The Council of Europe’s Group of Experts on Action against Trafficking in Human Beings (GRETA)’s report on Ireland concerns how Ireland prevents and prosecutes human trafficking. The report demonstrated that the total number of presumed trafficking victims in Ireland fell from 103 in 2017 to 44 in 2021. According to GRETA, sexual exploitation remains the primary form of exploitation in Ireland, but the number of people trafficked for labour exploitation in sectors including fishing, farming, construction, catering, and domestic work grew over the same period. However, GRETA noted that these figures may underestimate the situation in Ireland, partly due to the persisting limitations of the existing procedures for identifying victims. These limitations include the fact that the Human Trafficking Investigation and Coordination Unite of An Garda Síochána (Ireland’s police force) is the sole competent authority tasked with identifying the victims of human trafficking, and the obligation to speak with An Garda Síochána may discourage self-identification, according to the report. Highlighting certain areas where underreporting is likely, GRETA found that trafficking for labour exploitation remains under-recognised and under-reported, and trafficking for criminal exploitation is an area where victims are often not recognised as such. Nevertheless, the report notes a number of positive developments since GRETA’s last evaluation of Ireland in 2017. These include the establishment of a human trafficking stakeholders forum in 2020 (bringing together relevant state departments, agencies and civil society organisations) and the designation of the Irish Human Rights and Equality Commission as National Rapporteur for human trafficking. In sum, GRETA’s report urged the authorities in Ireland to take further action against human trafficking, notably by improving the prosecution of human traffickers and providing specialised shelters and compensation for victims. GRETA also urged the Irish authorities to adopt finalise a National Referral Mechanism, which ensures that different agencies are involved in identifying victims of all types of trafficking, and to provide trafficking victims with specialised assistance. Furthermore, GRETA noted that the number of investigations into human trafficking has been decreasing over the years, notes the report, and the number of prosecutions and convictions is very low. For instance, there have been no convictions for trafficking for labour exploitation in Ireland, despite the increasing number of identified suspected cases.
Women and Justice: Keywords
Reports
Evaluation Report: Ireland, Group of Experts on Action against Trafficking in Human Beings (2022)
Legislation
The 1998 Act prohibits trafficking of children for the purposes of sexual exploitation. The Criminal Law (Human Trafficking) Act 2008 (available here) amended the 1998 Act’s provisions related to child trafficking and sexual exploitation (Section 3) and the Criminal Law (Human Trafficking) Act 2013 (available here) expanded the definition of labour exploitation and aggravating factors. The 1998 Act also criminalizes allowing a child to be used for child pornography (Section 4). A person found guilty on indictment of this offence faces up to 14 years’ imprisonment. Section 5 has been substituted by Section 12 of the Criminal Law (Sexual Offences) Act 2017 (available here), which prohibits the production, distribution, and possession, inter alia, of child pornography. Persons convicted of such offences are liable, on summary conviction, to a Class A fine (€5,000) and/or up to 12 months’ imprisonment, or conviction on indictment, to a fine and/or up to 14 years’ imprisonment (Section 5, as amended). Section 6, as amended, prohibits the possession of child pornography; persons convicted of such offences are liable, on summary conviction, to a Class A fine (€5,000) and/or up to 12 months’ imprisonment, or conviction on indictment, to a fine and/or up to 5 years’ imprisonment. Section 13 of the Criminal Justice Law (Sexual Offences) Act 2017 (available here) also inserts Section 5A, prohibiting, inter alia, causing, inciting, compelling, coercing, recruiting, inviting, or inducing of a child to participate in a pornographic performance or the gaining from such participation.
Criminal Law (Human Trafficking) (Amendment) Act 2013 (2013)
The Human Trafficking Amendment Act amends the Criminal Law (Human Trafficking) Act 2008 (available here) and the Child Trafficking and Pornography Act 1998 (available here). The Act of 2008 defined human trafficking and exploitation for the purposes of trafficking. It also contains specific provisions for the trafficking of children. The Human Trafficking Amendment Act of 2013 amends the 2008 Act by (a) expanding the definitions of “labour exploitation” to include forced begging and of “exploitation” to include forced participation in criminal acts for profit (in line with the EU Human Trafficking Directive) and (b) adding aggravating factors (e.g., where a public official trafficks for sexual or labor exploitation).
