Julia Planitzer
1 Each Party shall adopt such legislative or other measures as may be necessary to assist victims in their physical, psychological and social recovery. Such assistance shall include at least:
a standards of living capable of ensuring their subsistence, through such measures as: appropriate and secure accommodation, psychological and material assistance;
b access to emergency medical treatment;
c translation and interpretation services, when appropriate;
d counselling and information, in particular as regards their legal rights and the services available to them, in a language that they can understand;
e assistance to enable their rights and interests to be presented and considered at appropriate stages of criminal proceedings against offenders;
f access to education for children.
2 Each Party shall take due account of the victim’s safety and protection needs.
3 In addition, each Party shall provide necessary medical or other assistance to victims lawfully resident within its territory who do not have adequate resources and need such help.
4 Each Party shall adopt the rules under which victims lawfully resident within its territory shall be authorised to have access to the labour market, to vocational training and education.
5 Each Party shall take measures, where appropriate and under the conditions provided for by its internal law, to co-operate with non-governmental organisations, other relevant organisations or other elements of civil society engaged in assistance to victims.
6 Each Party shall adopt such legislative or other measures as may be necessary to ensure that assistance to a victim is not made conditional on his or her willingness to act as a witness.
7 For the implementation of the provisions set out in this article, each Party shall ensure that services are provided on a consensual and informed basis, taking due account of the special needs of persons in a vulnerable position and the rights of children in terms of accommodation, education and appropriate health care.
A. INTRODUCTION 12.01
B. DRAFTING HISTORY 12.03
1. General overview of the drafting history 12.03 2. Child-specific measures in Article 12 of
the CoE Convention against Trafficking 12.12
C. ARTICLE IN CONTEXT 12.13
D. ISSUES OF INTERPRETATION 12.14
1. Framework for providing assistance 12.14 2. Article 12(1)(a) of the CoE Convention
against Trafficking: appropriate and
secure accommodation 12.16
3. Article 12(1)(a) of the CoE Convention against Trafficking: psychological and
material assistance 12.22
4. Article 12(1)(b) of the CoE Convention against Trafficking: access to emergency
medical treatment 12.24
5. Article 12(1)(c) of the CoE Convention against Trafficking: translation and
interpretation services 12.28 6. Article 12(1)(d) and (e) of the CoE
Convention against Trafficking:
counselling and assistance to enable rights and interests to be considered in
criminal proceedings 12.29
7. Article 12(1)(f) of the CoE Convention against Trafficking: access to education
for children 12.31
8. Article 12(2) of the CoE Convention against Trafficking: taking due account of the victim’s safety and protection
needs 12.32
9. Article 12(3) of the CoE Convention against Trafficking: provision of necessary medical or other assistance
to lawfully residing victims 12.33 10. Article 12(4) of the CoE Convention
against Trafficking: access to the labour market, vocational training and
education for lawfully resident victims 12.35 11. Article 12(5) of the CoE Convention
against Trafficking: cooperation with
non-governmental organisations 12.38 12. Article 12(6) of the CoE Convention
against Trafficking: unconditionality of
assistance 12.41
13. Article 12(7) of the CoE Convention against Trafficking: provision of services on a consensual and informed basis 12.46 14. Article 12(7) of the CoE Convention
against Trafficking: taking due account of the rights of children 12.48
E. CONCLUSION 12.49
A. INTRODUCTION
The provision on assistance to victims is one of the key provisions of the CoE Convention on Action against Trafficking.1 This Convention creates a milestone concerning standards for victim protection since, in comparison to the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children,2it places a clear obligation on State Parties to provide measures of assistance. It furthermore contains a detailed list of what State Parties are required to ensure to trafficked persons. Article 12(1) includes a list of minimum measures which should support the victim’s ‘physical, psychological and social recovery’.
Assistance under Article 12 has to be ensured on a consensual and informed basis. Further-more, accessing assistance is not allowed to be made conditional on the trafficked person’s willingness to act as a witness.
Providing assistance in a timely and effective manner is essential to ensure recovery and reintegration of trafficked persons. Gaps in assistance can lead to situations of vulnerability and
1 Council of Europe Convention on Action against Trafficking in Human Beings, CETS No. 197, 16 May 2005 (thereinafter CoE Convention against Trafficking or Convention).
2 Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, 2237 UNTS 319, 15 November 2000 (thereinafter Palermo Protocol).
