Preliminary Results Comparative study on trafficking in persons in Central America Developments and challenges.

Preliminary Results Comparative study on

trafficking in persons in Central America

Developments and challengesDevelopments and challenges

Historical background – Historical background – trafficking in persons definition trafficking in persons definition

Linked to slavery Linked to slavery ““The slave trade includes all acts involved in the The slave trade includes all acts involved in the

capture, acquisition or disposal of a person with capture, acquisition or disposal of a person with intent to reduce him to slavery; all acts involved intent to reduce him to slavery; all acts involved in the acquisition of a slave with a view to selling in the acquisition of a slave with a view to selling or exchanging him; all acts of disposal by sale or or exchanging him; all acts of disposal by sale or exchange of a slave acquired with a view to exchange of a slave acquired with a view to being sold or exchanged, and, in general, every being sold or exchanged, and, in general, every act of trade or transport in slaves.” act of trade or transport in slaves.” (Art. 1.2 (Art. 1.2 Slavery Convention, 1926)Slavery Convention, 1926)

Historical background –Historical background – trafficking in persons definition trafficking in persons definition

Linked to sexual exploitationLinked to sexual exploitation ““Article 1. Article 1. The Parties to the present Convention The Parties to the present Convention

agree to punish any person who, to gratify the agree to punish any person who, to gratify the passions of another: passions of another: (1) Procures, entices or leads away, for purposes (1) Procures, entices or leads away, for purposes of prostitution, another person, even with the of prostitution, another person, even with the consent of that person; consent of that person; (2) Exploits the prostitution of another person, (2) Exploits the prostitution of another person, even with the consent of that person.even with the consent of that person.

((Convention for the Suppression of the Traffic inConvention for the Suppression of the Traffic inPersons and of the Exploitation of the prostitution ofPersons and of the Exploitation of the prostitution ofOthersOthers , 1949), 1949)

Trafficking in Persons Protocol Trafficking in Persons Protocol definition definition (2000)(2000)

““Trafficking in persons” shall mean the Trafficking in persons” shall mean the recruitment,recruitment,transportation, transfer, harbouring or receipttransportation, transfer, harbouring or receipt of of personspersons, by means of the threat or use of force or other , by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of theforms of coercion, of abduction, of fraud, of deception, of theabuse of power or of a position of vulnerability or of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, consent of a person having control over another person, for for the purpose of exploitationthe purpose of exploitation. Exploitation shall include, at . Exploitation shall include, at

a a minimum, the exploitation of the prostitution of others or minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the slavery or practices similar to slavery, servitude or the

removal removal of organs of organs (Art. 3a) (Art. 3a)

Elements of the criminal activityElements of the criminal activityCriminal activity

- Recruitment- Transportation, transfer- Harbouring, receipt

Persons

Coercive methods

- Threat- Use of force or coercion- Abduction- Fraud- Deception- Abuse of power - Position of vulnerability- Giving or receiving of payments and benefits- Exploitation of the prostitution of others or other

forms of sexual exploitation- Forced labour or services- Slavery or practices similar to slavery- Servitude - Removal of organs

Purposes of exploitation

Does not apply to

people under 18

Important aspects of the Trafficking Important aspects of the Trafficking in Persons Protocol definitionin Persons Protocol definition

Object of protection: life, personal integrity, Object of protection: life, personal integrity, liberty, etc.liberty, etc.

Coercive methods: ample Coercive methods: ample Methods are irrelevant for persons under 18 Methods are irrelevant for persons under 18 Trafficking may be internal and Trafficking may be internal and

transnationaltransnational Does not provide an exhaustive list of what Does not provide an exhaustive list of what

exploitation encompassesexploitation encompasses - “at a minimum” - “at a minimum” ““Exploitation” is not definedExploitation” is not defined

Smuggling of migrants – definition Smuggling of migrants – definition (2000) (2000)

"the procurement, in order to obtain, directly or indirectly, a financial or other material benefit, of the illegal entry of a person into a State Party of which the person is not a national or a permanent resident". (Art. 3a, Protocol)

Migration and Smuggling of Migrants…

Border crossing ► Illegal: Not complying with legal requirements (e.g. crossing thru unauthorized posts, without necessary documentation or by using false documents, etc.)

Passive actor: Migrants Action performed by: Smuggler Criminal activity: procurement of the illegal

entry of a person for a determined price for a determined price

Intention: obtaining, directly or indirectly, a financial or material benefit

Relation between smuggler and migrant usually ends at the time of illegally crossing from one country to another.

