Human Rights Watch has reviewed the most recent draft of the Greek trafficking bill and offers these comments to the bill's drafters and to parliamentarians who will debate the law at some time in the near future. Human Rights Watch hopes that these suggestions will prove useful as lawmakers combat the human rights abuse of trafficking and bring Greek law into conformity with the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children (Trafficking Protocol), supplementing the United Nations Convention against Transnational Organized Crime, signed by Greece on December 13, 2000.1 The comments reflect Human Rights Watch's research findings in Greece, published in Greek and in English in a July 2001 memorandum of concern submitted to the government of Greece.2
Article 9 of the draft law outlines the proposed revisions to Article 351: Trafficking in Human Beings.3 Human Rights Watch believes that the revisions to the criminal code outlined in that article only partially bring Greek law into compliance with international standards. We have particular concerns about the definition of trafficking used in the article. Article 3 of the Trafficking Protocol defines trafficking as:
(a)...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 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.4 (Emphasis added)
As discussed below, Human Rights Watch believes that the language on consent and references to "sexual exploitation" do not match the international norm. We also believe that the draft law should provide a separate provision criminalizing the trafficking of children and specific language on penalties for officials who knowingly facilitate and profit from trafficking in human beings.
· Criminalize all forms of trafficking of persons, not just trafficking into the sex industry. The Trafficking protocol requires states to implement comprehensive anti-trafficking legislation. Human Rights Watch is concerned that the current draft legislation - Article 351: Trafficking in Human Beings - criminalizes only trafficking of persons for "sexual exploitation." This definition conflicts with the accepted international legal definition of trafficking, Article 3 (above), which includes all forms of "forced labor, services, slavery or practices similar to slavery, servitude or the removal of organs." The draft law's truncated definition of the crime excludes many trafficking victims from the law's protection, leaving them without remedy. Human Rights Watch's research in Greece, conducted in November 2000, indicated that some migrant women had been trafficked into Greece for service as domestic labor in households. Moreover, we discovered evidence that some migrant children selling flowers and other merchandise in Athens' intersections (so-called "traffic light children") were also trafficked into Greece. Article 4 of the Trafficking Protocol requires Greece to "adopt such legislative and other measures as may be necessary to establish as criminal offences the conduct set forth in article 3 of [the] protocol, when committed intentionally," including trafficking into other forms of forced labor. Human Rights Watch does not believe that Article 12, paragraph 3 of the draft law amending Article 8(g) of the Penal Code sufficiently addresses this issue with its reference to "an act of the slave trade." Instead, Human Rights Watch recommends that a definition of trafficking that conforms with the definition in the Trafficking Protocol is adopted and that trafficking for all forms of forced labor is criminalized. Human Rights Watch would also recommend the inclusion of forced marriage under the definition of "servitude" and the inclusion of debt bondage as one of the forms of "fraud."5
· Make the consent of the victim of trafficking to the intended abuse irrelevant. As outlined in Article 3(b) of the Trafficking Protocol, "The consent of a victim of trafficking in persons to the intended exploitation set forth in paragraph (a) of this article [see definition above] shall be irrelevant where any of the means set forth in subparagraph (a) have been used." While the draft law's Article 9 (revising Article 351 of the current penal code) addresses this issue in part, it does not fully eliminate the question of consent. The proposed language to replace Article 351 of the Greek Penal code limits the consent provision to only those instances where a trafficker gains such consent by "making promises, giving presents, providing payment or other benefits or by the use of fraudulent means." The Trafficking Protocol states that consent is irrelevant where any of the means described in subparagraph (a) have been employed by a trafficker. Thus, we recommend that the draft law's language fully conform with the protocol's text with respect to the consent of the trafficking victim.
· Limit the definition of "sexual exploitation" to those situations involving deceptive or coercive practices. If the term "sexual exploitation" is to be used in the Greek law in the context of trafficking, it must be defined more clearly than the text in paragraph 5 of Article 351.6 This broad definition goes far beyond the intent of the protocol and fails to include any of the protocol's language on coercion, fraud, or use of force. It is important to recognize that traffickers commonly employ physical and non-physical means of coercion, including physical violence and threat of physical violence, deceit, debt bondage, blackmail, isolation, and/or psychological pressure. One proposed alternative definition is: the participation by a person in prostitution, sexual servitude, or the production of pornographic materials as a result of being subjected to a threat, coercion, abduction, force, abuse of authority, debt bondage, or fraud.
