The traffic of human beings is a global phenomenon that refers to all ages and sexes, but a large part of the persons implicated in the traffic with human beings is women and children. That is why the specific aspects of the person’s gender and children’s vulnerability should be considered. The victims are trafficked through numerous means of coercion or methods of hoaxing for countless abusive and exploitation scopes. It has been observed that the majority of the victims traded from Eastern to Central and Western Europe and also to North America and Asia, are women trafficked for forced prostitution. Although due to the surreptitious character of this crime, any available statistic or data does not denote the real state of the things.
The traffic in purposes other than prostitution, such as forced marriages and forced labour etc, does not attract enough attention of the law organs; therefore the capacity of the victims to get help is limited. The politics and the laws of many countries have the tendency to reduce the possibility of taking some complex measures on the matter of the problem of traffic with intent of forced prostitution. Although, in the last decade, within the framework of international debates and especially in the contents of UN documents, has appeared a certainty that the purposes for which the human beings are trafficked and the modalities in which it is done are different and permanently changing, the base elements of this type of traffic remain the same. Thus, a common accord which regards the definition of traffic, including both the one with women and with men with whatever abusive and enforced purpose, was arrived at. The first international definition of the human beings’ traffic was elaborated within the UN Convention against trans-national organized crime; the prevention, suppression and sanction of traffic with persons (especially women and children) protocol was adopted by the General Assembly in November 2000. This document will offer a standard description of the characteristics of the traffic with human beings followed by general conclusions for prevention and control of this crime.
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Also, this will present, as was said before, the statutory definition of the traffic with human beings established at the UN Convention against trans-national organized crime. The state provisions regulated by this Protocol will be highlighted as will follow. As it concerns these provisions and general conclusions, I will revise and comment the Law Project regarding the commanding of the Penal Code of Republic of Moldova concerning the illegal traffic with human beings. CHARACTERISTICS OF THE TRAFFIC WITH HUMAN BEINGS The key elements that persist in the process of traffic with humans are the compulsion, swindling, or dependence due to money debt, which are used to force the victim to work in abusive exploitation conditions, similar to slavery.
The victim is hindered to use its own will and capacity to control its own body, which constitutes a serious violation of fundamental human rights. Also the methods used in the traffic with humans and the aims of this act constantly change. Persons are traded for lots of abusive and exploitative reasons, like force prostitution, sexual exploitation, involuntary labour (slavery), usage as first-act army forces and even removal of organs for further sale on the western “human organ black market.” In the process of the traffic a person, or more often, a whole chain of people, is involved, beginning with the one that “recruits”, ending up with the last person who buys or receives the victim. Often, complex cases of frontier illicit crossings in a multitude of traversal points with implication of the traffickers of different nationalities are encountered.
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Recent international definitions are axed upon a large part of the fact that traffic is never consensual, and as a result are different from the other – either legal or illegal – forms of migration. Naturally the process of traffic is initiated by the decision of the victim to migrate. Putting in application, by the traffickers, of means of deception and coercion can be done at any stage of migration, being done either in the country of origin (labour force recruiting, false publicity, transportation offer), or country of transit (confiscation of documents, threatening, violence) or country of destination (dependence by debt, violent behaviour etc. ).
There are three typical groups of circumstances which end with the situation in which the person is trafficked as purpose of sexual commerce and other forms of enforced labour. The first group is made up by persons who have been intimidated and completely misled, the latter not knowing or realising what is their destination and the work that follows to be carried out by them. The second group are the people that have been partly told the truth, and later these are forced to do something for which they haven’t given their consent. And I would like to remind here that the liberty of the victims is constrained to such a level by threats, violence and taking away of identity documents or by many other methods. The third group is those who were announced before about labour conditions, and without any viable financial alternative, let themselves be led by the trader, who exploits their economical and juridical vulnerability.
Only the persons who are well informed about the conditions of work and who hold full control over their finances and liberty in motion, even if they are travelling and working illegally, are not considered victims of the traffic with human beings. The positions of the victims can change between these categories, and in reliance with the degree of dependence and vulnerability these persons are liable to be subject to different forms of brutality, including sexual violence. Traffic does not necessarily imply traversal of frontiers. In a big majority of countries an internal traffic with persons is encountered. The victims of the traffic are separated from social networks, thus isolated from a cultural, linguistic or physical point of view and are deprived of their capacity to control the situation.
