or receipt of payments or benefits in order to get the consent of a person who controls another person, with the purpose of exploitation of prostitution of others or other forms of sexual exploitation, forced services or work, slavery or forms similar to slavery, the use or the transplant of organs, as well as other forms of exploitation, are punished with imprisonment from five to fifteen years and with a fine from two million to five million ALL11.
The organization, management and financing of trafficking in persons is punished with imprisonment of seven to fifteen years and with a fine of four million to six million ALL.
When this offence is committed in collaboration or more than once, or is accompanied by ill-treatment and making the victim commit various actions through the use of physical or psychological force, or brings about serious consequences to health, is punished with imprisonment of no less than fifteen years and with a fine from six million to eight million ALL.
When the offence has brought death of the victim as a consequence, it is punished with imprisonment of no less than twenty years or with life imprisonment, as well as with a fine from seven million to ten million ALL.
When the criminal offence is committed through the abuse of a state function or public office, the punishment of imprisonment and the fines are increased by one fourth.
The two other articles are: Article 114/b – Trafficking of women – which provides sentences of imprisonment from seven to 15 years and fine of three to 6 million Leke (appr.30.000 USD to 60.000 USD) and Article 128/b – Trafficking of Minors – which provides as sentences imprisonment from seven to 15 years as well as fine of 4 million to 6 million Leke (appr.40.000 USD to 60.000 USD).
The Albanian Penal legislation has adopted, after the second revision of the law of 2004, the same definition of trafficking provided for in Article 3a of the Palermo Protocol. This is a tendency of the national penal legislations in other countries as well. We find similar definitions in other national penal laws, such as in the French Penal Code in Article 225 – 4 – 1, in the US penal code in Chapter VII, Article 1590–1591, in Kosova Penal Code in Article 139 etc, shaped on the lines of the international conventions.
In the Albanian law TIP is sanctioned obligatorily by imprisonment as well as by fine. The fines are relatively high according to other provisions in the Albanian Code. The level of imprisonment sanctions in the Albanian legislation is relatively high and the highest compared to the other Balkan countries for the same crime12. A slight reduction in imprisonment measures in the case of trafficking in minors is observed in the amendment of the penal legislation of 2004 as compared to that of 2001, from 10 to 20 years to seven to 15 years, by putting it to the same level with the sanctions for trafficking of women in Article 114/b. This change may be debatable considering that the CoE Convention provides that the trafficking of minors should be considered as an aggravating circumstance of the crime of TIP13.
Another characteristic of the Albanian Law is the wide range of imprisonment measure which varies from 5 or 7 to 15 years. This leaves a large discretion to the prosecutor and to the judge of the case to decide on the adequate penalty. The penalty for the same crime can increase by 2 or three times compared to the minimum. Therefore it would be advisable for the Albanian legislator to narrow down the variation of sanctions both for imprisonment years as well as for the fine to be imposed. We may take the example of the French Penal Code Article 225-4-1 which provides fixed sanctions for trafficking in persons exactly of 7 years of imprisonment and 150.000 Euros. Fixed sanctions would make the justice system to be more severe in cases of trafficking in persons and prevent future crime by imposing high sanctions and by showing no flexibility.
Thus the Albanian Penal Code has provided three articles for the same crime trafficking in human beings, both that of 2001 and the present one dating from 2004, Article 110/a Trafficking in Persons, Article 114/b Trafficking of Women and Article 128/b Trafficking of Minors. The three articles are formulated in the exact same manner and the only category that changes is the subject victim of trafficking14. They provide the same definition of trafficking (as above) and list the same aggravating circumstances as follows:
a.the organization and financing of THB;
b.the collaboration to commit THB or committing it more than once, through violence and ill-treatment and when this has damaged the health of the person;
c.when it has brought about death of the VoT;
d.when the trafficker is a civil servant.
