Appendix to the reply
Comments by
the Bureau of the Steering Committee for Human Rights (CDDH)
1. The Steering Committee for Human
Rights (CDDH) takes note of and appreciates the Parliamentary Assembly’s
recommendation to examine the means of strengthening the prohibition
of human trafficking.
2. The protection of vulnerable persons, including victims of
human trafficking, is a cross-cutting theme throughout the work
of CDDH on migration and the Steering Committee expresses its serious
concern in respect of these issues.
3. The CDDH considers however that the monitoring mechanism established
under the Convention on Action Against Trafficking in Human Beings
(
CETS
No. 197) is best placed to consider this recommendation of the Parliamentary
Assembly in the light of its mandate and expertise in this field.
The CDDH stands, of course, ready to offer its contribution, support
and co-operation on the topic.
Opinion of the European Committee
on Crime problems (CDPC)
1. Following the adoption by the
Parliamentary Assembly of
Recommendation
2171 (2020) “Concerted action against human trafficking and the
smuggling of migrants”, the Committee of Ministers decided to send it
to the European Committee on Crime Problems (CDPC) for information
and possible comments.
2. The Committee recalls that its terms of reference for the
years 2020-2021, as adopted by the Committee of Ministers, state
that one of its specific tasks to be implemented is to “ensure concrete
follow-up to the work carried out on the smuggling of migrants,
by co-ordinating the implementation of a series of actions, aiming
at assisting member States in fostering international co-operation
and investigative strategies in fighting the smuggling of migrants,
including considering the preparation of an international legal
instrument.”. In this regard, a draft action plan was elaborated,
intended to help member States overcome the investigative, prosecutorial
and judicial challenges in migrant smuggling-related cases, facilitating
the information knowledge and exchange amongst relevant stakeholders;
and, boosting co‑operation amongst source, transit and destination
countries. The draft action plan will be submitted to the next CDPC
plenary meeting in June.
3. The CDPC supports the recommendation of the Parliamentary
Assembly regarding the need to fight the smuggling of migrants and
ensure the rights of potential migrant victims who have been smuggled
to Europe. It will take the views of the Parliamentary Assembly
on the need for a Council of Europe convention to combat the smuggling
of migrants into consideration in taking forwards its reflexion
in this field.
4. The CDPC stands ready to collaborate with the other relevant
competent Council of Europe bodies, notably GRETA and the Special
Representative of the Secretary General on Migration and Refugees,
and other international partners in this endeavour.
Comments by the European Committee
(Partial Agreement) on Organ Transplantation (CD-P-TO)
1. The Committee of Ministers agreed
to communicate to the European Committee (Partial Agreement) on Organ
Transplantation (CD-P-TO), as well as to the Steering Committee
for Human Rights (CDDH), to the European Committee on Crime Problems
(CDPC), to the Group of Experts on Action against Trafficking in Human
Beings (GRETA) and to the Committee on Bioethics (DH-BIO), Parliamentary
Assembly
Recommendation
2171 (2020) “Concerted action against human trafficking and the
smuggling of migrants” for information and possible comments.
2. Due to the very short deadline given to the CD-P-TO to provide
an opinion on
Recommendation
2171 (2020), the committee has not been able to carefully debate
and elaborate a consensus opinion on its contents. However, the
CD-P-TO Secretariat collected comments from the CD-P-TO delegations,
prepared a draft response in line with the feedback received and
distributed it to the Committee for adoption by written procedure.
3. The work of the Council of Europe in the area of organs, tissues
and cells for human application started in 1987, contributing actively
to the implementation of high standards for the protection of public
health and for the promotion of human rights and dignity. As part
of its initiatives to ensure quality and safety of organs, tissues and
cells for transplantation, the CD-P-TO has committed to developing
guidance within its remits of competence on how to promote their
safe and ethical use.