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Together with those victims who were abused after crossing the border to another country, there is a similar number of victims abused inside the country of origin. Even though there are numerous interdiction’s against traffic, the international networks commercializing with women and children continue to prosper. The success of these trade webs can be attributed to a number of factors, like the orientation of the global economy, the decline of the socio-economical statute of the woman in former socialistic countries, the high request and the enormous profitability of such a business in the countries of destination, and even the complicity of some governments. The traffic from Eastern and Central to South and Western Europe finds its causes in the high unemployment rate among women and poverty in the countries of origin, in the romantic-type of visions about labour abroad and about the sex industry, and also in the relatively short geographical distance. All these causes make the recruitment and transportation of women to be efficient and cheap and the control over the families of victims simpler. The traffic with human beings should not be considered as being a problem of the organized crime control, but one of the most stringent problems of the human rights.
The victims of the traffic bear severe violation of the human rights. The traffic with persons infringes fundamental principles of the human rights, like human dignity, personal liberty, liberty to movement, the right to private life, self-determination, prohibition of slavery etc. The state is obligated to forestall such breaches of human rights, and to take necessary measures with the ones who violate these rights, and offer assistance and juridical protection to the victims of the traffic. RECENT PROGRESSES IN INTERNATIONAL LAW ABOUT HUMAN TRAFFIC CONTROL. UN Convention against trans-national organized crime The Protocol for the prevention, suppression and sanctioning of human traffic. During the last years the traffic with human beings has attracted more the attention of the organs of the UN and has entered in the documents of these.
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In November 2000, the General Assembly adopted the UN Convention against trans-national organized crime, presently supplemented with two Protocols, of which, one refers to the traffic of persons and the other refers to emigrants crossing frontiers. The first Protocol contains the first till now definition of the human traffic. The Convention and the Protocols were opened for conclusion in Palermo, Italy on the 15-17 December 2000 and have entered in force on the 90 th day after the 40 th ratification (art. 38 of the Convention and art. 17 of the Protocol).
After long discussions, the ad how Committee for the elaboration of the anti-trans-national organized crime Convention has adopted the following statement, as I have already stated before (art. 3 of the Convention): Traffic with human beings means the recruiting, transportation, transfer, receiving etc, of persons through usage of force [… ] with the scope of exploitation. Exploitation includes, at least all forms of sexual exploitation including prostitution, labour or forced services, slavery or practices similar to slavery, servitude or removal of organs. (art. 65) Travaux pr’s pacify the fact that the extirpation of organs from children’s bodies with the accord of a parent or tutor with legal medical or therapeutic purposes should not be considered as exploitation.
(art. 65) Travaux pr’ also specify that when illegal adoptions have as a result a practice similar to slavery as it is defined in art. 1 paragraph (d) of the supplementary Convention regarding the abolishment of slavery, trade with slaves, institutions and similar to slavery practices, all this will also fall under the incidence of the Protocol. The consent of the victim to the traffic of persons and intentional exploitation, provided by the subparagraph (a) of the present article is deprived of any importance in the case that the means, foreseen by subparagraph (a) art. 67, have been utilized.
Travaux pr’ indicate the fact, that subparagraph (b) should not be interpreted as imposing or requiring restrictions over the right to defence and over the presumption of innocence of the accused. These should also denote that it must not be interpreted as imposing the obligation of probation over the victim. As in any penal investigation, this obligation belongs to the prosecutor, in compliance with the national legislation. Moreover, the travaux pr’ refer to art. 11 paragraph 5 of the Convention, which permits keeping the general principles applicable to defence and other similar principles from the national legislation’s of the Member States. Recruiting, transportation, transfer, lodging and / or receiving a child with the purpose of exploitation will be considered as “traffic of humans” even if not performed utilizing the means stated in this article.