The 2008 Act, which amends the 1998 Child Trafficking and Pornography Act (available here) among other legislation, defines trafficking as when a person, in relation to another person, “(a) procures, recruits, transports or harbours the person, or (i) transfers the person to, (ii) places the person in the custody, care or charge, or under the control, of, or (iii) otherwise delivers the person to, another person, (b) causes a person to enter or leave the State or to travel within the State, (c) takes custody of a person or takes a person— (i) into one’s care or charge, or (ii) under one’s control, or (d) provides the person with accommodation or employment” (Section 1). Exploitation includes labour exploitation, sexual exploitation, or exploitation consisting of the removal of one or more of the organs of a person. Labour exploitation includes subjecting the person to forced labour, forcing him or her to render services to another, or enslavement or similar servitude. Sexual exploitation includes production of pornography depicting the person alone or with others, causing the person to engage in sexual activity for the purpose of the production of pornography, prostitution of the person, or otherwise causing the person to engage or participate in any sexual, indecent, or obscene act, etc. (Section 1). The Act contains specific provisions regarding trafficking of a child (a person under the age of 18), which were further amended by the Criminal Law (Sexual Offences) Act 2017 (available here). Trafficking a child for exploitation is an offense, as is selling or offering to sell a child, or purchasing or offering to purchase a child (Sections 2 and 3). There is an additional definition of “trafficks” in relation to a child, meaning that a person “(a) procures, recruits, transports or harbors the child, or— (i) transfers the child to, (ii) places the child in the custody, care or charge, or under the control, of, or (iii) otherwise delivers the child to, another person, (b) causes the child to enter or leave the State or to travel within the State, (c) takes custody of the child or takes the child— (i) into one’s care or charge, or (ii) under one’s control, or (d) provides the child with accommodation or employment” (Section 3). There is also separate definition of “sexual exploitation” in relation to a child, and includes inviting, inducing, or coercing a child to engage in prostitution or the production of child pornography, or inviting, inducing, or coercing the child to engage or participate in any sexual, indecent, or obscene act, etc. (Section 3). The offences of exploitation and sexual exploitation in relation to children are subject to penalties specified in sections 2 and 3; a court may sentence a person found guilty on indictment to a term of life imprisonment (or less) and a fine. Penalties for trafficking of persons other than children are specified in Section 4; the court may sentence a person found guilty on indictment to a term of life imprisonment (or less) and a fine. The Act also explicitly provides for penalties where an accused is found guilty of attempt, incitement, or conspiracy in relation to the offences under the Act. Soliciting or importuning for purposes of prostitution of trafficked persons, or benefiting from such activities, is also an offence subject to specified penalties (Section 5), as are offences committed by corporate bodies (Section 6). Jurisdiction includes extraterritorial jurisdiction (e.g., where a person commits an act in relation to an Irish citizen in a place other than the State that, if done in the State, would constitute one of certain enumerated offenses). The Criminal Law (Human Trafficking) (Amendment) Act 2013 (available here) further amends these provisions, in particular with expanded definitions of labour exploitation and aggravating factors.
Law No. 350-3 “on Countering Human Trafficking” (Amended 2014) (2014)
Law No. 350-3 defines human trafficking and sets out measures to prevent human trafficking and related crimes. These include identifying victims of trafficking, educating, and providing information to citizens on related issues. The law further sets out measures for the protection and rehabilitation of victims of trafficking, including ensuring their safety, providing temporary accommodation, legal, medical, and psychological assistance, among others. The law provides that persons guilty of trafficking in persons or related crimes are punishable in accordance with the legislative acts of the Republic of Belarus and the victim's "unwillingness or inability" to change his or her "anti-social behavior" caused by the trafficking does not eliminate or mitigate the offender's liability.\
Art. 181 defines trafficking in persons as the “recruiting, transporting, transferring, harboring, or receiving a person” for the purposes of exploitation by deception, abuse of trust, or use of violence, or threat of such violence. Trafficking in persons is punishable by imprisonment for a term of three to seven years and for a term of up to 15 years if committed in aggravating circumstances, such as, knowingly against a pregnant woman or a minor, or with the removal of the person outside of the country, among others. Art. 181 also notes that “exploitation” means the illegal coercion of a person to work or provide services, for example, sexual acts and surrogacy when the victim, for reasons beyond his or her control cannot refuse to perform such work or services. Art. 1811 criminalizes the use of slave labor and other forms of exploitation. In the absence of signs of criminal behavior described in Art. 180, the crime is punishable by imprisonment for a term of two to five years, with a fine, but for a term of up to 12 years if committed in aggravating circumstances, such as knowingly against a pregnant woman or minor. Arts. 182-185 criminalize kidnapping, unlawful deprivation of liberty, and coercion. Art. 186 prohibits threats of murder, infliction of grievous bodily harm, or destruction of property if there was reason to fear fulfillment of the threats. An Art. 186 crime is punishable by community service, fines, correctional labor, or restraint on liberty or imprisonment for a term of up to two years.
