prop · GX03152 · 2010-03-23 00:00:00 — Taking due account of the United Nations Convention against Transnational Organized Crime and the Protocol thereto to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children with a view to improving the protection which they afford and developing the standards established by them; Taking due account of the other international legal instruments relevant in the field of action against trafficking in human beings; Taking into account the need to prepare a comprehensive international legal instrument focusing on the human rights of victims of trafficking and setting up a specific monitoring mechanism, agreed as follows: Chapter I Purposes, scope, non-discrimination principle and definitions Article 1 Purposes of the Convention 1The purposes of this Convention are: a to prevent and combat trafficking in human beings, while guaranteeing gender equality; bto protect the human rights of the victims of trafficking, design a comprehensive framework for the protection and assistance of victims and witnesses, while guaranteeing gender equality, as well as to ensure effective investigation and prosecution; cto promote international cooperation on action against trafficking in human beings. 2In order to ensure effective implementation of its provisions by the Parties, this Convention sets up a specific monitoring mechanism. This Convention shall apply to all forms of trafficking in human beings, whether national or transnational, whether or not connected with organised crime. CETS 197 Action against Trafficking in Human Beings, 16.V.2005 Article 3 Non-discrimination principle The implementation of the provisions of this Convention by Parties, in particular the enjoyment of measures to protect and promote the rights of victims, shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status. For the purposes of this Convention: a"Trafficking in human beings" shall mean the recruitment, transportation, transfer, harbouring 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 labour or services, slavery or practices similar to slavery, servitude or the removal of organs; bThe consent of a victim of trafficking in human beings 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; cThe recruitment, transportation, transfer, harbouring 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; d"Child" shall mean any person under eighteen years of age; eVictim shall mean any natural person who is subject to trafficking in human beings as defined in this article. Chapter II Prevention, co-operation and other measures Article 5 Prevention of trafficking in human beings 1Each Party shall take measures to establish or strengthen national co-ordination between the various bodies responsible for preventing and combating trafficking in human beings. 2Each Party shall establish and/or strengthen effective policies and programmes to prevent trafficking in human beings, by such means as: research, information, awareness raising and education campaigns, social and economic initiatives and training programmes, in particular for persons vulnerable to trafficking and for professionals concerned with trafficking in human beings. CETS 197 Action against Trafficking in Human Beings, 16.V.2005 3Each Party shall promote a Human approach and shall use gender mainstreaming and a child-sensitive approach in the development, implementation and assessment of all the policies and programmes referred to in paragraph 2. 4Each Party shall take appropriate measures, as may be necessary, to enable migration to take place legally, in particular through dissemination of accurate information by relevant offices, on the conditions enabling the legal entry in and stay on its territory. 5Each Party shall take specific measures to reduce childrens vulnerability to trafficking, notably by creating a protective environment for them. 6Measures established in accordance with this article shall involve, where appropriate, non- governmental organisations, other relevant organisations and other elements of civil society committed to the prevention of trafficking in human beings and victim protection or assistance. Article 6 Measures to discourage the demand To discourage the demand that all forms of exploitation of persons, especially women and children, that leads to trafficking, each Party shall adopt or strengthen legislative, administrative, educational, social, cultural or other measures including: a research on best practices, methods and strategies; braising awareness of the responsibility and important role of media and civil society in identifying the demand as one of the root causes of trafficking in human beings; ctarget information campaigns involving, as appropriate, inter alia, public authorities and policy makers; dpreventive measures, including educational programmes for boys and girls during their schooling, which stress the unacceptable nature of discrimination based on sex, and its disastrous consequences, the importance of gender equality and the dignity and integrity of every human being. Article 7 Border measures 1Without prejudice to international commitments in relation to the free movement of persons, Parties shall strengthen, to the extent possible, such border controls as may be necessary to prevent and detect trafficking in human beings. 2Each Party shall adopt legislative or other appropriate measures to prevent, to the extent possible, means of transport operated by commercial from being used in the commission of offences established in accordance with this Convention. CETS 197 Action against Trafficking in Human Beings, 16.V.2005 3Where appropriate, and without prejudice to applicable international conventions, such measures shall include establishing the obligation of commercial , including any transportation company or the owner or operator of any means of transport, to ascertain that all passengers are in possession of the documents required for entry into the receiving State. 