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Child – any person who has not yet reached the age of eighteen. Difference between the traffic of adults and children The Protocol introduces different definitions for the traffic of adults and the traffic of children. The traffic of adults is made up of three cumulative elements: – An act which has to be performed by the criminal: i. e. recruiting, transportation, transfer, lodging and / or receiving of persons- Use of means of coercion or deception: i. e.
threatening, forcing, fraud, abuse of power or vulnerability of victim etc. – Exploitation or abuse of victim: i. e. exploitation consisting of, at least, all forms of sexual exploitation including prostitution, labour or forced services, slavery or practices similar to slavery, servitude or removal of organs. In contrast, the traffic of children refers only to the final act and the scope of exploitation, which means that even a consented transportation of a child is considered traffic. This is considered so due to the specific vulnerability of children.
During the process of elaboration, some of the UN organs have asked for a separate definition for this type of traffic, and for it to be introduced in a separate section, for not misleading and for an extra recognition of special children rights in the international rights. National provisions Sanctioning of the traffic in conformity with the Protocol definition As a mandatory provision stated in art. 5. 1 the Member States of the Protocol are obliged to sanction the traffic with adults and the traffic with children in compliance with the definitions of the Protocol. Thus, the definitions represent the essential minimum necessary for penal provisions of the Members, hence the States must sanctions all the acts, means and purposes exposed in the definitions. For example, the states which have introduced in their legislation’s special relative stipulations regarding forced prostitution, now have to introduce also other forms of traffic.
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Also, except all said before, the Protocol and the Convention contain norms, national penal, and trial provisions. II. Measures undertaken by the European Union In the mid 1990 s, European Union began fighting the traffic of human beings especially pointing to the traffic of women for prostitution. The most important stages were: – The Decision of 1996 adopted by the European Parliament; – The Common Act of 1997 adopted by the European Council; – The Declaration from Hague of 1997 adopted at the Conference of Ministers. The majority of these documents address the traffic of women and children and the definitions of these require mentioning the crossing of borders and the final scope of sexual exploitation.
Meanwhile, the art 229 of the Amsterdam Treaty offers a reference to the traffic of human beings, although differences among juridical norms of the Member States continue to persist. Referring to this difference and to the significant international evolution which resulted in the UN Protocol regarding the traffic of humans, in 2000 the EU Commission has presented a proposal for the adoption of a decision regarding deprecation of the traffic with humans. This proposal includes a significant change of the definition of the traffic, which is used at the European level and thus corresponding to the new juridical standard fixed by the UN Protocol regarding human traffic. The Commission states that the human traffic and illegal border crossing of emigrants are two distinct crimes and therefore need two different juridical onsets. This definition of the traffic of adults comprises key elements of a vast gamma of acts of traffic cumulated with means of coercion and hoax and also a final purpose of exploitation. Some of these particularities correspond largely to those fixed in the UN Convention.
The definition also includes the final purpose of exploitation through forced labour and services and sexual manipulation with a commercial aim. This represents a change from the juridical norms which mentioned only sexual exploitation The crossing of frontiers does not constitute a particularity of the definition. The Commission states that though the traffic of human beings refers to international organized crime it is not mandatory for the victim to cross any border. All these provisions regard the traffic of adults; hence the traffic of children, sexual exploitation of these and child pornography are concluded in another proposal. ANALYSIS OF THE PROJECT OF COMPLETION OF THE PENAL CODE OF REPUBLIC OF MOLDOVA Illegal removal of children from the Republic of Moldova This analysis refers to the particularities of the human traffic which was discussed before and to the provisions established by the Convention against trans-national organized crime and also to the Protocol for the prevention, suppressing and sanctioning of human traffic, especially women and children. 1.
Provisions of art 112. 3 of the Penal Code of Republic of Moldova Art 112. 3 of the Penal Code settles the penal responsibility for the illegal removal of children from the Republic of Moldova. The main objects of this infraction are the legal interests and right of the child. The objective side of this crime can be expressed through one of these violations: – Drawing out of the country of a child based on some false acts or other illegal way; – Abandoning the child abroad. By local law a child can leave the territory of the Republic of Moldova on the basis of the Identity Card (for entrance on the territory of countries with which Moldova has signed international pacts for “easy” border cross) or on the basis of the passport.
