2002/629/JHA: Council Framework Decision of 19 July 2002 on combating trafficking in human beings
Date: 2002-07-19
Institutions: Council of the European Union
Subjects: administrative sanction, living conditions, offence, prostitution, trafficking in human beings, working conditions

1.8.2002

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Official Journal of the European Communities

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(Acts adopted pursuant to Title VI of the Treaty on European Union)

COUNCIL FRAMEWORK DECISION

of 19 July 2002

on combating trafficking in human beings

(2002/629/JHA)

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty on European Union, and in par-
ticular Article 29, Article 31(e) and Article 34(2)(b) thereof,

Having regard to the proposal of the Commission (1),

Having regard to the opinion of the European Parliament (2),

Whereas:

(1)

(2)

(3)

freedom,

The Action Plan of the Council and the Commission on
how best to implement the provisions of the Treaty of
Amsterdam on an area of
security and
justice (3), the Tampere European Council on 15 and 16
the Santa Maria da Feira European
October 1999,
Council on 19 and 20 June 2000, as listed in the Score-
board, and the European Parliament in its Resolution of
19 May 2000 on the communication from the Commis-
sion ‘for further actions in the fight against trafficking in
women’ indicate or call for legislative action against traf-
ficking in human beings, including common definitions,
incriminations and sanctions.

Council Joint Action 97/154/JHA of 24 February 1997
concerning action to combat trafficking in human beings
and sexual exploitation of children (4) needs
to be
followed by further
legislative action addressing the
divergence of legal approaches in the Member States and
contributing to the development of an efficient judicial
and law enforcement cooperation against trafficking in
human beings.

Trafficking in human beings comprises serious violations
of fundamental human rights and human dignity and
involves ruthless practices such as the abuse and decep-
tion of vulnerable persons, as well as the use of violence,
threats, debt bondage and coercion.

(4)

(5)

(6)

(7)

(8)

The UN protocol to prevent, suppress and punish traf-
ficking in persons, especially women and children,
supplementing the UN Convention against transnational
organised crimes, represents a decisive step towards
international cooperation in this field.

Children are more vulnerable and are therefore at greater
risk of falling victim to trafficking.

The important work performed by international organi-
sations, in particular the UN, must be complemented by
that of the European Union.

It is necessary that the serious criminal offence of traf-
ficking in human beings be addressed not only through
individual action by each Member State but by a
comprehensive approach in which the definition of
constituent elements of criminal
law common to all
Member States,
including effective, proportionate and
dissuasive sanctions, forms an integral part. In accor-
dance with the principles of subsidiarity and proportion-
ality,
to the
this Framework Decision confines itself
minimum required in order to achieve those objectives
at European level and does not go beyond what is neces-
sary for that purpose.

It is necessary to introduce sanctions on perpetrators
sufficiently severe to allow for trafficking in human
beings to be included within the scope of instruments
already adopted for the purpose of combating organised
crime such as Council Joint Action 98/699/JHA of 3
December 1998 on money laundering, the identification,
tracing, freezing, seizing and confiscation of the instru-
mentalities and the proceeds from crime (5) and Council
Joint Action 98/733/JHA of 21 December 1998 on
making it a criminal offence to participate in a criminal
organisation in the Member States of
the European
Union (6).

(1) OJ C 62 E, 27.2.2001, p. 324.
(2) OJ C 35 E, 28.2.2002, p. 114.
(3) OJ C 19, 23.1.1999, p. 1.
(4) OJ L 63, 4.3.1997, p. 2.

(5) OJ L 333, 9.12.1998, p. 1. Joint Action as last amended by Frame-

work Decision 2001/500/JHA (OJ L 182, 5.7.2001, p. 1).

(6) OJ L 351, 29.12.1998, p. 1.

