Dr. Vladislava Stoyanova

Postdoctoral Fellow, Faculty of Law, Lund University; Author of Human Trafficking and Slavery Reconsidered. Conceptual Limits and States’ Positive Obligations in Europe (Cambridge University Press, 2017)

In May 2016, the European Commission presented its initial findings on the progress made in combating human trafficking. This report, mandated by the 2011 EU Trafficking Directive, examines advancements in prosecuting traffickers, safeguarding victims, and preventative measures. It highlights trafficking patterns, incorporating statistical data. A supplementary document offers detailed information supporting the report’s findings.

It is important to note that this report does not assess Member States’ compliance with the directive, a report that was due in April 2015. The Commission is significantly overdue in providing this assessment, as a further report on the use of services from trafficking victims, expected in April 2016, is also pending.

Turning back to the progress report, it reveals that based on data provided by Member States between 2013 and 2014, there were 15,846 registered victims of human trafficking. This figure is lower than the previous period (2010-2012). However, the report cautions against direct comparison due to potential variations in data collection and legal definitions. It acknowledges the need for further examination and analysis of these discrepancies and the lower number of registered victims.

Indeed, further investigation is required to understand who constitutes a victim of trafficking and how victim registration is conducted. While the Commission rightly points out potential inconsistencies in recording and definitions, assuming these will be resolved to provide a clearer picture is optimistic.

The figure of 15,846 encompasses both “identified” and “presumed” victims. The report clarifies that Member States inconsistently included these categories in their data, raising concerns about the reliability of the data. Footnote 15 defines an “identified victim” as someone formally recognized by authorities as a trafficking victim, a term not explicitly used in the Directive. The Directive simply refers to “victims” and mandates Member States to establish mechanisms for early identification. It does not create a distinct legal category of “identified victim.”

Similarly, the earlier Directive 2004/81/EC, addressing the immigration status of trafficking victims, does not use the term “identified victims”. Instead, it refers to victims who hold residence permits due to their cooperation with anti-trafficking efforts. The Commission’s report lacks information about the number of such victims, which is crucial, as formal identification as a trafficking victim might not guarantee assistance or the ability to remain within a Member State for third-country nationals. It’s also important to remember that the main 2011 EU Trafficking Directive doesn’t regulate victims’ legal presence in Member States.

Footnote 15 further defines a “presumed victim” as someone meeting the EU Trafficking Directive’s criteria but not formally identified by authorities or who declined formal identification. This use of “presumed victims” deviates from its meaning in the Directive, which refers to individuals requiring assistance when authorities have reasonable grounds to suspect they are victims. It also differs from its use in Directive 2004/81/EC, where it refers to situations where national authorities suspect a third-country national might be a trafficking victim and grant them a reflection period. The report’s use of “presumed victims” is unclear and seemingly illogical, as one cannot be a registered victim without formal identification.

To ensure data comparability, the Commission needs to address how Member States formally identify trafficking victims. The Trafficking Directive does not specify which authority should handle this process, simply stating that Member States should establish appropriate mechanisms for early identification, assistance, and support to victims in cooperation with support organizations. While Directive 2004/81/EC lacks a provision on victim identification, it suggests that national authorities responsible for criminal investigations identify victims by offering them a reflection period to decide whether to cooperate. This is problematic as it ties victim identification to criminal investigations, potentially leading to refusals to identify victims if there are no grounds for legal proceedings.

This issue is exemplified in a recent European Court of Human Rights judgment. Conversely, in some Member States, immigration authorities identify trafficking victims, separating these processes from criminal investigations. Given this inconsistency in national practices, obtaining comparable data and a clear understanding of who is a registered trafficking victim in the EU becomes challenging.

This problem extends beyond procedure to substance. While the EU Trafficking Directive defines human trafficking and sets minimum standards for criminalization, Member States can interpret it more broadly. For instance, Bulgaria’s broad interpretation of human trafficking results in a high number of prosecutions and identified victims. The Commission itself seems unclear about trafficking’s conceptual boundaries, defining it as “the buying, selling, and exploitation of adults and children”, thus subsuming exploitation within the definition.

However, later in the report, the Commission distinguishes between trafficking and exploitative situations, stating that while not all exploitative situations are trafficking, some may be, and victims in such cases need identification and support. This lack of clarity hinders the development of targeted measures. Furthermore, the focus on human trafficking, however defined, has overshadowed severe labor exploitation. The EU Fundamental Rights Agency’s 2015 report highlighted this disparity, noting a lack of attention and specialized mechanisms for severe labor exploitation compared to trafficking.

Finally, it’s questionable whether the 2011 Trafficking Directive’s impact aligns with the Commission’s assertion that its full implementation will ensure crime prevention, perpetrator prosecution, and victim protection. The report’s data is underwhelming and often confusing, making it difficult to fully grasp the issue at hand.

Barnard & Peers: chapter 25

JHA4: chapter I:7

Photo credit: notitarde.com

[1] Vladislava Stoyanova, ‘L.E. v. Greece: Human Trafficking and the Scope of States’ Positive Obligations under the ECHR’ 3 European Human Rights Law Review (2016) 290.

[2] Vladislava Stoyanova, ‘The Crisis of a Legal Framework: Protection of Victims of Human Trafficking in the Bulgarian Legislation’ The International Journal of Human Rights (2013); Vladislava Stoyanova, ‘The Crisis of a Definition: Human Trafficking in Bulgarian Law’ 15(1) Amsterdam Law Forum (2013).