NCA Malawi UNTOC TIP Protocol and Legislation October 2011
-
Upload
cridoc-documentation -
Category
Documents
-
view
217 -
download
0
Transcript of NCA Malawi UNTOC TIP Protocol and Legislation October 2011
-
8/2/2019 NCA Malawi UNTOC TIP Protocol and Legislation October 2011
1/24
1
Preventing, suppressing and punishingTrafficking in Persons
Implementing the Protocol on Trafficking in Persons through legislation, policy andpartnerships
Adv Johan Kruger
Regional Project Coordinator & Legal Advisor (SADC): Trafficking in Persons & Violence against WomenUNODC Southern Af rica
Scope of presentation
Scope
United Nations Convention against Transnational
Organized CrimeProtocol on Trafficking in Persons
Key obligations of States Parties
Implementing the Protocol
A strategy framework focusing on national
coordination
UNODC activities
-
8/2/2019 NCA Malawi UNTOC TIP Protocol and Legislation October 2011
2/24
2
UNODC mandate
UN Secretariat
UNODCMandates from GAand ECOSOC (CCPCJ and CND)
Organized crime and trafficking Corruption Criminal justice reform Health and livelihoods Terrorism prevention
Guardian ofUNTOCand ProtocolsTrafficking, Smuggling
and Firearms
Promotes ratification and global adherence
Assists States in implementation
Normative services through development of l egislation,policy and strategies
Technical and legal advice and criminal justice capacity bui ldingand other assistance
Research and analysis
Programmesand projects
United Nations Convention against TransnationalOrganized CrimeAdo ted on 15 November 2000 and entered into force
The Convention
on 29 September 2003 (147 signatories and 162 StatesParties)
Promote international cooperation to prevent andcombat transnational organised crime more effectively
-
8/2/2019 NCA Malawi UNTOC TIP Protocol and Legislation October 2011
3/24
3
United Nations Convention against TransnationalOrganized CrimeSupplemented by three additional Protocols
The Convention
Protocol to Prevent, Suppress and Punish Trafficking inPersons Especially Women and Children
Protocol against the Smuggling of Migrants by Land, Sea andAir
Protocol against the Illicit Manufacturing of and Trafficking inFirearms, their Parts and Components and Ammunition
All four instruments open for signature until 12 December 2002 (thereafter by accession)
United Nations Convention against TransnationalOrganized Crime
The Convention
Requires criminalisation of specific offences
Requires introduction of specific control measures(protection of victims and witnesses)
Provides for forfeiture of proceeds of crime
romo es n erna ona coopera on ex ra on, mu ua
legal assistance and joint investigations)
Provides for training, research and information-sharing
measures
Encourages preventive policies and measures
-
8/2/2019 NCA Malawi UNTOC TIP Protocol and Legislation October 2011
4/24
4
United Nations Convention against TransnationalOrganized Crime
States Parties required to criminalise specific offences
The Convention
Participation in an organised criminal group (Art 5)
Laundering of proceeds of crime (Art 6)
Public sector corruption (Art 8)
Obstruction of justice (Art 23)
Conventional offence or "serious" offence withtransnational aspect involving organised criminal group
United Nations Convention against TransnationalOrganized Crime
The Convention
,
and corruption
Measures to combat money-laundering (Art 7)
Measures against corruption (Art 9)
Liability of legal persons (Art 10)
Confiscation and seizure Art 12 13
Disposal of confiscated proceeds of crime and property (Art
14)
Determination and establishment of jurisdiction (Art 15)
-
8/2/2019 NCA Malawi UNTOC TIP Protocol and Legislation October 2011
5/24
5
United Nations Convention against TransnationalOrganized Crime
The Convention
Extradition (Art 16)
Transfer of sentenced persons (Art 17)
Mutual legal assistance (Art 18)
Joint investigations (Art 19)
S ecial investi ative techni ues Art 20
Transfer of criminal proceedings (Art 21)
Measures to enhance cooperation with law enforcement
authorities (Art 26)
United Nations Convention against TransnationalOrganized Crime
The Convention
Law enforcement cooperation (Art 27)
Collection, exchange and analysis of information on the
nature of organized crime (Art 28)
Training and technical assistance (Art 29)
Establishment of criminal records Art 22
Protection and support of victims and witnesses
Protection of witnesses (Art 24)
Assistance and protection of victims (Art 25)
-
8/2/2019 NCA Malawi UNTOC TIP Protocol and Legislation October 2011
6/24
6
United Nations Convention against TransnationalOrganized Crime
The Convention
Prevention (Art 31)
Administrative provisions
Conference of the Parties to the Convention (Art 32)
Secretariat (Art 33)
Settlement of disputes (Art 35)
