Preliminary Results Comparative study on trafficking in persons in Central America Developments and challenges

Historical background – trafficking in persons definition  Linked to slavery  “The slave trade includes all acts involved in the capture, acquisition or disposal of a person with intent to reduce him to slavery; all acts involved in the acquisition of a slave with a view to selling or exchanging him; all acts of disposal by sale or exchange of a slave acquired with a view to being sold or exchanged, and, in general, every act of trade or transport in slaves.” (Art. 1.2 Slavery Convention, 1926)

Historical background – trafficking in persons definition  Linked to sexual exploitation “Article 1. The Parties to the present Convention agree to punish any person who, to gratify the passions of another: “Article 1. The Parties to the present Convention agree to punish any person who, to gratify the passions of another: (1) Procures, entices or leads away, for purposes of prostitution, another person, even with the consent of that person; (2) Exploits the prostitution of another person, even with the consent of that person. (Convention for the Suppression of the Traffic in Persons and of the Exploitation of the prostitution of Others, 1949)

Trafficking in Persons Protocol definition (2000) “Trafficking in persons” shall mean the recruitment, “Trafficking in persons” shall mean the recruitment, transportation, transfer, harbouring 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 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. 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 (Art. 3a)

Elements of the criminal activity Criminal activity - Recruitment - Transportation, transfer - Harbouring, receipt Persons Coercive methods - Threat - Use of force or coercion - Abduction - Fraud - Deception - Abuse of power - Position of vulnerability - Giving or receiving of payments and benefits - Exploitation of the prostitution of others or other forms of sexual exploitation - Forced labour or services - Slavery or practices similar to slavery - Servitude - Removal of organs Purposes of exploitation Does not apply to people under 18

Important aspects of the Trafficking in Persons Protocol definition  Object of protection: life, personal integrity, liberty, etc.  Coercive methods: ample  Methods are irrelevant for persons under 18  Trafficking may be internal and transnational  Does not provide an exhaustive list of what exploitation encompasses - “at a minimum”  “Exploitation” is not defined

Smuggling of migrants – definition (2000)   "the procurement, in order to obtain, directly or indirectly, a financial or other material benefit, of the illegal entry of a person into a State Party of which the person is not a national or a permanent resident". (Art. 3a, Protocol)

Migration and Smuggling of Migrants… Border crossing ► Illegal: Not complying with legal requirements (e.g. crossing thru unauthorized posts, without necessary documentation or by using false documents, etc.) Passive actor: Migrants Action performed by: Smuggler for a determined price Criminal activity: procurement of the illegal entry of a person for a determined price Intention: obtaining, directly or indirectly, a financial or material benefit Relation between smuggler and migrant usually ends at the time of illegally crossing from one country to another.

Differences and Similarities between trafficking in persons and smuggling of migrants “consent” Use of false documents Merchandise: movement, illegal crossing Crime against the State Illegal crossing of international border Commercial operation w/human beings Organized crime groups Legal or illegal entry FOR EXPLOITATION PURPOSES RESTRICTION OF PERSONAL MOVEMENT DECEIT OR COERCION INVOLUNTARY DIFFICUL TO PROVE OR CORROBORATE Merchandise: person Crime against the individual INTERNAL OR TRANSNATIONAL SMUGGLING OF MIGRANTSTRAFFICKING IN PERSONS

National amendments: TRAFFICKING IN PERSONS Costa Rica: Law against the Sexual Exploitation of Underage Persons, Nº 7899, August 3, 1999 amends Criminal Code Costa Rica: Law against the Sexual Exploitation of Underage Persons, Nº 7899, August 3, 1999 amends Criminal Code El Salvador: Decree Nº 210, November 23, 2003 amends Criminal Code El Salvador: Decree Nº 210, November 23, 2003 amends Criminal Code Panama: Law, March 16, 2004, regulates aspects of prevention, includes new provisions of crimes against personal integrity and sexual liberty; amends Criminal Code Panama: Law, March 16, 2004, regulates aspects of prevention, includes new provisions of crimes against personal integrity and sexual liberty; amends Criminal Code Guatemala: Decree Nº , amends Criminal Code Guatemala: Decree Nº , amends Criminal Code Honduras: Decree Nº , August 30, 2005, amends Criminal Code, Title II “Crimes against sexual liberty and honesty”. Honduras: Decree Nº , August 30, 2005, amends Criminal Code, Title II “Crimes against sexual liberty and honesty”. Nicaragua: Criminal Code, Project to reform/amend the Criminal Code (presently in revision by Legislative Commission) Nicaragua: Criminal Code, Project to reform/amend the Criminal Code (presently in revision by Legislative Commission)

Characteristics Country Criminal activity MethodsPurposesUnder… El Salvador (Art B) With the intention of obtaining economic benefit, transports, removes, accepts or receives persons, both within and outside the national territory Sexual exploitation, forced work or services, practices similar to slavery, removal or organs, fraudulent adoptions, forced marriages Crimes against humanity Single chapter: Genocide Guatemala (Art. 194 CC) Promotes, induces, facilitates, finances, collaborates or participates in the recruitment, transport, transfer, harboring, or reception (It does not specify if it applies to internal or transnational trafficking) Threat, use of force or other forms or coercion, abduction, fraud, deceit, abuse of power, kidnapping, vulnerability situation, giving or receiving payment or benefits Exploitation, prostitution, pornography, any form of sexual exploitation, begging, forced labor or services, forced marriages, irregular adoptions, slavery or practices similar to slavery Crimes against honesty/ Chastity

