1. Background

1.1 Introduction

Article 3 of the United Nations Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime (Trafficking in Persons Protocol) defines trafficking in persons as constituting three elements: (a) an “action”, being recruitment, transportation, transfer, harbouring or receipt of persons; (b) a “means” by which that action is achieved (threat or use of force or other forms of coercion, abduction, fraud, deception, abuse of power or a position of vulnerability, and the giving or receiving of payments or benefits to achieve consent of a person having control over another person); and (c) a “purpose” (of the intended action/means): namely, exploitation. All three elements must be present to constitute “trafficking in persons” in international law. The only exception is when the victim is a child; in such cases it is not necessary that one of the acts was accomplished through the use of any of the listed “means”. At the same time, the victim’s consent is irrelevant when any of the above “means” have been used.

More than 10 years after the Trafficking in Persons Protocol entered into force, a large number of countries have already embraced it.1 Despite the high number of States Parties to the Protocol and the growing number of countries that have adopted national laws criminalizing trafficking in persons,2 implementation remains challenging. Evidential issues are among the most pressing problems that criminal justice systems face in investigating and prosecuting human trafficking.

As in every crime, cases may succeed or fail according to the quality and adequacy of the evidence submitted. However, in trafficking in persons cases, there are particularly complex evidential issues, many of which hinge upon the particular nature of this covert crime and the behaviour of victims, whose testimony is often the central piece of evidence. Thus, an understanding of the issues and the ability to learn from actual cases in which they played a role is of the essence. This Case Digest aims to assist criminal law and other practitioners to address problems which often arise in pursuing trafficking cases by allowing them to draw upon case law in other jurisdictions which tackled similar problems.

However, the Digest’s goal is not to instruct practitioners categorically on how to conduct cases, but rather to present evidential issues and patterns and describe how different jurisdictions addressed them. This approach recognizes that sometimes there is no one answer to a question, but that there is added value in presenting a wealth of possibilities which serves to heighten awareness of issues and present the practitioner with an arsenal of possible creative solutions.

Cases analysed are primarily drawn from UNODC’s Human Trafficking Case Law Database. In addition, UNODC organized one Expert Group Meeting bringing together expert practitioners from different regions of the world and various legal systems to review existing cases and supply additional salient cases from their respective jurisdictions.

Besides cases dealing with trafficking in persons, the Digest also examined cases of “allied crimes” such as slavery, forced labour and involuntary servitude.3 These are relevant for a number of reasons: Firstly, they are closely connected crimes protecting similar values of autonomy and human freedom and dignity.4 In this regard, it is instructive that some laws or amendments addressing human trafficking were legislated regarding a series of such offences.5 Secondly, these allied crimes are purposes of exploitation according to the Trafficking in Persons Protocol, and as such, their analysis in case law has much to teach. Finally, similar evidential problems may arise in these cases. In the same vein, the Digest includes selected cases of prostitution offences with elements similar to trafficking in persons in their severity.

Drawing upon case law about allied crimes does not imply advocating a blurring of the distinctions between these crimes and trafficking in persons. Police, prosecutors and judges must still decide which crime is relevant, based upon the elements of each of these crimes and how they most accurately fit the factual picture of a particular case. However, whatever decision is ultimately made, often a commonality in evidential issues and solutions may enable practitioners to learn from allied crimes. When a specific case is presented in the Digest, the charges are clarified.

Most of the cases included in the Digest revolve around trafficking in persons for sexual exploitation or for labour exploitation, as these seem to be the cases most fully analysed by courts to date.

Since the Digest’s aim is to address evidential issues specific to trafficking in persons cases, it does not include a discussion of general evidential problems such as the admissibility of defendants’ confessions, burdens of evidence, or competency of witnesses, unless they include aspects particularly relevant to cases of trafficking in persons or allied crimes.

While some cases are cited with names of defendants, others are cited by means of numbers only, according to the rules and procedures of the particular country.

During the course of the Expert Group Meeting convened to review the Digest, several suggestions were made to include additional topics. These included organized crime, corporate defendants, public officials as defendants, and cases involving corruption. Also the topic of trans-national trafficking in persons would merit in-depth evaluation, as do the issues of marriage or adoption as tools of trafficking and surrogate motherhood or the problem of forced abortion,6 in the context of trafficking. Furthermore, distinctions which are of the essence in distinguishing between trafficking in persons and other crimes such as “mere” labour exploitation or crimes of prostitution could also justify a dedicated in-depth discussion.

While these are important topics, it was decided, however, to leave them to future Case Digests, in view of their complexity and in order to limit the length of the current tool. Still, the Digest may allude to certain aspects of these topics as for example organized crime is touched upon in the section which explores “the chain of trafficking”.

And although the bulk of the sources cited in the Digest are court cases, books, reports, articles and manuals are also used as reference material when they can enrich an understanding of issues.

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