Trafficking in Human Beings Amounting to Torture and other Forms ...

six months will be issued in case the victim stays for the
investigation or proceedings and is willing to co-operate
with the authorities. Prior to a residence permit States are
obliged to offer a reflection period the length of which has
to be determined by national laws.
The Council Framework Decision on the standing of victims
in criminal proceedings 42 is not applicable to victims
of trafficking specifically but contains important rights for
trafficked persons in criminal proceedings. It includes inter
alia the right to receive information and it further requires
that victims of criminal acts are entitled to receive a decision
in reasonable time on the compensation by the perpetrator
during the criminal proceedings.
A central international non-binding instrument is the ‘UN
Principles and Guidelines on Human Rights and Human
Trafficking’ 43 elaborated by the UN Office of the High Commissioner
for Human Rights. This instrument encourages
States to put the human rights of trafficked persons in the
centre of all efforts against trafficking in human beings. The
instrument contains guidelines on inter alia protection of
trafficked persons, law enforcement, prevention and international
co-operation. States are called upon to “ensure that
trafficked persons are protected from further exploitation
and harm” and they should ensure that adequate care is
not conditional upon the willingness to co-operate in legal
proceedings (principle 8). 44 States are encouraged to enable
a safe return of trafficked persons to the State of origin and
they should offer an alternative to the return in case the
return would be a serious risk to the safety of the trafficked
person (principle 11).
The OSCE Action Plan to Combat Trafficking in Human
Beings 45 serves for the participating States as a supportive
toolkit in order to implement efforts against trafficking in
human beings. According to the Action Plan participating
States should take into account root causes of trafficking
in human beings when implementing preventive measures
and should include inter alia issues such as discrimination
at the work place (point IV.7.3). Participating States should
on the residence permit issued to third-country nationals who are victims of
trafficking in human beings or who have been the subject of an action to
facilitate illegal immigration, who cooperate with the competent authorities
Council
Framework Decision 2001/220/JHA on the Standing of Victims in
Criminal Proceedings
43 Recommended Principles and Guidelines on Human
Rights and Human Trafficking,
44
Decision No. 557/Rev. 1 OSCE Action
Plan to Combat Trafficking in Human Beings
consider establishing a fund for compensating trafficked
persons, which could be financed by confiscated assets
(point III.1.5).
2.2.2 Elements of the Definition of Trafficking
in Human Beings
Article 3 of the Palermo Protocol defines trafficking in human
beings as “the recruitment, transportation, transfer,
harbouring or receipt of person, 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” 46 .
The definition can be divided into three elements, which
are: action, means and purpose. The first element covers actions
such as recruitment, housing or transportation, which
are usually the first steps taken by traffickers. The action
element is very broad in order to be able to reach not just
the recruiter, but also owners, supervisors or controllers of
any place of exploitation such as a farm, factory, brothel or
household. 47
Secondly, traffickers use specific means such as use of force
to secure that action. 48 Further means are coercion, abduction
or the abuse of a position of vulnerability. The abuse of
a position of vulnerability includes any situation in which
the person involved has no real and acceptable alternative
but to submit to the abuse involved. 49
The third element of the definition is the purpose of exploitation.
According to the Palermo Protocol, “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” 50 . The Palermo Protocol
gives an open-ended list of forms of exploitation but does
not define the term ‘exploitation’ itself. 51
Protocol to Prevent, Suppress and Punish Trafficking in
Persons, Especially Women and Children, Supplementing the United Nations
Convention against Transnational Organized Crime
The International Law of Human Trafficking
Legislative Guide
for the Implementation of the Protocol to Prevent, Suppress and Punish Trafficking
in Persons, especially Women and Children, supplementing the United
Nations Convention against Transnational Organized Crime
Protocol to Prevent, Suppress and Punish Trafficking in
Persons, Especially Women and Children, Supplementing the United Nations
Convention against Transnational Organized Crime
18