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Trainer Daniela Gorbounova

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Trainer Daniela Gorbounova

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  1. Brief overview of universal, regional and European standards on trafficking in human beings and the protection of victims. ECtHR case lawFinanced by the Justice Programme of the European UnionThis publication has been produced with the financial support of the Justice Programme of the European Union. The contents of this publication are the sole responsibility of the author and can in no way be taken to reflect the views of the European CommissionTRAINING IN BULGARIA, 6 NOVEMBER 2017 Trainer Daniela Gorbounova

  2. International legal acts • United Nations Convention Against Transnational Organized Crime, adopted in New York on 15 November 2000 • Protocol on the Prevention, Counteraction and Punishment of Trafficking in Persons, Especially Women and Children / complements the UN Convention / - Palermo Protocol - in force for Bulgaria since 25.12.2003 • - a major international instrument that for the first time assigns by definition trafficking in human beings a legally binding feature agreed on an international scale.- The Convention and its Additional Protocols are primarily enforcement tools that promote cross-border cooperation between governments and ensure an adequate legal framework that addresses these crimes in all countries.- in force for Bulgaria / SG 98 / 08.12.2005 /- in force for Romania on 16 October 2002

  3. International legal acts • Convention No 182/1999 on the Prohibition and Abolition of All Forms of Child Labor, adopted on 1 June 1999 in Geneva by the ILO - defines what is meant by the worst forms of child labor, in all forms of slavery or similar practices, such as the sale and trafficking of children, slavery and slavery and forced or forced labor, including forced or compulsory hiring of children for use in armed conflict; use, acquisition or offering of a child for prostitution, production of pornography or pornographic performances; use, acquisition or offering of a child for illegal activities, in particular for the production and trafficking of drugs, as defined in the relevant international treaties; work which, by its nature or under the circumstances in which it is carried out, may harm the health, safety or morals of children.

  4. European legal acts • Council of Europe Convention on Action against Trafficking in Human Beings - adopted on 3 May 2005 - in force for Bulgaria since 18 June 2007- in force for Romania on 11 July 2006- covers all forms of trafficking (national or transnational, whether or not related to organized crime) and covers all types of victims (women, men and children) and all forms of exploitation.- also includes measures to promote partnerships with civil society and to promote international cooperation.- an emphasis on human rights and the protection of victims.- Identifies trafficking as a violation of human rights and a violation of human dignity and integrity.- national authorities should be held accountable if they do not take action to prevent trafficking in human beings, protect victims and effectively investigate cases of trafficking European legal acts

  5. European legal acts • Directive 2011/36 / EU of the European Parliament and of the Council on preventing and combating trafficking in human beings, and protecting victims - introduced in Bulgaria by the Law for Combating Trafficking in Human Beings / 2003 / Recognizes trafficking as a serious violation of human rights and aims to adopt an integrated holistic approach based on human rights. - pays particular attention to issues relating to identification, legal aid and other assistance, the protection, prevention of prosecution of victims and the compensation of victims, including child victims.

  6. European legal acts • Council Directive 2004/81 / EC on the residence permit issued to persons from third countries who are victims of trafficking in human beings or who have been the subject of illegal immigration who cooperate with the competent authorities - provides victims cooperating with the authorities with a period of reflection and temporary residence permit in the course of court proceedings, including material, medical, legal and other assistance, access to education and the labor market, situations that can lead to until withdrawal from the residence permit. - the residence permit must be valid for a period of at least six months with the possibility of renewal under the following conditions: whether it is appropriate to extend that person's residence in the Member State of investigation or judicial proceedings; if the person concerned demonstrates a clear intention to cooperate; if it terminates all ties with alleged perpetrators of acts that might be involved in crimes related to facilitating illegal immigration and trafficking in human beings.

  7. European legal acts • Council Directive 2004/80 / EC on the compensation of victims of crime - introduced in Bulgaria under the Law on Support and Financial Compensation for Victims of Crime / 2006 / - the compensation to be granted in cross-border cases (where the offense was committed in a Member State other than that in which the applicant resides). - Member States must ensure the existence of a national system of compensation for victims of deliberate crimes committed in their territory, as well as compensation for victims must be fair and appropriate.