4Each Party shall take the necessary measures, in accordance with its internal law, to provide for sanctions in cases of violation of the obligation set forth in paragraph 3 of this article. 5Each Party shall adopt such legislative or other measures as may be necessary to permit, in accordance with its internal law, the denial of entry or revocation of visas of persons implicated in the commission of offences established in accordance with this Convention. 6Parties shall strengthen co-operation among border control agencies by, inter alia, establishing and maintaining direct channels of communication. Article 8 Security and control of documents Each Party shall adopt such measures as may be necessary: aTo ensure that or identity documents issued by it are of such quality that they cannot easily be misused and cannot readily be falsified or unlawfully altered, replicated or issued; and bTo ensure the integrity and security of or identity documents issued by or on behalf of the Party and to prevent their unlawful creation and issuance. Article 9 Legitimacy and validity of documents At the request of another Party, a Party shall, in accordance with its internal law, verify within a reasonable time the legitimacy and validity of or identity documents issued or purported to have been issued in its name and suspected of being used for trafficking in human beings. Chapter III Measures to protect and promote the rights of victims, guaranteeing gender equality Article 10 - Identification of the victims 1Each Party shall provide its competent authorities with persons who are trained and qualified in preventing and combating trafficking in human beings, in identifying and helping victims, including children, and shall ensure that the different authorities collaborate with each other as well as with relevant support organisations, so that victims can be identified in a procedure duly taking into account the special situation of women and child victims and, in appropriate cases, issued with permits under the conditions provided for in Article 14 of the present Convention. CETS 197 Action against Trafficking in Human Beings, 16.V.2005 2Each Party shall adopt such legislative or other measures as may be necessary to identify victims as appropriate in collaboration with other Parties and relevant support organisations. Each Party shall ensure that, if the competent authorities have reasonable grounds to believe that a person has been victim of trafficking in human beings, that person shall not be removed from its territory until the identification process as victim of an offence provided for in Article 18 of this Convention has been completed by the competent authorities and shall likewise ensure that that person receives the assistance provided for in Article 12, paragraphs 1 and 2. 3.When the age of the victim is uncertain and there are reasons to believe that the victim is a child, he or she shall be presumed to be a child and shall be accorded special protection measures pending verification of his/her age. 4.As soon as an unaccompanied child is identified as a victim, each Party shall: a provide for representation of the child by a legal guardian, organisation or authority which shall act in the best interests of that child; b take the necessary steps to establish his/her identity and nationality; c make every effort to locate his/her family when this is in the best interests of the child. Article 11 Protection of private life 1Each Party shall protect the private life and identity of victims. Personal data regarding them shall be stored and used in conformity with the conditions provided for by the Convention for the Protection of Individuals with regard to Automatic Processing of (ETS No. 2Each Party shall adopt measures to ensure, in particular, that the identity, or details allowing the identification, of a child victim of trafficking are not made publicly known, through the media or by any other means, except, in exceptional circumstances, in order to facilitate the tracing of family members or otherwise secure the well-being and protection of the child. 3Each Party shall consider adopting, in accordance with Article 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms as interpreted by Court of Human Rights, measures aimed at encouraging the media to protect the private life and identity of victims through self-regulation or through regulatory or co-regulatory measures. Article 12 Assistance to victims 1.Each Party shall adopt such legislative or other measures as may be necessary to assist victims in their physical, psychological and social recovery. Such assistance shall include at least: CETS 197 Action against Trafficking in Human Beings, 16.V.2005 astandards of living capable of ensuring their subsistence, through such measures as: appropriate and secure accommodation, psychological and material assistance; baccess to emergency treatment; ctranslation and interpretation services, when appropriate; dcounselling and information, in particular as regards their legal rights and the services available to them, in a language that they can understand; eassistance to enable their rights and interests to be presented and considered at appropriate stages of criminal proceedings against offenders; faccess to education for children. 2Each Party shall take due account of the victims safety and protection needs. 