Observation (CEACR) - adoptée 2007, publiée 97ème session CIT (2008)

Articles 1(1), 2(1) and 25 of the Convention

The Committee notes the comments on the application of the Convention made in 2006 by the General Confederation of Labour of the Republic of Argentina (CGT) and the International Trade Union Confederation – ITUC (formerly the International Confederation of Free Trade Unions – ICFTU). The allegations relate to the trafficking of persons for labour and sexual exploitation, the direct participation of public officials in trafficking, the slowness and ineffectiveness of the judicial system and the absence of specific legislation on trafficking which makes it impossible to combat this practice effectively.

The Committee notes the Government’s detailed reply to the comments made by the CGT and the ITUC. The Government indicates that it is deeply concerned by the problem raised by the two trade union organizations and has provided information on the policies that it is implementing to address the problem.

Trafficking in persons for labour exploitation

The National Apparel and Allied Workers’ Federation (FONIVA) and the Apparel and Allied Workers’ Union (SOIVA), as member organizations of the CGT, informed the latter of the existence of forced labour practices in the textile sector. According to these organizations, “as a result of the death of four children and two workers from Bolivia in a clandestine workplace, a great number of textile workshops were discovered in the city of Buenos Aires in which illegal workers were engaged, mostly of Bolivian nationality. It was found that they had been recruited in Bolivia, principally in the cities of La Paz and Potosí. Based on the promise of a work contract, the workers are advanced money for their journey and once in Argentina are installed in precarious accommodation, which may be located at the workplace, and they work to pay off their debt for the journey. The conditions of their work and recruitment could be classified as new forms of violations of the fundamental Conventions on forced labour and be related to the phenomenon of the trafficking of persons in view of the manner of their recruit.”

According to the comments provided by the International Trade Union Confederation (ITUC), Bolivian men, along with their families, have also been trafficked for labour exploitation in garment factories in Argentina. Trafficked people have been identified in many provinces of Argentina including, Buenos Aires, Neuquén, La Rioja, Entre Ríos, Córdoba, Río Negro and Tucumán. In October 2005, 17 Bolivians were released from a textile factory in Buenos Aires, where they were forced to work up to 17 hours a day, the employer took away their documents (including locking them into the factory) in order to keep them working against their will. Food was only provided to employees, meaning adults had to share their food with their children and their children were prevented from going to school or to the doctor because it would “interfere with production”. The Office of the Ombudsman of the city of Buenos Aires estimates that thousands of people could be working under conditions of forced labour in and around Buenos Aires. On 30 March 2006, a fire broke out in a textile factory where around 60 Bolivians were found to have been exploited for forced labour. Six people were killed, including four children. A programme of inspections was ordered, which resulted in the closure of 30 of the 54 workshops inspected because of the appalling working conditions. According to the Minister for Human and Social Rights of the city of Buenos Aires, there are around 1,600 clandestine sweatshops in the city and some 200 of those employ slave labour. According to the ITUC, the phenomenon is not recent and it refers in its comments to document E/CN.4/2001/78 of the United Nations Special Rapporteur on the sale of children, child prostitution and child pornography, according to whom “police discovered a group of 56 Bolivian children and young persons between 9 and 20 years of age being held in captivity …. They were kept under armed guard” and “allowed to eat only once a day”. They were working in four clandestine sweatshops around the La Matanza area. They had been brought into Argentina, hidden in trucks.

Government’s reply on allegations of trafficking of Bolivian workers
for labour exploitation

The Government indicates that in 2006 the Ministry of Labour, Employment and Social Security carried out 1,501 inspections in the context of Act No. 12713, respecting homework, and 1,188 inspections in the context of the National Labour Regulation Plan. The Government of the city of Buenos Aires brought the corresponding charges and, where undeclared workers were found, the cases were forwarded to the National Directorate of Migration of the Ministry of the Interior. The regularization of identity documents is a priority action undertaken jointly by the Ministry of the Interior (Patria Grande programme) and the National Directorate of Migration. For the regularization of their employment, there is close collaboration with the Directorate of the Labour Inspectorate of the Ministry of Labour, Employment and Social Security. The Committee notes that in one case charges have been brought for the offence of reduction to a condition equivalent to slavery. The Committee further notes that, according to the CGT in its comments, problems have been identified in the inspection systems.

The Committee notes this information and observes that the Government’s report does not contain data on the number of instances in which charges were brought in cases in which the labour inspectorate found situations in violation of the penal and labour legislation, on the effect given to such charges and any penalties imposed. The Committee requests the Government to provide this information with its next report, and also to provide information on the legal action initiated relating to the offence of reduction to slavery and, if the case has been concluded, a copy of the ruling. The Committee further requests the Government to provide information on any measures adopted to strengthen the inspection system.

