Johanna Westeson - The ICHRP

victims will be granted “standards of living capable of ensuring their subsistence” (Art.
7.1). For the most vulnerable, and “where appropriate and if provided by national law,”
there shall also be psychological assistance available (Art. 7.1). After the expiry of the
reflection period, a temporary residence permit can be granted to victims whose
cooperation is clearly beneficial to the law enforcement authorities (Art. 8).
While focusing on trafficked persons and giving them an incentive to cooperate, this
document is troublesome from a human rights point of view. It provides for no protection
of persons who are not required to give testimony or who for some reason cannot
cooperate with law enforcement officials – or of those who have given testimony,
benefited from the regime, and then have been repatriated against their will. As pointed out
by a commentator, the purpose of the Directive was to facilitate law enforcement against
traffickers while also concerned with the risks of illegal immigration into the Union:
“Clearly, the overwhelming concern of the Commission was to ensure that the proposed
visa regime was not open to opportunistic abuse or to aggravating the problem of illegal
migration into the Union.” 692
The European Council adopted Joint Action 97/154/JHA in 1997, 693 concerning action to
combat trafficking in human beings and sexual exploitation of children. In the preamble of
this document, the Council establishes first that the fight against trafficking “is likely to
contribute to the fight against certain unauthorized immigration and to improve judicial
cooperation in criminal matters,” and later that trafficking in human beings and sexual
exploitation of children “constitute serious infringements of fundamental human rights, in
particular human dignity.” This, again, suggests a prioritization of the fight against illegal
immigration over the concern for the rights of trafficked persons, which raises concerns
from a human rights standpoint.
The definition of trafficking in human beings for the purposes of the Joint Action only
refers to sexual trafficking and requires border crossings. The definition of trafficking is
vague; it basically only refers to the movement between states, for the purpose of sexual
exploitation (Title I Aims). Measures that member states are required to take are almost
exclusively related to law enforcement. Title II.F(b) requires states to ensure “appropriate
assistance to victims and their families,” including enabling them “to return to their
country of origin, or any other country which is prepared to accept them, with the full
rights and protections accorded to them by the national law of the Member States.” No
mention is made of the possibility for a trafficked person to get a residence permit in the
host country.
In 2002, the Council of the European Union adopted a Framework Decision on trafficking,
the EU Framework Decision on Combating Trafficking in Human Beings. 694 The
definition of human trafficking of the Framework Decision is not identical but very similar
to that of the Palermo Protocol, with the main difference that the EU Framework Decision
makes explicit that pornography can be one form of sexual exploitation. The Framework
692 Gallagher, p. 169.
693
Joint Action 97/154/JHA of 24 February 1997 adopted by the Council on the basis of Article K.3 of the
Treaty on European Union concerning action to combat trafficking in human beings and sexual exploitation
of children [1997] OJ L 63. On the status of ‘Joint Actions,’ which now have been replaced in EU law by
Framework Decisions, see the introduction to this report.
694 Council Framework Decision 2002/629/JHA of 19 July 2002 on Combating Trafficking in Human Beings
[2002] OJ L 203. On the status of Framework Decision, see the introduction to this report.
223