In my opinion one single article would be capable of providing a clear and concise definition and would avoid confusion for the agencies that will apply the law like police prosecution and courts as well for the mere citizens. More exactly, if we look at the proportionality of Article 114/b –Trafficking of women, I don’t see a valid reason for it to stand alone and separate from Article 110/a. Why is trafficking of women a different and a more serious offence than THB provided for in Article 110/a15? What are the elements that make it stand alone? To the contrary, trafficking of women and their exploitation for sex and for work are the classical form of exploitation in the crime of Trafficking in persons. This is proven by national government reports on TIP. The 2009 Annual Report of the Albanian Government on Trafficking in Persons ”On the Implementation of the National Strategy on Combating Trafficking in Persons” 16, compiled by the Office of the Albanian Anti-Trafficking National Coordinator, states “According to the State Police, throughout the year 2009, there have been prosecuted 14 “trafficking in persons cases” (2 cases on Trafficking in Persons –article 110/a; 4 cases on trafficking in minors – article 128/b; 8 on trafficking in women – article 114/b) with 17 perpetrators in total. All these cases were referred by the State Police to the Serious Crimes Prosecutor’s Office” Likewise, the report of 2008 states: “according to the State Police, throughout the year 2008, there have been prosecuted 29 “trafficking in persons cases” out of which 24 cases on Trafficking in women – article 114/b and 5 cases of Trafficking in Minors – article 128/b .“17
In my opinion Article 114/b could easily be integrated with Article 110/a in order to avoid duplications. The division leads to confusion and to a gender division in HT cases which is not the intent of the international convention and of the international law18. I say this because if trafficking of women of all forms is to be judged under article 114/b than 110/a will be used for trafficking of men. My suggestions for the Albanian legislator is that Article 114/b has no reason to exist, it must be included in the content of Article 110/a.
Another unclear provision in the Albanian Penal Code that hinders that effective application of the law against Trafficking of women and children is the old provision Article 114/a with the following content:
Article 114/a – Exploitation of prostitution in aggravating circumstances
The exploitation of prostitution done:
with more than one person;
with persons that are kin or relatives to each-other, have the legal custody or by abusing public office;
by deception, coercion, violence or by benefiting from physical or mental incapacity of a person;
towards a person that is forced to exercise prostitution outside of the territory of the Republic of Albania;
Is done in collaboration with others or more than once or by a person having a public duty is sentenced from 7 to 15 years of imprisonment.
This Article dates back in 2001 that is prior to when the crime of TIP was introduced in the Albanian Penal Code.19 The co-existence of this Article is very detrimental especially to the effective application of Article 114/b – Trafficking of women, because the difference between them is very subtle. If you ask a prosecutor, a police officer or a judge’s opinion what is the difference between a trafficking case and a case on exploitation of prostitution they will say that the lack of will to perform makes the person a victim of trafficking whereas the consent to be exploited for commercial sex makes the person a prostitute. The difference from the legal point of view is important: prostitution is an ordinary crime and trafficking is a serious crime; the VoT is not charged with a crime whereas a prostitute it charged with a crime; the VOT is assisted to be rehabilitated whereas the prostitute is not necessarily provided assistance; the crime of prostitution is tried in ordinary courts, whereas the crimes of THB are tried by the serious crimes court with secure premises and by judges who are more specialized on organized crime, trafficking crimes and victims rights. It is therefore possible that many potential victims of trafficking because of not knowing well the law and their rights because of insufficient legal assistance may have been declared as prostitutes instead of victims of trafficking before the justice system.
Similarly the co-existence of Article 114/a is detrimental to the effective application of Article 128/b – Trafficking of minors as well. If we take the case of exploitation of a minor for commercial sex according to Article 114/a, this would be considered trafficking as the consent of a minor is not taken into account in cases of HT20. The translational element provided in Article 114/a paragraph 5 is also duplication and additional argument why instead the exploitation of prostitution should be considered HT. My suggestions for the Albanian law-makers is to abolish Article 114/a in order to give room to Articles related to THB (110/a, 114/b and 128/b) to be effectively applied.
For the same reasons Article 128/b – could also be integrated into Article 110/a as an aggravating circumstance of TIP providing a higher penalty instead of standing as a different crime.21
A concluding argument to merge the three articles on HT in one is that currently the three articles on HT are situated in three different sections of the Albanian Penal Code: Article 110/a belongs to Section VII “Crimes against freedom of a person”, Article 114/b belongs to Section VIII “Crimes against moral and dignity of a person” and Article 128/b belong in Section IX “Crimes against children, marriage and family”. This is not appropriate from the legislative technique point of view.
The simplification of the legislation would contribute to a clearer action by the justice system in Albania against crimes of HT.