Transnational and domestic trafficking of women and
girls for sexual exploitation

On the subject of international trafficking, the ITUC indicates that over the past ten years Argentina has been a destination for the trafficking of women and girls for sexual exploitation from the Dominican Republic, Paraguay and Brazil. Reference is made to a report published by the International Organization for Migration (IOM) documenting the trafficking of 259 Paraguayan women to Argentina for prostitution, of whom 90 were under 18, as well as the information provided by the Paraguayan Vice-Consul in June 2005 concerning over 100 reports from parents of daughters who had disappeared and were believed to have been trafficked.

Further, according to the ITUC, Argentinian women and girls are also trafficked for sexual exploitation abroad. Many of them are from Misiones, Tucumán, La Rioja, Chaco and Buenos Aires. Spain and Brazil are the principal destinations. Coercion and deception are commonly used, although there are also unusually high numbers of kidnappings by gangs involved in the trafficking in persons. In such cases, overt violence and the physical confinement of the women are used to prevent them escaping. The example is given of the case of a young woman kidnapped in 2002 in San Miguel de Tucumán. The investigation carried out by her mother uncovered evidence of trafficking networks operating in the provinces of La Rioja, Tucumán, Buenos Aires, Córdoba and Santa Cruz and the women rescued included some 17 women from Argentina who were forced into prostitution in Bilbao, Burgos and Vigo in Spain.

Around 70 cases have been filed in Tucumán over the past five years relating to women and girls who have disappeared and are presumed trafficked. Furthermore, in May 2005, the Office for Integrated Assistance to Victims of Crime (OFAVI) noted that assistance was being provided to two young women from Tucumán who had been kidnapped and forced into prostitution in La Rioja.

The Committee notes that the Government’s report did not address these specific and very serious allegations in relation to either the trafficking of women and girls from the Dominican Republic, Paraguay and Brazil for exploitation, nor does it address the allegations concerning the trafficking networks of Argentinian women and girls abroad. The Committee requests the Government to indicate whether any investigation has been undertaken in respect of the specific allegations and, if so, the nature of investigation and any specific action taken in respect of the perpetrators.

Involvement of public officials in trafficking. Corruption of the police force

The ITUC also alleges corruption in the police force and the direct participation of police officers in criminal activities related to the trafficking in persons. The example is given of the case in Mar del Plata, in the province of Buenos Aires, of 13 deaths and disappearances of women which were attributed to an organization of police officers involved in prostitution, the case of the police station in Cuartel Quinto in Moreno, where the complaint by the three women who had managed to escape was not filed and the owner of the brothel was informed of what was happening, as well as the case of two minors who were rescued from a brothel in the port of Quequén run by a municipal employee and a police officer from the province of Buenos Aires.

In the case of the 17 Bolivarian workers who were victims of trafficking for labour exploitation, referred to above, witnesses stated that the police came to the factory to take a percentage of the profits and that four of the workers were threatened before the judge (identified in the comments) who also set the owner of the factory free on the grounds that there was insufficient proof to show that workers had been in servitude. In the view of the ITUC, the involvement of the police is one of the pivotal factors in explaining the rise in internal and cross-border trafficking in recent years and the lack of effective prosecutions for trafficking.

The Committee notes the gravity of these allegations, on which the Government has not provided any information. The key role of the police in enforcing the law and the Convention is undermined in the event of the corruption of the police forces.

The Committee urges the Government to provide information on the measures adopted or envisaged to conduct full investigations of all allegations of complicity or the direct involvement of public officials in the trafficking in persons and on the penalties imposed if the allegations are found to be true. The Committee notes that the Office for Integrated Assistance to Victims has proposed the establishment of a specialized unit to investigate the crime of the trafficking in persons and it hopes that the Government will indicate what action it has taken to give effect to this proposal.

Legislative measures. Application of effective penalties

According to the ITUC, although there are provisions in the Argentine Penal Code which are currently applied to prosecute traffickers (sections 126 – promoting or facilitating prostitution, 127bis and 127ter – crimes against sexual integrity, 140 and 142bis – crimes against freedom), these provisions do not cover all aspects of trafficking, which means that, for example, persons who recruit and transport victims cannot be prosecuted. The lack of a specific offence of trafficking also means that traffickers escape with relatively light sentences. Reference is made to the case of a trafficker (identified in the comments of the trade union organization) sentenced to just four and half years in prison, despite the fact that he forced dozens of trafficked women into prostitution in San Miguel. The creation of a specific offence of trafficking at the federal level would also resolve the problem currently faced by judges, who can only act within the jurisdiction of their province, and the conflicts over whether trafficking crimes come under national or provincial jurisdiction, which interfere with the investigation of cases of trafficking.

