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Sex Workers Welcome UN Experts’ Backing to Decriminalize the Industry

Opinion by Maya Linstrum-Newman  and  Nadine Gloss • May 30, 2024

This article was originally published on PassBlue.

Screenshot 2024 05 29 at 6.38.25 PM 1024x768

 

Major progress has been made in the debate on sex workers’ rights through a recent paper, “Eliminating discrimination against sex workers and securing their human rights,” published by the United Nations Working Group on Discrimination Against Women and Girls.

The group was mandated by the Human Rights Council and consists of five experts; it aims to end discrimination against women in law and in practice in all fields from the perspective of countries’ obligations “to respect, protect and fulfil women’s human rights,” it says.

In advocating for the full decriminalization of adult voluntary sex work based on international standards for strengthening women’s physical autonomy and sexual and reproductive health, this guidance document is an important step toward a human rights-based approach to sex work for all UN bodies to follow.

Unlike what we perceive as sensationalist and reductive claims made by many anti-sex-work groups, the working group’s paper is grounded in evidence-based research and informed by consultations done with diverse sex workers across several geographical regions. The sex workers who were consulted included those living with HIV and those who have experienced violence, exploitation and abuse under restrictive policy models that criminalize sex work itself or activities associated with sex work. That includes soliciting, advertising, sharing premises with other sex workers, managing or organizing sex work and buying sexual services.

It should be noted that the paper does not deny the injustices that occur in sex work. Instead, it makes clear how punitive laws, policies and practices create and exacerbate environments of violence, risk and abuse of sex workers. They must be understood to be workers, rather than “prostitutes” because they have lives outside of sex work, like most people who work and are not solely defined by their job identities or the circumstances of their work. The term “prostitution” is often used to deny sex workers’ ability to act, think and decide for themselves.

Given the large amount of evidence and the growing consensus among international human rights bodies regarding sex workers, the working group concludes that there is enough proof of the harms inflicted by the criminalization of sex work and calls for full decriminalization as the best model to ensure the rights of sex workers. Under decriminalization, all forms of sex work-specific criminal and licensing laws intended to sanction sex workers, clients and people who operate with sex workers are removed.

Instead, the same labor, health and safety protections are guaranteed to sex workers as to other workers. A country can have fully decriminalized sex work only if all legal penalties have been removed for all aspects of the trade, including selling, buying and managing/organizing.

The working group found that “in jurisdictions which criminalize sex workers, violations of their rights are numerous.” This finding is supported by international best practice guidelines and a substantial body of evidenceDecriminalization is the legal framework favored by most sex worker-led organizations worldwide as well as leading authorities in health and human rights.

In New Zealand, after the decriminalization of sex work in 2003, sex workers have reported improved working conditions and negotiating power and more confidence in asserting their legal and employment rights. Sex workers in New Zealand also report better relationships with law enforcement and an increased likelihood of reporting incidents of violence to the police.

In Australia, the New South Wales (NSW) Ministry of Health has found that the reforms that decriminalized adult sex work “improved human rights; removed police corruption; netted savings for the criminal justice system; and enhanced the surveillance, health promotion, and safety of the NSW sex industry.”

Most important, the working group emphasizes that decriminalization does not impede national efforts to mitigate human trafficking, citing the 2020 report of the UN special rapporteur on trafficking in persons. Indeed, decriminalization helps efforts to combat trafficking and exploitation in the sex work sector. The UN special rapporteur on contemporary forms of slavery has also recently called for the full decriminalization of sex work to prevent further human rights violations in the industry.

As the working group’s paper was drafted, members of the Sex Worker Inclusive Feminist Alliance, a collective of eight feminist organizations worldwide that support the inclusion of sex workers in the women’s movement, and sex workers from the Global Network of Sex Work Projects (NSWP) were involved in consultations. Sex workers from such organizations as the Kenya Sex Workers Alliance, the European Sex Workers’ Rights AlliancePlataforma Latinoamérica de Personas que Ejercen el Trabajo Sexual, the Guyana Vulnerable Populations Alliance and the Asia Pacific Network of Sex Workers each briefed the working group on the challenges facing their constituents.

The challenges include the conflation of sex work and trafficking; an increasingly strong and coordinated anti-sex work and antigender diversity movements; and rising calls for the criminalization of sex work. These calls seriously threaten sex workers’ rights and fly in the face of the abundant evidence of increased discrimination and vulnerability to violence in the UN’s 193 member countries, where at least one aspect of of sex work is criminalized in some form.

The guidance paper exemplifies meaningful inclusion of sex workers’ voices in the drafting of policy recommendations. This inclusion will lead to changes that improve the conditions of people who do sex work, particularly those most at risk of violence, poverty and poor health. The working group joins several UN agencies that have long called for the decriminalization of sex work, including the UN Population Fund, the World Health Organization, the UN Development Program and the UN Program on HIV/AIDS (UNAIDS).

This is an opinion essay.

 

Submission to the United Nations Special Rapporteur on the Human Rights of Migrants for the thematic report on revisiting migrants’ contributions from a human rights-based approach

Global Alliance against Traffic in Women 

February 2024 

About GAATW 

The Global Alliance Against Traffic in Women (GAATW) is an Alliance of non-governmental organisations from Africa, Asia, Europe, and the Americas. Member organisations work to promote the rights of migrants and survivors of trafficking. The GAATW International Secretariat is based in Bangkok, Thailand and coordinates the activities of the Alliance, initiates research, and advocates on behalf of the Alliance. 

Over the past three years, GAATW has interviewed a total of 970 migrants and survivors of trafficking (953 women and 17 men) in 18 countries across Europe, Asia, and the Americas. This submission is based on the findings of these conversations, as well as earlier research conducted in 2018 with self-organised groups of migrant women workers in India, Thailand, Mexico, Canada, Spain, South Africa and New Zealand. 

