Prohibition of Slavery and Forced Labour

Trafficking in Human Beings

Human trafficking traditionally evokes the image of a large-scale, organized and brutal business, but reality demonstrates that nowadays human trafficking may occur outside of organized crime, with an increasing number of cases where individuals or families exploit or sell workers, neighbours, friends, relatives or children. In addition, trafficking is no longer limited to being an international crime – that is, a crime that crosses state borders – and may take place within the country itself.

Trafficking in human beings is a crime against human liberty and a modern form of slavery. It remains a highly latent crime due to high levels of stigmatization, fear of revenge from criminals and the insensitive attitudes of the authorities towards its victims.

In order to properly combat human trafficking, it is necessary to understand just what constitutes the crime. According to the UN Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, “trafficking in persons” means 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 includes 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.[1]

In essence, this offense has three necessary elements:

  • Acts – this crime is committed through one or more alternative actions: selling, purchasing, otherwise transferring or acquiring, transporting or holding in captivity;
  • Means – using one or more alternative ways to subvert the victim’s will: physical violence, threats, otherwise depriving the victim of his/her ability to resist by exploiting his/her dependencies or vulnerabilities, through deception, by paying money or giving any other pecuniary benefit to the person in de facto control of the victim;
  • Purpose – the above steps are carried out for the purposes of sexual exploitation, forced labour, servitude, removal of organs or other purposes for exploitation.

In order to find the crime of human trafficking, it is necessary to establish the existence of at least one of the aforementioned acts and at least one of the means for subverting the will of the victim, as well as the purpose of the exploitation.

The Criminal Code contains a series of articles criminalizing the practice of human trafficking, i.e. trafficking in human beings (Article 147); exploitation for the provision of forced labour or services (Article 147(1)); taking advantage of a person’s forced labour or services (Article 147(2)); purchase or sale of a child (Article 157).

The fact that the criminal law provides detailed regulations for the various forms of human trafficking should be viewed positively; on the other hand, it raises questions as to why certain forms of human trafficking are treated as minor offenses: crimes such as the exploitation of a person for the provision of forced labour or services, or taking advantage of a person’s forced labour or services, are only viewed as minor offenses, punishable by no more than 2 to 3 years in prison.

International organizations acknowledge that the trafficking of human beings is one of the most serious offenses worldwide, and also one of the most flagrant violations of human rights.[2] Accordingly, its punishment must be able to actually prevent and combat trafficking in human beings;[3] Directive 2011/36/EU obliges states to ensure that human trafficking offenses are punishable by a maximum penalty of at least five years of imprisonment.[4]