Characteristics Country Criminal activity MethodsPurposesUnder… Costa Rica (Art. 172 CC) “promotes, facilitates, or favours the entry or exit of a person into and out of the country”. Penalty is increased if under 18, if deceit, violence, abuse of authority position of vulnerability, other means of coercion are used, if abuse of relation of trust or kinship with the victim or family, regardless of blood relation (Art ) Labour or sexual servitude Sexual crimes Honduras (Art. 149 CC) Facilitates, promotes or performs the recruiting, transport, transfer, handing-in, harboring, or receiving of persons within and outside the national borders Penalty is increased if the use of force, intimidation, deceit or a promise of work takes place Commercial sexual exploitation (prostitution) Art. 154-A: CSE → the use of persons in activities for sexual purposes, in exchange of a payment, or a promise of payment for the victim or a 3 rd person that makes profit out of him/her. Crimes against the liberty, physical, psychological and sexual integrity of persons. Crimes against sexual exploitation

Characteristics Country Criminal action MethodsPurposesUnder… Panama (Art. 231 y 231-A CC) 231. Promotes or facilitates in any way the entrance or exit of a person of any sex 231-A. Promotes, favors, facilitates or performs the abduction, transport, transfer, harboring or reception of underage persons within or outside of the national borders Sexual exploitation or maintaining in sexual servitude Crimes against chastity/ honesty and sexual liberty Nicaragua (Art. 182 Project CC) Promotes, facilitates, induces, or performs the recruitment, abduction, hiring, transport, transfer, retention, harboring or receipt of persons, within or outside national borders Abuse of power, threats, promises, or deceit Slavery or sexual exploitation Crimes against liberty and sexual integrity

Limitations  Not all Criminal Codes have adopted the Trafficking in Persons Protocol definition  Amendments are different amongst each other  Only El Salvador classifies trafficking as a crime against humanity  Other countries classify it as a sexual crime (Costa Rica, Honduras, Nicaragua)  Still some countries classify it as a crime against chastity/honesty and good customs (Guatemala, Panamá)  Not all countries regulate internal trafficking (Costa Rica, Panama-only for underage persons, Guatemala?)  Complex to prove

Limitations  Application: lack of knowledge/understanding of the scope of the trafficking definition: …The criminal court makes an “ample” interpretation of the conducts “to promote and facilitate” and therefore includes the participation of the accused which consisted in picking up the victims at the airport: “… these aspects are not sufficient to prove the criminal activity, least its primary participation, as estimated by the initial sentence. It is not grounded why the fact that the accused picked up the victims at the airport constitutes a form of facilitating and promoting their entry into the country, since it does not sustain in which way xxx participated in an active way in any previous diligence, which precisely allowed the entry of these youngsters into the country …” (CR Sala Tercera, )

Procedural aspects Victims of trafficking should be exempted from criminal responsibility (Art. 19, Law , Panama) Victims of trafficking should be exempted from criminal responsibility (Art. 19, Law , Panama) “ The migrant that has entered Costa Rican territory without complying with the legal provisions that regulate its entry and that finds itself in an irregular situation in the country, without documentation or with irregular documentation, for having been victim, offended or witness of an act of illegal smuggling of human beings, illegal immigration or sexual exploitation, It will be a decision of the Migration Directorate to afford this benefit, and in exchange, it will procure that these persons be repatriated” (Art. 247 Migration law, CR) “ The migrant that has entered Costa Rican territory without complying with the legal provisions that regulate its entry and that finds itself in an irregular situation in the country, without documentation or with irregular documentation, for having been victim, offended or witness of an act of illegal smuggling of human beings, illegal immigration or sexual exploitation, may be exempted from administrative responsibility and will not be expelled nor deported, if he/she denounces to the immigration authorities the authors or cooperators of this smuggling, or if he/she cooperates with the competent police staff, by bringing them essential data or testifying, in their case, in the corresponding process taken against the authors. It will be a decision of the Migration Directorate to afford this benefit, and in exchange, it will procure that these persons be repatriated” (Art. 247 Migration law, CR)

Limitations UN Recommended Guidelines and Principles on Human Rights and Trafficking in Persons UN Recommended Guidelines and Principles on Human Rights and Trafficking in Persons (6, 8 y 9) “the protection and adequate psychological and physical care of victims, as well as the provision of adequate shelter for these persons, must not be contingent upon their participation or cooperation in investigations or legal proceedings against traffickers ”

Procedural aspects, Migration role?  Special protection to victims (witnesses)  To guarantee that it is not re-captured (Art. 18, Law , Panama)  Protection against threats, reprisals or intimidation (Art. 18, Law , Panama; Art. 110 CPP-N; M-Laey Organized Crime)  Not to diffuse its image or to reveal information about protected persons (ES- D 1031, 2006; ES-CPP 13; H-CPP 237) ► Special shelters?

¿Migration permits? Documentation Documentation  Temporary permit?  Special visas? Humanitarian reasons?  Permanent residence? US - In determined cases, and if the victim meets the requirements imposed by the law, those victims who have continuously remained in the US for more than 3 years, and would experience hardship (as defined by the TVPA) if removed from this country, may be granted a permanent residency in the United States.

Related instruments  Memoranda of understanding  Between Guatemala & Mexico for the protection of women and underage victims of trafficking in persons and smuggling of migrants in the border Guatemala- Mexico (23/3/2004)  Between Guatemala & U.S. for establishing a cooperation framework in prevention, control, and sanction of activities related to trafficking in persons (2/11/2004)  Between Guatemala & El Salvador for the protection of victims of trafficking in persons and smuggling of migrants (18/08/2005)

Related instruments  Protocols for the repatriation of trafficking victims  Regional guidelines for the special protection in cases of repatriation of unaccompanied minors victims of trafficking  Protocols or national manuals