Introduction 

This submission will focus on questions 2 and 3 in the call for input. First, it will examine and analyse the ways in which the ability of migrants to self-organise facilitates greater inclusion and therefore greater freedom to contribute to society. Second, it examines how the failure of states and international organisations to implement feminist migration policies significantly hinders migrants’ contributions and increases their vulnerability to human rights violations. 

In this submission, when we discuss the contributions of migrants and the challenges they face, we seek to avoid any suggestion that migrants are required to contribute either economically, socially, or culturally to be deserving of rights protection. We wish to avoid the risk that by focusing on the “contributions” of migrants, a dichotomy is inadvertently drawn between “good” migrants, who contribute to society, and “bad” migrants who do not. This risk is particularly acute for women migrants. The strict gender roles that have been ascribed to women globally perpetuate harmful stereotypes about what a woman’s contribution in life should be, which are usually linked to childrearing, sexual chastity, and caregiving. Women migrants who deviate from these stereotypes, risk being seen as not contributing in the right way and therefore as “bad” migrants. 

Submissions 

Question 2: What positive measures are implemented by civil society organisations and non-governmental stakeholders in maximising and optimising migrants’ contributions? If so, please provide details. 

Migrants are the ultimate experts in their own lives and when migrant women are afforded the right to organise, either as civil society organisations or as workers organisations, they have been able to maximise and optimise their contributions by tackling exploitative working practices and promoting their social inclusion at home and overseas. Migrant organisations create a space for migrant people to voice their concerns, take collective action against injustice, and participate in political and social life. 

For example, the emergence of an international self-organised sex worker rights movement has been hugely significant for drawing attention to the human rights abuses faced by migrant sex workers and for combatting rights violations against sex workers in the course of migration, such as human trafficking. This has greatly enhanced the contribution sex workers are able to make to their communities. From Thailand to South Africa, sex worker-led organisations have assisted migrant sex workers to challenge exploitative working practices, and have rescued and assisted victims of trafficking they identify at their places of work.1 Sex worker-led organisations have also played a key role in gaining recognition of the contribution migrant workers are making.2 

Similarly, the self-organised migrant domestic workers movement has been integral to securing recognition of the contribution of migrant domestic workers at the international level (for example securing the enactment of ILO Convention 189 on Domestic Workers) and at the national level. Taking just one recent example of the ways in which self-organised groups of migrant domestic workers have maximised migrants’ contributions - in the UK, our research partner, the Voice of Domestic Workers, together with a broader coalition of self-organised domestic workers, successfully campaigned for the removal of a discriminatory exemption from minimum wage for migrant domestic workers. From 1 April 2024 all migrant domestic workers in the UK are entitled to minimum wage. This will of course increase the “contribution” to the economy and labour market of the UK being made by migrant domestic workers but, more importantly, will protect the rights of migrant domestic workers’ and enhance their sense of inclusion within society. 

Self-organised groups of migrant women are also often providing vital support that strengthens the freedom of migrants to participate into society, filling the gaps left by governments. For example, in recent research carried out in Vancouver, Canada, it was identified that it is not the Government who is providing English 

1 For examples see GAATW, “Sex Workers Organising for Change: Self-representation, community mobilisation, and working conditions,” 2018, pp. 33-36 

2 See for example how in Mexico in 2014, Brigada Callejera and the Mexican Network of Sex Workers through coordinated protests succeeded in gaining the recognition of sex workers (many of whom are migrants) as non- salaried workers in GAATW, “Sex Workers Organising for Change: Self-representation, community mobilisation, and working conditions,” 2018, p. 37 

Joint NGO Statement on recast EU Anti-Trafficking Directive

25 April 2024 

On 23 of April, during its last plenary meeting of this mandate, the EU parliament adopted the final text of the recast of the EU anti-trafficking Directive1. We, the undersigned non-governmental human rights organisations, welcome some progress that has been made in the revised Directive. It is positive that sanctions for legal persons have been strengthened for those liable for misconduct; that the non-punishment clause now applies to all unlawful activities and that the right to international protection is strongly recognised in the text. 

Overall, however the final legislative text demonstrates a lack of commitment of the European institutions to advance the rights of trafficked persons. 

We have advocated for binding measures for EU Member States to ensure real access to rights and justice for victims of trafficking, both on paper and in practice, including their access to safe reporting, non-punishment, compensation and unconditional access to adequate support and protection, as well as residence. However, most of the provisions in the Directive related to these rights have not been meaningfully or effectively strengthened. Moreover, the use of services of trafficked persons is now criminalised, while there is no evidence that this will be effective or strengthen victims’ rights. In fact, it is likely to cause human rights violations instead. 

Also, we raise concern that article 19 no longer encourages EU Member States to establish National Rapporteurs. This runs counter to the fact that independent Rapporteurs have proven to be essential to scrutinize and raise awareness about violations of victims’ rights and to provide recommendations to States to enhance victims’ rights. 

Now that the Directive will soon be enforced and EU Members States have two years to transpose it, we call upon the European Commission and EU Member States to still show their commitment and ensure that the rights of victims are prioritised during the transposition and implementation process. 

Clear guidance by the Commission and full implementation of the Directive by EU Members States would already go a long way towards this. Below we outline our strong recommendations for the transposing period and beyond, based on a do no harm and strong human rights approach. 

DEFINITION/ Offences concerning trafficking in human beings 

Article 2 - The definition of the Directive has been extended and now includes ‘the exploitation of surrogacy, of forced marriage, or of illegal adoption’. We have raised concern especially about the addition of surrogacy into this EU law, which seem more based on political interests, instead of adequate data and evidence. 