  8. European legal acts • Directive 2009/52 / EC of the European Parliament and of the Council on minimum standards on sanctions and measures against workers who are illegally staying in third countries - provides for criminal sanctions for exploitative working conditions when the employer knows that the worker is a victim of trafficking or minors. - requires Member States to oblige employers to provide workers with retroactive payments, such as salaries not paid.

  9. European legal acts • Directive 20011/92 / EU of the European Parliament and of the Council on combating the sexual abuse, sexual exploitation of children and child pornography, replacing Council Framework Decision 2004/68 / JHA - establishes minimum rules on the definition of criminal offenses and sanctions related to child sexual abuse and sexual exploitation of children, child pornography and the use of children for sexual purposes. - also introduces provisions to ensure better crime prevention and better protection for victims.

  10. European legal acts • Directive 2012/29 / EU of the European Parliament and of the Council on minimum standards on the rights, support and protection of victims of crime, replacing Council Framework Decision 2001/220 / JHA. - introduced in Bulgaria under the Law on Support and Financial Compensation and Victims of Crime (2007) and the Criminal Procedure Code (2016 and 2017) - covers a wide range of victims' rights, including the right to treatment- protection against threats, protection against persecution and further harm during criminal proceedings, - right of access and easy understanding of information at first contact with the authorities, including in criminal proceedings; - the right to specialized care, the right to compensation of damages, and the right to an individual assessment in order to determine the degree of vulnerability and the taking of special protection measures. - also applies to the rights of the victim's family members.

  11. European legal acts • Directive 2011/99 / EU of the European Parliament and of the Council on the European Protection Order in Criminal Matters - introduced in Bulgaria by the European Protection Order Act (2015) Framework Decision 2008/947 / JHA on the application of the principle of mutual recognition to judgments and probation decisions with a view to the supervision of probation measures and alternative sanctions - introduced in Bulgaria under the Law on the Recognition, Enforcement and Delivery of Judgments and Probation Decisions with a view to Supervision of Probation Measures and Alternative Sanctions / 2012 / Council Framework Decision 2009/829 / JHA on the application of the principle of mutual recognition to decisions on supervision measures as an alternative to pre-trial detention between EU Member States - introduced in Bulgaria under the Law on the Recognition, Enforcement and Delivery of Enforcement Measures, Other than the Measures Requiring Detention (2016)

  12. Identification of victims of trafficking • Definition of trafficked victim - Council of Europe Convention on Action against Trafficking in Human Beings - Anti-Trafficking in Human Beings Act - § 1 Obligation for identification - Article 11 of the Anti Trafficking Convention and Directive 2011/36 / EU -Informal identification by NGOs - Formal identification by the bodies of pre-trial proceedings- National Referral Mechanism protecting the rights of victims of trafficking - a key priority - quick response to accessible support and protection of victims of trafficking - a wide range of specialized services- Multidisciplinary and cross-sectoral approach- Effective regional and international cooperation

  13. Right to help and support • Palermo Protocol - Article 6 Appropriate housing - advice and information, including legal, in plain language - medical, psychological and material assistance - employment, education and training, access of children to education • The Directive on Combating Trafficking in Human Beings – Art.11 - assistance and support from the moment the competent authorities have reasonable grounds to believe that the person may have been trafficked Providing adequate and safe living space, medical care, psychological assistance and counseling and translation

  14. Right to information • Palermo Protocol - Article 6 - advice and information, especially regarding their legal rights, in a language they understand The Directive on the Rights of Victims – Art.4 - about the content of the information at first contact with the authorities - obligation for "competent authorities" - investigating authorities, prosecution, court - Providing information on the basis of special rules of procedure - information on: type of support, organizations, where and how to report the crime, the criminal system - witnesses' obligations, length of the process, rights of the victim, conditions for obtaining the right to protection and legal aid, conditions for foreign nationals

  15. Right of victims of trafficking not to cooperate • Council of Europe Convention on Action against Trafficking in Human Beings -Article 13 - Period of recovery and reflection • - at least 30 days / in Bulgaria - 30 days, in Romania - 90 days / - a sufficient period to recover and release from the influence of the traffickers and / or to decide to cooperate with the competent authorities- during this period, the person can not be expelled- during this period, the actions of the competent authorities in all phases of the relevant proceedings and the investigation of criminal offenses- during this period, victims of trafficking are allowed to reside on the territory of the country • - Directive on residence permits – Art.6