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to further trafficking and abuse.3 More than a decade after the entry into force of the CoE Convention against Trafficking, GRETA observes continuing and serious deficits, in particu-lar concerning ‘the availability of assistance measures adapted to the needs of victims’.4 Gaps include, for instance, lack of specialised accommodation for different groups of trafficked persons or inadequate funding of assistance measures.5
B. DRAFTING HISTORY
1. General overview of the drafting history
A legal framework on assistance to trafficked persons was seen as one of the added values of CoE Convention against Trafficking.6 Hence, the discussions around the wording of the relevant article were lengthy. Documents of the Council of Europe adopted prior to the CoE Convention on Action against Trafficking contain already the purpose of assistance and the necessity of having access to assistance. For instance, Recommendation No. R (2000) 11 of the Committee of Ministers on Action against trafficking in human beings for the purpose of sexual exploitation encourages the development of reception centres for psychological, medical, social and administrative support for the purpose of reintegration into society.7 Further purposes mentioned are avoiding secondary victimisation8and, as discussed during the drafting of the CoE Convention against Trafficking, assistance is indispensable so that victims regain ‘a minimum of stability before they could usefully testify in criminal proceedings’.9
An early draft of the then Article 10 on assistance for victims of trafficking contained a list with obligatory measures for State Parties in order to provide for the physical, psychological and social recovery of victims.10 At that early stage of drafting, there was no differentiation between ‘victims’ and ‘victims lawfully resident within its territory’. However, discussions in the 1st Ad hoc Committee on Action against Trafficking in Human Beings (CAHTEH) meeting showed that the participants wanted to have assistance and protection of victims taking place in two stages: one immediately when ‘the victim sought assistance for the first time (…) and the other, later, once the victim had received initial emergency assistance’.11 Another basic principle discussed during this first meeting was that ‘victims had the right to be protected whether or not they cooperated with the prosecuting authorities’,12which was at a later point
3 GRETA,8th General Report on GRETA’s Activities, May 2019, para 87.
4 Ibid., paras 222–223.
5 Ibid., para 121.
6 Committee of Ministers, 112th Session – Minutes, CM(2003)PV1, 4 July 2003, para 49.
7 Committee of Ministers, Recommendation No. R (2000)11 of the Committee of Ministers to Member States on action against trafficking in human beings for the purpose of sexual exploitation, 19 May 2000, para 26.
8 Committee of Ministers, Recommendation No. R (2002)5 of the Committee of Ministers to Member States on the protection of women against violence, 30 April 2002, Appendix, para 3(b).
9 CAHTEH,5th meeting (29 June–2 July 2004) – Meeting report, CAHTEH(2004)RAP5, 30 August 2004, para 89.
10 CAHTEH, Revised Preliminary Draft – European Convention on Action against trafficking in human beings, CAHTEH(2003)9, 27 November 2003, 7.
11 CAHTEH,1st meeting (15–17 September 2003) – Meeting report, CAHTEH(2003)RAP1, 29 September 2003, para 55.
12 Ibid., para 51.
B. DRAFTING HISTORY
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included in Article 12(6) that obliges State Parties ‘to ensure that assistance to a victim is not made conditional on his or her willingness to act as a witness’.13
The outcome of the 2nd CAHTEH meeting showed two options for the wording of the then Article 10. The first option contained a list of obligatory measures and read as follows:
1. Each Party shall adopt such legislative or other measures as may be necessary to provide for the physical, psychological and social recovery of victims and, in particular, the provision of:
(a) Appropriate and secure housing;
(b) Medical, psychological and material assistance;
(c) Counselling and information, in particular as regards their legal rights, in a language that the victims can understand;
(d) Assistance to enable their rights and interests to be presented and considered at appropriate stages of criminal proceedings against offenders;
(e) Financial support;
(f) Educational, vocational guidance and vocational training opportunities;
(g) Employment opportunities, including the possibility of obtaining a working permit.
2. Each Party shall take into account, in applying the provisions of this article, the age, gender and special needs of victims, in particular the special needs of children, including appropriate housing, education and care.14
The second option separated the measures in mandatory measures (housing, medical, psycho-logical and material assistance; counselling and legal assistance) and optional measures (financial support, educational and vocational training measures, employment opportunities).15 The 5th CAHTEH meeting was crucial for the drafting of Article 12 of the CoE Convention against Trafficking – 31 delegations were in favour of the first option containing a list with obligatory measures. However, the European Commission tabled a new proposal distin-guishing between mandatory and optional measures, which was based on the measures listed in Council Directive 2004/81/EC on the residence permit issued to third-country nationals16and supported by most delegations as basis of discussions.17 Similar to the drafting process of Article 14 of the CoE Convention against Trafficking concerning the reasons for issuing a residence permit, Dir 2004/81/EC influenced the drafting process of Article 12. Clearly influenced by the structure of Dir 2004/81/EC is the distinction concerning medical treat-ment. Whereas the first option spoke about medical assistance without any further differenti-ation, the European Commission suggested providing ‘emergency medical treatment’ to all trafficked persons and ‘necessary medical assistance to holders of a residence permit who did not have sufficient resources and had special needs’.18Based on Article 13(4) of the European