  • The Commission and Member States should conduct thorough research and collect the necessary evidence for the exploitation of surrogacy or exploitation of illegal adoption in relation to human trafficking, to provide for an adequate debate on facts and evidence and ensure further guidance on the application of these forms of trafficking. 
  • It is also important for Member States to ensure that all new forms of trafficking in human beings are only considered trafficking in human beings if the conduct fulfils all the elements of the definition of trafficking in human beings. The addition of new forms of trafficking does not automatically imply that all illegal adoptions or all surrogacy, should be automatically considered as trafficking in human beings. 
  • Member States should further ensure that measures to prevent human trafficking, will not restrict or infringe on existing rights for persons to marry, adopt a child or create a family. 

USE OF TECHNOLOGY 

Article 4 - The Directive text now foresees that the use of information and communication technology is an aggravating circumstance, when it has facilitated or committed the dissemination of images or videos or similar material of a sexual nature involving the victim. While we can support this change, we regret that the text only speaks of materials of a sexual nature and not takes a broader ‘all forms of human trafficking’ approach, in line with the Directive and underline that measures related to technology should safeguard people’s rights to and when using such technologies. 

  • Member States should ensure that measures addressing online recruitment and exploitation – including the extension of powers for law enforcement bodies to collect and monitor data – should not negatively impact the rights of (certain groups of) people and should be based on respect and protection of human rights of all. Anti-trafficking measures targeting online trafficking should not adversely affect and compromise the safety and privacy of sex workers and creators of online intimate content. 

SANCTIONS FOR LEGAL PERSONS 

Article 6 - Sanctions for legal persons, that have been liable for misconduct have been strengthened and now may include the exclusion of access to public funding, tender and grants, or the removal of business permits and authorisation. We can support these measures, as it remains very difficult to hold legal persons accountable. We highlight that: 

  • Member States should engage workers and workers representative organisations in the development and monitoring of these legislative measures and ensure that the impact of these measures on all potential affected workers is well-evaluated. Measures taken to address the misconduct, should not negatively impact the rights of workers. 
  • Recovered assets and fines paid by legal entities/companies should be used to compensate workers and victims for damages including for back wages. 

NON-PUNISHMENT 

Article 8 - The scope of the non-punishment clause has been extended and now applies to all unlawful activities, that victims have been compelled to commit as a direct consequence of being subject of trafficking. This includes administrative offences related to prostitution, begging, loitering or undeclared work, or other acts which are not criminal in nature but subject to administrative or pecuniary sanctions, in accordance with national law. 

We welcome this change. However, we highlight that for the non-punishment principle to be effectively applied, 

  • Member States should ensure that the non-punishment provision is appropriately assessed and applied as early as possible by competent authorities. Further, it should be ensured that any proceedings against the victim must be promptly terminated, and all their consequences cancelled, before and after an eventual conviction. This implies that criminal records must be cleared, and any other sanctions cancelled including fines or other administrative sanctions. 
  • States who have not done so yet should establish national provisions and procedural guidelines on non-punishment, next to ensuring awareness raising and training of relevant stakeholders, to ensure an effective implementation of the non-punishment clause. 

(UNCONDITIONAL) ACCESS TO PROTECTION, SUPPORT AND RESIDENCE 

Article 11 - We welcome the small amendments made to Article 11, which refer to ‘specialised’ services and clarifies that appropriate and safe accommodation’ (already part of the 2011 Directive) should include ‘shelters and other appropriate interim accommodation’, which ‘shall be provided in sufficient numbers and easily accessible for presumed and identified victims of trafficking. They shall assist them in their recovery, by providing adequate and appropriate living conditions with a view on a return to independent living’. 

However, the unconditional access to support and residence permits has unfortunately not been improved in the text of the Directive. While the Directive makes clear that the assistance to victims should not be dependent on the willingness to cooperate in criminal investigations etc., the text still reads “without prejudice to Directive 2004/81/EC or similar national rules”. A real human rights-based approach detaches victim’s identification and assistance from participation in criminal proceedings and places their interests and their support and protection of their rights at the centre. Such an approach will ultimately lead to reduced vulnerabilities, fewer re-trafficking cases, more credibility of State protection systems, and safer communities. 

  • Member States should ensure that there is access in practice to ‘unconditional support’ for every person in need, regardless of their status or engagement with authorities or legal proceedings, or a ‘social path’, to ensure a positive impact on access to justice for victims of trafficking, in relation to their access to identification, residence, compensation, non-punishment and long term integration, including victim’s access to the labour market. 
  • The granting of a residence permit on personal grounds should be enhanced in law and practice, considering a range of situations, such as the victim’s safety or vulnerability, state of health and family situation. This would also significantly increase victims’ incentives to co-operate with the authorities. 
  • Member States should ensure that the provision of services should be: (a) accessible to victims through in particular, sufficient proximity of services to victims, opening hours, and delivery of services through multiple channels including face to face, online, helplines and itinerant/mobile services; coordinated in particular through referrals in accordance with their specific needs; (b) be free of charge; (c) be confidential; (d) act in the interests of the victims; (e) remain fully operational in times of crisis, such as health crisis or other states of emergency; 

INTERNATIONAL PROTECTION & DUBLIN RETURNS 

Article 11 - The revised Directive mentions that victims of trafficking, should be enabled to exercise their right to apply for international protection or equivalent national status and States should ensure complementarity and coordination between the authorities involved in anti-trafficking activities and asylum authorities, ensuring appropriate and effective referral mechanisms to be in place between both authorities. Recital 10c reads: “Member States are further requested not to transfer victims to a Member State where there are substantial grounds for believing that the victims, because of the transfer to that Member State, would face a real risk of violation of their fundamental rights that amounts to inhuman or degrading treatment within the meaning of Article 4 of the Charter of Fundamental Rights of the European Union”. We welcome both text additions and would like to highlight that: 

  • When transposing the Directive, EU Members States should ensure that victims of trafficking also in practice do not have to choose between the different mechanisms in place and can always apply for international protection. 
  • EU Member States should take measures to enhance identification among people applying for international protection and those denied protection. 
  • EU Member States should develop and implement a risk assessment process for Dublin returns and evaluate the impact on returned victims and their access to justice and adequate care. Before initiating removal proceedings, EU Member States should conclude the identification process and provide individuals with a specified period for recovery and reflection. 
  • EU Member States should comply with the non-refoulement principle. 