In compliance with art 3 of the Law of Republic of Moldova about entrance and exit of the territory, adopted by the Parliament on the 09. 11. 1994, the children of an age less that 16 can of the right to enter or exit the territory of the Republic on the basis of their legal tutors’ request. The children of an age of 12-18, who leave the country to reside abroad with one of the parents, must present their own consent legalized by the notary state. In the majority of the cases, though, the before mentioned documents are the ones to be forged.
The respective acts can be falsified partly or completely. Anyway, for the qualification of the infraction this circumstance does not matter. By other illegal way it is meant the eluding from the control of the identity documents by hiding the child from the control. Abandoning the child abroad represents leaving the child on the territory of another state by his parent, tutelary, a legal protector or any other person when the returning of the child to Moldova is necessary.
Abandoning the child could be a result of a legal take out of the territory of the Republic of the respective child, thus if the abandon is premeditated the legal cross of the frontier is a camouflage for the real purpose. The composition of the infraction, provided by art 112. 3 of the Penal Code is more or less formal. In reality the responsibility begins with the de facto crossing of the border, indifferent of the consequences. The subjective side of the analysed infraction manifests through guiltiness under a form of direct intention. The motives of the infraction can differ: sale of the child, use of the child in crimes or other antisocial deeds, use of the child as the object of scientific experiments, removal of organs for further transplant etc.
At the qualification of the crime the motives and reasons of the crime do not influence. The subject of the crime, as stated in art 112. 3 of the Penal code of the Republic of Moldova, is the person which at the moment of the crime had reached the age of 16, no matter of the citizenship. Handing over a child to a foreign citizen, who has legally adopted the child, cannot be a basis for holding him answerable in conformity with the art 112. 3 of the Penal Code of the Republic of Moldova. Kidnapping or substitution of a child 2.
Provisions of art 113 of the Penal Code of Republic of Moldova (PCRM) Paragraph 1 of art 113 PCRM provides penal accountability for the kidnapping or substitution of somebody else’s child. This paragraph sanctions the acts of “recruiting and illegal organization of the traffic with human beings with profit purposes.” The main object of this violation are the rights of the legal protectors (natural parents, adoptive parents, tutelary, and curators) and the rights of the children under their protection. The objective side of this infraction can be expressed through one of the following two actions: – Kidnapping of a child; – Substitution of the respective child. Kidnapping of a child is the act of stealing this child against his own will, moving and holding him in another place. Kidnapping can take place openly or secretly, through fraud or abuse of confidence. The consent of the child does not exclude the penal liability of the doer.
The victim of the kidnap can be a child of any age. In compliance with art 1 of the Law regarding Children Rights, the child is any person till the age of 18, that is why the opinion of some lawyers that the victim can only be the person till 14, cannot be accepted. The substitution of a child is the replacement of one with another. If a replacement did not take place then there has been a kidnapping. In case of substitution the victim can only be a new-born.
And, in the majority of the cases the place where it takes place is the maternity (hospital) or any other institution for babies. Some lawyers in this domain, referring to the substitution add up that the act of replacement of a baby can be named substitution only in the case when the parents are not aware of the individual features of their child. With other words, they qualify substitution, appreciating both the objective and subjective criteria. If the parents are able to recognize their new-born and will certainly understand the replacement, then by the opinion of the same lawyers an act of kidnapping has taken place. That is why the crime is mostly done before the first encounter of the mother with the child or with the father if the mother has died.
Both in the case of kidnapping and substitution the victim can be somebody else’s child. Taking one’s own child (also if adopted), while at another person does not represent the infraction stated by art 113 PCRM, because this case will be qualified as arbitrariness which is provided by art 214 PCRM. Substitution consists of both replacement of a foreign child with own or of a foreign with another foreign. In the last case, the accord of the parents of one of the children given to the doer to substitute the children, does not exclude accountability for the deed, because in this situation the will of the other child’s parents is ignored.
The interchange of own new-born’s between parents is also charged under the Penal Code. Like wise art 112. 3 the present article is more or less formal. The infraction of kidnapping is said to be consummated from the moment of the de facto take away of the child and transporting to another place (even if for a few hours or minutes).
