Epp Lumiste

Even in the year 2010 there are people who have to spend parts of their lives in slavery. The topic is also relevant in Estonia and it affects Estonian society, as human trafficking is a form of slavery.

Violation of fundamental human rights, as well as violation of human dignity by exploiting people (whether sexually, by forced labour or by drafting and keeping people, by keeping people in slavery or in a similar state) or by forced removal of an organ should be treated as human trafficking. The Minister of Foreign Affairs has compared human trafficking to organised crime that endangers the international as well as national safety.

There are different kinds of human trafficking. Perhaps the best known is sexual exploitation, but in addition to that there are also human trafficking in labour exploitation and organ trafficking. Human trafficking has several causes, which may have to do with criminal as well as economic reasons.

To fight human trafficking a development plan was drawn up for years 2006 – 2009, which was approved by the Government. As a result of the development plan an analysis for necessary elements of a criminal offence of human trafficking was drawn up. As of 2010 the actions against human trafficking have been discussed in the “Development plan for reducing violence for years 2010–2014”.

Development plan for reducing violence for years 2010–2014

The development plan composes a multilayered action plan against human trafficking. It prescribes preventative work and increasing social awareness, helping the victims and investigation of human trafficking cases.[1] More attention is paid to labour exploitation as the previous development plant paid too little attention to this matter.[2] The development plan also points out the fact that there are no procedural guidelines in place for questioning potential victims and the need for raising awareness of various facets of human trafficking. Additionally it suggests that the guidelines are enhanced, however the need to perfect the existing acts (for instance adding the necessary elements of an offence in the Penal Code or amendments to the Code of Criminal Procedure) is not mentioned. Closing report on the development plan revealed that the international conventions Estonia is a party to prescribe criminalising of human trafficking. International co-operation is complicated because the Penal Code lacks such necessary elements for a criminal offence.[3] The analysis of the definition of human trafficking reveals the need for amending the Penal Code with such an element for a criminal offence. So far the Penal Code lacks this element for a criminal offence and according to the closing report the amendment should have been prepared in 2010. By the end of 2010 no such amendment for the Penal Code had been submitted to the ministries for approval via the information system for proceeding drafts called e-Õigus.

Consistency with human rights

The Penal Code deals with slavery in the chapter that deals with offences against liberty. § 133 defines enslaving as placing a human being in a situation where he or she is forced to work or perform other duties against his or her will for the benefit of another person, or keeping a person in such situation, if such act is performed through violence or deceit or by taking advantage of the helpless situation of the person. The Penal Code does not entail a specific provision pertaining to human trafficking.

Estonia signed the Council of Europe Convention on Action against Trafficking in Human Beings in February of 2010. Article 4 of the convention is very thorough in defining the concept of trafficking in human beings; it includes recruitment, transportation, harbouring or receipt of persons, for the purpose of exploitation, by means of threat, use of force or deception. Article 18 of the convention prescribes the duty of the states parties to this convention to criminalise all actions listed in Article 4 of this convention, when committed intentionally. Punishments prescribed for such offences have to be effective, proportionate and dissuasive. The Minister of Justice, speaking to Riigikogu this summer, was of the opinion that Estonia had already fulfilled 90% of the requirements stated in the convention. Riigikogu has to ratify the convention, but the draft to the act of ratification had not reached Riigikogu by the time the author wrote this chapter.

Article 4 of ECHR prohibits holding persons in slavery or servitude and forced or compulsory labour. As is the case with all other articles of ECHR, the state party to the convention has the positive duty to ensure by enforcement of Article 4 that human beings in its jurisdiction do not have to suffer slavery.

In 2010 the ECtHR made a decision in a case regarding trafficking in human beings.[4] It can be deducted from the judgment that the question of human trafficking involves breaching several rights stated in the ECHR: Article 2 (right to life), Article 3 (prohibition of torture or inhuman or degrading treatment) and Article 4 (prohibition of slavery). Since this chapter focuses on slavery the author will elaborate on the court’s stance on Article 4.

The court emphasized that even though Article 4 does not mention slavery in those words the ECHR cannot be interpreted in a vacuum and the rules of interpretation set out in the Vienna Convention on the Law of Treaties must be considered.[5] The convention must be interpreted in the light of present-day conditions.[6] Human trafficking threatens the human dignity and the fundamental freedoms of its victims and is not compatible with principles of the ECHR.[7] Legislative and administrative frameworks put in place by Member States have to be sufficient and efficient to guarantee the protection of the victims and to regulate the activities of business enterprises that are used to foster human trafficking. Criminalising and sanctioning human trafficking is just a part of the state’s responsibilities for Article 4, in addition the state has to protect victims and prevent human trafficking.[8] The state has the positive obligation to take steps to prevent human trafficking; one such step is providing training for law enforcement officials.[9]

Considering Estonia’s obligations by the ECHR and the Convention on Action against Trafficking in Human Beings the Penal Code should be amended with the necessary elements of an offence for human trafficking. All the suggestions of the ECtHR should be taken into consideration and as the aforementioned case proves amending the Penal Code is not enough, the problem should be approached on multiple levels.

Conclusion

The development plan for reduction of violence is a step in the right direction in solving the problem of human trafficking, but Estonia has to coordinate its legislation to be consistent with international conventions including the obligations that fall under the ECHR. Adding the necessary elements of an offence for human trafficking to the Penal Code is just one step towards solving the problem. Despite the proposals made in 2010, the elements of an offence have not yet been added to the Penal Code. If these elements of an offence had been added to the Penal Code it would also be a step towards preventing human trafficking in punishing the culprits as well as in international cooperation.

Recommendations

–          Coordinate Estonia’s legislation with international conventions and the obligations taken on along with the ECHR, primarily with the positive obligations regarding protection of victims.

–          Add the necessary elements for an offence of human trafficking in the Penal Code.

–          Provide training for law enforcement officials to ensure better protection of victims and to increase efficiency of the fight against human trafficking.

Rafity the Council of Europe Convention on Action against Trafficking in Human Beings.



[1] Development plan for reducing violence for years 2010–2014, pages 31-33.

[2] Development plan for reducing violence for years 2010–2014, page 32.

[3] Ministry of Social Affairs (2008). Inimkaubanduse vormid [Forms of human trafficking].

[4] European Court of Human Rights judgment of 7 January 2010 Rantseva v. Cyprus and Russia Application no. 25965/04.

[5] Rantseva v. Cyprus and Russia. 07.01.2010, points 272-273.

[6] Rantseva v. Cyprus and Russia, point 277.

[7] Rantseva v. Cyprus and Russia, point 282.

[8] Rantseva v. Cyprus and Russia, points 285-287.

[9] Rantseva v. Cyprus and Russia.

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