SAFE REPORTING & FIREWALL 

Article 13a - This article refers to ‘General provisions on assistance, support, and protection measures for child victims of trafficking in human beings’ and their need for safe reporting mechanisms. We strongly regret that reference to safe reporting and complaint mechanisms is not embedded in the text for adult victims. 

  • EU MS should ensure that safe reporting and complaint mechanisms beyond the minimum requirements set out in the revised Directive are available for all potential victims of human trafficking, and that mechanisms that enable identification, reporting and representation by third parties are available in practice. 

COMPENSATION 

Article 17 - This article on access to compensation has not been effectively strengthened. The access to compensation is still restricted in the text to existing schemes – and if no schemes exist, there is no access. While the text now mentions that States may establish a compensation fund, they are not bound to do so, and in fact this was already possible. 

  • Member States should take the necessary measures to ensure that victims of trafficking in human beings, irrespective of their residence status or type of exploitation, have access to schemes of compensation to victims of crime and necessary measures should be taken to ensure that recovered assets and administrative fines are used to pay compensation to victims. 
  • More EU guidance is needed to define material and immaterial damages. 
  • Member States should ensure that victims have the right in practice to claim and receive compensation during criminal procedures, and have access to legal assistance or representation, next to advance payment. 

NRMs AND EUROPEAN REFERRAL MECHANISM & FOCAL POINTS 

Article 11 - The Directive calls for strengthened NRMs. EU Member States should take measures to establish by law one or more NRMs. The Directive now also describes what the minimum tasks of this NRM should include. Furthermore, Article 11 refers to the establishment of a European Referral Mechanism and focal points. While we can support this, we critically note that: 

  • EU Member States should ensure that sufficient capacity and resources are allocated to NRMs, including priority funds for victim support, which are currently lacking. 
  • The formalising of NRMs should by no means be used to further limit the outreach and support to victims. 
  • The establishment of a European Referral Mechanism (ERM) should not be taken top down but be developed in close cooperation with national actors and the inclusion of civil society from the outset. The ERM should primarily focus on the adequate and safe referral of victims based on a human rights-based approach, including needs and risk assessments. It should not be (mis)used as a vehicle for victim return. 
  • For the proposed national focal points for victims, common criteria should be developed including a leading role for civil society actors and other support organisations in their coordination. 

CRIMINALISATION OF THE KNOWING USE 

Article 18 - This article of the Directive now criminalises the use of a service from a victim of trafficking in human beings when it is committed intentionally and with the knowledge that the person providing the service is a victim. We believe that criminalisation of “knowing use” will not strengthen victims’ rights or the prevention and prosecution of human trafficking. In fact, it is likely to cause human rights violations instead. Evaluations conducted, including by the European Commission, have so far shown the absence of any proven positive impact of such a provision. Most of the EU Member States have already introduced such provisions in national criminal law and there is only very limited prosecutorial activity and few convictions across the EU.2 

While we are relieved that the final text of article 18 ensures that criminalization of the use of services requires intent, profit and knowledge and applies equally to all forms of trafficking in human beings, we remain concerned that states might see it as a call to criminalise the provision of sexual services, especially as Recital 9a calls for more stringent criminal rules, including criminalising the purchase of sexual acts. We therefore insist that: 

  • States should regularly evaluate and report about the criminalisation of the knowing use, especially looking into the human rights impact on the most vulnerable population such as migrants, sex workers and other precarious workers. Anti-trafficking measures shouldn’t adversely affect human rights of vulnerable groups. 
  • The European Commission should raise awareness of this crime across Europe and ensure adequate awareness campaigns. Such campaigns should address all services and not be misused to advocate against sex work. 
  • Anti-trafficking measures should generally not be conflated with or used to criminalise sex work and criminalisation should always target the use of services provided within the framework of exploitation covered by the offence of trafficking in human beings (rec. 9.a) 

INDEPENDENT RAPPORTEURS 

Article 19 - In this article, the Directive has weakened the call for a National Rapporteur to be established in each EU MS and instead there is a call for strong coordination. We regret that there is not more binding language included for independent Rapporteurs, who are necessary for the independent and critical assessment of the impact of THB measures, which is urgently needed for us to critically evaluate efforts taken. 

  • It is important that coordination bodies are clearly separated from National Rapporteurs, who should independently and critically monitor the implementation and impact of anti-trafficking measures. 
  • Member States should appoint independent Rapporteurs, who should as well as collecting data and monitoring anti-trafficking measures, carry out specific assessments on the human rights impact of anti-trafficking measures on a regular basis. 
  • EU MS/Rapporteurs should collect data that provides more insight in the access of victims to their rights embedded in the Directive, including their right to identification, the reflection period, temporary and longer-term residence including on personal grounds, non-punishment, compensation, and international protection, next to assistance and support. 

Signed by: 

European Council on Refugees and Exiles (ECRE) 

European Sex Workers’ Rights Alliance (ESWA) 

Global Alliance against Traffic in Women (GAATW) 

La Strada International – European NGO Platform against Trafficking in Human Beings 

Platform for International Cooperation on Undocumented Migrants (PICUM) 

Victim Support Europe (VSE) 

Joint NGO call to EU leaders: Measures to improve victim’s rights are needed for the revision of the EU anti-trafficking directive to be meaningful, and not actually harmful for victims and those at risk

For the PDF version, click here.

Joint civil society recommendations for the trialogue negotiations on the revision of the EU ‘Anti- Trafficking Directive’ (2011/36/EU on preventing and combating trafficking in human beings and protecting its victims (COM/2022/732 final). 