Imprudence, which led to the substitution of the baby out of negligence at the maternity (hospital), cannot be qualified as provided by art 113 PCRM but can be included as a crime due to art 186 PCRM “Professional negligence… .” . The discussed article does not only frame as motives of the substitution the vile ones but also motives like the wish of insuring a decent life to the child etc. No matter what the motives are it is considered as a crime and will be judged as a penal case. The subject of this crime is the responsible person who at the moment of the committing of the infraction had reached the age of 16. The persons who have instigated the author of the delinquency to substitute the child (for example the parents) will be held responsible and judge in compliance with article 113 and also article 17 PCRM “Complicity during crime.” Sale and traffic of children 3.
Provisions of art. 113. 1 of the Penal Code of Republic of Moldova Article 238 of the Civil Code of Republic of Moldova states that in the basis of the sale-buy contract the vendor is obligated to deliver to the buyer the property of a good, and the buyer respectively is obligated to receive the good and pay for it. In compliance with article 13 of the Property Law of Republic of Moldova, adopted by the Parliament on 22. 01. 1991, the physical persons can buy for their private property any good that is not excluded from the civil circuit.
Naturally it is understandable that any person and, moreover, a child cannot be the object of a transaction. The trade and traffic of children represents a scourge of the contemporary society and is incompatible with the dignity and the value of the human being, representing a high danger. Article 113. 1 PCRM provides penal liability for the traffic and sale of children for any reason and / or in any form, inclusively done by parents or their legal surrogates. The object of this crime is the normal development and personal liberty of children. The trade of children represents an illegal transaction with an onerous character, which consists of the buyer getting the child in exchange for some payment for further use (permanent possession) of the respective child, and the vendor sells the child.
The sale of children represents a special case if illegal conveyance of children to other persons (not his parents), in any other mode than the ones provided by Law, that is why an extra qualification than the one stated in art 112. 2 PCRM is not needed. Any transaction, which has children as object and in exchange for whom any type of payment is received, is subject of paragraph 1 of art 112. 3 PCRM.
I would like to mention that not only a sum of money could serve as payment for the “sold” child but also mobile goods and patrimonial rights. Literally, by the term traffic is meant illicit commerce with illegal “merchandise.” The form of sale of children has importance for the qualification of the deed. The sale could be in credit, by detail, cash or bank transfer, and they qualify under article 113. 1 PCRM.
Also the sale can have an internal or international character. In the majority of the cases the vendor and the buyer are in different countries. When the sale is accompanied by taking the child out of the Republic of Moldova the crime is qualify to art 112. 3 and art 113. 1 PCRM. There are cases when a “contract is signed” with a pregnant woman regarding the transmission of the baby delivered by her and receiving instead a payment.
This deed is also entered in the category of the infraction discussed till now. The purpose of this delinquency can be whatever – transmitting the child to a family that cannot have children, slavery, scientific experiments and removing of organs for further transplant. Yet an exception exists, because the traffic of children with the purpose of prostitution will be qualified in compliance with paragraph 2 of art 105. 2 PCRM “Teenage prostitution… .” Conclusions and recommendations The term “traffic of human beings” which constitutes a penal action is not defined in the Law project but just supposed in paragraph 1, and does not have a clear sense. It should not be concluded that the term has any link with the definition of the human traffic exposed in the UN Protocol about traffic with human beings.
As it was mentioned before, the statutory definition of the human traffic contains three cumulative elements: an act of traffic, completed by usage of means of coercion and fraud for a purpose of exploitation. In the Law project, those purposes of exploitation and the means of coercion partially represent characteristics that aggravate the punishment of the criminal. This brings me to the conclusion that the “Traffic of Human Beings”, being criminalized in the project of art 113, requires no link between this act and the purpose of exploitation and the means of coercion. The term of illicit traffic of humans is ambiguous, because the means of intimidation and the purposes of exploitation are not considered as being elements of the penal crime but only serve as factors of aggravation of the infraction in the face of Law. The term could also contain the illegal passage of the frontier of emigrants with their agreement (eg: acquiring the possibility to illegally cross the border by adults, who agree to travel and are well informed about the conditions of the work and services they are going to perform).