4. The CD-P-TO welcomes the initiative taken by the Parliamentary
Assembly through its
Recommendation
2171 (2020). Human trafficking for the purpose of organ removal
is fuelled by the demand of desperate patients who are willing to
pay large amounts to obtain a kidney or, less frequently, a liver
lobe. Victims are vulnerable and destitute persons induced to sell
an organ through fraudulent or coercive means or through the exploitation
of their financial desperation. Smuggling of migrants and refugees
has been linked to organ trafficking by investigative journalism
and scattered reports, involving desperate individuals who sell
a kidney to pay smugglers for a trip to another destination. This
recommendation is an opportunity to define concrete actions for
co-operation to address this type of highly organised crime.
5. The CD-P-TO recalls that human trafficking for the purpose
of organ removal differs from other forms of human trafficking in
several ways, including the operational and geographical complexity
of the trafficking networks, the serious violation of the victim’s
physical integrity, and the critical involvement of a range of healthcare
professionals and facilities. It is precisely this latter distinctive
feature that provides a unique opportunity to help prevent, detect
and combat these crimes. In their daily practice, nephrologists
and other transplant professionals attend to patients who may be
considering purchasing an organ. Healthcare professionals are also
responsible for evaluating donor-recipient pairs and ensuring the
legitimacy and motivations of potential donors. Additionally, both
the sophisticated care that is required for monitoring organ function
following transplantation and the need for lifelong immunosuppression
in recipients inevitably bring physicians into contact with illicitly
transplanted patients. Healthcare professionals may also come into
contact with victims. Therefore, success in combating human trafficking
for the purpose of organ removal and, more broadly, organ trafficking,
depends heavily on co-operation between the areas of health (healthcare
authorities and professionals), justice (law enforcement authorities)
and other stakeholders, i.e. multidisciplinary co-operation.
6. In its recommendation, the Assembly invites “those non-member
States, whose citizens are frequently victims of organ trafficking
to Europe including trafficking in human beings for organ removal,
to sign and ratify the Convention on Action against Trafficking
in Human Organs (CETS No. 216)”. In this context, the CD-P-TO wishes
to draw attention to the work of the international network of National
Focal Points (NFP) on Travel for Transplantation, carried out in
the context of Council of Europe Resolution CM/Res(2013)55 and CM/Res(2017)2,
whereby NFP officially designated by Ministries of Health collect
and record anonymised information on patients who travel abroad
for transplantation on an International Database on Travel for Transplantation.
Preliminary data reported by 26 European countries revealed that
of the 261 patients who travelled for transplantation during 2015-2017,
24% had received an organ in a third country from a living unrelated
or an unknown donor and without proper referral for transplantation,
i.e. in situations that could be consistent with human trafficking
for the purpose of organ removal and/or organ trafficking. This
international database provides an invaluable picture of the countries
of origin and destination of transplant tourists and organ “donors”,
which can be very useful in the context of the fight against human
trafficking and smuggling of migrants associated with organ trafficking.
7. This data highlights the importance of both member and non-member
States adopting comprehensive legal frameworks to prevent and combat
illicit transplant activities that violate basic human rights. In
addition, the invitation to sign and ratify the Convention on Action
against Trafficking in Human Organs should not be restricted to
just those States whose citizens are frequently victims of organ
trafficking since no country is self-sufficient in organ transplantation
and, in some countries, kidney transplantation has not been developed
or relies exclusively on living donation. The shortage of organs
available for transplantation and the lack of universal access to
transplantation therapy may lead desperate patients to resort to
an illicit transplant (involving paid “donors” or victims of exploitation
or coercion). Moreover, trafficking in human organs is a transnational
crime, often involving several States: the country of the “donor”,
the country of origin of the recipient purchasing the illicitly
obtained organ and the country where the transplant procedure takes
place. The involvement of different countries raises numerous problems
in terms of criminal prosecution due to the lack of extraterritorial
jurisdiction in national courts. Therefore, harmonised legislation
against organ trafficking is essential to ensure criminal investigations
and prosecutions can be undertaken. Furthermore, the responsibility
to combat these crimes must be taken by all countries, including
those whose citizens are frequently victims of organ trafficking
and those whose citizens purchase the organs, since experience has shown
that trafficking networks are constantly on the run, moving their
activities to regions with weaker legal frameworks or where the
existing laws are poorly enforced. Thus, the worldwide problem of
organ trafficking can only be addressed through concerted and decisive
action at global level, including the adoption of the Convention
against Trafficking in Human Organs.