Differences and Similarities between Differences and Similarities between trafficking in persons and smuggling of trafficking in persons and smuggling of

migrantsmigrants

“consent”

Use of false documents

Merchandise: movement, illegal crossing

Crime against the State

Illegal crossing of international border

Commercial operation w/human beings

Organized crime groups

Legal or illegal entry

FOR EXPLOITATION PURPOSES

RESTRICTION OF PERSONAL MOVEMENT

DECEIT OR COERCION

INVOLUNTARY

DIFFICUL TO PROVE OR CORROBORATE

Merchandise: person

Crime against the individual

INTERNAL OR TRANSNATIONAL

SMUGGLING OF MIGRANTS TRAFFICKING IN PERSONS

National amendments: National amendments: TRAFFICKING IN PERSONSTRAFFICKING IN PERSONS

Costa RicaCosta Rica: Law against the Sexual Exploitation of : Law against the Sexual Exploitation of Underage Persons , Nº 7899, August 3, 1999 amends Underage Persons , Nº 7899, August 3, 1999 amends Criminal CodeCriminal Code

El SalvadorEl Salvador: Decree Nº 210, November 23, 2003 : Decree Nº 210, November 23, 2003 amends amends Criminal Code Criminal Code

Panama:Panama: Law, March 16, 2004, regulates aspects of Law, March 16, 2004, regulates aspects of prevention, includes new provisions of crimes against prevention, includes new provisions of crimes against personal integrity and sexual liberty; amends personal integrity and sexual liberty; amends Criminal Criminal CodeCode

GuatemalaGuatemala: Decree Nº 14-2005, amends : Decree Nº 14-2005, amends Criminal CodeCriminal Code HondurasHonduras: Decree Nº 234-2005, August 30, 2005, : Decree Nº 234-2005, August 30, 2005,

amends amends Criminal CodeCriminal Code, Title II “Crimes against sexual , Title II “Crimes against sexual liberty and honesty”.liberty and honesty”.

Nicaragua: Nicaragua: Criminal CodeCriminal Code, 1974., 1974. Project to Project to reform/amend the Criminal Code (presently in revision reform/amend the Criminal Code (presently in revision by Legislative Commission)by Legislative Commission)

CharacteristicsCharacteristicsCountryCountry Criminal activityCriminal activity MethodsMethods PurposesPurposes Under…Under…El El SalvadorSalvador

(Art. 367-(Art. 367-B)B)

With the intention of With the intention of obtaining economic obtaining economic benefit, benefit, transports, transports, removes, accepts or removes, accepts or receives personsreceives persons, , both within and both within and outside theoutside the

national territorynational territory

Sexual Sexual exploitation, exploitation, forced work or forced work or services, services, practices similar practices similar to slavery, to slavery, removal or removal or organs, organs, fraudulent fraudulent adoptions, forced adoptions, forced marriagesmarriages

Crimes Crimes against against humanity humanity Single Single chapter: chapter: GenocideGenocide

GuatemalGuatemalaa

(Art. 194 (Art. 194 CC)CC)

Promotes, induces, Promotes, induces, facilitatesfacilitates, , finances, finances, collaboratescollaborates or or participatesparticipates in the in the recruitment, recruitment, transport, transfer, transport, transfer, harboring, or harboring, or receptionreception

(It does not specify if (It does not specify if it applies to internal it applies to internal or transnational or transnational trafficking)trafficking)

Threat, use of Threat, use of force or other force or other forms or forms or coercion, coercion, abduction, abduction, fraud, deceit, fraud, deceit, abuse of abuse of power, power, kidnappingkidnapping, , vulnerability vulnerability situation, situation, giving or giving or receiving receiving payment or payment or benefitsbenefits

Exploitation, Exploitation, prostitution, prostitution, pornography, any pornography, any form of sexual form of sexual exploitation, exploitation, begging, forced begging, forced labor or services, labor or services, forced marriages, forced marriages, irregular irregular adoptions, adoptions, slavery or slavery or practices similar practices similar to slaveryto slavery

Crimes Crimes against against honesty/honesty/

ChastityChastity

CharacteristicsCharacteristicsCountryCountry Criminal Criminal

activityactivityMethodsMethods PurposesPurposes Under…Under…

Costa RicaCosta Rica

(Art. 172 (Art. 172 CC)CC)

““promotes, promotes, facilitates, or facilitates, or favours the favours the entry or entry or exitexit of a person into of a person into and out of the and out of the

country”.country”.