The Criminal Code defines rape and the persecution of a person based on his or her sex as a crime against humanity (Article 172). It also includes rape or forcible prostitution under threat to a person’s life or limb and/or the threat to the life or the limb of a loved one as a crime of war (Article 180). English translation available from ILO and LegislatiOnline through External URL.
Any person forcing another person into prostitution is subject to 5-10 years of imprisonment. If the victim is under 18 years old, the offender is subject to 10-20 years of imprisonment. Human trafficking is defined as the recruitment, moving, transfer or harboring of any person within or across national borders by means of deception, threats, use of force, debt bondage or other means, and using such person in forced labor, prostitution, pornography, or other unlawful acts, or removing body organs of such person, or for other unlawful purposes. The offender is subject to 5-15 years of imprisonment. For victims under 18 years old, any of the above-mentioned acts committed against them is deemed to be human trafficking even if there is no deception, threat, use of force, or debt bondage. When the offender is a “regular” human trafficker or in an organized group, the victims are children, there are two or more victims, the victim is a relative of the offender, or any victim suffers serious injury or becomes an invalid or insane, the offender is subject to 15-20 years of imprisonment. If a victim becomes disabled, infected with HIV, or died, the offender is subject to life imprisonment. Fines for human trafficking range from 10 million to 1 billion kip. If the victim is a woman, provisions of the Law on the Development and Protection of Women may be applicable too.
Domestic Case Law
Doe v. Howard Supreme Court of Victoria at Melbourne: Common Law Division (2015)
The plaintiff (under the pseudonym ‘Jane Doe’) brought proceedings to enforce the judgement of a United States district court against her former employers, Mr. and Mrs. Howard. The claims against them included involuntary servitude, forced labour, and human trafficking. Mr. Howard did not contest the claim and had since died. Mrs. Howard disputed the claim but failed to comply with court orders, then moved to Victoria and participated no further in the proceedings. The U.S. district court had found that the plaintiff was raped, sexually abused, and forced to work 80 hours or more per week, and entered a default judgment against Mr. and Mrs. Howard in the amount of US $3,306,468. The Supreme Court of Victoria held that all criteria for enforcing the U.S. judgment were satisfied. The fact that the U.S. judgment was a default judgment that could theoretically be set aside did not prevent it from being “final and conclusive.” While Mrs. Howard argued that the default judgment was procured by fraud and should not be enforced in Victoria, the Supreme Court found that Mrs. Howard had “no reasonable prospect of establishing” her defences, and entered summary judgment against Mrs. Howard for the equivalent of US $3,306,468, plus interest.
Prosecutor's Office v. Nermin Ćupina Ustavni Sud Bosne i Hercegovine (Constitutional Court of Bosnia and Herzegovina) (2006)
In 2002, Nermin Ćupina (“Ćupina”) recruited two underage girls and one woman and forced them, through threats of violence to them and their family members, to provide sexual services for money. Each day, the victims were forced to earn KM 400 through prostitution, all of which Ćupina kept. The Court of BiH sentenced Ćupina to 12 years’ imprisonment, which it added to Ćupina’s four-year prison sentence from the Cantonal Court in Mostar, resulting in a single sentence of 14 years’ imprisonment after credit for time served. In addition, in accordance with Article 110 of the Criminal Code of BiH, the Court of BiH confiscated the material gain Ćupina acquired through his criminal enterprise. The court, relying on the findings of an expert, established that Ćupina made at least BAM 100,000 in 2002 by prostituting the victims. The court also concluded that because neither Ćupina nor his wife had regular income during 2002, the construction of an apartment valued at BAM 61,481.55 was financed entirely from Ćupina’s criminal enterprise. The Court of BiH confiscated the apartment and ordered Ćupina to pay the remainder of the estimated material gain, BAM 38,518.45.
Decision available in English here.
