KOK Conference “Trafficking in Human Beings and Exploitation in Germany – Taking Stock Two Years after the Implementation of the EU Directive” 25–26 October 2018

On 25 and 26 October 2018, KOK organised its symposium on “Trafficking in Human Beings and Exploitation in Germany – Taking Stock Two Years after the Implementation of the EU Directive” in the Berliner Stadtmission Hall. National and international experts came together, two years after the implementation of Directive 2011/36/EU on combatting trafficking in human beings in Germany, to discuss what has been achieved since then and what potential for improvement remains. The new criminal statutory offences relating to trafficking in human beings for the purpose of forced criminal activities and begging, created as part of the EU directive implementation, were one of the main focal points. The symposium examined from various perspectives whether and how victims of these types of exploitation can be identified and given support. The guests at the situation in Austria, Great-Britain and Belgium to see what other European countries are doing to address this issue. This  provided the impetus to enforce in Germany measures that have proved to be successful in those countries. The symposium also examined more closely the non-punishment clause, which aims to protect trafficked persons. The conference also included a European perspective on developments in Germany, thanks to the presence of Myria Vassiliadou, the EU Anti-Trafficking Coordinator, and Petya Nestorova, the Executive Secretary of the Council of Europe Convention on Action against Trafficking in Human Beings. The symposium opened with an address by the Parliamentary State Secretary of the Federal Ministry of Family, Senior Citizens, Women and Youth, Caren Marks.

The symposium was facilitated by Claudia Neusüß. Its full programme can be found here. You will find below short summaries as well as recordings of various talks and panels.

Ms Marks went on to list a series of successful developments that occurred in this respect in the last legislative period. Besides legal improvements in the field of immigration law, in the German Sex Workers Protection Act and the revision of asset seizure and recovery procedures in Criminal Proceedings, she mainly addressed the implementation of EU Directive 2011/36 and the ensuing criminal law reform. These developments were, in her view, urgently necessary, if not only to implement widespread international definitions into German law. Regarding the implementation of these new provisions, she believes various stakeholders such as the Federal state, the regions [Länder], public authorities and victim support centres hold joint responsibility and that it is crucial that they all monitor the practical situation on the ground. Exchanges at European level and monitoring by GRETA, too, are useful to improve the situation, as she highlighted. However, networking efforts within Germany, coordinated action and reliable cooperation mechanisms are also key to combat trafficking in human beings. She cited amongst other things the Federal Government and Länder Working Group on Trafficking in Human Beings, the Federal Government and Länder Working Group on the Protection of Children and Young People against Sexual Violence and Exploitation as well as the Federal Government and Länder Working Group on Combatting Trafficking in Human Beings for the Purpose of Labour Exploitation.

Ms Marks also highlighted the key role NGOs are to play in identifying, protecting and supporting trafficked persons. Collaboration between specialised counselling centres, police forces, other state institutions and other new stakeholders must therefore have a reliable and structural basis, e.g. through models such as the Federal Protection and Support Cooperation Plan for cases of trafficking in and exploitation of children.

Ms Marks concluded her address by calling for a joint strategy from government, civil society and policy-makers to ensure more efficient anti-trafficking efforts and protection of victims and better cooperation between Federal Government and Länder Working Groups. She also announced that the creation of a national rapporteur role is currently under study.

Ms Vassiliadou continued by way of example by calculating the profits made in 2016 by traffickers who trafficked Nigerian women arriving to Italy for the purpose of sexual exploitation. According to an estimate by the International Organisation for Migration, 80% of the 11,000 Nigerian women and girls who reached Italy in 2016 were trafficked for the purpose of sexual exploitation. Based on an estimated figure of five punters per day with earnings of €30 per customer, this can amount to a profit of €500 million just in this specific case. Ms Vassiliadou stressed that this example only concerns one single form of exploitation, one single nationality and only women. She mentioned in this respect that trafficking in human beings from West African countries to Europe has increased, Germany being one of the main destinations. However, she also pointed out that large numbers of trafficked persons come from Europe, including Germany, and that trafficking in human beings is not only a migration-related offence, there are significant number of EU victims. She stressed that people do not become victim because they are vulnerable, they become victim because of the profit generated from the crime.