· Create a separate penal provision criminalizing the trafficking of children. As noted in Article 3(c) of the Trafficking Protocol, trafficking of children does not require the threat or use of force or other forms of coercion to qualify as a criminal act. In addition, trafficking of children should not be limited to trafficking for "sexual exploitation," but instead should include trafficking for the purpose of placing the child into any form of slavery, forced labor, or servitude, or into any other type of labor condemned under the ILO Convention concerning the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labor (Convention 182).7 Children do not have the same capacity to make decisions about their migration and employment as adults. When children are placed into employment conditions that have been condemned as a "worst form" of child labor by the International Labor Organization, evidence of coercion should not be necessary to qualify the practice as trafficking.
· Criminalize complicity and corruption by state officials, law enforcement officials, and customs agents. Human Rights Watch's research in Greece and around the world indicates that trafficking, in most cases, cannot flourish without corrupt officials to facilitate border crossing, to generate false documents, and to provide protection for abusive employers. While paragraph 2(c) of Article 349 of the draft law creates enhanced penalties for perpetrators of trafficking who are related to the victim, the legislation should also provide explicit penalties for police officers, immigration officers, and other officials engaging in trafficking.8
PART B: Victim Protection Measures
Articles 13 and 14 of the draft law provide for some minimal protections for trafficking
victims in Greece.9 Human Rights Watch believes that the protections outlined in these articles, while positive, are inadequate. The current draft does not indicate who decides whether a victim is "in danger," who provides shelter or medical treatment, nor does it create sufficient protections for children. We make the following recommendations:
· In cooperation with local nongovernmental organizations, the government of Greece should provide "appropriate housing, counseling and information on legal rights, medical, psychological and material assistance, employment, educational and training opportunities" for all trafficking victims. These requirements, set forth in Article 5 of the Trafficking Protocol, apply to all trafficking victims, "in appropriate cases and to the extent possible," not just to those who agree to testify before criminal tribunals in the country of destination. Human rights protections should be available to all victims, whether or not they agree to cooperate or testify. The government of Greece should provide funding to nongovernmental organizations (NGOs) and intergovernmental bodies with expertise in the field to assist in the provision of these services to trafficking victims.
· Trafficked persons should not be detained or imprisoned. Housing in prisons and detention centers does not constitute "appropriate housing" as contemplated by Article 6, paragraph 3(a) of the Trafficking Protocol. Punitive measures directed at trafficking victims - in particular detention pending deportation - should be waived. All efforts should be made to place trafficking victims apprehended by the police in secure private residences or safe shelters. Likewise, trafficking victims who go voluntarily to the police for assistance should not be detained. Government-sponsored women's shelters should be opened to trafficked women and the government should provide funding to nongovernmental organizations that operate secure shelters for trafficking victims.
· The government of Greece should provide witness protection to those trafficking victims who agree to participate in criminal proceedings. The government of Greece should protect victims or witnesses who cooperate in legal proceedings against their traffickers, with measures to ensure their safety, physical and psychological well-being, dignity, privacy, and right to timely repatriation to their country of origin. The full range of witness protection measures should be made available to trafficking victims participating in criminal proceedings. Victim protection is essential for successful prosecutions. As required by Article 6, paragraph 1 of the Trafficking Protocol, Greece should protect the privacy and identity of trafficking victims. None of these measures should be prejudicial to or inconsistent with the rights of the accused to a fair and impartial trial.
· Frozen assets of traffickers should be made available to victims, in accordance with due process protections, to settle financial claims for violations of their human and civil rights. Article 6, paragraph 6 of the Trafficking Protocol requires states to ensure that their domestic legal systems contain "measures that offer victims of trafficking in persons the possibility of obtaining compensation for damage suffered." Greece should make assets confiscated from traffickers (in accordance with due process protections) available to settle financial claims of trafficking victims. When the proceeds of unjust enrichment through trafficking have been confiscated through appropriate legal procedures, they should be used to provide victims with remedies for the abuses they have suffered. In addition, trafficking victims should have a right to collect back wages through civil proceedings.