Penalty is Penalty is increased if increased if under 18, if under 18, if deceit, violence, deceit, violence, abuse of abuse of authority authority position of position of vulnerability, vulnerability, other means of other means of coercion are coercion are used, if abuse of used, if abuse of relation of trust relation of trust or kinship with or kinship with the victim or the victim or family, family, regardless of regardless of blood relationblood relation (Art. 170.2)(Art. 170.2)

Labour or sexual Labour or sexual servitudeservitude

Sexual Sexual crimescrimes

HondurasHonduras

(Art. 149 (Art. 149 CC)CC)

Facilitates, promotes Facilitates, promotes or performs the or performs the recruiting, transport, recruiting, transport, transfer, handing-in, transfer, handing-in, harboring, or harboring, or receiving of persons receiving of persons within and outside within and outside the national bordersthe national borders

Penalty is Penalty is increased if the increased if the use of force, use of force, intimidation, intimidation, deceit or a deceit or a promise of work promise of work takes placetakes place

Commercial sexual Commercial sexual exploitation exploitation ((prostitutionprostitution) )

Art. 154-A: CSE Art. 154-A: CSE →→ the use of persons the use of persons in activities for in activities for sexual purposes, in sexual purposes, in exchange of a exchange of a payment, or a payment, or a promise of promise of payment for the payment for the victim or a 3victim or a 3rdrd person that makes person that makes profit out of profit out of him/her.him/her.

Crimes Crimes against the against the liberty, liberty, physical, physical, psychological psychological and sexual and sexual integrity of integrity of persons. persons. Crimes Crimes against against sexual sexual exploitationexploitation

CharacteristicsCharacteristicsCountryCountry Criminal actionCriminal action MethodsMethods PurposesPurposes Under…Under…

PanamaPanama

(Art. 231 y (Art. 231 y 231-A CC)231-A CC)

231. Promotes or 231. Promotes or facilitates in any facilitates in any way the way the entrance or entrance or exitexit of a person of of a person of any sex 231-A. any sex 231-A. Promotes, favors, Promotes, favors, facilitates or facilitates or performs the performs the abduction, abduction, transport, transfer, transport, transfer, harboring or harboring or reception of reception of underage persons underage persons within or outside of within or outside of the national bordersthe national borders

Sexual exploitation or Sexual exploitation or maintaining in sexual maintaining in sexual servitudeservitude

Crimes Crimes against against chastity/chastity/

honesty and honesty and sexual sexual libertyliberty

NicaraguaNicaragua

(Art. 182 (Art. 182 Project CC)Project CC)

Promotes, Promotes, facilitates, induces, facilitates, induces, or performs the or performs the recruitment, recruitment, abduction, hiring, abduction, hiring, transport, transfer, transport, transfer, retention, harboring retention, harboring or receipt of or receipt of persons, persons, within or within or outside national outside national bordersborders

Abuse of Abuse of power, power, threats, threats, promises, or promises, or deceitdeceit

Slavery or sexual Slavery or sexual exploitationexploitation

Crimes Crimes against against liberty and liberty and sexual sexual integrityintegrity

LimitationsLimitations Not all Criminal Codes have adopted the Trafficking in Not all Criminal Codes have adopted the Trafficking in

Persons Protocol definitionPersons Protocol definition Amendments are different amongst each other Amendments are different amongst each other

Only El Salvador classifies trafficking as a crime Only El Salvador classifies trafficking as a crime against humanity against humanity

Other countries classify it as a sexual crime (Costa Other countries classify it as a sexual crime (Costa Rica, Honduras, Nicaragua)Rica, Honduras, Nicaragua)

Still some countries classify it as a crime against Still some countries classify it as a crime against chastity/honesty and good customs (Guatemala, chastity/honesty and good customs (Guatemala, Panamá)Panamá)

Not all countries regulate internal trafficking (Costa Not all countries regulate internal trafficking (Costa Rica, Panama-only for underage persons, Rica, Panama-only for underage persons, Guatemala?)Guatemala?)

Complex to prove Complex to prove

LimitationsLimitations ApplicationApplication: lack of knowledge/understanding : lack of knowledge/understanding

of the scope of the trafficking definition:of the scope of the trafficking definition:……The criminal court makes an “ample” interpretation of The criminal court makes an “ample” interpretation of

the conducts the conducts “to promote and facilitate”“to promote and facilitate” and and therefore includes the participation of the accused therefore includes the participation of the accused which consisted in picking up the victims at the airport: which consisted in picking up the victims at the airport: “… these “… these aspects are not sufficient to prove the aspects are not sufficient to prove the criminal activity, least its criminal activity, least its primary participationprimary participation, , as estimated by the initial sentence. It is not grounded as estimated by the initial sentence. It is not grounded why the fact that the accused picked up the victims at why the fact that the accused picked up the victims at the airport constitutes a form of facilitating and the airport constitutes a form of facilitating and promoting their entry into the country, since it does promoting their entry into the country, since it does not sustain in which way xxx participated in an not sustain in which way xxx participated in an active way in any previous diligence, which active way in any previous diligence, which precisely allowed the entry precisely allowed the entry of these youngsters into of these youngsters into the country …”the country …” (CR Sala Tercera, 2002-930) (CR Sala Tercera, 2002-930)