In order to counteract the “culture of impunity”, it is important to ensure that perpetrators are convicted, added Ms Vassiliadou. She stressed in this respect how complex trafficking chains are, stating that much still needs to be done. For example, as was shown by an EU Commission report, not all countries have taken measures to criminalise those exploiting trafficked persons. The European Agency for Human Rights also pointed out in its SELEX II report that trafficked persons have voiced their disappointment at the lack of repercussions for perpetrators.

Ms Vassiliadou went on to mention EU funding opportunities for anti-trafficking-related projects and stressed that the projects funded between 2004 and 2015 mainly related to labour exploitation, as became apparent through a study. In addition to improving prosecution efforts, the EU’s new policy priorities set out in December 2017 also include the prevention of trafficking,  to disrupt the criminal business model and untangling the trafficking chain and ensuring more intensive coordination and support and protection of trafficked persons. What is particularly important in this respect is that trafficked persons be seen as holding rights and that gender-specific measures be implemented.

The Commission has followed the implementation of the Directive and found that despite the considerable progress made, there are still a certain number of shortcomings, e.g. relating to child protection, to compensation or to the non-punishment clause. The EU Commission would continue to offer its support in this respect, but may also intervene if EU law is not implemented. The EU Commission consider that the implementation of the existing innovative measures should be in focus. Nevertheless, there is a need to gather reliable data, to undermine the high profits generated by trafficking in human beings and to reject any “culture of impunity”.

Because EU Directive 2011/36 explicitly expands the list of prohibited forms of exploitation mentioned in the Palermo Protocol and the Council of Europe Convention to include the exploitation of criminal activities, the Directive now proves very useful to enforce the non-punishment clause in such cases.

However, we must distinguish between cases in which the offence committed was based on the use of false ID documents and those relating to drugs. In the R v N case, N, a boy exploited in cannabis production, was sentenced to a nine-month term of imprisonment to be followed by nine months’ community service. In this case too, Ms Chandran brought an appeal, to no avail. N’s sentence could only be reduced to four months, which is why she lodged an application before the ECHR in 2012. The application was declared admissible in 2018.

Ms Chandran stressed that she did not want to give up despite this setback. She brought an appeal in another case on the basis of the EU Directive. In the case R v L and others, L, a Ugandan woman trafficked for the purpose of sexual exploitation, was convicted for a passport-related offence. In this case, support came from an OSCE paper on the application of the non-punishment clause. The convictions of L and the other trafficked persons were overturned. Although this constitutes a precedent for the application of the non-punishment clause on the basis of the EU Directive, Ms Chandran takes the view that courts do not always enforce it.

The non-punishment clause still presents many challenges, e.g. with regard to the identification of trafficked persons. Many trafficked persons still remain unidentified and are treated as offenders, which she believes may be due to a lack of training. Ms Chandran also stressed that states have the obligation to prosecute in cases of trafficking in human beings and how important it is to have clear guidelines and well-defined practices.

Ms Chandran ended her speech with a good practice example from Great Britain, in which trafficked girls used to smuggle drugs were acquitted. Safeguard measures were taken and the perpetrators were sentenced to long prison sentences.

Mr Buchner began by presenting MenVia, a victim counselling centre in Vienna that supports trafficked men. MenVia offers not only counselling services but also assistance with everyday life and safe housing – an aspect that is particularly important for men who have lived on the margins of society for many years. Most of the clients seeking support from MenVia have experienced labour exploitation or forced begging. Mr Buchner stressed the importance of networking, training and cooperation, especially with other groups of professionals who are likely to come into contact with potential victims, with prosecuting authorities and with NGOs. He also highlighted the role of psychosocial support during proceedings, a service that is uniformly defined nationwide in Austria. Answering a question about how to replicate the Austrian system in Germany, Mr Buchner pointed out that empirical studies need to be carried out before any actual work can start and that expertise in this field must be taken seriously.