· The government of Greece should refrain from the immediate expulsion of trafficked persons, offering all victims of trafficking the opportunity to remain in the country while they weigh their legal options. Articles 13(2) and 14(1)(b) of the draft law call for a suspension of deportation under narrow circumstances.10 In contrast, the Trafficking Protocol presses states to consider "adopting legislative or other appropriate measures that permit victims of trafficking in persons to remain in [the state's] territory, temporarily or permanently, in appropriate cases."11 Trafficked persons should be given the time, information, and assistance needed to initiate legal proceedings against their traffickers or employers. Where trafficked persons decide to initiate a civil action and/or act as a witness in a criminal action, they should be allowed to remain in the country for the duration of such case, including all appeals, not just until the "penal prosecution of the perpetrator" is resolved, as outlined in the draft law. Trafficked persons in Greece awaiting criminal or civil trial should be provided with the right to work and/or other means of support.
· The government of Greece should adopt provisions allowing for the permanent resettlement of trafficked persons, giving appropriate consideration to humanitarian and compassionate factors in determining these cases. Such measures should be in addition to Greece's obligation to protect the right to seek and enjoy asylum and to uphold the fundamental principle of non-refoulement.
· Repatriation of trafficking victims to their countries of origin should only be undertaken with due regard for the safety and security of the trafficked person and should preferably be voluntary. Article 8 of the Trafficking Protocol requires that countries of destination such as Greece return trafficking victims to their countries of origin with care for the safety and security of the person. Repatriations must also be undertaken with due regard for the "status of any legal proceedings related to the fact that the person is a victim of trafficking and should preferably be voluntary."
Special Provisions for Child Victims of Trafficking
Article 6, paragraph 4 of the Trafficking Protocol requires states to take into account "the special needs of children, including appropriate housing, education, and care." The current version of the draft law states, "Minors are placed into educational and vocational programs." This provision does not effectively address the special needs of child victims of trafficking. Human Rights Watch makes the following recommendations:
· In the case of a child victim of trafficking, the government of Greece should take steps to locate the family members of the trafficked child, ascertain the circumstances under which the child became a victim of trafficking, and make a determination about placement in accordance with the best interests of the child. Once a determination has been made, the government of Greece should facilitate the child's safe and humane return (or other placement). The goal of the state's efforts should be the prompt reunification of the child with her/his family unless the best interests of the child dictate otherwise, giving consideration to the wishes of the child, as required by Article 3 of the U.N. Convention on the Rights of the Child.12
· Children should receive special assistance, including legal counsel. Greece should also include a provision in part B of the draft law to ensure that monetary awards made to children are actually received by them through the formation of a trust or other legal mechanism.13
· Under no circumstances should trafficked children be placed in punitive institutions, such as juvenile detention centers or remand homes for children. Shelters or group homes for trafficked children must have adequate security to protect residents from traffickers. They must also be given access to education and health care (including psychological support) in conformity with the U.N. Convention on the Rights of the Child, in addition to the services described in the recommendations above.
Footnotes:
1 For easy reference, we have appended the Trafficking Protocol to this document.
2 The memorandum can be found on Human Rights Watch's website at http://www.hrw.org/backgrounder/eca/greece/index.htm.
3 Article 351. Trafficking in Human Beings:
1. Any person who by force, by threat or by other coercive means or by imposing or abusing authority hires, transports within or outside the country, harbors, hands over to somebody in exchange for something or nothing or receives from somebody a person with the aim of sexually exploiting that person himself or somebody else is punished by imprisonment of up to ten years;
2. The sentence of the above paragraph is imposed on the perpetrator if, with the same aim, he procures the consent of a person in need by making promises, giving presents, providing payment or other benefits or by the use of fraudulent means.
3. A prison sentence of at least ten years and a fine of fifty to one hundred thousand Euros is imposed on the perpetrator according to the previous paragraphs, if the deed
a) was committed against a person younger than 18 years old;
b) was committed by one of the people in paragraph 2c of article 349;
c) is related to the illegal entry, residence or exit of the victim from the country;
d) is practiced as a profession.
4. If any of the deeds of the previous paragraphs resulted in a grave physical injury of the victim an imprisonment of at least ten years is imposed and if it resulted in the victim's death, life imprisonment is imposed.
