UNODC Draft Model Legislation on Trafficking in Persons May 2008

UNODC Draft Model Legislation on Trafficking in Persons (TIP) – Development Development of ML, follows UNODC practice in developing Model Laws Draft ML on TIP developed by an informal Expert Working Group (EWG) in accordance with UN mandates and resolutions –The first EWG, held in May 2006, –Second EWG, held in October 2007 Existing UNODC Model Laws for civil and common law jurisdictions are available at:

UNODC Draft ML on TIP - Basis United Nations Convention against Transnational Organized Crime,2000 –Entry into force: 29 September 2003 –Parties: 144 (May 2008 ) Protocol to Prevent Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime,2000 –Entry into force 25 th December 2003, –Parties (May 2008) Other international instruments; and Good practices from national legislation

Objectives of UNODC Draft ML Closely Follow “Purposes” of TIP Protocol (Art.2) To prevent and combat trafficking in persons, paying particular attention to women and children; To ensure just and effective punishment of traffickers; To protect and assist the victims of such trafficking, while maintaining full respect for their human rights; To promote and facilitate national and international cooperation in order to meet these objectives.

UNODC Draft ML on TIP Structure and Format Two formats: –One comprehensive law or, –Collection of provisions for insertion into existing laws e.g. labour or immigration, for use in both civil and common law legal systems, –Contains Commentary on mandatory and optional provisions, use of language, suitability of provision to civil or common law system, – 9 chapters including : jurisdiction, trafficking specific provisions, victim assistance, immigration & return, prevention and training.

UNODC Draft ML on TIP - The Trafficking Offence Mandatory provision based on Article 3, trafficking Protocol, elements include: –the act (e.g. recruitment, transport), –the means (e.g. threat, force, deception, fraud, abuse of a position of vulnerability), –the exploitation (e.g. force labour, forced sexual services, slavery), –Irrelevance of consent,

UNODC Draft ML on TIP – the trafficking offence, option 1 Article 8. Trafficking in Persons ( 1) Any person who (a) recruits, transports, transfers, harbours or receives another person (b) 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 (c) for the purpose of exploitation of that person shall be guilty of an offence of trafficking in persons and shall be subject to imprisonment for …… and/or a fine of /up to ……… [a fine of the ….category].

UNODC Draft ML on TIP – the Trafficking Offence, option 2 Article 8. Trafficking in Persons (1) Any person who (a) recruits, transports, transfers, harbours or receives a person (b) for the purpose of exploitation. Shall guilty of an offence of trafficking in persons and shall be subject to imprisonment for …… and/or a fine of/up to …………. (2) Exploitation means: (a) forced labour or services, including forced sexual services; (b) slavery or practices similar to slavery; © servitude, including sexual servitude; (d) the forced or illicit removal of organs.

UNODC Draft ML on TIP – Definition of Exploitation Article 8 (2) 2) Exploitation shall include : (a) the exploitation of the prostitution of others or other forms of sexual exploitation (b) forced labour or services [including bonded labour and debt bondage] © slavery or practices similar to slavery (d) servitude [including sexual servitude] (e) the removal of organs. (f) [other forms of exploitation defined in domestic law]. Non exhaustive element reflected as per Article 3, UNTOC Protocol

UNODC Draft ML on TIP - Consent Examples Consent – general: –The consent of the trafficked person to the (intended) exploitation set forth in Art. 8(2) shall be irrelevant if one of the means listed in Art 8 1 ( b) is used. Or: –In a prosecution for trafficking in persons under Article 8, the alleged consent of a person to the intended or realised exploitation is irrelevant once any of the means or circumstances set forth in Art. 8 1 (b) is established. Consent – child: –The recruitment, transportation, transfer, harbouring or receipt of a child for the purpose of exploitation shall be considered trafficking in persons even if this does not involve any of the means set forth in paragraph 8 (1)(b).

UNODC Draft ML on TIP – Non Liability of Victims Article 10. Non-liability [non-punishment] [non prosecution] of victims of trafficking in persons (optional provision) (1) Victims of trafficking shall not be held liable [punished] [inappropriately incarcerated, fined, or otherwise penalized] for offences [unlawful acts] committed by them in the course of being trafficked, including Illegal entry, exit or stay in [name of State] Use or possession of any fraudulent travel or identity documents that the victim obtained, or with which the victim was supplied, for the purpose of entering or leaving the country in connection with the act of trafficking in persons Working without documentation [ Engaging in prostitution ] (2) This provision is without prejudice to general defenses available to the victim.