Ms Beadle began by presenting ECPAT’s two youth groups for trafficked boys and girls in London.

She went on to highlight that legislation in Great Britain is still not enforced satisfactorily, in her view, e.g. with regards to the provision of resources to identify trafficked persons. Moreover, ECPAT criticised the British national referral mechanism for trafficked persons as inappropriate in the case of children.

Another problem is that many “frontline responders" such as social workers or police officers have insufficient training in the field of trafficking in human beings. The practical solution she outlined would therefore require financial resources for “frontline responders” from various professional groups. She did, however, note progress in some areas. Police now take a more sensitive approach to children during investigations and collaboration between NGOs and police forces has improved. With regard to the situation in Germany, Ms Beadle suggested improved training for “frontline responders” as well as ensuring an efficient dialogue and exchange of information among the different stakeholders.

The existence of a single anti-trafficking police force in Austria makes a lot of things easier, observed Ms Plank-Sandhofer. Austria also has a special unit in charge of all forms of exploitation with a central office and branches in every regional Office of Criminal Investigation. The EU Directive was transferred into Austrian law in 2013. However, prosecuting authorities had already had to deal with cases of forced criminal activities and begging, which had been interpreted as a specific form of labour exploitation, making sentencing possible. There are still challenges to be met, however. As she explained, most persons trafficked for the purpose of forced begging are older men from Romania, Bulgaria and Slovakia suffering from physical infirmities or addiction. This is a challenge for both police forces and specialised counselling centres. The perpetrators who force young women to commit burglaries or to steal often do so from abroad. Although the non-punishment clause is usually effective, some difficulties arise in this type of case. Although courts are often clement, the non-punishment clause is not applied in this case as the exploiters are not present directly on site and therefore do not constitute an actual threat for trafficked persons, argue the courts.

Since 2003, there has been an annual meeting of Austrian police officers dealing with trafficking in human beings, where they discuss legal developments and share their experiences. Money has also been invested for training purposes, e.g. for immigration authorities, doctors, labour inspectors or public transport providers. Trafficking in human beings is now addressed as part of the training of all police officers. Once a year, judiciary officials, NGO representatives and police officials also meet to discuss past cases and potential improvements.

Answering a question about ways of improving international cooperation, Ms Chandran referred to a British case in which Roma children were detained for stealing. A girl was sentenced several times before investigations into trafficking in human beings for the purpose of forced criminal activities were taken up, finally leading to the conviction of several perpetrators. Ms Chandran established a link between this particular case and a statement by former French president Nicolas Sarkozy, who had demanded that Roma children in Paris be deported to Romania. She believes that these children may have been trafficked. Improving international networking and raising awareness could help in this respect. She also highlighted that anti-trafficking efforts must be human rights based.

The high mobility and family ties of trafficked persons, however, make their identification difficult. There have also been no cases of illegal organ trafficking. Ms Gayer believes nevertheless that the legislation process has raised awareness among police forces and other stakeholders and that support services have improved a lot, especially in the field of labour exploitation. Ms Gayer went on to present implementation measures taken by the police, citing several examples, such as the extension of the national report’s scope, various conferences and training courses for police forces and other partners, the EMPACT THB project as well as a research project focusing on the exploitation of minors in Germany, Romania and Bulgaria. She reported that various measures have also been implemented in several German regions. Bavaria, for example, has issued guidelines on combatting organised begging and forced criminal activities after intensive cooperation with Austria. Yet many challenges remain, the first being the identification of victims. Identification requires well-organised police work and efficient cooperation networks. The revision of the German Criminal Codes asset seizure and recovery provisions has offered another incentive for victims to testify, as the amended law provides better victim protection and simplifies compensation. To conclude, the transposition of the EU Directive has, from a police perspective, led to a better framework and a whole range of measures have been taken to enforce these provisions within the police.