5. Sexual exploitation as understood in the previous paragraphs consists of any licentious act for profit or the use for profit of the body, voice, or image of a person for such real or simulated acts or for the provision of labor or services which aim at sexual arousal.
4 The footnote to this text in the Trafficking Protocol states, "The travaux preparatoires should indicate that the Protocol addresses the exploitation of the prostitution of others and other forms of sexual exploitation only in the context of trafficking in persons. The terms "exploitation of the prostitution of others" or "other forms of sexual exploitation" are not defined in the Protocol, which is therefore without prejudice to how States Parties address prostitution in their respective domestic laws."
5 Slavery-like practices should be understood to include those practices condemned under the 1956 Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery. These practices include, among others, debt bondage and forced marriage. Greece ratified this convention on December 13, 1972.
6 Article 351(5) Sexual exploitation as understood in the previous paragraphs consists of any licentious act for profit or the use for profit of the body, voice, or image of a person for such real or simulated acts or for the provision of labor or services which aim at sexual arousal.
7 Greece ratified this convention on November 6, 2001.
8 Article 349. Pandering
1. Any person who in order to serve the debauchery of others procures or corrupts minors or facilitates the prostitution or corruption of minors is punished by imprisonment of up to ten years and is fined with the amount of ten to fifty thousand Euros, should a reason for a more severe punishment not arise.
2. The sentence is extended to at least ten years of imprisonment and a fine of fifty to one hundred thousand Euros if the offense was committed: a) against a person younger than 16 years old; b) with deceitful means; c) by an ascending relation by blood or affinity or foster parent, spouse, or other person who is raising, educating, or caring for the minor, even temporarily.
9 Article 13. Aid to Victims
1. If in direct danger, the victims of the crimes described in articles 349, 351, and 351A are provided with protection, especially that is of their life, physical integrity and their personal and sexual freedom. Aid is also provided for their shelter, nutrition, medical care, and psychological support. Care is also taken in order to guarantee legal counsel and a translator should this be required during their relationship with the Greek authorities. Minors are placed into educational and vocational programs. The details for the application of this provision are established by a presidential decree.
2. Regarding the victims of the above mentioned acts in paragraph one who are aliens and are in the country illegally and with the qualifications regarding their repatriation in the following article, it is possible to suspend deportation following the order of the magistrate court's district attorney and the approval of the court of appeal's district attorney until a final ruling is reached in the penal prosecution of the perpetrator.
3. The details regarding the execution of the deportation decisions according to the previous paragraph are regulated by paragraph 8 of article 44 S, 2910/2001.
Article 14. Repatriation
1. Aliens who are in the country illegally and who are victims of the crimes of articles 349, 351, and 351A of the penal code are safely repatriated without offending the victim's bodily integrity:
a) by their own will which is put into writing before a public authority;
b) if the victim does not wish to be repatriated and the reasons for this are considered well-founded, then the district general secretary can allow for the victim's temporary stay in the country until the reasons for which the repatriation was not possible have been resolved.
c) if the victim is a minor then a report is filed by the commissioner of minors and the agreement of the minors' district attorney is required for the minor's repatriation.
2. The procedure, manner, expenditures and every other detail relating to the repatriation of alien victims according to paragraph 1 are regulated by a presidential decree issued with a motion of the ministers of public administration, justice, and public order.
10 Article 13(2): Regarding the victims of the above mentioned deeds in paragraph 1 who are aliens and are in the country illegally, and with the qualifications regarding their repatriation of the following article, it is possible to suspend deportation...until a final ruling is reached in the penal prosecution of the perpetrator. Article 14(1)(b): if the victim does not wish to be repatriated and the reasons for this are considered well-founded, then the district general secretary can allow for the victim's temporary stay in the country until the reasons for which the repatriation was not possible have been resolved.
12 Greece ratified the U.N. Convention on the Rights of the Child on May 11, 1993.
13 Article 20(1) of the U.N. Convention on the Rights of the Child (CRC) states: "A child temporarily or permanently deprived of his or her family environment...shall be entitled to special protection and assistance provided by the state. And Article 39 of the CRC states: "States Parties shall take all appropriate measures to promote physical and psychological recovery and social reintegration of a child victim of: any form of neglect, exploitation ,or abuse...Such recovery and re-integration shall take place in an environment which fosters the health, peer-respect, and dignity of the child."