Though, the factor that requires a separate penal norm regarding the human traffic is the combination between transportation and the final purpose of coercion. As I mentioned before the human traffic and the trespassing of the borders by emigrants are two different phenomena that imply different objects of juridical protection. That’s why these two facts must be regulated by different norms. If the legislative organs wish to criminalize the actions of illicit crossing of the national frontiers by emigrants, this should be done in a separate norm. The traffic of adult human beings should be defined clearly in the national legislation referring to the three particularities mentioned in the UN Protocol: the act of traffic, means of coercion and fraud and the final purpose of exploitation. For clarity reasons, the traffic with children should be regulated separately and should settle the act of traffic linked to an exploitation reason.
Art 215 – Commerce and traffic of children – of the Law Project of the Penal Code should be revised in this sense.” With a profit reason ” The proposed definition of the traffic, which centres especially on the bond between the action and final intention of intimidation, makes the term “with a profit reason” useless. Even if in the majority of the cases of traffic the existence of material profit is implied, there are cases when the exploitation purpose does not include a profit (eg: sexual non commercial exploitation or forced marriage etc. ).
Recommendation: As was mentioned before, the definition must address to an action realized with means of constraint, fraud and with a final exploitation intent.
Thus, the term “with a profit reason” should be omitted.” Abroad ” The requirement of the traffic of humans “abroad” is a component of the infraction but this does not include the traffic of human beings from abroad to or through the territory of Republic of Moldova. Although Moldova is in the majority of cases a country of origin it could be a transit state for the traffic from abroad. The traffic from other countries to Moldova cannot be punished by the National Penal Code but the punishment can intervene when the victim is later taken out of the country. And as was mentioned before, traffic does not necessarily require the victim to be taken abroad, thus the internal traffic should be sanctioned at the same level as the international one.
Recommendation: The term “abroad” should not be a characteristic and should be omitted. The definition of actions that are incriminated by law The Law Project in art 113 regulates only two forms of traffic actions – recruiting and organization. In the majority of cases of traffic, a whole network of people is implicated, each of them having his role in the realisation of this crime. To insure that all the accomplices are held responsible under penal law, the definition of the article should include a larger gamma of activities. For example, the UN Protocol includes such a gamma of activities. Recommendation: The definition of the actions of traffic which are sanctioned by law should be completed at least with the following: “transportation, transfer, lodging and / or receiving of persons.” Definition of the means The Law Project addresses only some means of intimidation: “through abuse of power accompanied by violence, dangerous for the well being or even the life of the victim, taking advantage of the victim’s incapability to defend.” In reality a larger variety of means of coercion and fraud is used.
All of these should be penalized, as is provided by the UN Protocol. Recommendation: The definition of the means of intimidation should be completed, and the UN Protocol regarding traffic of human beings could serve as a source. Definition of the final intents of the coercion The Law Project defines only some of the possible purposes of the traffic with human beings. The project is not limited only to forced prostitution but also includes some other forms and purposes of human traffic. This fact corresponds to the international legal requirements stated in the UN Protocol regarding the traffic of humans. The aims expressively exposed in the Law Project, anyway, still do not include all the scopes provided as a minimum in art 3 of the UN Protocol regarding traffic of humans.
Paragraph 2 no 4 of the Law Project includes the following phrase “and other vile purposes” as an undefined component. Thus, the legal provisions can contain other scopes which weren’t expressly exposed in the law as being vile. Anyway, taking in consideration the supremacy of the legislation and the rights that the accused (defendant) has, it would be preferable to have clear penal definitions and not some undefined components. Recommendations: The definition of the final purposes should be enlarged. From the minimal enumeration exposed in the UN Protocol regarding the traffic of humans should be retrieved and used the scopes of forced labour and services and the state of servitude. The term of “slavery” should be completed with the phrase “and other similar practices.” For both terms definitions can be found in international law.
The term “sexual exploitation” includes the forced usage of the person in the sexual industry (pornography, prostitution etc).
