Directive 2011/36/EU on Combating Trafficking in Human Beings
| Published date | 01 December 2016 |
| Author | Elisavet Symeonidou-Kastanidou |
| Date | 01 December 2016 |
| DOI | 10.1177/203228441600700406 |
| Subject Matter | Article |
New Journal of Eu ropean Crimina l Law, Vol. 7, Issue 4, 2016 465
DIRECTIVE 2011/36/EU ON COMBATING
TRAFFICKING IN HUMAN BEINGS
Fundamental Choices and
Problems of Implementation
E S-K*
ABSTRACT
Directive 2011/36/ΕU constituted a very important step towards a “holi stic” tackling of
human tra cking in the European Union, incorporating provisions not only for the
criminalisation and prosecution of tra cking, but also for victim protection and crime
prevention. Nonetheless, many proble ms still exist with regard to the content or the
implementation of these provisions, which seem to prevent or limit their e ective
application. erefore, a er presenting the main changes that Directive 2011/36/EU
introduced in the institutional framework to address human tra cking, an e ort is
made in this study both to identify these problems and to present speci c proposals for
their confrontation in view of the Commis sion’s plans to develop a new post-2016 anti-
tra cking Strategy.
1. INTRODUCTION
e phenomenon of tra cking in human beings has concerned the EU institutions
since the mid-1990s. e initial choices about the way it should be addressed by
member states were re ected in the Joint Action 97/154/JHA1 and, later, in the
Framework Decision 2002/629/JHA.2 Both lega l instruments presented criminal law
as the key means for addressi ng the problem. eir major purpose was the
criminal isation of acts aimi ng at labour and sexual exploitation, the imposition of
sanctions on the legal entit ies involved, the expansion of national jur isdiction
* Professor of Crim inal Law, Aristotle Uni versity of essa loniki.
1 Joint Action 97/154/JHA “on combat ing human tra cking a nd the sexual e xploitation of childre n”,
OJ L 063/ 4. 3. 1997, p.2.
2 Framework Decision 2 002/629/JHA “on combating huma n tra cking”, OJ L 203/ 1.8.20 02, p.1.
Elisavet Syme onidou-Kastanidou
466 Intersentia
regarding these act s and, nally, the judicial cooperation between member states, so
that no such acts remain unpun ished.3
e results, however, in terms of restricti ng the phenomenon, were not satisfactory.
Victims of tra cking were growing in numbers, partly because of the increase in
migratory ows4, and new forms of exploitation began to concern t he international
community, while the number of convic tions at European level was shrinki ng.5
In this context, Directive 2011/36/EU
6 was adopted a er a long period of
discussions, which, as stated in its Preamble
7, envisaged for the rst time “an
integrated, holistic and human rights based approach to the ght against t ra cking in
human beings”.8 Indeed, with this Directive, the European legislator is not limited
to the adoption of measures of a strictly punitive character – which nonetheless still
hold a prominent place – but also adopts a noteworthy number of provisions for the
early identi cation and support of vict ims of tra c king and for the prevention of this
crime.9
3 See the relevant a nalysis in E. Symeonidou-Kas tanidou, Human Tra cking in the international
context and its cr iminal tr eatment in Greek Law [i n Gree k], Honorary Volume for L. Kot siris,
Aristotle Unive rsity of essalonik i, 2004, p.1063 et.seq.
4 e International L abour Organisa tion estimated in Ju ne 2012 that the number of vict ims of forced
labour, including se xual exploitation, wa s 20.9 million worldwid e, while tra cking in children was
estimated at 5. 5 million (Internationa l Labour Organisa tion, “ILO 2012 Global estim ates of forced
labour, June 2012”). It is worth mention ing that the corres ponding estimate s from May 2006 placed
the gure of victims of t ra cking worldwide at 13 m illion. In the European Union , according to
data by Eurostat for t he years 2008 – 2010, 23.632 vic tims of tra cking were regist ered, while in the
three years f rom 2010 to 2012, the number reached 30.146 persons (see Com mission Sta Worki ng
Document, Mid-ter m report on the implementation of the EU s trategy towards the er adication of
tra cking in human be ings, 17.10.2014, SWD (2014) 318 nal, p.3). It should be noted that the
gures refer only to persons who h ave been identi ed as victims by th e competent authorities and
not to all vict ims of tra cki ng, whose real number rema ins unknown.
5 Based on informat ion by Eurostat (Statist ical Working Paper on Tra cking in Hum an Beings,
2015), during the thre e-year period of 2010 – 2012, 8.805 people were prose cuted for tra cking in
all Europea n Union states that cou ld o er data, and there were on ly 3.855 convictions for t his crime.
According to data pre sented in 2012 by the Com mission (see Communic ation from the Com mission
to the European Pa rliament, the Council, t he European Economic and Soc ial Committee and the
Committee of t he Regions of 19.6.2012, COM (2012) 286 nal, p.11), the number of convict ions for
human tr a ck ing in the Euro pean Union fell from 1.534 i n 2008, to 1.445 i n 2009 and 1.144 in 2010.
6 OJ L 101/ 15.4.2011, p.1.
7 See Recital 7 of Di rective 2011/36/ΕU.
8 V. M its ile gas , e Crimi nalisation of Migration i n Europe: Challenges for Human R ights and the
Rule of Law, Springer, 2015, pp. 49 – 51.
9 It should however be noted that t his “holistic approa ch” to human tra cking, although enshrined
in a legally bind ing document for member st ates for the rst time, which therefore ha s obvious
value, can b e identi ed in many EU policy documents si nce the 90s. (See for e xample the rst
Commission Com munication to the Cou ncil and the Europe an Parliament on tra cking in human
beings, November 20 , 1996, and the s econd Communication of the Comm ission on December 9,
1999. See also Bru ssels Declarat ion of 2002, which wa s adopted by the Europea n Council in its
conclusions of 8 May 2003 (OJ C 137/ 12.6.2003, p. 1)). is approach, moreover, is considered
international ly as the only way to en sure the e ective management of human tra ck ing (see
indicatively T. Obo kat a, Tra ck ing of Human Beings from a Hum an Rights Perspect ive: Towards
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