Ahead of the planned trialogue meeting on 12 December 2023, we call on the European Commission, the European Parliament, and the Council of the EU to find meaningful compromises to ensure that the revised anti-trafficking directive will indeed strengthen the rights of victims of trafficking and enable their access to justice. 

In particular, the negotiating institutions must draw on suggested amendments of the European Parliament to improve, at a minimum: 

  • effective implementation of the non-punishment principle, through further guidance and legal provisions (Article 8) 
  • compensation via prefinancing by States and the use of recovered assets and fines (Article 17 and Art 7) 
  • unconditional access to support for all victims (Article 11) 
  • linkages to the right to international protection (Article 11a) 
  • adequate complaints mechanisms (Article 18) 

We also support the proposals of the European Parliament to improve data collection (Art.19). Advancements in all of these areas are the only reason that can justify the revision of the legal framework. 

We further strongly urge the Council and Commission not to extend the criminalisation of consumers of services and clients of sex workers, nor extend the definition of trafficking in a way that risks to create more confusion instead of more clarity. We call on EU governments not to compromise at all, and fully reject the amendments made by the Parliament on articles 1 (2) and 18. Should provisions criminalising the unknowing and unintentional use of services of trafficked people, or encouraging the criminalisation of clients, be included in the revision, the revision of the directive will be harmful for anti-trafficking efforts and human rights. 

Further detail on these amended articles is set out below: 

AMENDMENTS TO BE ACCEPTED: 

Article 7 Seizure and confiscation (EP: Freezing and confiscation) 

We strongly support the EU Parliament amendment to art 7 “Member States shall take the necessary measures to ensure that frozen and confiscated proceeds derived from, and instrumentalities used for the commission, or contribution to the commission, of the offences referred to in this Directive are used, as a matter of priority, to provide victims support, assistance and protection, including through direct compensation of victims and further invest into investigation and prosecution of trafficking cases.” 

Currently financial resources for direct support to victims are very limited and access to compensation remains in practice nearly fully dependent on the availability of frozen and confiscated proceeds. A strong requirement for the use of frozen and confiscated assets for victims’ support, assistance and protection will enhance victims’ rights and their access to justice. It has been strongly recommended for years by various high level experts1, and is currently also embedded in the (negotiated) Directive on Assets Recovery and confiscation; article 17 of this directive calls upon EU Member States to ‘consider taking measures allowing the use of confiscated property for public interest or social purposes. 

Article 8 Non-prosecution or non-application of penalties to the victim 

We strongly support the EU Parliament changes to article 8: 

  1. Member States shall take the necessary measures, including criminal law provisions and procedural guidelines, to ensure that victims of trafficking in human beings are not held liable for the irregularity of their entry into or stay in a Member State, or for their involvement in unlawful activities which they have been compelled to commit as a direct consequence of being subjected to any of the acts referred to in Article 2. Member States shall take the necessary measures to discontinue any proceedings against the victim, terminate any restriction of victims’ rights, including deprivation of liberty, to annul any related penalties and to expunge their police and criminal records where competent authorities have failed to apply the non-prosecution and non-application of penalties. 
  2. Member States shall take the necessary measures to ensure that non-prosecution and non- application of penalties to the victims is not made conditional on the victim’s cooperation in the criminal investigation, prosecution or trial, without prejudice to Directive 2004/81/EC or provisions of national law transposing that Directive. 
  3. Member States shall take the necessary measures to ensure that any decision concerning the non-prosecution and non-application of penalties to the victims is taken following an individual assessment of the case by trained and qualified officials. 
  4. Member States shall raise awareness and enhance capacities concerning the implementation of the national provisions adopted pursuant to this Article among professionals likely to come into contact with victims, including law enforcement, the judiciary, legal representatives, border management and labour inspectors. 
  5. Member States shall prohibit any deprivation of liberty, prosecution and application of any penalties in the case of children for their involvement in unlawful activities which they have been compelled to commit as a direct consequence of being subjected to any of the acts referred to in Article 2.’; 

The principle of non-punishment of the victim for crimes they have been involved in as a consequence of their trafficking is an essential guarantee to ensure that trafficked persons are not detained, prosecuted or punished for crimes they have committed in the context of human trafficking. In practice we see that the principle is very often not applied by judicial authorities and legal practitioners, leading to devastating outcomes for victims. A clear obligation upon States to adopt specific penal provisions and prosecutorial guidelines can ensure a better application and interpretation of the principle. Currently only a few EU Member States have introduced specific provisions in their criminal codes. In other Member States, general provisions such as the defence of necessity have been applied, and only in cases of offences usually related to minor violations of immigration laws. 

Competent authorities must have the obligation to apply the non-punishment provision as early as possible, and thus to discontinue any proceedings and any measures implying restrictions of victims’ rights including but not limited to detention, as soon as relevant grounds have been found. When the grounds for the application of the non-punishment provision have not been appropriately assessed by competent authorities, and such grounds are subsequently found, any proceedings against the victim must be promptly terminated, and all their consequences cancelled, before and after an eventual conviction. This implies that criminal records must be cleared, and any other sanctions cancelled including fines or other administrative sanctions. The aim is to avoid a situation where victims, although exempted from criminal liability, are obliged to bear negative consequences – including but non-limited to expulsion or deportation orders – deriving from a failure of the authorities to comply with their due diligence obligations to ensure non-punishment. 

It is further essential that the application of the non-punishment provision is totally unconditional, and should not be in any way made dependent on the victim’s ability or will to cooperate with authorities in criminal investigation, prosecution and trial. In other words, it should not be used to obtain information in exchange of immunity. 