If the legislative organs wish to give examples than it should be clear that the non-commercial sexual exploitation is also prohibited. Other recommendations for the penal law Absolving the victim The trafficked persons should not be penalized for the fact that they are traded. First of all because it is a consequence of the recognition of the violation of the human rights which the victim has suffered. Secondly, it is important to ensure the successful end of the penal procedure, because the victims’ testimonies are essential for the success of any court case regarding the human traffic. The victims will want their interests to be represented and will confess against the traffickers if they do not stumble on the fear to be attracted to penal answer ability.
That is why the penal law should be revised. The problem of sanctioning of the victims especially refers to the victims of forced prostitution, prostitution being an infraction in compliance with art 231 PCRM. The citizens of Republic of Moldova and the persons who do not have a citizenship but permanently reside on the territory of Moldova can be punished for prostitution abroad if in the respective country it is considered as a crime. In many cases the trafficked persons, especially women, knew the type of work they are going to do, but did not know the conditions, which were similar to slavery, these persons being forced to accept any “client” and any type of sexual relation. These women should be absolved of penal liability only due to the fact that they were induced into error and forced into services they did not agree upon. The same reasons should apply in case of infractions connected with the illegal cross of the frontiers and the transgression of the norms about the stay on the territory of Moldova.
The last can be applied only to the foreigners trafficked into or through Moldova, the first should be applied to Moldavian citizens who leave the national boundaries. I would like to mention again that the trafficked person could give his / her agreement on illegally leaving, entering or staying and at the same time be victimized. The purpose of not sanctioning the trafficked person could be realised from one side, by changing the material part of the penal right and from another side through ending the penal cases against the victims of human traffic. Organised crime control Due to the fact that the traffic of women and children that takes place in the Republic of Moldova seems to be dominated by organised crime, adequate penal provisions should respond to the characteristics and the strategies of organised crime. Participation in a criminal organisation, money laundering and other strategies typical to organised crime must be punished to ensure a vast cover of criminal behaviour. Also, the obligation to sanction the participation in an organised crime group and the cover up of the consequences of the infraction are established in art 5 and art 6 of the UN Convention against trans-national organised crime.
In the Project of the Penal Code of Republic of Moldova money laundering is sanctioned by art 266 and is an aggravating circumstance of many crimes if these are committed in the interest of a criminal organisation or by such an organisation as it is stated in art 48 PCRM. Still the participation in a criminal organisation is not penalized. Confiscation of profits As was mentioned before, the traffic of human beings insures large profits at relatively low risks. Thus, there are only to possibilities to reduce the profitability of this “business”: – Maximizing the risk through application of the penal trial law; – Reducing profits trough vast confiscation methods. In accordance with the experience of other countries, together with the adequate legislation an essential part is the professional institution of the personnel for a permanent realization of the possibility of confiscation. Recommendations for rehabilitation, prevention and awareness Indifferent to his / her role of martyr, the victim needs some adequate measures of protection against revenge and intimidation, inclusively the possibility of change of identity.
To realise programmes of rehabilitation, there should be created, preferably in cooperation with NGOs, some necessary shelters where juridical, medical and psychological assistance is given in a confidential mode. Also some professional instruction and maybe some assistance in searching for a new job should be ensured. Measures of prevention must include information campaigns, circulation of information about the methods of recruitment and the situation in the countries of destination etc, and especially information about the possibility of getting a legal, or at least a real, job in the country of destination should be spread. Instruction of the police organs, prosecutors, judges should be made for their further understanding of the situation and the rights of the victims and also of the main characteristics of the traffic with human beings.
CONCLUSIONSREFFERING TO THE CONTROL AND PREVENTION OF THIS CRIME Dependence of starting a penal case of the victim’s testimony Taking into consideration the clandestine character of the infraction, during the process of the traffic, the traffickers are rarely denounced by their victims. While in the destination countries the investigation of the cases of human traffic is effectuated by the police force, it seems that in the countries of origin of the victims the penal case depends more on the information received from the foreign authorities investigating the case and the complaints of the victims against the doers after returning home. Because of the vast gamma of methods of traffic and the specific structure of this infraction, the methods of intimidation and fraud can be proved only with the victims’ testimony. That is why the judicial cases regarding traffic of humans depend so much on the incriminatory declaration. This fact enlarges the pressure exercised over the victim: the well-paid counsels for the defence succeed in distorting the victims’ testimonials by putting in a doubtful light the credibility of the latter. There is an unbalance in the courts of law between the victims and criminals because usually the victims are not accompanied by anyone and do not receive juridical assistance.
