Human Trafficking: Red Light for Europe

CAOIMHE DALY

SS LAW

Human trafficking stands amongst the world’s fastest growing crimes and regrettably this modern slavery has fallen through the cracks of many legal systems. Charlie Flanagan, the Minister for Justice and Equality has described human trafficking as “hidden in plain sight” allowing it to be sheltered by secrecy. Ninety-five individuals were identified as victims of human trafficking in Ireland in 2018. This figure rose for the third consecutive year. These figures do not align with the reality of the situation and regrettably, the majority of victims of human trafficking are not identified. They are instead punished for minor offences as an alternative to vindicating their human rights. In Rantsev v Cyprus and Russia, the European Court of Human Rights recognised human trafficking within the ambit of Article 4 of the European Convention on Human Rights (the ECHR). This was a widely appreciated shift in the Court’s attitude in line with a developing society, recognising this as a modern form of slavery. The Court founded positive obligations inherent in Article 4 in Siliadin v France, such as the obligation to have satisfactory legislative and administrative frameworks to take necessary steps to protect individuals and to investigate alleged offences of human trafficking. Regrettably, these positive obligations are not efficiently enforced due to the large amount of discretion afforded to member states in applying them. The European approach to human trafficking imposes obligations on states unlike the international framework, the Parlermo Protocol. However, the reality of the obligations on states, is that they are loosely enforced and lack the effectiveness needed to adequately combat the problem. There are two main issues in which Ireland is failing victims of human trafficking: the identification of victims and the treatment of them. The identification of victims is an intricately difficult task, fuelled by a number of factors. Victims of human trafficking are usually immigrants illegally living in a country, involved in a dependent relationship, carrying out work that is discrete by nature and wholly unaware of their status as a victim. Ireland has proactively provided training on the identification of potential victims to 520 probationer members of the Gardaí. Human trafficking is an evolving criminal activity. It is unsurprising that officials are ill-equipped to deal with these presentday cases as they have had minimal experience with this issue. Therefore, it is crucial that training is provided to a wide range of officials who are likely to come into contact with potential victims including, social workers and work inspectors, as recommended by the Second National Action Plan to Combat Human Trafficking. Targeted training programmes can effectively educate individuals on identifying victims. Currently, without effective training, it is a disservice to both victims and the frontline personnel, as they are essentially blindly searching for a needle in haystack, in their efforts to identify victims “employed” in Ireland. Article 26 of the Council of Europe Convention contains a non-punishment principle for states “in accordance with the basic principles of its legal system”. This highlights another example of the discretion left to member states in not adopting the European standards. GRETA, the Group of Experts on Action against Trafficking in Human Beings, has strongly recommended that Ireland adopt a non-punishment principle as it is critical to the protection of a victim, that they are seen as a victim, not a criminal. States are hesitant to adopt the nonpunishment principle as they feel the European Convention is usurping their powers and interfering with their criminal justice system. The Netherlands strikes a fair balance in this area. This is evidenced in the Mehak case, in which a trafficked girl was convicted of the manslaughter of a baby in her care. The court considered the non-punishment principle and determined that it should be assessed in line with the gravity of the crime. States feel their sovereignty comes under threat when dealing with human trafficking cases. There are continuing tensions between a rights-based approach to human trafficking and a state’s interest in immigration control. Directive 2011/36/EU does not impose a prohibition on punishing victims but only requires that measures are in place so that national authorities can choose not to impose penalties. It is futile to provide an opt-out clause rather than a prohibition. Due to the dearth in the identification of victims and the blurred distinction between immigrants and human-trafficking victims, there is a real risk that these cases will be dealt with inadequately. The non-punishment principle would ensure that victims are not unduly punished, silenced, and thrown into the criminal justice system, silenced and feeding into the secrecy of this crime. Furthermore, Ireland should adopt a whistleblowing legislative regime, similar to the Protected