Article 11 Assistance and support for victims of trafficking in human beings 

We generally support the changes made by the Parliament related to article 11, and in particular strongly support, the proposal for the addition of Article 11a (see further below) but regret that none of the institutions have been willing to promote more access to residence for victims of trafficking, in addition to enhanced access to unconditional support, which is urgently needed. In nearly all EU countries, the access to support for victims of human trafficking remains closely tied with the criminal justice system. Assistance and protection are still made dependent upon reporting the crime and to victims’ participation in legal proceedings; as well as the initiation of an investigation, continuation of a prosecution or a successful prosecution of perpetrators for human trafficking. Making assistance conditional on cooperation with a criminal justice process harms the rights of trafficked persons and related vulnerable groups. Moreover there are only few possibilities for victims to obtain residence on personal grounds. Granting victims residence in a range of situations, such as the victim’s safety or vulnerability, state of health and family situation, would significantly increase victims’ incentives to co- operate with the authorities. 

Victims of trafficking in need of international protection 

  1. Member States shall ensure compliance with the principle of non-refoulement and with the right of victims to apply for international protection or equivalent national status, including when the victim is receiving assistance, support and protection referred to in article 11 and notwithstanding the irregularity of entry into the territory of the Member States or stay paragraph 3. To that effect, the tasks of the national referral mechanisms referred to in article 11 paragraph 4 shall include close cooperation with asylum authorities and establishing protocols to ensure that assistance, support and protection, is provided to victims of trafficking who are also in need of international protection, taking into account the victim’s individual circumstances, including whether they experienced discrimination based on grounds such as gender, sex, race or ethnic origins , disability, age, sexual orientation, gender identity, gender expression and sex characteristics, or a combination of those. 
  2. Member States shall dedicate appropriate resources and shall take the necessary measures to ensure the rapid and accurate detection and identification of victims of trafficking in human beings, and their referral to international protection procedures by competent authorities, relevant civil society organizations and other relevant stakeholders involved in the identification, reception and processing of irregular migrants The victims shall be informed of their right to apply for international protection, in a language they can understand and at the earliest opportunity. 
  3. Member States shall take the necessary measures to ensure that the principle of non-prosecution or non-application of penalties to the victim under Article 8 is applied to victims of trafficking in need of international protection. 
  4. Member States shall ensure complementarity and coordination between international protection systems and procedures for the protection of victims of trafficking. In doing so, appropriate and effective referral mechanisms shall be in place between the authorities involved in anti-trafficking activities and those responsible for granting international protection. 
  5. Member States shall ensure that the examination of applications for international protection of victims of trafficking and the assessment of the merits of the application is not linked to a victim’s willingness or ability to cooperate with the authorities in the criminal investigation and prosecution of trafficking without prejudice to Directive 2004/81/EC or provisions of national law transposing that Directive. 

Compliance with the principle of non-refoulement and with the right of victims to apply for international protection and ensuring complementarity and coordination between international protection systems and procedures for the protection of victims of trafficking, can strongly support victims access to rights and enhance early identification and referral of victims. We currently see all over the EU that few persons are identified as victims of trafficking among those looking for international protection. Identification among this group can be enhanced by ensuring that it is not only State authorities alone who are in charge of identification. Bodies in charge of identification and referral could consist of multidisciplinary teams established at the local level, in which relevant support organisations including civil society anti-trafficking organisations and trade unions should be represented, in addition to institutional actors such as police authorities and labour inspection services.2 Civil society organisations have an essential role in the first assessment of victims’ personal situations and their preliminary or formal identification. 

Article 17 Compensation to Victims 

We strongly support the changes made by the European Parliament related to art. 17 on compensation:

a. Member States shall ensure that the victims of trafficking have the right to an effective and in due time legal remedy under national law in the event of a breach of obligations deriving from this Directive.

  1. Member States shall ensure that all victims of trafficking in human beings have access to effective schemes of compensation regardless of whether a judicial process has been initiated. 
  2. 1a. Member States shall take the necessary measures to ensure that compensation awarded to a victim of trafficking in human beings as a result of a decision adopted in criminal or civil proceedings is paid in due time after the adoption of the decision by the Member State concerned to the victim. The Member State concerned shall pursue those liable for that compensation to reimburse the compensation advanced by the State to the victim. 
  3. Member States shall establish a national victims fund or a similar instrument according to their national legislation, with the frozen and confiscated proceeds derived from, and instrumentalities used for the commission, or contribution to the commission, of the offences referred to in this Directive in order to pay compensation to victims. 

Although the right to compensation is embedded in all international instruments on trafficking, including Directive 2011/36/EU, research shows that victims in the vast majority of cases do not receive compensation, even when it is awarded by Courts. It is important that trafficking victims have access to any victim compensation schemes, not only to the schemes for victims of violent crime of intent, taking into account that trafficking is not always committed by the use of violence but also by means of deception and coercion. Therefore, trafficked persons should have regular access to other existing schemes for victims of crime, and to new schemes that national authorities would eventually establish for victims of crime. 

As highlighted above, one of the obstacles to effective compensation is the lack of confiscated assets, as perpetrators usually hide their patrimonies. Ensuring early freezing and confiscation of the proceeds of crime will enhance the access to compensation for victims. Further the Parliament’s proposal for prefinancing of compensation is essential to guarantee that victims that are awarded compensation can effectively access it. This proposal is in line with the current Commission’s proposal for the revision of the Victim Rights Directive (of 12 July 2023). 

Article 18 - Prevention 

We strongly support the following amendment by the EP related to article 18 (5) 

  1. Member States shall put in place effective, accessible and independent complaint mechanisms. Such mechanisms would contribute to the early detection, identification of, assistance to and support for victims of trafficking. Complaints may be put forward by trusted third parties, such as NGOs, trade unions, or migrant workers’ organisations, on behalf of the victim under the condition that the victim has given consent. Coming forward with a complaint shall not lead to any reprisals for the victim, particularly in relation to their immigration status.