UNODC Draft ML on TIP – Non Liability of Victims Examples of national legislation/regulations include: UNMIK Regulation No. 2001/4 on the Prohibition of Trafficking in Persons in Kosovo “a person is not criminally responsible for prostitution or illegal entry, presence or work in Kosovo if that person provides evidence that supports a reasonable belief that he or she was the victim of trafficking.” (source: United Nations Interim Administration in Kosovo (UNMIK), UNMIK/REG/2001/4). The United States trafficking Victims Protection Act acknowledges that victims of trafficking should not be “penalized solely for unlawful acts committed as a direct result of being trafficked, such as using false documents, entering the country without documentation, or working without documentation.” (Source: Trafficking Victims Protection Act of 2000, 18 U.S.C. §7101(17), (19) (2000)).

UNODC Draft ML on TIP – Use of Forced Labour and Services Examples - Article 11. Use of forced labour and services (optional) Any one who knowingly makes use of or profits from, labour or services performed or rendered under conditions of exploitation as defined in Art. 8 subparagraph (2) [labour or services performed or rendered by a victim of trafficking in persons], shall be guilty of an offence, and shall be subject to imprisonment for …… and/or a fine of/up to….. [a fine of the …. category]. Or Anyone who makes use of labour or services which are the object of exploitation as defined in Art. 8 paragraph (2), with the knowledge that the person is a victim of trafficking in persons, shall be guilty of an offence, and shall be subject to imprisonment for …. and/or a fine of/up to... [a fine of the …. category].

UNODC Draft ML on TIP – Victim & Witness Protection, Assistance and Compensation Article 21. General Principles –All actions taken in relation to victims of trafficking shall be based on, among others, the following principles: The promotion, respect and protection of human rights, dignity, including the right to adequate remedies, to privacy, safety, assistance, protection and redress. The avoidance of secondary victimization and /or stigmatization, and the prevention of re-victimization.

UNODC Draft ML on TIP – Victim Identification Article 24 – Identification of victims of trafficking in persons –A national coordinating body (NCB) established under this (Model) Law, to establish guidelines/ procedures for the identification of victims of trafficking in persons –NCB to develop and disseminate to professionals likely to encounter victims of TIP, information and materials concerning TIP, including manuals on identification of victims of TIP –Requirement for competent authorities to collaborate with State and non-state victim assistance entities

Draft ML on TIP –Rights and Entitlements of Victims of TIP (Art 25) Obligation on service providers to provide benefits and services to victims without regard to –Immigration status of a victim, or –His, or her ability or willingness to participate in investigation or prosecution of alleged traffickers

Draft ML on TIP –Rights and Entitlements of Victims of TIP (Art 25) Victims of TIP entitled to the following rights, benefits and services –Right to information and assistance –Right to legal representation and participation in criminal justice process –Right to protection of privacy –Right to compensation and restitution –Access to temporary or long term residence status (where applicable)

Draft ML on TIP – Recovery and Reflection Period (Art 34) Identification of victim of TIP to be done within specified period Once identified, victim to be granted a recovery and reflection period of not less than 90 days to make informed decision whether or not to cooperate with competent authorities During recovery and reflection period, victim, and where applicable, his/ her accompanying dependants to remain legally in the country

Draft ML on TIP – Temporary or Permanent Residence Permit (Art 35) Victim and accompanying dependants (where applicable) to be issued temporary residence permits of not less than 6 months, taking into account compassionate and humanitarian factors –Irrespective of whether victim is able or willing to act as witness Victim has possibility to apply for refugee or permanent residence status on humanitarian and compassionate grounds

Draft ML on TIP – Return and Repatriation of Victims of TIP (Art 36 & 37) Country of which a victim of TIP is national or had permanent residence to facilitate and accept return of victim –Without unreasonable delay –With due regard to his/her rights and safety Any decision to return victim of TIP to country of origin shall be taken in the light of the principle of non- refoulement No record is to be made in the identity papers of the victim relating his/ her return, no shall personal data in this regard be stored in any database.

Draft ML on TIP Thank you!