Signature, ratification, acceptance, approval and accession
(Art 36)
The Convention and Protocols
Relation between Convention and Protocols
(UNTOC Art 37(2))
Protocols shall be interpreted together with Convention taking
into account purpose of Protocol (UNTOC Art 37(4)) Provisions of Convention shall apply mutatis mutandis to
Protocols (TIPP and SOMP Art 1 )
,
Confiscation and seizure
International cooperation
Extradition
Mutual legal assistance
-
8/2/2019 NCA Malawi UNTOC TIP Protocol and Legislation October 2011
7/24
7
The Convention and Protocols
Relation between Convention and Protocols
regarded as offences established in accordance with Convention
(TIPP Art 1(3))
Convention and Protocol requirements are a minimum standards
domestic measures may be broader in scope or more severe
as long as all obligations specified in Convention and Protocols
have been fulfilled UNTOC Art 34 3
Protocol to Prevent, Suppress and PunishTrafficking in Persons
Protocol on Trafficking in Persons
on 25 December 2003 (117 signatories, 146 States
Parties)
Interpreted and applied in a way that is not
discriminatory to persons on the ground that they are
Does not narrow or diminish rights, obligations or
responsibilities in terms of other international
instruments only supplements (TIPP Art 14)
-
8/2/2019 NCA Malawi UNTOC TIP Protocol and Legislation October 2011
8/24
8
Protocol on Trafficking in Persons
GENERAL
PROVISIONS
PROTECTION OF VICTIMS
OF TRAFFICKING IN
PERSON
PREVENTION
COOPERATION
AND OTHER MEASURES
FINAL
PROVISIONS
STRUCTURE OF THE PROTOCOL
Article 5(2)(a)
Criminalization
Article 7
Status of victims oftrafficking in persons in
receiving States
Article 6
Assistence to and protectionof victims of trafficking in
persons
Article 10
Information exchange and training
Article 9
Prevention of trafficking in persons
Article 8
Repatriation of victims oftrafficking in persons
Article 13
Legitimacy and validity of documents
Article 12
Security and control of documents
Article 11
Border measures
Protocol to Prevent, Suppress and PunishTrafficking in Persons
Protocol on Trafficking in Persons
Prevent and combat human trafficking
Protect and assist victims of trafficking with fullrespect to human rights
Promote cooperation between State Parties
-
8/2/2019 NCA Malawi UNTOC TIP Protocol and Legislation October 2011
9/24
9
Protocol on Trafficking in Persons
Definition of trafficking (Art 3 (a))
[action (what is done):] the recruitment, transportation,
transfer, harbouring, or receipt of persons
[means (how it is done):] by means of the threat or use of
force, coercion, abduction, fraud, deception, abuse of power
or vulnerability, or giving payments or benefits to a person in
[purpose (why it is done):] for the purpose of exploitation,
which includes exploiting the prostitution of others, sexual
exploitation, forced labour, slavery or similar practices, and
the removal of organs.
Protocol on Trafficking in Persons
Definition of trafficking (Art 3 (a))
-
8/2/2019 NCA Malawi UNTOC TIP Protocol and Legislation October 2011
10/24
10
Protocol on Trafficking in Persons
Definition of trafficking /2 (Art 3(b) and(c))
Exploitation shall at minimum include
exp o a on roug pros u on or
other forms of sexual exploitation,
forced labor or services, slavery or
practices similar to slavery, servitude
or removal of organs
Consent of victim irrelevant where illicit
means are es a s eConsent of a child irrelevant (under
age of 18)
Means not required as element in
trafficking of children
Trafficking or Smuggling?
Definition Matrix Trafficking or SmugglingTrafficking in Trafficking in Smuggling of
Victim's age 18 years and above Below 18 years Irrelevant
Mental element Intent Intent Intent
Material element ActMeans
Exploitative purpose
ActExploitative purpose
Act (procurement ofillegal entry)
Purpose (financial orother material benefit)
Consent of
victim
Irrelevant once means
are established
Irrelevant
No need to establish
means
Smuggled persons
consent to be
smuggled
Transnationality Not required Not required Required
Involvement of
organised crime
Not required Not required Not required
-
8/2/2019 NCA Malawi UNTOC TIP Protocol and Legislation October 2011
11/24
11
Trafficking or Smuggling?
Differences between trafficking and smuggling
Consent
Migrants consent to being smuggled, although often in dangerous or
degrading conditions
Trafficking victims never consent or consent is rendered meaningless by
the coercive, deceptive or abusive actions of the traffickers
Exploitation
Smuggling usually ends with arrival of migrants at cross-borderdestination smuggling in principle a crime against the state
Trafficking involves ongoing exploitation of victims to generate illicit
profits for traffickers trafficking in principle a crime against the person
Trafficking or Smuggling?