Safe reporting and complaint mechanisms are essential to enhance identification of victims of trafficking. Safe reporting and effective complaints mechanisms for undocumented workers to report exploitation and access justice, are lacking in most European Member States.3 As a result, people who are undocumented face arrest, detention, and deportation if they approach the police to report violence or abuse. Rather than offering help, authorities frequently deny their right to protection and assistance, and enforce – or threaten to enforce – punitive measures instead. A clear ‘firewall’ will allow workers to safely file a complaint to police or labour authorities and courts, and to get access to services and justice, all without facing immigration enforcement as a result. This would empower workers, uphold fundamental rights, tackle abuses, and promote fair business practice. It would also ensure that all cases are properly investigated, that perpetrators are held to account, and all victims can come forward. In order to support reporting for victims, it is important to offer a wide variety of complaints/ reporting mechanisms to cater to the multiple needs and circumstances of victims, including third- party reporting. The EU Fundamental Rights Agency (FRA) has highlighted the untapped potential of third-party reporting, as an alternative reporting option for victims that do not trust law enforcement.4 

AMENDMENTS TO BE REJECTED 

Art 1 (related to current article 2) Offences concerning trafficking in human beings 

We strongly oppose the following amendment by the European Parliament: 

2.3. Exploitation shall include, as a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, including begging, slavery or practices similar to slavery, servitude, or the exploitation of criminal activities, or the removal of organs, forced marriage, illegal adoption, surrogacy for reproductive exploitation, exploitation of children in residential and closed-type institutions, or the recruitment of children to commit or participate in criminal activities. 

We strongly oppose the additions by the European Parliament to the definition of human trafficking, as these seem r to create confusion instead of more clarity and will likely not promote a more uniform application of the definition at EU level. Human trafficking for the purpose of forced surrogacy can already be criminalised under the current definition of trafficking in persons. The proposed text related to surrogacy for reproductive exploitation could be interpreted to imply that all instances of gestational surrogacy are a form of ‘reproductive exploitation’, and a form of human trafficking. We strongly reject this interpretation. The term reproductive exploitation is a term which is not legally defined. Moreover, surrogacy in and of itself does not constitute a form of exploitation. Surrogacy covers many different situations, from human trafficking for the purpose of forced surrogacy, to consensual surrogacy, including cases of altruistic surrogacy. It is essential to distinguish between these situations. They cannot be tackled in the same way, but should each be addressed individually as appropriate. 

Moreover allegations or cases of women being trafficked for the purpose of forced surrogacy are extremely rare in Europe. 

We also see no need for the addition of “the recruitment of children to commit or participate in criminal activities”, as forced criminality is already part of the current definition and thus already criminalised. 

Lastly we believe that the reference to exploitation of children in residential and closed-type institutions can be embedded in the recitals, but would be too specific for inclusion in the definition. 

Article 18a 

We strongly oppose the proposal for article 18a to be inserted 

Offences concerning the use of services which are the object of exploitation extracted from a victim of an offence concerning trafficking in human beings 

  • In order to make the preventing and combating of trafficking in human beings more effective by discouraging demand, Member States shall take the necessary measures to establish as a criminal offence the use of service of people which are the objects of exploitation of the prostitution of others or other forms of sexual exploitation as referred to in Article 2. 
  • 1a. Member States shall also consider taking measures regarding those who solicit, accept or obtain a sexual act from a person in a situation of prostitution in exchange for remuneration, the promise of remuneration, the provision of a benefit in kind or the promise of such a benefit. 
  • 1b. For other cases of exploitation referred to in Article 2, Member States shall take the necessary measures to establish as a criminal offence the use of such services when the user knew or could have reasonably known that the person was a victim of such exploitation. 
  • Member States shall take the necessary measures to ensure that an offence as established in accordance with paragraphs 1 and 2 are punishable by effective, proportionate and dissuasive penalties and sanctions. 

There is currently no evidence that criminalising the knowing or unknowing use will have any impact on the prevention or prosecution of human trafficking or that it will strengthen the rights of victims. On the contrary, such a provision is likely to harm the rights of sex workers, including persons trafficked and exploited in the sector. 

Law enforcement actors – who already struggle with limited capacity to investigate and prosecute human trafficking – would have to use their scarce resources to focus on users of services, instead of perpetrators of human trafficking. Such measures are expected to significantly weaken efforts to enhance identification of trafficked persons and their referral to support services. Victims can be worse off too, having to testify against the users of their services, while not necessarily being entitled to adequate protection and support. There have already been inconsistencies as to whether a victim is entitled to the same rights when the “user” is prosecuted, as when a trafficker is prosecuted. Currently, two-thirds of the EU Member States have already introduced provisions for criminalising the (knowing) use of services in national legislation and there is only very limited prosecutorial activity and few convictions across the EU. Evaluations conducted, including by the European Commission, have shown the absence of any proven positive impact of such a provision. 

Furthermore, it is surprising and counterproductive to differentiate, as the committees’ proposal does, between (the users of) different forms of human trafficking. This risks suggesting that there is a hierarchy between different types of human trafficking, and that some forms of human trafficking are “worse” than others. This has no basis in international or European law. 

NOTHING MORE, NOTHING LESS: A DEMAND FOR DIGNIFIED LIFE AND FAIR, MINIMUM WAGE

22nd November, 2023

For the PDF version, go here.

GAATW International Secretariat and members stand in solidarity with Bangladeshi garment workers who are protesting the new minimum wage proposed by the Labour Department, which is much lower than the rise in cost of living, and are demanding the immediate establishment of a living minimum wage of Tk 23,000 (USD 209).  This is the minimum wage necessary for workers to be able to lead a dignified life, and is in line with the proposal of Asia Floor Wage Alliance Bangladesh, who submitted a review petition to the government-appointed wage board in Bangladesh on November 20th, demanding a thorough review of the newly proposed minimum wage. Similar support and demand for the Bangladeshi state authorities to reconsider their position has come from other global unions.

GAATW supports these demands and wishes to highlight that this is not a standalone case but as part of a long global struggle for decent work and living conditions. We demand for fair minimum wage for all workers - nothing more, nothing less!