Procedural aspectsProcedural aspects Victims of trafficking should be exempted from criminal Victims of trafficking should be exempted from criminal

responsibility (Art. 19, Law 16-2004, Panama)responsibility (Art. 19, Law 16-2004, Panama)

“ “ The migrant that has entered Costa Rican territory without The migrant that has entered Costa Rican territory without complying with the legal provisions that regulate its entry complying with the legal provisions that regulate its entry and that finds itself in an irregular situation in the country, and that finds itself in an irregular situation in the country, without documentation or with irregular documentation, for without documentation or with irregular documentation, for having been victim, offended or witness of an act of illegal having been victim, offended or witness of an act of illegal smuggling of human beings, illegal immigration or sexual smuggling of human beings, illegal immigration or sexual exploitation, exploitation, may be exempted from administrative responsibility and will not be expelled nor deported, if he/she denounces to the immigration authorities the authors or cooperators of this smuggling, or if he/she cooperates with the competent police staff, by bringing them essential data or testifying, in their case, in the corresponding process taken against the authors. It will be a decision of the Migration It will be a decision of the Migration Directorate to afford this benefit, and in exchange, it Directorate to afford this benefit, and in exchange, it will procure that these persons be repatriatedwill procure that these persons be repatriated”” (Art. (Art. 247 Migration law, CR247 Migration law, CR) )

Limitations Limitations

UN Recommended Guidelines and Principles UN Recommended Guidelines and Principles on Human Rights and Trafficking in Personson Human Rights and Trafficking in Persons

(6, 8 y 9)(6, 8 y 9)

““the protection and adequate psychological the protection and adequate psychological and physical care of victims, as well as the and physical care of victims, as well as the

provision of adequate shelter for these provision of adequate shelter for these persons, must not be contingent upon their persons, must not be contingent upon their

participation or cooperation in investigations participation or cooperation in investigations or legal proceedings against traffickersor legal proceedings against traffickers ” ”

Procedural aspects, Procedural aspects, Migration role? Migration role?

Special protection to victims Special protection to victims (witnesses)(witnesses) To guarantee that it is not re-captured To guarantee that it is not re-captured

(Art. 18, Law 16-2004, Panama)(Art. 18, Law 16-2004, Panama)

Protection against threats, reprisals or Protection against threats, reprisals or intimidation intimidation (Art. 18, Law 16-2004, Panama; Art. 110 CPP-N; (Art. 18, Law 16-2004, Panama; Art. 110 CPP-N; M-Laey Organized Crime)M-Laey Organized Crime)

Not to diffuse its image or to reveal Not to diffuse its image or to reveal information about protected persons information about protected persons (ES- D (ES- D 1031, 2006; ES-CPP 13; H-CPP 237)1031, 2006; ES-CPP 13; H-CPP 237)

► ► Special shelters? Special shelters?

¿¿Migration permits?Migration permits?

DocumentationDocumentation Temporary permit? Temporary permit? Special visas? Humanitarian reasons?Special visas? Humanitarian reasons? Permanent residence?Permanent residence?

US - In determined cases, and if the victim meets the requirements imposed by the law, those victims who have continuously remained in the US for more than 3 years, and would experience hardship (as defined by the TVPA) if removed from this country, may be granted a permanent residency in the United States.

Related instrumentsRelated instruments

Memoranda of understanding Memoranda of understanding Between Guatemala & Mexico for the Between Guatemala & Mexico for the

protection of women and underage victims of protection of women and underage victims of trafficking in persons and smuggling of trafficking in persons and smuggling of migrants in the border Guatemala-Mexico migrants in the border Guatemala-Mexico (23/3/2004)(23/3/2004)

Between Guatemala & U.S. for establishing a Between Guatemala & U.S. for establishing a cooperation framework in prevention, control, cooperation framework in prevention, control, and sanction of activities related to trafficking and sanction of activities related to trafficking in persons (2/11/2004)in persons (2/11/2004)

Between Guatemala & El Salvador for the Between Guatemala & El Salvador for the protection of victims of trafficking in persons protection of victims of trafficking in persons and smuggling of migrants (18/08/2005)and smuggling of migrants (18/08/2005)

Related instrumentsRelated instruments

Protocols for the repatriation of Protocols for the repatriation of trafficking victims trafficking victims

Regional guidelines for the special Regional guidelines for the special protection in cases of repatriation of protection in cases of repatriation of unaccompanied minors victims of unaccompanied minors victims of trafficking trafficking

Protocols or national manuals Protocols or national manuals