8. Transplant-related crimes have a global dimension but are
still largely underestimated. It is essential to gain better knowledge
on human trafficking for the purpose of organ removal and organ
trafficking, in particular through systematic data collection, to
understand the nature and scope of these crimes, the organisation
of the criminal networks involved and their modus operandi. Therefore,
the CD-P-TO calls on all Council of Europe member States to nominate
NFP to join the international network on Travel for Transplantation
and to submit anonymised data on patients having received an organ
transplant abroad to its International Database on Travel for Transplantation.
This call is extended to any non-member State with an interest in
understanding and combatting transplant-related crimes in co-operation
with the Council of Europe.
9. Similarly, the CD-P-TO would welcome initiatives aimed at
examining the link between smuggling of migrants and trafficking
in human organs, including the appointment of a designated body
to undertake research in this field, as well as regular exchanges
of views and information with GRETA. In addition, the invitation
to the Secretary General of the Council of Europe and her Special
Representative on migration and refugees could be expanded to also
address organ trafficking.
10. The CD-P-TO recalls that victims of human trafficking for
the purpose of organ removal have suffered permanent and severe
physical harm and will require life-long medical follow-up and maybe
even an organ transplant themselves. This may be particularly difficult
to guarantee in the case of migrants. Thus, appropriate victim protection
measures should take these circumstances into account in order to
adequately address the needs of the victims.
11. The CD-P-TO emphasises the need for collaboration between
international organisations, as well as national and international
law enforcement agencies, customs authorities, and Health Authorities
for the prevention, detection and prosecution of human trafficking
for the purpose of organ removal and smuggling of migrants in the
same context.
12. The CD-P-TO is committed to continue addressing human rights
and medical and ethical issues raised by organ transplantation,
and recalls in this respect that it regularly updates its “Guide
to the Quality and Safety of Organs for Transplantation”. It also
monitors practices in Europe, examines questions of interest and contributes
to raising public awareness on the donation and use of substances
of human origin. As a result, it publishes booklets for the general
public on relevant topics and celebrates, on an annual basis, the
European Day for Organ Donation and Transplantation to raise awareness
of the importance of safe and ethical organ, tissue and cell donation
as a way to improve and save lives.
No comments from the Committee
of Bioethics (DH-BIO)
Comments of the Group of Experts
on Action against Trafficking in Human Beings (GRETA)
1. At its 1367th meeting
(12-13 February 2020), the Committee of Ministers communicated to
the Group of Experts on Action against Trafficking in Human Beings
(GRETA), for information and possible comments, three Parliamentary
Assembly recommendations: 2171 (2020) “Concerted action against
human trafficking and the smuggling of migrants”, 2172 (2020) “Missing
refugee and migrant children in Europe” and 2173 (2020) “Combating
trafficking in human tissues and cells” to the Group of Experts
on Action against Trafficking in Human Beings (GRETA). GRETA has
decided to provide the following joint comments on these three recommendations.
2. GRETA takes note with great interest of Parliamentary Assembly
Recommendation 2171 (2020) “Concerted action against human trafficking and the
smuggling of migrants” and the related report, which are both very
timely. Since its setting up in February 2009, GRETA has been monitoring
the implementation of the Council of Europe Convention on Action
against Trafficking in Human Beings. The number of Parties to the Convention
has grown over the years and currently stands at 47, including one
non-member State, Belarus. Repeated calls have been made to the
Russian Federation, the only remaining Council of Europe member State
which has not signed and ratified the Convention, to do so as a
matter of priority in order to ensure a pan-European response to
the challenges posed by human trafficking. At the same time, the
Convention’s standards are being promoted in countries beyond Europe
(for example, Israel, Morocco and Tunisia) and GRETA trusts that
new ratifications of the Convention will follow.
