Observation (CEACR) - adoptée 2006, publiée 96ème session CIT (2007)

1. Human trafficking. In earlier observations, the Committee noted the comments made by the International Confederation of Free Trade Unions (ICFTU) concerning the trafficking of women and girls both in and outside the country for the purpose of forced prostitution. With regard to the trafficking of young persons in particular, bearing in mind that Article 3(a) of the Worst Forms of Child Labour Convention, 1999 (No. 182) provides that the term “worst forms of child labour” comprises “all forms of slavery or practices similar to slavery, such as the sale and trafficking of children, debt bondage and serfdom and forced or compulsory labour”, the Committee is of the view that the problem of the sale and trafficking of children for the purpose of sexual exploitation, particularly prostitution, can be examined more specifically in the context of Convention No. 182.

2. With regard to the examination of trafficking for the purpose of sexual and labour exploitation in the light of the obligations laid down in the Convention, the Committee observed previously that this practice falls within the scope of the Convention and constitutes a serious breach of it.

3. In its report, the Government expresses concern that the Committee continues to deal with a matter which, in the Government’s view, falls outside the scope of the Convention. The Government observes that the Convention contains no provisions on trafficking, which is dealt with in other international instruments and particularly the United Nations Convention against Transnational Organized Crime and its Protocol. The Committee would point out that any situation where someone is sexually exploited or forced to work without his or her valid consent, regardless of whether trafficking is involved, falls within the scope of the Convention by virtue of its definition of forced labour. Furthermore, the fact that there is an international instrument devoted specifically to trafficking does not exempt a State from the obligations it undertakes on ratifying the Convention. The fact that trafficking is defined in the Palermo Protocol contributes to more effective application of both instruments. An essential component of the Protocol’s definition is the purpose of the trafficking, namely exploitation, the definition of which expressly refers to forced labour or services, slavery or practices similar to slavery, servitude and the various forms of sexual exploitation. The forced labour component of this definition provides the link between the Palermo Protocol and Convention No. 29, indicating clearly that human trafficking for the purpose of exploitation falls within the definition of forced or compulsory labour in Article 2, paragraph 1, of the Convention.

4. In its previous observation, the Committee noted the Government’s information on the provisions of the national legislation to prevent, suppress and punish human trafficking: sections 206-208 (trafficking and procuring of persons) and 366ter (trafficking of young persons) of the Penal Code and section 2(V) of the Federal Act against Organized Crime.

5. The Committee also noted the measures to encourage victims to report their cases to the authorities, including authorization to remain in the country at least for the duration of the legal proceedings, and possibly to reside permanently, and protection against reprisals. The Committee requested the Government to indicate and provide copies of the relevant provisions.

6. The Committee noted the Government’s information that “the penal legislation imposes heavier penalties in cases where persons reporting crimes, witnesses or family members are intimidated (Federal Penal Code, section 219)”. The Committee noted that this provision establishes the crime of intimidation committed by public servants and asked the Government to indicate the provisions applying to persons who resort to intimidation and who are not members of the public service. The Committee also expresses the hope that the Government will provide information on the number of sentences imposed upon public servants for the crime of intimidation, with copies of the rulings made under the above provision.

7. In response to the Government’s statement that in practice it varies the measures it takes to suit the type and circumstances of the risk incurred by the person to whom protection is provided, the Committee requested the Government to provide copies of the provisions envisaging such protection and to indicate the measures concerned. The Committee hopes that this information will be provided with the Government’s next report.

8. The Committee again asks the Government for information on any penalties imposed for human trafficking in accordance with the requirement in Article 25 of the Convention that the illegal exaction of forced or compulsory labour shall be punishable as a penal offence and that the penalties imposed must be really adequate and strictly enforced.

9. The Committee notes that the Senate has approved the Act against Trafficking in Persons, which will enable such trafficking to be prevented and punished more effectively. The Committee hopes that the Government will provide information on the promulgation of the Act and on any other measures taken or envisaged to ensure observance of the Convention.