If adequate measures for protection of the victims’ dignity and security are not taken, then cases of humility and victimization can repeat. Often the victims suffer due to the repeated victimization, especially knowing that the organs of investigation or the judge doubt their testimonials and treat them disrespectfully. Plus, the victims do not have vast and detailed knowledge about the organisational structures and the people implicated in the process of traffic. This fact could lead to failing of the investigation, which present a high risk for the victims and witnesses, who would be a potential target for the traffickers’ revenge. That’s why the victims have much to lose and little to gain when placing a complaint or taking on the role of a witness. There are also other motives which stop a person to place a complaint and become a witness: – the victim knows or is afraid of the fact of corruption, and the rapport between the officials and the traffickers; – the victim is ashamed or traumatized by the job or services which he / her had to perform and does not want the information to be spread; – the victim is afraid that the complaint won’t have the needed effect due to prejudices, like the prejudices against prostitution.
Conclusions referring the practice of penal liability and the trial legislation It is necessary to take measures for the facilitation of the victims’ access to the organs of investigation and access to juridical assistance to consolidate their position in the court of law: – it is necessary to create within the police organs specialised directions to fight the traffic of humans; – fighting corruption and implication of the police staff in the traffic process is crucial; – creating non-governmental centres of protection of victims of traffic, which would give any type of confidential consultancy and assistance; – it is necessary to avoid holding the victims of the traffic liable for their participation; – there should be a possibility of requesting compensation from the traffickers. The limits of preventing traffic through infraction control The traffic often includes complex cases of traversal of frontiers with the attraction of traffickers of different nationalities and a multitude of crime places; therefore this process exceeds the action capacities of national investigation organs. Especially the persons organizing the infraction remain “in shade” thus being exposed to a minimal risk. And especially due to the enormous profitability of the traffic and the small number of successes in the law suits against traffic, there is an almost nonexistent impact on the “business.” Any arrested trafficker, any destroyed criminal structure, or any trafficked person to be released sooner or later is replaced. Conclusions: – the risks for the trafficker need to be enlarged; – the international cooperation at the level of police and at a judicial level should be increased, among both the country of origin, transit or destination. International cooperation also requires specialise departments of traffic control; – it is necessary to sanction all the activities of the participants in this crime; – it is also necessary to establish and exploit in a consistent mode the possibilities of confiscation of the profits of the criminals.
INTERNATIONAL DOCUMENTS AND BIBLIOGRAPHY 1. UN Convention against trans-national organised crime; the Protocol for prevention, suppressing and sanctioning of human traffic, especially women and children, Doc-ONU A 55-383, 2 November 20002. The High Commissary of the United Nations for the Human Rights: the note for the Ad-how Committee for the elaboration of the Convention against trans-national organised crime. Doc-ONU A 254-16, 1 June 19993. The Office of the High Commissary of the United Nations for the Human Rights, UNICEF and ILO: Note on the projects of protocols regarding the transgression of frontiers by emigrants and traffic of humans. Doc-ONU A 254-27, 8 February 20004.
European Commission: Proposal for a decision of Council regarding the control of human traffic, COM 2000-08545. European Council: Common Action of 24 th February adopted by the Council in the basis of art K 3 of the European Union Treaty which refers to the action of control of traffic of humans and sexual exploitation of children, Official Journal L 063, 04. 03. 1997 P. 02-066. European Parliament: Resolution regarding the traffic of human beings, OJ No C 032, 05.
02. 19967. Infractions against life, well being, liberty and dignity of the person, Chisinau edition 19998. Official Gazette of the Republic of Moldova (Monitor ul official al Republic ii Moldova): 1994 – nr. 1; 1995 – nr. 6; nr.