4. Some Aspects of the Application of the Penal Law against HT in Albania.
If we look at the way the TIP Legislation is applied in Albania we may say that it could used more widely. To be more concrete it is easily visible that the cases tried in the Albanian courts are in their absolute majority cases of international exploitation of victims and generally re sex exploitation. This is confirmed by national and international reports. “All of the prosecutions and convictions involved sex trafficking of women or children” TIP 2010 Report22. The 2009 Annual Report23 of the Office of the Anti-Trafficking Coordinator states “Trafficking in persons is a criminal offence; the majority of cases have transnational features. During the year 2009 there have been no internal trafficking cases prosecuted”(pg 9). “It is true that Albania has stopped being a transit country for victims of trafficking (“Albania is a source country for men, women, and children subjected to trafficking in persons…” TIP Report State Department 2010, pg 58) and that the national borders have become more secure against trafficking of HB24. Still there are people being exploited inside the country. According to non-governmental organization report25 of Terres des Hommes on the Transnational Protection of Children-the Case of Albania and Greece 2000-2006 states “As a result of the joined efforts of State institutions with civil society both in Albania and Greece today, the trafficking of Albanian children to Greece has decreased substantially as compared to 1999-2000. However, it continues to exist as demonstrated also by those children, who are still exploited in the streets of Albania and Greece.” (pg 61), the international trafficking from Albania has fallen but the internal trafficking and exploitation continues”. The prosecutors and judges tend to think that the international transportation is crucial for making an exploitation case a case of TIP.
Specifically regarding children exploitation the Albanian prosecutors have often not been successful in applying TIP or other penal legislation in cases of children exploitation for begging. In addition to the international element they claim they cannot prove the use of force or coercion towards the children to work or beg. In order to strike at child labour or child begging a new Article 124/b is introduced in the Penal Code on “Child Ill-Treatment”. The Annual Report of the Albanian National Coordinator of 2009, pg.14 confirms that: “Difficulties have been encountered with the implementation of the Article 124/b “Ill-treatment of minors”26 which foresees “The physical or psychological ill-treatment of minors by the person, who is obliged to take care of him/her, is punishable with imprisonment, from three months to two years. Forcing minors to work, provide income, beg or commit actions, which harm his development, are punishable with imprisonment up to four years, and with fine from fifty thousand Leke to one million Leke. When serious physical harm or death is caused by this act, it is punishable with imprisonment from ten to twenty years.” This article was proposed by the National Coordinator in the year 2007. It criminalizes the exploitation of the children for forced labour, begging and servitude. With regards to begging, the law enforcement agencies have encountered difficulties in the implementation of this article. It is very difficult to prove the “coercion” inflicted to the children by their parents to work for income, to beg or commit other actions which harm the development of the child”. The coercion is provided by the Albanian law but not by the International law. The Palermo Convention provides otherwise. In the case of the children it is not necessary to prove coercion as the Palermo Convention provides in Article 3c. The situation of street children is typically one of exploitation and the crime of TIP could duly be applied. There is no need for additional legislation to strike at it.
Being an international convention that Albania has signed according to the Albanian Constitution27 the Palermo Convention is binding in the internal legislation, it is directly applicable and it has priority over the ordinary national legislation.28 Thus Article 3, including paragraph b and c maybe applied directly by the Albanian judges and prosecutors when they have cases of internal exploitation of children for work, of women for sex or of men for forced labour.
TIP legislation should be used more frequently against other forms exploitation different from sex to protect Albanian and foreign VT. In the view of the opening of the borders in the Balkans and of the Visa Liberalization process with the European Union Schengen states, problems of irregular migration and human trafficking will potentially hit Albania and the other countries of the region more than at present. Men and women coming from other parts of the world may end up as sex or labour slaves. We must be prepared to strike these trends.
With more accurate interpretation of the law given by the high court or by means of instructions issued from the General Prosecution Office, General Directory of Police and Ministry of Justice, the present legislation on TIP could be successfully used to strike at internal as well as international exploitation, at women exploitation for prostitution or at children for begging, at unpaid work and slavery of men. The spirit of the international conventions calls for this29.
5. Trends for improving penal law and penal policies. The Albanian Penal Code is generally in line with the policies against TIP provided in the international instruments. Albanian law criminalizes HT and considers it a serious crime, it criminalizes the attempt to TIP, being an accomplice in HT, being an organizer and a director of HT, etc.
Albania gives protection to victims of human trafficking, be those Albanian or international ones, assists them to their reintegration. The assistance given to VoTs by the Government of Albania is not conditional upon their collaboration with justice, unlike many other countries, by taking a position based on the human rights of the victims.