Differences between trafficking and smuggling
Transnationality
Smuggling always transnational
Trafficking can be domestic or transnational
Subject of criminal activity
Trafficking in principle and primarily crime against the individual
Smuggling in principle and primarily crime against the state
-
8/2/2019 NCA Malawi UNTOC TIP Protocol and Legislation October 2011
12/24
12
Protocol on Trafficking in Persons
Criminalisation (Art 5)
when committed intentionally (Art 5(1))
Criminalise attempt, participation, organizing or
directing others to commit the offence (Art 5(2))
Protocol on Trafficking in Persons
Scope of application (Art 4)
Protocol to cases where at least
one of offences has some element
of "transnationality" and somedegree of involvement of an
"organized criminal group"
These elements should not be
incorporated into national
legislation (UNTOC Article 32 (2))
-
8/2/2019 NCA Malawi UNTOC TIP Protocol and Legislation October 2011
13/24
13
Purpose and scope of the Protocol
Assistance, Protection and Repatriation (Art 6, 7and 8) State Parties shall in terms of domestic laws
Consider measures to protect safety, privacy and identity of victims
Inform the victims about court proceedings
Ensure legal measures to allow victims to seek compensation
Endeavour to provide for physical, psychological and social recovery of
victims
Consider measures to grant temporary or permanent residence
Verify nationality and status
Facilitate and accept return of own nationals and permanent residents
Facilitate repatriation subject to safeguards
Purpose and scope of the Protocol
Prevention (Art 9, 10, 11, 12 and 13)
Implement social and economic measures to address the root
causes of traffickin and smu lin such as overt and lack of
economic opportunities
Undertake public information campaigns
Ensure that commercial carriers check travel documents of
passengers
Enhance the effectiveness of border controls
Improve the security of travel documents
Speed up bilateral cooperation in verifying validity of travel
documents
Train law enforcement, immigration and other relevant officials
-
8/2/2019 NCA Malawi UNTOC TIP Protocol and Legislation October 2011
14/24
14
Purpose and scope of the Protocol
Information Exchange and Cooperation (Art 10 and14)
Cooperate and exchange information with other States
Informal cooperation and information exchange
Information exchange on means and methods
Cooperation between border control agencies
Verification of travel and identity documents
Facilitate confiscation of proceeds of crime, property,
equipment or other instrumentalities of crime
Cooperate with international organizations and NGOs
Obligations of States Parties
Key obligations of States Parties
Criminalization UNTOC Art 5, 6, 8, 23 and 34; TIPP Art 5;
SOMP Art 6
Victim protection UNTOC Art 25; TIPP Art 6; SOMP Art 16)
Investigation
Prosecution, adjudication and sanctions UNTOC Art 11
International cooperation
-
8/2/2019 NCA Malawi UNTOC TIP Protocol and Legislation October 2011
15/24
15
Implementing the Protocol
Implementing the Protocol - a policy framework
Legal basis
Criminalisation
Criminaljustice-driven
Criminal activity
Victim-centred
approach
Human ri hts
Nationalcoordination
andcooperation
Internationalcooperation
andcoordination
Resources
Personnelan a es
Internationalobligations
roac ve
reactiveinvestigations
Prosecution
Re-victimisation
Witnesses
Inter-sectoralapproach
Multi-facettedapproach
HarmonisationMLA, extradition,joint operations
and assetforfeiture
Budget
Structures
Training
Main cross-cutting challenges
Main cross-cutting challenges
Capacity-building and development
Monitoring and evaluation
Allocation of sufficient financial and other resources aconsistent challenge in practical implementation of anti-trafficking in persons activities.
-
8/2/2019 NCA Malawi UNTOC TIP Protocol and Legislation October 2011
16/24
16
Guiding policy principles for addressing thechallenges
-
Guiding principles for addressing the challenges
Principle of non-discrimination
Gender-sensitive approach
Child-rights approach and child participation
International legal framework including UN Trafficking Protocol
Comprehensive international approach
Interdisciplinary, coordinated, integrated approach
Evidence-based approach
Sustainability
Strategy framework
Strategy framework
ProtectionInternational
cooperation andcoordination
ProsecutionNational
coordinationand cooperation
-
8/2/2019 NCA Malawi UNTOC TIP Protocol and Legislation October 2011
17/24
17
Key questions
National coordination and cooperation
Does a mechanism exist for coordinating, monitoring and
evaluating overall anti-human trafficking strategy at national
level?
Is mechanism based on the participation of all relevant
stakeholders, including civil society, private sector, employers
Specific questions
National coordination and cooperation
Is multidisciplinary coordinating group functioning effectively,
including regarding decision-making processes?
