Trafficking in human beings: human rights and ... - unesdoc - Unesco

The fact that there are very few prosecuted cases of traffi cking for labour exploitation
in e.g. European destination states 413 is related to the diffi culties in obtaining the right
Traffi cking for Labour Exploitation/Forced and Bonded Labour Vienna, 16 and 17 November 2006.
p. 6.
413 See e.g. In OSCE Human Traffi cking for Labour Exploitation/Forced and Bonded Labour:
Identifi cation – Prevention – Prosecution Report of the 3rd Alliance against Traffi cking in Persons
Conferences on Human Traffi cking for Labour Exploitation/Forced and Bonded Labour. Vienna, 7
and 8 November 2005 for country examples. Examples of successful prosecution include Belgium: In
2005, the Belgian Criminal Code was amended to meet the most recent international requirements.
The new legislation makes a clear distinction between traffi cking and smuggling and covers exploitation
of both foreign and Belgian workers. Charging unreasonably high rents for housing by ‘slum landlords’
is defi ned as a separate offence. At the same time, a number of bodies have been established to ensure
cooperation and co-ordination between the relevant agencies, such as police, the Public Prosecutors
Offi ce, the judiciary and specialized NGOs. Under the old law, prosecutions for both smuggling and
traffi cking were based on the article that prohibited helping a foreigner to obtain residence and thereby
abusing his or her ‘position of vulnerability’. In practice the latter concept appeared to give rise to
different interpretations by the court. In the case of a Guinean woman exploited as domestic worker,
the Magistrate Court accepted abuse of a vulnerable position because at a certain point she found
herself in Belgium without a valid residence and work permit. Her passport and other papers were
taken from her so that she felt she could not move around freely without the risk of being arrested,
and she lived and worked under ‘intolerable conditions’, notably without any form of social protection
against accidents and illness. The judgement, however, was overruled by the Court of Appeal on the
arguments that it was not established that she would not have been given her passport if she had asked
for it, that the couple had undertaken steps to legalize her stay, that she enjoyed benefi ts in kind and
received money for dental treatment, and, most notably, because, although she worked long hours,
‘this was in line with the usual domestic tasks of a housekeeper’. Moreover, the Court noted that she
might have exaggerated her claims in order to obtain the right to stay in Belgium under the traffi cking
statute. This case was not presented before the European Court on Human Rights. Otherwise, the
decision would probably have been different, as this case is very similar to the case of Siliadin vs.
France. Another case concerned an Indian accused of forcing fellow compatriots to work for him as
fl ower sellers. In this case, the Court of Appeal accepted abuse of a position of vulnerability in light of
the illegal administrative status of the workers, the precarious situation with respect to accommodation,
the complete subservience of the workers through the use of violence and the obligation of the workers
to hand over all their earnings. The new law establishes behaviour ‘aimed at undermining human
dignity’ as an offence, regardless of the means used. Abuse of a position of vulnerability is removed
from the basic charge and classifi ed as an aggravating circumstance. This leaves considerable discretion
to the judge to decide whether or not a person has been put to work under conditions contrary to
human dignity. This can, for example, include the performance of work without remuneration or
for a remuneration which is disproportionate to the number of hours worked, or the presence of
substandard working conditions without health and safety protections. The concept of traffi cking in
the area of labour exploitation is thus very extensive and is defi ned by its aim, i.e. exploitation through
employment under conditions contrary to human dignity. It includes not only actual employment
under these conditions but also the intention to do so, and the modus operandi (such as abuse of a
position of vulnerability) only come into play as aggravating circumstances. Italy: The relevant articles
in the Italian Criminal Code provide for different degrees of severity, ranging from the use of illegal
immigrants and the exploitation of their illegal status for the purpose of labour, to incitement to illegal
migration for the purpose of exploitation, to holding a person in slavery. In addition, the law provides
for special protections for exploited workers (Article 18 Legislative Degree No. 286, 25 July 1998).
Since 2000, there have been a number of illustrative cases. The ‘Kevin Cosmetics’ case concerned the
exploitation of illegal Romanian men and women by a company led by an Italian businessman and
located in a remote area. The workers were housed in the same building as they worked, and arbitrarily
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