Prosecutor's Office v. Tasim Kučević Sudom Bosne i Hercegovine (Court of Bosnia and Herzegovina) (2009)
Between May 2003 and June 2005, Tasim Kučević (“Kučević”) and his common law wife, Meliha Pjević (“Pjević”), procured and exploited at least six women by forcing them to dance and serve cocktails at their hotel and provide sexual services to customers. Through advertisements for dancing positions in Spain and Serbia, the couple enticed four women from Russia and Ukraine to come to Serbia; the victims were then trafficked to BiH. By taking advantage of a Bosnian woman’s drug addiction and a Romanian woman’s illegal immigrant status in BiH, Kučević and Pjević forced two other women into prostitution at the same hotel. Eight of Kučević’s acquaintances supervised the women, guarded the hotel, and ran the prostitution business. In 2007, the Court of BiH convicted Kučević and Pjević of Organized Crime in conjunction with Pandering. In 2009, a panel of the Appellate Division convicted Kučević and Pjević of Organized Crime in relation to Trafficking in Persons in violation of Articles 250(3) and 186(1) of the Criminal Code of BiH. The panel, taking into consideration extenuating and aggravating factors, sentenced Kučević and Pjević to 12 and six years’ imprisonment, respectively. The two were also forced to forfeit the material gain from their criminal enterprise, BAM 286,440. Lastly, the eight men who assisted Kučević and Pjević in trafficking and exploiting the women were convicted of the same charges and sentenced to between three months’ and four years’ imprisonment.
Second instance verdict available in English here.
Prosecutor's Office v. Gojko Janković Sudom Bosne i Hercegovine (Court of Bosnia and Herzegovina) (2007)
Between April 1992 and November 1993, during the Bosnian War, Gojko Janković, a paramilitary leader within the Srpska Republika Army, participated in a widespread and systematic attack on the non-Serb civilian population of Foča. Janković’s unit methodically captured civilians, detained them separately according to gender, and killed dozens of men. During this time, Janković raped at least five girls and women; the soldiers under his command raped scores more. In addition, Janković and a co-perpetrator kept two teenage girls in sexual slavery at a nearby house for over one year. In 2005, Janković voluntarily surrendered and was transferred to the International Criminal Tribunal for the Former Yugoslavia (“ICTY”). Shortly thereafter, the Referral Branch of the ICTY referred Janković’s case to the Court of BiH. In 2007, the Court of BiH found Janković guilty of Crimes against Humanity under Article 172(1) of the Criminal Code of BiH and sentenced him to 34 years imprisonment. In 2010, Janković appealed his conviction to the ICTY, arguing the Court of BiH convicted him under a law, the Criminal Code of BiH, which did not exist at the time his crimes were committed. The ICTY denied his appeal.
Second instance verdict available in English here.
Uganda v. Umutoni High Court at Kampala (International Crimes Division at Kololo) (2014)
The accused was charged with human trafficking and aggravated child trafficking for transporting minor girls, who were promised supermarket jobs in Uganda, from Rwanda to Uganda for the purposes of forced unpaid household labor and prostitution. The accused pleaded not guilty and maintained that she transported the girls to Uganda with their parents’ permission for a holiday. The Court found her guilty of the charges related to two of the girls, but found that one of the girls was over the age of majority (19 years old). The Court sentenced the accused to two concurrent terms of imprisonment: eight years for aggravated child trafficking and five years for trafficking in persons.
International Case Law
Hadijatou Mani Koraou v. Republic of Niger ECOWAS Community Court of Justice (2008)
The applicant, who was born to a mother in slavery, was sold to a local chief at age 12. For the next nine years she was subjected to rape, violence, and forced labor without remuneration. When Niger’s Supreme Court failed to convict her "owner" under Article 270.1-5 of the Nigerien Criminal Code, which made slavery illegal in 2003, the applicant brought her case before the ECOWAS Community Court of Justice under Article 9(4) of the Supplementary Protocol A/SP.1/01/05. The court ruled that the applicant had been a slave under the definition in Article 1 (I) of the Slavery Convention of 1926 and that in failing to convict her former "owner," Niger had not upheld its legal responsibility to protect her from slavery under international law. This case was the first ECOWAS ruling on slavery and only the second conviction made under Niger’s 2003 anti-slavery law. The case gained a high level of publicity, setting the precedent for women to fight back against the traditional slavery practices common to Niger and other ECOWAS nations. As of 2009, there had been approximately 30 more cases upholding the prohibition of slavery in Niger.