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(9)

This Framework Decision should contribute to the fight
against and prevention of trafficking in human beings by
complementing the instruments adopted in this area
such as Council
Joint Action 96/700/JHA of 29
November 1996 establishing an incentive and exchange
programme for persons responsible for combating trade
in human beings and sexual exploitation of children
(STOP) (1), Council
Joint Action 96/748/JHA of 16
December 1996 extending the mandate given to the
Europol Drugs Unit (2), Decision No 293/2000/EC of the
European Parliament and of the Council of 24 January
2000 adopting a programme of Community action (the
Daphne programme)
(2000 to 2003) on preventive
measures
to fight violence against children, young
persons and women (3), Council Joint Action 98/428/
JHA of 29 June 1998 on the creation of a European Judi-
cial Network (4), Council Joint Action 96/277/JHA of 22
April 1996 concerning a framework for the exchange of
liaison magistrates
to improve judicial cooperation
between the Member States of the European Union (5)
and Council Joint Action 98/427/JHA of 29 June 1998
on good practice in mutual legal assistance in criminal
matters (6).

(10)

Council
Joint Action 97/154/JHA should accordingly
cease to apply in so far as it concerns trafficking in
human beings,

(d) payments or benefits are given or received to achieve the
consent of a person having control over another person

for the purpose of exploitation of
services,
services, slavery or practices similar to slavery or servitude, or

that person’s labour or
including at least forced or compulsory labour or

for the purpose of the exploitation of the prostitution of others
or other forms of sexual exploitation,
including in porno-
graphy.

2.
The consent of a victim of trafficking in human beings to
the exploitation, intended or actual, shall be irrelevant where
any of the means set forth in paragraph 1 have been used.

3. When the conduct referred to in paragraph 1 involves a
child, it shall be a punishable trafficking offence even if none of
the means set forth in paragraph 1 have been used.

For the purpose of this Framework Decision, ‘child’ shall

4.
mean any person below 18 years of age.

Article 2

Instigation, aiding, abetting and attempt

HAS ADOPTED THIS FRAMEWORK DECISION:

Each Member State shall take the necessary measures to ensure
that the instigation of, aiding, abetting or attempt to commit an
offence referred to in Article 1 is punishable.

Article 1

Offences concerning trafficking in human beings for the
purposes of labour exploitation or sexual exploitation

Each Member State shall take the necessary measures to

1.
ensure that the following acts are punishable:

the recruitment,
transfer, harbouring, subse-
quent reception of a person, including exchange or transfer of
control over that person, where:

transportation,

(a) use is made of coercion, force or threat, including abduc-

tion, or

(b) use is made of deceit or fraud, or

(c) there is an abuse of authority or of a position of vulner-
ability, which is such that the person has no real and accep-
table alternative but to submit to the abuse involved, or

(1) OJ L 322, 12.12.1996, p. 7.
(2) OJ L 342, 31.12.1996, p. 4.
(3) OJ L 34, 9.2.2000, p. 1.
(4) OJ L 191, 7.7.1998, p. 4.
(5) OJ L 105, 27.4.1996, p. 1.
(6) OJ L 191, 7.7.1998, p. 1.

Article 3

Penalties

1.
Each Member State shall take the necessary measures to
ensure that an offence referred to in Articles 1 and 2 is punish-
able by effective, proportionate and dissuasive criminal penal-
ties, which may entail extradition.

2.
Each Member State shall take the necessary measures to
ensure that an offence referred to in Article 1 is punishable by
terms of imprisonment with a maximum penalty that is not less
than eight years where it has been committed in any of the
following circumstances:

(a) the offence has deliberately or by gross negligence endan-

gered the life of the victim;

(b) the offence has been committed against a victim who was
particularly vulnerable. A victim shall be considered to have
been particularly vulnerable at least when the victim was
under the age of sexual majority under national law and the
offence has been committed for the purpose of the exploita-
tion of the prostitution of others or other forms of sexual
exploitation, including pornography;

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(c) the offence has been committed by use of serious violence

or has caused particularly serious harm to the victim;

(d) the offence has been committed within the framework of a
criminal organisation as defined in Joint Action 98/733/
JHA, apart from the penalty level referred to therein.