  16. Reflection period in Bulgaria • Law on Combating Trafficking in Human Beings - Art.26 - obligation of pre-trial authoritieswithin one month, declare their consent to cooperate in the detection of the offense - if the victim is a child, the term may be extended to 2 months - the possibility of obtaining special protection status - the special protection status - Article 25 - includes: - granting permission for long-term residence of foreign nationals in the country Continuation of stay in shelters- The prosecutor decides on the request for special protection status- Conditions for Termination of the Special Protection Status – Art.30- If the trafficked person does not wish to cooperate, he does not exempt him from the obligation to participate as a witness

  17. Right of victims of trafficking to participate in criminal proceedings • Directive on the Rights of Victims Ensure that victims of crime can participate in criminal proceedings - to be heard - Provide evidence Be informed of the course of proceedings - be informed about the cessation of proceedings - appeal against court acts Trafficked persons can participate, under Bulgarian law, as "victim", "civil plaintiff", "private prosecutor" at the same time

  18. Right to protection of privacy and physical integrity Council of Europe Convention on Action against Trafficking in Human Beings - Art.30- In the course of court proceedings - right to protection of privacy and identity, if necessary, right to security, protection against intimidation, and for children - special protection measuresThe Directive on the Rights of Victims - Art.18- Measures to protect against victimization, intimidation and revenge, including against the risk of emotional or mental suffering, or for the protection of dignity during interrogation and testimony. The measures also apply to members of the families of victims of trafficking.- Art. 21 - Right to Protection of Privacy- States shall ensure that they can take appropriate measures to protect privacy, including the personal characteristics of the victim and of the images of the victims and their family membersPalermo Protocol – Art.6 - Protection of personality and identity, including by taking confidential legal actions

  19. Right to protection of privacy and physical integrity Security measures: - Hearing in closed doors- Isolation and non-admission of the victim to the accused- Video conferencing and video recordings- Keeping the secret of the victim's identity- Keep the confidentiality of victim information- Limit the number of interrogations- Limiting media coverage of the case- Protection of the victim's family- Determining whether the victim has specific needs- Risk Assessment- Protection of the witness

  20. Recent changes in the Bulgarian CPC • Article 139, para 10 of the Criminal Procedure Code - (New, SG No. 63/1917, in force since 05.11.2017) Interrogation of a witness with special protection needs shall be carried out when measures are taken to avoid contact with the accused, including through videoconference or telephone conference, in accordance with the provisions of this Code. • Article 140, para 5 of the Criminal Procedure Code (New, SG No. 109/2008, amended, SG No. 63/1917, in force from 05.11.2017) Interrogation of a minor a witness in the country may be taken to take measures to avoid contact with the accused, including in specially equipped premises or by videoconference. § 1. (4) of the Additional Provisions of the Criminal Procedure Code - (New, SG No. 63/1917, in force since 05.11.2017) "Specific protection needs" within the meaning of this Code exist when additional means of protection against secondary and re-victimization, intimidation and retaliation, emotional or mental suffering, including the preservation of the dignity of the victims during interrogation, are required.

  21. Prohibition of prosecution of victims of trafficking Council of Europe Convention on Action against Trafficking in Human Beings - Art.26Directive on combating trafficking in human beings - Article 8- the principle that trafficked persons should not be prosecuted, detained or punished for crimes committed in connection with trafficking in human beings insofar as they were forced to engage in illegal activities and were trafficked Bulgarian Criminal Code: Art. 16a. (1) (New, SG No. 84 of 2013, former text of Article 16a, SG No. 74/1915) The act committed by a person injured by trafficking in human beings shall not be guilty when it was forced to do so in direct connection with that quality.