The new forms of exploitation have not yet been observed in the field, according to Ms Köhncke, although she assumes that there are indeed cases of forced criminal activities and begging in Stuttgart. There are also many cases of labour exploitation, she confirmed. However, it is unknown whether these are also cases of trafficking in human beings. Ms Köhncke touched on the subject of victim identification through a case study. When persons are officially identified as having been trafficked, they are granted specific rights. However, identifying a case of trafficking in human beings requires time, information and the victim’s readiness to testify. As persons who have not yet been officially identified as having been trafficked cannot claim support, e.g. in the form of housing benefits, it is difficult to find accommodation for them and to offer counselling until everything (e.g. the investigation) has been set up. She therefore stressed the importance of financial resources, including for trafficked persons, e.g. for secure accommodation. She also mentioned the situation in Baden-Württemberg, where the local Coalition Agreement provided that a round table be created on trafficking in human beings for the purpose of labour exploitation. The first meeting has already taken place and cooperation guidelines to address trafficking in human beings for the purpose of labour exploitation are to be drawn up. Ms Köhncke hopes that this will be implemented but once again, funding remains an issue. She went on to highlight the fact that consumer awareness is a way of counteracting exploitation and trafficking in human beings. She called upon political decision-makers to use past experiences with regard to trafficking in human beings for the purpose of sexual exploitation to simplify the enforcement of the new criminal statutory offences.

Ms Timm began by reporting about her everyday work counselling Polish carers, in which she deals with exploited women on a daily basis. However, in the seven years during which she has worked in this position, she has not seen a single case prosecuted, which is due to the high mobility in this industry and the potential fear of the police. Ms Timm described the care system as “legal exploitation” and noted that a political solution is needed. She demands that political decision-makers improve the care sector, as care services are often entrusted to service providers who assume no liability for care quality and support exploitative work conditions.

Ms Czarnecki began by outlining the main outcomes of KOK’s study on accommodation options available for various groups of trafficked persons. According to this study, accommodation in Germany is very incomplete and existing structures – which are not uniformly regulated nationwide – are mainly aimed at women. In many cases, women's shelters and safe houses are not specifically designed for trafficked women. Accommodation conditions for trafficked children are often appalling. The system is also inadequate in the case of men. In cases compounded by other issues, such as suicide or disability, there are simply no appropriate accommodation options. Funding housing is also a challenge.

Ms Czarnecki went on to examine the point of view of minors and noted that children often see the support system as a punishment. Youth Welfare Offices have a key role to play in this respect. In view of the study’s outcomes, Ms Czarnecki called upon political decision-makers to ensure accommodation can also be secured for victims of the new forms of exploitation and to consider creating a national accommodation fund.

Ms Gayer began by explaining that a plea bargain between the prosecution and perpetrators in favour of the trafficked persons can make more sense than sentencing in criminal proceedings, as very often prosecution is not the trafficked persons’ primary interest. Sentencing is nevertheless important, as perpetrators often continue to operate until they are stopped. Answering a question by Ms Timm regarding the multinational character of the German Federal Criminal Police Office’s teams, Ms Gayer explained that they usually deal with trafficked persons who do not speak German and therefore use interpreters. She also mentioned that although the officers in charge of monitoring illegal employment have access to the workplace of potential victims, they have no explicit mandate to combat trafficking in human beings.

The British Modern Slavery Act shows, she said, what is possible through political will and how the numbers of investigation could increase. Ms Gayer called upon political decisions-makers to provide sufficient financial resources and staff to all stakeholders, especially NGOs. The frequent lack of prospects for trafficked persons is also an issued to be addressed.