3In addition, each Party shall provide necessary or other assistance to victims lawfully resident within its territory who do not have adequate resources and need such help. 4Each Party shall adopt the rules under which victims lawfully resident within its territory shall be authorised to have access to the labour market, to vocational training and education. 5Each Party shall take measures, where appropriate and under the conditions provided for by its internal law, to co-operate with non-governmental organisations, other relevant organisations or other elements of civil society engaged in assistance to victims. 6Each Party shall adopt such legislative or other measures as may be necessary to ensure that assistance to a victim is not made conditional on his or her willingness to act as a witness. 7For the implementation of the provisions set out in this article, each Party shall ensure that services are provided on a consensual and informed basis, taking due account of the special needs of persons in a vulnerable position and the rights of children in terms of accommodation, education and appropriate health care. Article 13 Recovery and reflection period 1Each Party shall provide in its internal law a recovery and reflection period of at least 30 days, when there are reasonable grounds to believe that the person concerned is a victim. Such a period shall be sufficient for the person concerned to recover and escape the influence of traffickers and/or to take an informed decision on cooperating with the competent authorities. During this period it shall not be possible to enforce any expulsion order against him or her. This provision is without prejudice to the activities carried out by the competent authorities in all phases of the relevant national proceedings, and in particular when investigating and prosecuting the offences concerned. During this period, the Parties shall authorise the persons concerned to stay in their territory. CETS 197 Action against Trafficking in Human Beings, 16.V.2005 2During this period, the persons referred to in paragraph 1 of this Article shall be entitled to the measures contained in Article 12, paragraphs 1 and 2. 3The Parties are not bound to observe this period if grounds of public order prevent it or if it is found that victim status is being claimed improperly. 1Each Party shall issue a renewable permit to victims, in one or other of the two following situations or in both: athe competent authority considers that their stay is necessary owing to their personal situation; bthe competent authority considers that their stay is necessary for the purpose of their co-operation with the competent authorities in investigation or criminal proceedings. 2The permit for child victims, when legally necessary, shall be issued in accordance with the best interests of the child and, where appropriate, renewed under the same conditions. 3The non-renewal or withdrawal of a permit is subject to the conditions provided for by the internal law of the Party. 4If a victim submits an application for another kind of permit, the Party concerned shall take into account that he or she holds, or has held, a permit in conformity with paragraph 1. 5Having regard to the obligations of Parties to which Article 40 of this Convention refers, each Party shall ensure that granting of a permit according to this provision shall be without prejudice to the right to seek and enjoy asylum. Article 15 Compensation and legal redress 1Each Party shall ensure that victims have access, as from their first contact with the competent authorities, to information on relevant judicial and administrative proceedings in a language which they can understand. 2Each Party shall provide, in its internal law, for the right to legal assistance and to free legal aid for victims under the conditions provided by its internal law. 3Each Party shall provide, in its internal law, for the right of victims to compensation from the perpetrators. 4Each Party shall adopt such legislative or other measures as may be necessary to guarantee compensation for victims in accordance with the conditions under its internal law, for instance through the of a fund for victim compensation or measures or programmes aimed at social assistance and social integration of victims, which could be funded by the assets resulting from the application of measures provided in Article 23. CETS 197 Action against Trafficking in Human Beings, 16.V.2005 Article 16 Repatriation and return of victims 1The Party of which a victim is a national or in which that person had the right of permanent at the time of entry into the territory of the receiving Party shall, with due regard for his or her rights, safety and dignity, facilitate and accept, his or her return without undue or unreasonable delay. 2When a Party returns a victim to another State, such return shall be with due regard for the rights, safety and dignity of that person and for the status of any legal proceedings related to the fact that the person is a victim, and shall preferably be voluntary. 3At the request of a receiving Party, a requested Party shall verify whether a person is its national or had the right of permanent in its territory at the time of entry into the territory of the receiving Party. 4In order to facilitate the return of a victim who is without proper documentation, the Party of which that person is a national or in which he or she had the right of permanent at the time of entry into the territory of the receiving Party shall agree to issue, at the request of the receiving Party, such documents or other authorisation as may be necessary to enable the person to to and re-enter its territory. 