13 CoE Convention against Trafficking, Art 12(6).
14 CAHTEH,Revised draft Convention of the Council of Europe on Action against Trafficking in Human Beings: Following the 4th meeting of the CAHTEH (11–14 May 2004), CAHTEH(2004)12, 17 May 2004, 9.
15 Ibid.
16 Council Directive 2004/81/EC of 29 April 2004 on the residence permit issued to third-country nationals who are victims of trafficking in human beings or who have been the subject of an action to facilitate illegal immigration, who cooperate with the competent authorities (OJ L 261/19) (thereinafter Dir 2004/81/EC).
17 CAHTEH,5th meeting – Meeting report, CAHTEH(2004)RAP5, paras 89 and 95. See Dir 2004/81/EC, Arts 7 and 9.
18 CAHTEH,5th meeting – Meeting report, CAHTEH(2004)RAP5, paras 100 and 105.
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Social Charter,19it was decided to amend the wording and refer to ‘victims lawfully resident within its territory’ instead of ‘holders of a residence permit’.20
Concerning employment, option one held that State Parties should support the access to employment opportunities, including obtaining a working permit. This provision, covering all trafficked persons, was limited by the proposal of the European Commission. The Commis-sion proposed to adopt the rule ‘that victims holding a residence permit should be authorised to have access to the labour market, vocational training and education’. Again, it was decided to amend the wording to victims ‘lawfully resident within the territory of the Party concerned’.21 Also based on Council Dir 2004/81/EC22was the inclusion of the provision of translation and interpretation services, ‘when appropriate’.23
The differentiation and restriction concerning access to medical services and employment, vocational training and education for those who are lawfully resident within the State Party’s territory were criticised by NGOs in the following drafting process since this would exclude those trafficked persons whose presence has not to be regularised by the authorities.24 This argument was also taken up by the Parliamentary Assembly of the Council of Europe Committee on Equal Opportunities for Women and Men, which suggested the following wording on employment: ‘Each Party shall allow victims access to the labour market, vocational training and education’.25However, although criticised, the final wording of Article 12 of the CoE Convention against Trafficking followed the European Commission’s proposal and refers to ‘victims lawfully resident within its territory’.26
During the drafting phase, the question came up, which State Party would be responsible for providing assistance to trafficked persons. The conclusion was that it would be the State ‘in which the victim found him- or herself’.27 Switzerland proposed, unsuccessfully, to limit the obligation to cases in which the offence was committed in the territory of the State Party, or when the victim is one of its nationals or had its residence on its territory at the time of the offence.28
19 European Social Charter (Revised), ETS No. 163, 3 May 1996, entered into force 1 July 1999.
20 CAHTEH,5th meeting – Meeting report, CAHTEH(2004)RAP5, para 105.
21 Ibid., para 107.
22 Dir 2004/81/EC, Art 7(3).
23 CAHTEH,5th meeting – Meeting report, CAHTEH(2004)RAP5, para 100.
24 CAHTEH, Draft Council of Europe Convention on action against trafficking in human beings: Contribution by Non-Governmental Organisations, Additional Comments by Amnesty International and Anti-Slavery International, CAHTEH(2004)17 Addendum IV, 30 August 2004, 9.
25 CAHTEH, Council of Europe Draft Convention on Action against Trafficking in Human Beings: Comments by the Parliamentary Assembly of the Council of Europe Committee on Equal Opportunities for Women and Men, CAHTEH(2004)23, 24 November 2004, 6.
26 See CoE Convention against Trafficking, Art 12(3) and (4).
27 CAHTEH,2nd meeting (8–10 December 2003) – Meeting report, CAHTEH(2003)RAP2, 26 January 2004, para 56.
28 CAHTEH,Draft Convention of the Council of Europe on Action against Trafficking in Human Beings: Amendments to Preamble and to Articles 1 to 24 proposed by National Delegations and Observers, CAHTEH(2004)14, 11 June 2004, 20.
B. DRAFTING HISTORY
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