Sharon Keogan (Independent) | Oireachtas source

I move amendment No. 5:

In page 18, to delete lines 30 to 35 and substitute following: "27. (1) A person who is believed, or may be, a victim of human trafficking can obtain consideration to obtain support and recognition offered under the EU Directive by reporting their human trafficking to the state of any of the trusted partners. Where An Garda Síochána or the DPP determine a crime reported amounts to human trafficking, whether or not the person requests support under the EU Directive, the crime against them will be recorded. In all cases reported to the State, an investigation will occur.".

The proposed wording for section 27 is countered in the first US TIP report recommendations and creates an unacceptable barrier for victims of human trafficking. The TIP report highlights the need for the proactive identification of victims. This follows the international framework of the EU directive and the Council of Europe Convention on Human Trafficking. In these frameworks, it is made clear that an investigation should be conducted even without a victim's co-operation. This is due to the serious nature of the crimes, the link to the ECHR and the duty placed on states under international instruments. The European Court of Human Rights ruled on the serious nature of human trafficking in the case of Rantsev v. Cyprus and Russia, application No. 25965/04, 10 October 2010:

General Principles and Considerations

In the first place, the Court held that trafficking in human beings as internationally defined falls within the scope of art. 4 of the Convention, although the latter explicitly prohibits only slavery, servitude and forced labour.

In this respect, the Court reiterated that it has never considered the provisions of the Convention as the sole framework of reference for the interpretation of the rights and freedoms enshrined therein (Demir and Baykara v. Turkey), and that due consideration must be given to the whole international legal framework, as provided by the Vienna Convention rules of interpretation.

In addition, the Court emphasised that the object and purpose of the Convention to protect human rights, requires it to be interpreted in a practical and effective way ... in the light of present-day conditions.

Finally, the Court observed that trafficking in human beings by its very nature threatens human dignity and the fundamental freedoms of its victims, and cannot be considered compatible [with] the values expounded in the Convention.

In light of the foregoing, the Court concluded that trafficking is per se prohibited by art. 4 of the Convention.

Section 27(1) states:

A person who believes that he or she is, or may be, a victim of human trafficking may make an application (in this Part referred to as an "application") in accordance with this section to be identified, in accordance with this Part, as a victim of human trafficking to—

Taking the court's ruling and the international instruments into account, it is abundantly clear from section 27(1) that international instruments and the court expect states to introduce legislation that proactively identifies victims and provides support measures irrespective of their co-operation with the state. In addition, an investigation should be conducted even if the victim does not co-operate with the authorities. While this may limit the ability to investigate, there still remain duties. In many cases, there will be evidential leads and opportunities to investigate without the victim co-operating. This is a model adopted for gangland shootings or assaults, domestic abuse and other crimes where victims may be reluctant or so traumatised that their co-operation, especially in the initial stages, is unlikely. The current position on a victim making an application is morally wrong and contrary to legislation and the European Court's determination.The question this raises is what happens if the Garda, the HSE or any statutory agency, or a trusted partner, identified a case of human trafficking. Under the proposed legislation, an adult victim will need to make an application. There are some exceptions where a third party can assist. The process of being recognised as a victim of human trafficking is legislated in a way that other international protections are offered, primarily associated with migration. Human trafficking involves a victim of serious crime and while many people are foreign nationals, people of all nations, including EU and Irish nationals, can be trafficked.