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Directive 2011/36/EU on Preventing and Combating Trafficking in Human Beings and Protecting its Victims

What is an EU Directive?
EU directives lay down certain end results that must be achieved in every Member State. National authorities have to adapt their laws to meet these goals, but are free to decide how to do so. Directives may concern one or more Member States, or all of them.

Each directive specifies the date by which the national laws must be adapted - giving national authorities the room for manoeuvre within the deadlines necessary to take account of differing national situations. Directives are used to bring different national laws into line with each other.

European Union law
Until April 2011, EU Anti-Trafficking law was made up of 3 instruments of EU law:
1)    Council Directive 2004/81/EC on the residence permit issued to third-country nationals who are victims of trafficking who co-operate with competent authorities
2)    Council Framework Decision 2002/629/JHA on combating trafficking in human beings
3)    Council Framework Decision 2001/220/JHA on the standing of victims in criminal proceedings (The UK opted out of this Framework Decision)

These three instruments lacked the application, enforcement and comprehensive approach necessary to prevent trafficking and protect victims.

With the entry into force of the Treaty of Lisbon in December 2009, Article 34 of the Treaty on the European Union was repealed and Framework Decisions can no longer be adopted. Any legislation must now be adopted in the form of either Directives or Regulations.

Therefore, the EU took steps towards codifying its trafficking law into a binding Directive – Directive 2011/36/EU, which incorporates and replaces Framework Decision 2002/629/JHA.

What is Directive 2011/36/EU?
The EU Directive on Preventing and Combating Trafficking in Human Beings and Protecting its Victims sets out minimum standards to be applied throughout the European Union in preventing and combating trafficking in human beings and protecting victims.

Its main elements are:
-    a revised definition of offences involving trafficking in human beings, which is slightly broader than that contained in the 2005 Council of Europe Convention;
-    increased criminal penalties for trafficking offences, based on a maximum term of imprisonment of not less than five years and, where there are aggravating circumstances (for example, the victim is a child), 10 years;
-    a requirement for Member States to enable competent national law enforcement authorities to seize and confiscate items ("instrumentalities") used for the commission of, and proceeds derived from, human trafficking offences;
-    a non-prosecution and non-punishment provision which requires Member States, in accordance with the basic principles of their legal systems, to ensure that their competent national law enforcement authorities have a right not to proceed with a prosecution or impose a penalty in the case of victims of trafficking who have been compelled to take part in criminal activities;
-    a requirement for each Member State to establish jurisdiction for trafficking offences committed by one of its nationals, even if committed abroad and the conduct in question would not be considered a criminal offence in the place of commission;
-    detailed provisions on assistance and support for victims of human trafficking which incorporate and, in some cases, exceed the standards established in the 2005 Council of Europe Convention;
-    specific and detailed provisions on assistance and support for child victims which include, in certain circumstances, a requirement for Member States to appoint a guardian or representative responsible for the child's welfare;
-    special protection measures for child victims involved in a criminal investigation or criminal proceedings;
-    a requirement for Member States to ensure that victims of trafficking have access to existing criminal compensation schemes for victims of violent crime;
-    provisions requiring Member States to take appropriate measures to "discourage and reduce the demand that fosters all forms of exploitation related to trafficking in human beings", to raise public awareness of trafficking, to promote regular training to help police and other officials to identify and deal with victims of trafficking, and to consider criminalising "the use of services which are the objects of exploitation…with the knowledge that the person is a victim of a [trafficking] offence";
-    a requirement for Member States to appoint national rapporteurs or establish equivalent mechanisms to collect statistical data on trafficking in human beings and monitor and assess trends; and
-    the establishment of an EU Anti-Trafficking Coordinator to collect data gathered by national rapporteurs, contribute to a biennial report on progress made across the EU in combating trafficking in human beings, and to coordinate the EU's anti-trafficking strategy.

The deadline for transposition of the Directive into UK national law is April 6, 2013. The European Commission shall by 6 April 2015 report back assessing the extent to which Member States have taken the necessary measures in order to comply with the Directive.

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