  22. Access to legal assistance to victims of trafficking The Palermo Protocol - Art.6The Human Trafficking Directive - Article 12The Directive on the Rights of Victims - Art.13Council of Europe Convention on Action against Trafficking in Human Beings - Art.15- an obligation on States to ensure that victims of trafficking can be afforded legal protection, including information and advice in judicial and pre-trial proceedings in plain language, both in criminal and civil matters In Bulgaria: - Legal Aid Act - Art. 22, para 1, item 7 - Law on Assistance and Financial Compensation to Victims of Crime - Art.6, Para 2

  23. Right to Compensation to Victims of Trafficking - Directive 2011/36 / EU of the European Parliament and of the Council on preventing and combating trafficking in human beings, and protecting victims- Council Directive 2004/80 / EC on the compensation of victims of crime - introduced in Bulgaria under the Act on Support and Financial Compensation for Victims of Crime / 2006 / - Directive 2012/29 / EU of the European Parliament and of the Council on minimum standards on the rights, support and protection of victims of crime, replacing Council Framework Decision 2001/220 / JHA. - introduced in Bulgaria under the Law on Support and Financial Compensation and Victims of Crime (2007) and the Code of Criminal Procedure (2016 and 2017)

  24. European Convention on Human Rights • European Convention on Human Rights and Fundamental Freedoms /04.11. 1950 / - in force for Bulgaria since 07.09.1992 - in force for Romania since 1994Article 2 - Right to lifeArticle 3 - Prohibition of TortureArticle 4 - Prohibition of slavery and forced laborArticle 5 - Right to liberty and security Article 6 - Right to a fair trialArticle 8 - Right to respect for private and family life

  25. Rantsev vs. Cyprus and Russia / № 25965/04 / - Violation of Article 4 of the Convention / Prohibition of Slavery and Forced Labor /- Trafficking in human beings is prohibited in the sense of Article 4 of the Convention- Trafficking in human beings, like slavery, treats human beings as goods to be bought and sold and forced to work forcefully- Cyprus has violated its positive obligations by failing to put in place an appropriate legal and administrative framework to combat trafficking in human beings and the police have not taken operational measures to protect the applicant's daughter, although there was a reasonable suspicion that it may have become victim of trafficking.

  26. C.Z. against Bulgaria / № 29263/12 / Violation of Article 3 of the Convention - Prohibition of inhuman or degrading treatment- Complaint about lack of investigation of two police officers- An organized criminal network for trafficking in women is not being investigated- Ineffective criminal investigation- A recurrent systemic problem of ineffectiveness of prosecution- In more than 45 judgments, the Court found that the authorities did not carry out an effective investigation- Obligates Bulgaria to cooperate with the Committee of Ministers of the Council of Europe- Leading case for the group of cases of ineffective investigation of murders, bodily harm, rape, illegal detention and incitement to prostitution- Amendments to the CPC – 2017

  27. L.E. against Greece / № 71545/ Nigerian citizen forced to prostitute in Greece - officially recognized as a victim of trafficking in human beings for sexual exploitation- 9 months after informing its authorities, this trafficked victim status was granted- Violation of Article 4 of the Convention / Prohibition of Slavery and Forced Labor /- Violation of Article 6 of the Convention / Right to a fair trial within a reasonable time /- Violation of Article 13 of the Convention / Right to an effective remedy/- Ineffective pre-trial and follow-up investigation

  28. L.M. and Others v. Italy and Bulgaria / 40020/03 / - Violation of Article 3 of the Convention / prohibition of inhuman or degrading treatment / - the Italian police have made no attempt to question the persons who have witnessed the events, the criminal proceedings against the offenders have been turned into criminal proceedings against the victim and her mother.- The victim has not been medically examined despite her allegations that she was repeatedly beaten and raped- A "Roma marriage" can not be used as a reason not to investigate a crime- No violation of Article 4 of the Convention / prohibition of slavery or forced labor / - no trafficking in human beings

  29. J. and Others v Austria / No 58216/12 / - Investigation of Austrian authorities on human trafficking accusations of two Filipino nationals for labor exploitation working in the United Arab Emirates - There is no violation of Article 4 of the Convention / Prohibition of Forced Labor / - The role of NGOs LEFO - support and representation in court - There is no violation of Article 3 of the Convention / prohibition of inhuman or degrading treatment / - The complainants turned to the police in Austria one year after the events, even if these events in the Philippines, the United Arab Emirates and Austria were not considered in isolation but related

  30. Thank you for your attention!

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