Ms Le Cocq went on to provide an overview of the legal situation with regard to trafficking in human beings for the purpose of forced begging in Belgium and expounded on Belgian criminal law.  Protection and support of trafficked persons is provided for by immigration law and is, as in Germany, subject to compliance with specific conditions, such as discontinuation of contact with traffickers and cooperation with prosecuting authorities. In Belgium, the support offered to trafficked persons is also based on a multidisciplinary approach through trained “frontline responders” from the police, the judiciary and specialised counselling centres.

There were very few criminal proceedings against trafficking in human beings for the purpose of forced begging in 2017, according to Ms Le Cocq, which does not mean that there are not more cases. This phenomenon in Belgium mainly fell into two categories. The first covered cases of trafficking in human beings for the purpose of forced begging with disabled men from the Roma community, in which perpetrators were small Roma groups of relatives from Eastern European countries such as Romania. The second category concerned cases in which children were being exploited in various ways. In this case, begging was the only form of visible exploitation. Here too, perpetrators were often Roma families. Ms Le Cocq went on to present three case studies and to examine various investigative techniques. She also stressed how important international collaboration is in this respect.

Ms Le Cocq then mentioned potential positive anti-trafficking strategies in the field of forced begging. She believes information and awareness-raising are key. Because many of the perpetrators operating in this field are from Eastern European Roma communities, it must however constantly be stressed that not all Roma people are involved in criminal networks to prevent stigmatisation. According to Ms Le Coq, many trafficked persons are afraid of the police and are therefore reluctant to testify. Trafficked persons must therefore be perceived as such and referred to specialised bodies that can earn their trust. With regard to police investigations, it is necessary to ensure begging is correctly defined to avoid any loss of information. Special investigative techniques such as examining the flow of funds can prove very useful, she reported. She also stressed the importance of raising awareness among the judiciary and making sure the courts understand this phenomenon and the relevant cultural contexts.

Ms Achelwilm began by observing that the “culture of impunity” needs to be countered, that authorities are often underfunded and that a lot remains to be done in this field. She also stressed the gender specificity of trafficking in human beings and noted that most trafficked persons are women and girls. We must also turn our attention to the business world, as companies are often better protected than human rights. We must therefore move towards more sustainable and human-rights based business practices. The grey areas between legal and illegal exploitation, the “organised social fraud from the top” must also be regulated, she added. Moreover, the social discourse must not condemn victims. Ms Achelwilm believes deportations occur too rapidly, which makes prosecution more difficult, for example. She argued for a right of abode for trafficked persons from third countries. Addressing the reasons causing people to flee their country is, she believes, an important way of countering trafficking in human beings. Finally, Ms Achelwilm demanded that social workers be granted the right to refuse to give evidence during proceedings and stressed the importance of improving funding policies.

Mr Hoffmann began by stressing the need to identify where exactly resources and cooperation schemes are lacking two years after the implementation of the EU Directive, especially with regard to the new forms of exploitation. He gave the example of women’s shelters in Germany. Policies must strengthen volunteering, social services and public authorities. Replying to a remark made by a participant in the audience arguing that a federal fund would make everything easier, Mr Hoffmann agreed and noted that funding must be better coordinated and provided from a single source.

He believes that the situation in Germany is the last ramification of the international trade in human beings, hence his demand for better EU foreign policy to combat “bad governance”. Combatting trafficking in human beings entails offering better prospects and a certain degree of prosperity at a global level, which is only possible through more efficient development assistance and good governance.

Regarding the situation in Germany, he noted that the coordinating efforts between the different regions is challenging and called for improvements in this respect. More needs to be done, he added, to raise awareness to make sure that “frontline responders” as well as the wider public know more about this issue, especially about the new forms of exploitation.