Has a national plan of action been adopted?
Is coordination mechanism based on multidisciplinary and
cross-sectoral approach?
Which entities are involved in national response to trafficking
in persons?
Are views of trafficked persons represented in group?
Are anti-trafficking strategy and national action plan
monitored and evaluated on a regular basis?
-
8/2/2019 NCA Malawi UNTOC TIP Protocol and Legislation October 2011
18/24
18
Specific questions
National coordination and cooperation
What are designated tasks of coordination mechanism?
Does coordination mechanism identify needs for training and
capacity building?
In the absence of coordination mechanism, does another
organisation or mechanism such as national human rights
institution monitor national anti-human trafficking actions?Does government provide funding for a coordination
mechanism?
Specific objectives
National coordination and cooperation
Coordinate responses
Respond effectively and appropriately
Ensure formulation of coherent and comprehensive public
policies
Promote cooperation among relevant governmental
institutions, NGOs and civil society
-
8/2/2019 NCA Malawi UNTOC TIP Protocol and Legislation October 2011
19/24
19
Minimum standards
National coordination and cooperation
Coordination of stakeholders involved
Comprehensive and coherent national policies addressing
prevention, protection, and prosecution
Harmonisation of public policies related to trafficking in
persons (crime prevention, migration, employment, health,
security, non-discrimination, economic development andhuman rights and refugee protection etc.)
Cooperation agreements or framework between relevant
government institutions, NGOs and civil society in place
Implementation measures
National coordination and cooperation
Identify and assess all existing policies or measures
Conduct impact assessment of existing policies, strategies
actions and measures
Adopt comprehensive strategy and/or plan of action to
prevent, suppress and prosecute trafficking in persons
Establish multidisciplinary coordination mechanism in charge
of implementing coordinated national response
-
8/2/2019 NCA Malawi UNTOC TIP Protocol and Legislation October 2011
20/24
20
Implementation measures
National coordination and cooperation
Establish system or mechanism of cooperation to exchange
information between law enforcement, immigration and other
relevant authorities (article 10(1) TIP Protocol)
Conduct impact assessment of actions and measures,
monitoring and follow-up of the implementation of integrated
situation
Ongoing and regular review of strategy/plan of action
Implementation measures
National coordination and cooperation
Ensure effective cooperation through formal agreements and
informal arrangements on prevention and victim assistance
Appropriate housing
Counselling and information, in particular regarding legal rights
Medical, psychological and material assistance
Employment, educational and training opportunities
-
8/2/2019 NCA Malawi UNTOC TIP Protocol and Legislation October 2011
21/24
21
Implementation measures
National coordination and cooperation
Promote effective cooperation through the development of
formal cooperation agreements
Identifying partners
Clearly defined purpose of cooperation
Principles of cooperation
Detailed definition of distribution of responsibilities
Details of cooperation procedure between the partners
Procedure of mutual communication of information
Entry into force and amendment
Funding of NGO cooperation partners
Operational indicators
National coordination and cooperation
Adoption of legal or administrative measures to establish a
coordination body or structure
Existence of dedicated or assigned budgets to implement
strategy or plan of action and coordinated activities
Evidence of clear and effective division of labour among
government entities dealing with trafficking in persons
Coordination mechanism meets regularly
Centralized system for data collection and/or coordination on
trafficking in persons in place
-
8/2/2019 NCA Malawi UNTOC TIP Protocol and Legislation October 2011
22/24
22
Operational indicators
National coordination and cooperation
Regular monitoring and evaluation of national trafficking in
persons response (prevention, protection, prosecution
national coordination and international cooperation)
Production of annual reports or thematic reports
Updates of the strategy/plan of action on the basis of regular
assessmentsEvidence that the coordination mechanism adapts to
national, regional and international circumstances
Operational indicators
National coordination and cooperation
NGOs and/or other relevant organisations included in
coordination body or structure
Existence of national anti-trafficking initiative involving NGOs
and other relevant organisation in their development and
execution
Communication network in place
Victim identification mechanism in place
Referral mechanism in place
-
8/2/2019 NCA Malawi UNTOC TIP Protocol and Legislation October 2011
23/24
-
8/2/2019 NCA Malawi UNTOC TIP Protocol and Legislation October 2011
24/24
UNODC interventions
UNODC activities
assistance in strengthening
criminal justice responses
Prevention and awareness-raising
Data collection and research
Legislative assistance
Strategic planning and policy
development Criminal justice system responses
Victim protection and support
International cooperation
UN.GIFT (www.ungift.org)
Adv Johan Kruger
UNODC Regional Office for Southern Africa
Office: +27 (0)12 342 2424
Mobile: +27 ( ) 215 52
Email:[email protected]
www.unodc.org