3. By the end of 2019, GRETA had completed the second evaluation
round of the Convention in respect of 42 of the 47 State Parties
and has started the third round of evaluation. GRETA has published
over 80 country evaluation reports, as well as eight general activities
reports, which contain a wealth of information, analysis and recommendations
and thereby contributes to the interpretation of the Council of
Europe Convention on Action against Trafficking in Human Beings
and Article 4 of the European Convention of Human Rights.
Note GRETA’s 9th general
report, covering the calendar year 2019, which is about to be published,
takes stock of the implementation of the Convention on the basis
of the second evaluation round reports drawn up by GRETA.
4. As noted in this report, in the period between the first and
the second evaluation by GRETA, 26 State Parties amended their Criminal
Code provisions on trafficking in human beings. In addition to the
“at a minimum” list of forms of exploitation contained in the Convention,
many State Parties have added to the criminalisation of trafficking
in human beings the exploitation of begging and the exploitation
of criminal activities. Some countries have included additional
forms of exploitation, such as forced marriage, using a woman for
reproductive purposes, removal of cells and tissues, illegal adoption,
or using a person in armed conflicts. Several countries have adopted
open-ended lists of exploitative purposes. GRETA recalls that the Convention
provides a minimum list of exploitative purposes, and national legislation
may therefore target other forms of exploitation. GRETA has stressed
the importance of ensuring that all forms of exploitation related
to human trafficking are adequately covered by law and practice.
In this context, bearing in mind that trafficking in human beings
is an evolving phenomenon, GRETA has paid attention to how State
Parties address new trends and challenges.
5. GRETA has also emphasised that stating explicitly the irrelevance
of the consent of a victim to the intended exploitation could improve
the implementation of anti-trafficking provisions. After the first
evaluation by GRETA, several State Parties have amended their criminal
law provisions on human trafficking in order to state explicitly
that the victim’s consent to the intended or actual exploitation,
where any means have been used, is irrelevant.
6. Referring to GRETA’s findings, the former Secretary General’s
report “Ready for Future Challenges – Reinforcing the Council of
Europe” identified trafficking for labour exploitation as one of
the major challenges in Europe.
Note Subsequently, at the 129th Ministerial
Session in Helsinki, the Committee of Ministers instructed its Deputies
to examine ways of strengthening action against trafficking in human
beings.
Note
7. At its 35th meeting (8-12 July
2019), GRETA held an exchange of views on ways to strengthen action against
trafficking for the purpose of labour exploitation. GRETA members
agreed that there was no need for a new legal instrument and that
the Council of Europe Convention on Action against Trafficking in
Human Beings, together with the European Convention on Human Rights,
provided an adequate legal basis for capturing human trafficking
for the purpose of labour exploitation. Nevertheless, GRETA’s monitoring
has shown than the interpretation of “forced labour” might be too
narrow, resulting in a low number of prosecutions and convictions.
The concept of “labour exploitation” in the context of human trafficking
should be better defined through guidance and case law. Labour inspectors,
NGOs and trade unions should be involved in national referral mechanisms
which identify victims of trafficking. It is also important to discourage
demand for the services of victims of trafficking, as well as to
engage with the private sector and address the risks of trafficking
through supply chains and public procurement, was also noted.
8. GRETA decided to set up an ad hoc working
group on strengthening action to combat trafficking for the purpose
of labour exploitation. The terms of reference of this group include
the drafting of a compilation of good practices in the area of combating
human trafficking for the purpose of labour exploitation, on the
basis of GRETA’s country evaluation reports, as well as a guidance
note on preventing and combating human trafficking for the purpose
of labour exploitation.