We are concerned by the way in which these protests are being portrayed by some media outlets. This event should be reported as garment workers demanding  fair living wages and not  just asking for a wage hike. This is at the heels of what the workers faced during COVID-19 when in early 2020, international brands and buyers canceled $1.44 billion worth of Bangladesh garment exports, a majority without compensation to the local suppliers. Nearly 1.2 million workers were let go without any compensation or severance package only to accrue more healthcare expenses as COVID-19 gained a foothold. Considering this volatility of the garment industry, the living wage is a necessary tool for workers to be able to live decently above the poverty line and be able to have the ability to save.

We are also concerned by reports of state-led intimidation and violence against protesting workers. As Nazma Akter, a trade union leader and founder of Awaj Foundation explains, ‘demonstrators are being depicted as criminals, even though “small” rocks and brick chips are no match for rubber bullets and tear gas’. This use of force against protesters violates workers’ right to collectively bargain  and forecloses any opportunity for social dialogue. 

This is also an issue that disproportionately impacts women as 60 percent of the ready-made garment (RMG) industry workers are women. Women are confined in low wages jobs and are often forced to work overtime. This results in a double burden due lack of sleep, rest, nutrition and time poverty. 

Solidarity from other women workers of the Global majority is pouring from across the border in support of Bangladeshi workers’ demand for higher minimum wages. Filipino Women Workers of the Kilusan ng Manggagawang Kababaihan (KMK) have expressed their support Bangladeshi workers’ demand for higher wages and improved working conditions. Similar support has been voiced from garment workers and unions from Sri Lanka, states of Karnataka and Andhra Pradesh in India, all of whom are battling similar historic struggles, but silos are cracking.

Joining the wave of international solidarity and demand for workers’ rights, GAATW urges 

  1. The Government of Bangladesh to stop the state violence and respond to the workers’ demands rather than portraying them as threats.
  2. The Government of Bangladesh , the wage board and the BGMEA to institute the minimum living wage of Tk 23,000 for gament sector workers.  This will set  an example for other exporting industries and countries and respect workers’ right to fair wage.
  3. The international clothing brands to show their solidarity and adopt a  rights-based approach instead of competing for the lowest price.
  4. All the CSOs working for the rights of workers, irrespective of sector and immigration status, to continue to support this struggle by sharing information and expressing solidarity.

A message from Nazma Akhter, the founder and Executive Director of Awaj Foundation, a GAATW member in Bangladesh:

"The authorities are clamping down on workers the only way they know how: through violence. Workers are coming out in their thousands and that terrifies them. We are a powerful pack and collectively we are stronger than they think. Till Now four workers have been killed brutally from police fire & attack of local goons named Rasel, Imran, Anjuman & Jalaluddin. The women workers are the worst victims of brutality of police & local goons-apart from sexual harassment they suffered from all types of violence, they there beaten up, stick charged, been thrown rubber bullets & tear gas. Even the pregnant workers were not spared from the brutality. As the protest escalates, the death toll rises everyday along with thousands of severely injured workers. The workers are being arrested everyday, rendered jobless, charged with legal cases and blacklisted. Sometimes the police in civil dress are roaming in the workers’ area and they are threatening the workers to leave their areas.

The declared monthly minimum wage, 12500 Taka (USD 113) is not acceptable and its a mockery to the workers. They deserve a fair share of the wages and I am asking the Government and Prime Minister to reconsider the declared wage to 23000 Taka (USD 209). Hungry workers will not produce profit. The garment workers whose blood and sweat goes into making profit of the largest brands of the world, reports says that 93% of the brands don't pay the workers their living wage. The brand's fair purchasing practice will also be a key factor when it comes to ensuring working rights, freedom of association, freedom of movement and freedom of expression."

Other solidarity statements to read
Asia Floor Wage Alliance’s statement: Statement by the Garment Workers Alliance Supporting Bangladeshi Workers’ Demand for a Minimum Wage of Tk 23,000

IndustriALL Global Union’s statement: Unions in Bangladesh demand revision of new minimum wage 

APWLD’ statement: Hands off 11,000 Workers in Bangladesh, There are No Such Things as Illegal Strikes 

SIGNATORIES 

  1. Animus Association Foundation, Bulgaria
  2. Fundación Libera, Chile
  3. Corporación Espacios de Mujer, Colombia
  4. Fundación Renacer, Colombia
  5. ECPAT, Guatemala
  6. Comité Permanente por la Defensa de los Derechos Humanos (CDH), Ecuador
  7. Ibiss-co, Brazil
  8. Association for Community Development (ACD), Bangladesh
  9. MIST, France
  10. FIZ, Switzerland
  11. La Strada, Macedonia
  12. Novi Put, Bosnia and Herzegovina
  13. ASTRA – Antitrafficking Action, Serbia
  14. Ban Ying, Germany
  15. Legal Support for Children and Women (LSCW), Cambodia
  16. La Strada International
  17. La Strada, Ukraine
  18. European Sex Worker Rights Alliance - ESWA
  19. Pakistan Rural Workers Social Welfare Organization (PRWSWO), Pakistan
  20. National Workers Welfare Trust, India
  21. Telangana Domestic Workers Union, India
  22. Andhra Domestic Workers Union, India
  23. Just Economy and Labor Institute (JELI), Thailand
  24. Brigada Callejera de Apoyo a la Mujer, E.M. A.C, México
  25. AMKAS, Nepal
  26. Rights Jessore, Bangladesh
  27. FairWork, The Netherlands
  28. La Strada, Moldova
  29. GAATW, Canada
  30. Public Union "Clean World " Aid to Women (PUCW), Azerbaijan
  31. Serra-Schönthal Foundation, Spain
  32. Comitato per i Diritti Civili delle Prostitute APS, Italy
  33. Human Resource Development Foundation, Turkiye
  34. Bangladesh Nari Sramik Kendra (BNSK), Bangladesh