5Each Party shall adopt such legislative or other measures as may be necessary to establish repatriation programmes, involving relevant national or international institutions and non governmental organisations. These programmes aim at avoiding re-victimisation. Each Party should make its best effort to favour the reintegration of victims into the society of the State of return, including reintegration into the education system and the labour market, in particular through the acquisition and improvement of their professional skills. With regard to children, these programmes should include enjoyment of the right to education and measures to secure adequate care or receipt by the family or appropriate care structures. 6Each Party shall adopt such legislative or other measures as may be necessary to make available to victims, where appropriate in co-operation with any other Party concerned, contact information of structures that can assist them in the country where they are returned or repatriated, such as law enforcement offices, non-governmental organisations, legal professions able to provide counselling and social welfare agencies. 7Child victims shall not be returned to a State, if there is indication, following a risk and security assessment, that such return would not be in the best interests of the child. Article 17 Gender equality Each Party shall, in applying measures referred to in this chapter, aim to promote gender equality and use gender mainstreaming in the development, implementation and assessment of the measures. CETS 197 Action against Trafficking in Human Beings, 16.V.2005 Chapter IV Substantive criminal law Article 18 Criminalisation of trafficking in human beings Each Party shall adopt such legislative and other measures as may be necessary to establish as criminal offences the conduct contained in article 4 of this Convention, when committed intentionally. Article 19 Criminalisation of the use of services of a victim Each Party shall consider adopting such legislative and other measures as may be necessary to establish as criminal offences under its internal law, the use of services which are the object of exploitation as referred to in Article 4 paragraph a of this Convention, with the knowledge that the person is a victim of trafficking in human beings. Article 20 - Criminalisation of acts relating to or identity documents Each Party shall adopt such legislative and other measures as may be necessary to establish as criminal offences the following conducts, when committed intentionally and for the purpose of enabling the trafficking in human beings: aforging a or identity document; bprocuring or providing such a document; cretaining, removing, concealing, damaging or destroying a or identity document of another person. Article 21 Attempt and aiding or abetting 1Each Party shall adopt such legislative and other measures as may be necessary to establish as criminal offences when committed intentionally, aiding or abetting the commission of any of the offences established in accordance with Articles 18 and 20 of the present Convention. 2Each Party shall adopt such legislative and other measures as may be necessary to establish as criminal offences when committed intentionally, an attempt to commit the offences established in accordance with Articles 18 and 20, paragraph a, of this Convention. Article 22 Corporate liability 1Each Party shall adopt such legislative and other measures as may be necessary to ensure that a legal person can be held liable for a criminal offence established in accordance with this Convention, committed for its benefit by any natural person, acting either individually or as part of an organ of the legal person, who has a leading position within the legal person, based on: a a power of representation of the legal person; b an authority to take decisions on behalf of the legal person; CETS 197 Action against Trafficking in Human Beings, 16.V.2005 c an authority to exercise control within the legal person. 2Apart from the cases already provided for in paragraph 1, each Party shall take the measures necessary to ensure that a legal person can be held liable where the lack of supervision or control by a natural person referred to in paragraph 1 has made possible the commission of a criminal offence established in accordance with this Convention for the benefit of that legal person by a natural person acting under its authority. 3Subject to the legal principles of the Party, the liability of a legal person may be criminal, civil or administrative. 4Such liability shall be without prejudice to the criminal liability of the natural persons who have committed the offence. Article 23 Sanctions and measures 1Each Party shall adopt such legislative and other measures as may be necessary to ensure that the criminal offences established in accordance with Articles 18 to 21 are punishable by effective, proportionate and dissuasive sanctions. These sanctions shall include, for criminal offences established in accordance with Article 18 when committed by natural persons, penalties involving deprivation of which can give rise to extradition. 2Each Party shall ensure that legal persons held liable in accordance with Article 22 shall be subject to effective, proportionate and dissuasive criminal or non-criminal sanctions or measures, including monetary sanctions. 3Each Party shall adopt such legislative and other measures as may be necessary to enable it to confiscate or otherwise deprive the instrumentalities and proceeds of criminal offences established in accordance with Articles 18 and 20, paragraph a, of this Convention, or property the value of which corresponds to such proceeds.