9. The far-reaching effects of human trafficking require innovative
solutions and a robust approach. Governments and civil society must
increase private sector awareness about human trafficking, as well
as corporate responsibility. Sharper regulation is needed in the
area of public procurement and supply chains. GRETA also stresses
the need for a more effective enforcement of corporate liability
provisions to ensure that human trafficking abuses are punished
and remedied.
10. GRETA has noted in its country evaluation reports that asylum
seekers and migrants are particularly vulnerable to human trafficking
and therefore deserve specific attention from State Parties within
the framework of their action against trafficking. GRETA dedicated
a thematic section in its 5th general
report to the identification and protection of victims of trafficking
amongst asylum seekers, refugees and migrants. More recently, GRETA
agreed on the preparation of a guidance note aimed at strengthening
the implementation of the obligation to provide international protection
to victims of trafficking, as well as persons at risk of being trafficked,
which will be published in the course of 2020. The note aims to
provide guidance for relevant authorities, agencies and organisations
in their dealings with victims of trafficking and those at risk
of being trafficked, with the objective that no such person should
be compelled to return to another country if such a return would
threaten their lives or basic human rights.
11. GRETA has regularly highlighted the distinction between “human
trafficking” and “migrant smuggling”, which continue to be erroneously
conflated or referred to interchangeably. Clarifying the differences
between these two offences is critical to the development and implementation
of sound policies. A key difference is that the aim of human trafficking
is to profit from the exploitation of the victims, who are treated
as commodities, in violation of their fundamental human rights and
freedoms, which is why in addition to being a criminal offence, trafficking
in human beings falls under the scope of Article 4 of the European
Convention of Human Rights. It is true that smuggled migrants can
be highly vulnerable and an easy prey for those who want to profit
from their labour or services. Their irregular status exposes them
to various risks and they may become victims of trafficking and
exploitation. If this happens, they should be afforded the protections
envisaged by international and national law for victims of trafficking.
GRETA has stressed the obligation of State Parties to put in place adequate
procedures in order to ensure the identification of victims of trafficking
among asylum seekers and migrants. In this context, it is important
to screen migrants who are detained pending removal for indicators
of human trafficking, and if such are found, to stop the procedure
for their extradition/deportation and to ensure their access to
the rights that victims of trafficking are entitled to, including
assistance, protection and compensation. Better awareness of the
distinctions between human trafficking and migrant smuggling can improve
victim protection and avoid the re-exploitation of victims. Furthermore,
GRETA recalls that the Council of Europe Convention on Action against
Trafficking in Human Beings provides that the prevention of trafficking in
human beings should encompass measures to enable migration to take
place legally.
12. GRETA’s stocktaking of the second evaluation round also shows
that the punishment of traffickers remains unsatisfactory. While
all State Parties to the Convention have criminalised human trafficking,
not all forms of exploitation are adequately covered in practice.
The number of prosecutions and convictions for human trafficking
offences is still low in many State Parties, and the sentences imposed
are sometimes not sufficiently dissuasive. Further, the confiscation
of traffickers’ assets remains all too rare. GRETA stresses that failure
to convict traffickers and the absence of effective, proportionate
and dissuasive sanctions undermines efforts to combat human trafficking
and guarantee victims’ access to justice.
13. The third evaluation round of the Convention was launched
by GRETA in November 2018, with a thematic focus on “Access to justice
and effective remedies”. GRETA chose this focus because access to information
and legal assistance remains a challenge for many victims of trafficking,
in particular those who are in an irregular migration situation.
GRETA highlights the importance of ensuring that victims are not criminalised,
and can secure access to compensation and effective legal redress.
In addition to the thematic focus, the third-round questionnaire
contains a country-specific section closely aligned to the context
of each State and the most urgent priorities for action.