Ms Lochbihler mainly reported on EU-level developments and examined, among other things, options within the EU’s foreign policy to combat trafficking in human beings. For example, the EU financially supports the Sub-Mekong region in its efforts against trafficking in women and girls. Thailand has also yielded to economic pressure from the EU and passed laws improving the situation of Cambodian workers in fisheries. However, some issues have arisen at EU level. The Working Group on the “UN Legal Binding Treaty on Business and Human Rights”, which aims to secure rights and compensation for trafficked persons, has faced resistance, e.g. from the German Ministry of Economic Affairs. Lobbying in this field must therefore continue.

Ms Lochbihler also reported progress on the UN front when she mentioned UN sanctions against six Libyan coast guards on the grounds of trafficking in human beings and smuggling. The EU’s stance according to which its “isolationist and anti-refugee policies” aim to protect trafficked persons is a pretext, she argued. She called for more financial resources for NGOs, for better enforcement of victim protection rights as well as stronger emphasis in anti-trafficking initiatives on the question of profits from trafficking. Work must also focus on national anti-trafficking regulations, she argued.

According to Ms Nestorova, many countries have implemented national referral procedures. This is the case in Great Britain and the Netherlands. Germany, however, had implemented no such mechanism at the time of the first evaluation round and yet this is crucial due to the importance of being able to identify victims. GRETA pointed out in its first report that Germany must pay particular attention to the identification of persons trafficked for the purpose of labour exploitation and among asylum seekers. With regard to Article 12 of the Convention, which provides that all trafficked persons are entitled to support, GRETA has essentially identified issues with funding for support services and accommodation for trafficked men. Regarding the situation of trafficked children, which is the focus of the second evaluation round, Germany was advised to implement specific identification measures aimed at this target group. The launch of the Federal Cooperation Plan entitled “Protection and Support in Cases of Trafficking in and Exploitation of Children” is an important step in this direction. Ms Nestorova then moved on to GRETA’s recommendations and the corresponding developments in Germany regarding the recovery and stabilisation period, residence permits, compensation and unpaid wages, the non-punishment clause and prevention. Generally speaking, the first GRETA report criticised the absence of specific measures to prevent and combat trafficking in human beings for the purpose of labour exploitation. Although much has been achieved since the report’s publication, Germany still has no public authority with a comprehensive mandate for labour inspection. The authorities in charge of monitoring illegal employment, for example, are not tasked with investigating cases of trafficking in human beings and referring them to support structures. GRETA also recommended that Germany prepare an action plan to combat trafficking in human beings. There is still no such plan to date. Ms Nestorova then stressed the crucial role of anti-trafficking coordinators and national rapporteurs, who must operate separately, however. To conclude, Ms Nestorova noted that progress has been made in Germany, progress that will be discussed at length in the second GRETA report.

The two extremely informative conference days with approximatively 150 participants, including guests from the judiciary, police forces, civil society and academia, not only offered an opportunity for an exchange of experiences, but also granted an insight into the various areas of work and institutions combatting trafficking in human beings and supporting trafficked persons in Germany two years after the implementation of EU Directive 2011/36/EU. The police presented various measures implementing the EU Directive, for example, especially in connection with the new statutory offences. However, it emerged that general accommodation options, support services for trafficked men and minors as well as the funding of support services are still largely inadequate. Thanks to the participation of international experts from Belgium, Great Britain and Austria, the symposium gained an international perspective and best-practice examples relating to accommodation for men and minors, the non-punishment clause and the new statutory offence of forced begging. In her concluding remarks, KOK board member Andrea Hitzke highlighted that Germany can learn from these positive examples. KOK will continue to evaluate the situation and present practical examples to political decision-makers. As became clear from the contributions of the two European Union representatives, Myria Vassiliadou, the EU Anti-Trafficking Coordinator, and Petya Nestorova, Executive Secretary of the Council of Europe Convention on Action against Trafficking in Human Beings, the EU will continue to accompany the developments in Germany. Sophia Wirsching, KOK’s Executive Director, ended the conference by stressing that trafficked persons hold rights, which must constantly be claimed at various levels. This is, after all, one of the tasks of many of the stakeholders present at the symposium.