Preventing and combating trafficking in human beings

KEY POINTS

Definition of exploitation

The directive defines exploitation to 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;
• the exploitation of criminal activities;
• the removal of organs;
• the exploitation of surrogacy, of forced marriage or of illegal adoption.

Offences concerning trafficking in human beings

• Member States must take the necessary measures to ensure that the intentional acts of recruitment, transportation, transfer, harbouring or reception of persons by force for the purpose of exploitation are punishable.
• These acts include the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability¹, or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation.
• The consent of a victim of trafficking in human beings to the exploitation, whether intended or actual, is irrelevant where any of these means have been used.
• Member States must take the necessary measures to ensure that, when it is an intentional act, the use of services provided by a victim of trafficking in human beings constitutes a criminal offence, where the victim is exploited to render such services and the user of the services knows that the person providing the service is a victim of trafficking.

Sanctions

The directive sets the maximum penalty for these offences at at least five years’ imprisonment, and at least 10 years in the case of aggravating circumstances or if the offence, deliberately or by gross negligence, endangered the life of the victim, or:

• was committed against particularly vulnerable victims (such as children);
• was committed by a criminal organisation;
• was committed by use of serious violence or caused particularly serious harm to the victim, including physical or psychological harm.

Member States must introduce measures to ensure that the following, in accordance with relevant provisions of the national law, are regarded as aggravating circumstances:

• the fact that the offence was committed by public officials when performing their duties;
• the fact that the perpetrator facilitated or committed, by means of information and communication technologies, the dissemination of material of a sexual nature involving the victim.

Member States must ensure that legal persons (e.g. a company) are held liable for human trafficking offences committed for their benefit by any person, acting either individually or as part of an organ of that legal person. They must be punishable by effective, proportionate and dissuasive criminal or non-criminal sanctions or measures.

Prosecution

National authorities are entitled not to prosecute or impose penalties on victims of trafficking in human beings for their involvement in criminal or other unlawful activities that they have been compelled to commit as a direct consequence of being subjected to any of exploitative acts listed above.

Member States must ensure that:

• investigation into or prosecution of offences is not dependent on reporting or accusation by a victim, and that criminal proceedings may continue even if the victim has withdrawn their statement;
• those responsible for investigating or prosecuting the offences are trained accordingly and have the necessary investigative tools, expertise and technological capabilities.

For the prosecution of offences committed outside the territory of the Member State concerned, each Member State must ensure its jurisdiction is not subject to either of the following conditions:

• the acts are a criminal offence at the place where they were performed;
• the prosecution can be initiated only following a report made by the victim in the place where the offence was committed, or a denunciation from the state of the place where the offence was committed.

Victim support

Member States must ensure victims are provided with specialised support in a victim-centred, gender-, disability- and child-sensitive approach before, during and after criminal proceedings so that they can exercise the rights conferred on them under the status of victims in criminal proceedings. This assistance may consist of reception in shelters, the provision of medical and psychological assistance or the provision of information services and interpretation, and must not be made conditional on the victim’s willingness to cooperate in the criminal investigation, prosecution or trial. Accommodation should be equipped to accommodate victims with special needs and the specific needs of children, including of child victims.

Member States must also ensure that victims of trafficking can exercise their right to apply for international protection or equivalent national status, including when they are receiving assistance, support and protection as a presumed or identified victim of trafficking in human beings.

Protection of victims of trafficking in human beings in criminal investigation and proceedings

In addition to the rights set out in Directive 2012/29/EU, Member States must ensure that victims of trafficking in human beings have access:

• without delay, to legal counselling and legal representation, provided free of charge where the victim has insufficient financial resources;
• to witness protection programmes or similar measures;
• to specific treatment aimed at preventing secondary victimisation.

Member States are obliged to ensure that victims of trafficking are able to exercise their right to apply for international protection or equivalent national status, including when the victim is receiving assistance, support and protection as a presumed or identified victim of trafficking in human beings.

Member States must also ensure that the procedures for reporting an offence are safe, are carried out in a confidential manner in accordance with national law, are designed and accessible in a child-friendly manner and use language in accordance with the age and maturity of child victims.

National anti-trafficking coordinators or equivalent mechanism and independent bodies and action plans

• Member States must take the necessary measures to establish national anti-trafficking coordinators or equivalent mechanisms and to provide them with the adequate resources necessary to effectively carry out their functions. The national anti-trafficking coordinator or the equivalent mechanism must work with relevant national, regional and local bodies and agencies, particularly law-enforcement authorities, with national referral mechanisms and with relevant civil-society organisations active in this field.
• Member States must, by 15 July 2028, adopt their national anti-trafficking action plans, developed and implemented in consultation with the national anti-trafficking coordinators or equivalent mechanism.
• The EU Anti-trafficking Coordinator (“EU ATC”) must ensure coordination with national anti-trafficking coordinators or equivalent mechanisms, independent bodies, EU agencies and relevant civil-society organisations active in the field, in order to ensure a coherent and comprehensive approach.

Data collection and statistics

Member States must ensure that a system is in place for the recording, production and provision of anonymised statistical data to monitor the effectiveness of their systems to combat offences referred to in this directive.

Prevention

Member States must take steps to:

• discourage the demand that encourages trafficking;
• introduce mechanisms aimed at the early detection and identification of, assistance to and support for identified and presumed victims;
• launch training and awareness campaigns.