Future challenges have to do with provisions of victim compensation and with guarantees for non-punishment of the victims. Let’s start from the last one. All countries considering trafficking as a serious crime and as a human rights violation may not hold criminally responsible the victims for illegal actions performed because of the exploitation. If the means used for trafficking are coercion or deception, if we agree that the victim of trafficking is reduced by the trafficker in a slave and their free will to decide their actions is suppressed, then the VoTs cannot be held responsible for illegal actions performed while being forced to do so. One VoT maybe involved in forging documents, in illegal border crossing, in exercising prostitution, in working illegally, in begging, which are crimes or criminal offences in many of the countries member to the UN and CoE Convention. It would not be right to hold them responsible before the law when they are forced to do so. The practice among judges and prosecutors is not to criminally prosecute VoTs for criminal offences committed because of trafficking and there are no instances when the VoTs involved in a criminal process are condemned for those offences. The Albanian law must specifically provide legal guarantees that victims of trafficking are not punished for penal offences committed wile they are forced act as victims of trafficking. If we agree that the issues of human Trafficking are issues of human rights violations than we must give them the precedence they have. Human rights are provided in the constitutional or in the international law. Therefore they come prior to criminal issues of fighting illegal migration, of fighting prostitution. Victims or trafficking deserve to be treated as such in all countries, be those origin or their destination countries. These issues are not easy to be raised in a climate of fierce fight against illegal migration, but countries must avoid treating victims of human rights as ordinary migrants. Therefore the wide ratification and application of the international instruments and supporting application agreements are necessary to make this system work.
Of the same importance is the right to victim compensation, as a redress for what the victims have suffered in their moral and dignity. Albania has passed law No. 10192, dated 3.12.2009 “On the Prevention and Fight against Organized Crime and Trafficking”30, which criminalizes the establishment and the participation in a criminal organization and which provides for a civil confiscation of all the assets belonging to the criminals when they cannot prove their legal origin. The law also provides that assets confiscated are used among other for victim compensation and for fighting criminality.31
The compensation of the victims through a legal process by a court decision is an effective way to provide compensation. The court can decide in the same case on the criminal conviction of the trafficker, on the sequestration and confiscation of their assets and on the victim compensation. The source would be the assets confiscated to the criminal. Currently the judges in the serious crimes court dealing with human trafficking cases consider the compensation claims as a civil suit and transfer the potential request to an ordinary court to try it. This delays the action of justice and gives fewer chances for successful compensation. It is a fact that not many claims for compensation have been raised by victims, but we think that better information of the victims on their legal rights and a better education of the lawyer on compensation rights of the victims will make the system work faster on both ends. There is though one positive court decision on victim compensation given by the first instance court of Tirana. The decision No.1202 date 19.02.2010 is the first one in a national scale32. The rational was grounded on illegal and culpable civil damage and for serious harm of human rights of health, moral ad life provided in the Albanian Constitution Article 54. The judge Elona Stavri decided to grant the compensation to the claimer for the damage suffered in the measure of 40.000 Euros33 to be paid by the traffickers to her. We may consider this first decision a success of our justice system which needs to be furthered and consolidated. Nevertheless I am convinced that the judges of serious crimes court have the legal competence and capacity to decide in one single trail on both the criminal charges against the trafficker and on the victim compensation. Deciding the victim compensation in a single trial and not having to delegate it to a civil court makes justice act quicker and in a more effective way.
Trafficking in human beings is a serious crime and a violation of fundamental human freedom and dignity;
In order to be condemned and prevented all countries need to criminalize trafficking in accordance with international legislation tools;
Clear penal policy and strong convictions contribute to the suppression of trafficking and to victim collaboration with the justice authorities;
The law against human trafficking can be successfully used against all forms of exploitation, in addition to sexual exploitation like forced labor, slavery, removal of organs etc.
The law must be used in the same way against international as well as national exploitation of people;
The human rights of the victims approach should be the core of the penal and social measures taken to combat trafficking. In this view countries must approve legislation of not punishing the victims of trafficking and they must provide for their protection and compensation;
Human trafficking is a complex and international phenomenon. In order to be addressed it needs a multidimensional approach of criminal conviction of the traffickers, of human protection and of rehabilitation of the victims, as well as prevention and coordination matters. Countries must be open to cooperate in all ways to stop this shameful chain of exploitation. The human rights, the dignity and security of the persons must be at the centre of the governments approach to fight trafficking.
© RIPRODUZIONE RISERVATA