In its reply, the Government recognizes that Argentinian law is characterized by a piecemeal vision of the phenomenon and that the State clearly understands the need to establish a specific crime of the trafficking in persons. Crimes against sexual integrity and freedom (sections 127bis and 127ter, 125bis, 126 and 140 of the Penal Code, as well as sections 116 to 121 of the National Migration Act on the illegal trafficking of persons), do not allow the prosecution of all the acts which constitute the crime of the trafficking in persons in relation to its various stages and objectives. Nevertheless, the Government indicates that this does not mean that the issue has been neglected by the State as there are currently three Bills that are being discussed by Parliament, one of which has already been approved by the Senate. The province of Córdoba is also developing specific legislation.

The Committee notes the extracts of the report of the Deputy Director of the Office for Integrated Assistance to Victims of the Office of the Attorney-General of the Nation. It observes that the above report advocates the need to establish a specific crime of trafficking as in several of the cases dealt with by the Office, including the case of the 34 Paraguayan nationals brought to the country with promises of work and then compelled to engage in prostitution in San Miguel, the person responsible was prosecuted under the provision on promoting and facilitating prostitution and was only sentenced to four years, while in another case of Dominican nationals in the same situation the charges brought were for the crime of unlawful association. According to the above report, there is a pressing need to establish a specific offence covering this crime which undermines human dignity.

The Committee observes that the legislative shortcomings alleged by the trade union organizations and confirmed by the Government’s indications have significant implications for the application of the Convention. The Committee hopes that legislative provisions specifically establishing the crime of trafficking will be adopted rapidly and will allow the imposition of penal sanctions, in accordance with Article 25 of the Convention. In the meantime, the Committee hopes that the Government will provide information on current prosecutions under existing penal provisions. In this regard, the Committee recalls that the Government is under the obligation to ensure that the penalties imposed by law are really adequate and are strictly enforced.

Assistance for victims

The protection of victims of trafficking and, more generally, the protection of witnesses, contributes to ensuring compliance with the law and the effective punishment of those responsible, as required by Article 25 of the Convention and Article 5 of the Palermo Protocol. In this respect, the Committee notes with interest that in 2005 a judge of Juvenile Court No. 1 in the city of Necochea applied directly the United Nations Protocol to Prevent, Suppress and Punish Trafficking in Persons in the case of four women who had escaped from the sexual exploitation to which they had been subjected. In her ruling, the judge ordered the Secretary for Human Rights of the Province of Buenos Aires to provide housing for the victims and guarantee their physical, psychological and moral well-being. This important precedent nevertheless underlines failings in the national legislation in relation to the protection of victims. The ITUC indicates in this respect that support can only be ordered by a judge when a judicial process has been initiated, while many trafficked people require support before they even consider taking legal action. It adds that the victims of trafficking do not currently benefit from adequate assistance and that in order to establish an effective national programme, adequate funding is necessary to provide for appropriate assistance of victims.

International cooperation

The Committee notes that, according to the Government, the Ministry of Labour is participating actively in the Human Rights Observatory of the Bolivian Community of the Ministry of Justice and Human Rights. The Committee hopes that the Government will provide information on the measures adopted or envisaged to coordinate the action taken with all countries that in one way or another are involved in the trafficking in persons within or outside the country.

The Committee observes the convergent comments of the national and international trade union organizations on the trafficking in persons for labour and sexual exploitation. This practice constitutes a serious violation of the Convention and requires action that is energetic, effective and proportional to the gravity and magnitude of the phenomenon. The Committee welcomes the Government’s statement that “achieving better regulation is one of the concerns of the Argentine State”.

The Committee hopes that the Government, in addition to the action to which it has previously specifically referred in this observation, will also take the following action:

–           give priority to the adoption of legislation which appropriately defines, classifies as a crime and penalizes all forms of trafficking;

–           reinforce the effectiveness of the inspection services;

–           take measures to investigate and eradicate corruption of the police force in relation to trafficking;

–           take measures to ensure that those found guilty of trafficking have dissuasive penalties imposed;

–           provide information on measures taken to raise public awareness of the trafficking of persons;

–           provide adequate support and protection for the victims of trafficking; and

–           provide information on the measures taken to coordinate transnational action with both the countries of origin and those of destination.