Article 6

Jurisdiction and prosecution

Each Member State shall take the necessary measures to
1.
establish its jurisdiction over an offence referred to in Articles 1
and 2 where:

Article 4

(a) the offence is committed in whole or in part within its

Liability of legal persons

territory, or

(b) the offender is one of its nationals, or

1.
Each Member State shall take the necessary measures to
ensure that legal persons can be held liable for an offence
referred to in Articles 1 and 2, committed for their benefit by
any 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, or

(b) an authority to take decisions on behalf of the legal person,

or

(c) an authority to exercise control within the legal person.

2.
Apart from the cases already provided for in paragraph 1,
each Member State shall take the necessary measures to ensure
that legal persons can be held liable where the lack of supervi-
sion or control by a person referred to in paragraph 1 have
rendered possible the commission of an offence referred to in
Articles 1 and 2 for the benefit of that legal person by a person
under its authority.

3.
Liability of legal persons under paragraphs 1 and 2 shall
not exclude criminal proceedings against natural persons who
are perpetrators, instigators or accessories in an offence referred
to in Articles 1 and 2.

4.
For the purpose of this Framework Decision, legal person
shall mean any entity having such status under the applicable
law, except for States or other public bodies in the exercise of
State authority and for public international organisations.

Article 5

Sanctions on legal persons

Each Member State shall take the necessary measures to ensure
that a legal person held liable pursuant to Article 4 is punish-
able by effective, proportionate and dissuasive sanctions, which
shall include criminal or non-criminal fines and may include
other sanctions, such as:

(a) exclusion from entitlement to public benefits or aid, or

(b) temporary or permanent disqualification from the practice

of commercial activities, or

(c) placing under judicial supervision, or

(d) a judicial winding-up order, or

(c) the offence is committed for the benefit of a legal person

established in the territory of that Member State.

2.
A Member State may decide that it will not apply or that
it will apply only in specific cases or circumstances, the jurisdic-
tion rules set out in paragraphs 1(b) and 1(c) as far as the
offence is committed outside its territory.

3.
A Member State which, under its laws, does not extradite
its own nationals shall take the necessary measures to establish
its jurisdiction over and to prosecute, where appropriate, an
offence referred to in Articles 1 and 2 when it is committed by
its own nationals outside its territory.

4. Member States shall inform the General Secretariat of the
Council and the Commission accordingly where they decide to
apply paragraph 2, where appropriate with an indication of the
specific cases or circumstances in which the decision applies.

Article 7

Protection of and assistance to victims

1. Member States shall establish that investigations into or
prosecution of offences covered by this Framework Decision
shall not be dependent on the report or accusation made by a
person subjected to the offence, at least in cases where Article
6(1)(a) applies.

2.
Children who are victims of an offence referred to in
Article 1 should be considered as particularly vulnerable victims
pursuant
to Article 2(2), Article 8(4) and Article 14(1) of
Council Framework Decision 2001/220/JHA of 15 March 2001
on the standing of victims in criminal proceedings (1).

3. Where the victim is a child, each Member State shall take
the measures possible to ensure appropriate assistance for his
or her family. In particular, each Member State shall, where
appropriate and possible, apply Article 4 of Framework Deci-
sion 2001/220/JHA to the family referred to.

Article 8

Territorial scope

This Framework Decision shall apply to Gibraltar.

(e) temporary or permanent closure of establishments which

have been used for committing the offence.

(1) OJ L 82, 22.3.2001, p. 1.

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Article 9

Application of Joint Action 97/154/JHA

Commission, assess the extent to which Member States have
taken the necessary measures in order to comply with this
Framework Decision.

Joint Action 97/154/JHA shall cease to apply in so far as it
concerns trafficking in human beings.

Article 10

Implementation

1. Member States shall
comply with this Framework Decision before 1 August 2004.

take the necessary measures to

2.
By the date referred to in paragraph 1, Member States
shall transmit to the General Secretariat of the Council and to
the Commission the text of the provisions transposing into
their national law the obligations imposed on them under this
Framework Decision. The Council will, by 1 August 2005 at
the latest, on the basis of a report established on the basis of
transmitted by the
this information and a written report

Article 11

Entry into force

This Framework Decision shall enter into force on the day of
its publication in the Official Journal.

Done at Brussels, 19 July 2002.

For the Council

The President

T. PEDERSEN