UNODC Draft Model Legislation on
Trafficking in Persons
May 2008
UNODC Draft Model Legislation on Trafficking in
Persons (TIP) – Development
• Development of ML, follows UNODC practice in
developing Model Laws
• Draft ML on TIP developed by an informal Expert
Working Group (EWG) in accordance with UN
mandates and resolutions
– The first EWG, held in May 2006,
– Second EWG, held in October 2007
• Existing UNODC Model Laws for civil and common law
jurisdictions are available at:
http://www.unodc.org/unodc/en/legal-tools/Model.html
UNODC Draft ML on TIP - Basis
• United Nations Convention against Transnational
Organized Crime,2000
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Entry into force: 29 September 2003
Parties: 144 (May 2008 )
• Protocol to Prevent Suppress and Punish Trafficking in Persons,
Especially Women and Children, supplementing the United
Nations Convention against Transnational Organized Crime,2000
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Entry into force 25th December 2003,
– Parties - 118 (May 2008)
• Other international instruments; and
• Good practices from national legislation
Objectives of UNODC Draft ML
Closely Follow “Purposes” of TIP Protocol (Art.2)
• To prevent and combat trafficking in persons, paying
particular attention to women and children;
• To ensure just and effective punishment of traffickers;
• To protect and assist the victims of such trafficking,
while maintaining full respect for their human rights;
• To promote and facilitate national and international
cooperation in order to meet these objectives.
UNODC Draft ML on TIP
Structure and Format
• Two formats:
– One comprehensive law or,
– Collection of provisions for insertion into existing laws e.g.
labour or immigration,
• for use in both civil and common law legal systems,
– Contains Commentary on mandatory and optional provisions,
use of language, suitability of provision to civil or common
law system,
– 9 chapters including: jurisdiction, trafficking specific
provisions, victim assistance, immigration & return,
prevention and training.
UNODC Draft ML on TIP - The Trafficking Offence
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Mandatory provision based on Article 3, trafficking
Protocol, elements include:
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the act (e.g. recruitment, transport),
the means (e.g. threat, force, deception, fraud, abuse of a
position of vulnerability),
the exploitation (e.g. force labour, forced sexual services,
slavery),
Irrelevance of consent,
UNODC Draft ML on TIP – the trafficking offence,
option 1
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Article 8. Trafficking in Persons
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(1) Any
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person who
(a) recruits, transports, transfers, harbours or receives another person
(b) by means of the threat or use of force or other forms of coercion, of
abduction, of fraud, of deception, of the abuse of power or of a position of
vulnerability, or of the giving or receiving of payments or benefits to achieve
the consent of a person having control over another person
(c) for the purpose of exploitation of that person
shall be guilty of an offence of trafficking in persons and shall be subject to
imprisonment for …… and/or a fine of /up to ……… [a fine of the ….category].
UNODC Draft ML on TIP – the Trafficking Offence,
option 2
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Article 8. Trafficking in Persons
(1) Any person who
(a) recruits, transports, transfers, harbours or receives a person
(b) for the purpose of exploitation.
Shall guilty of an offence of trafficking in persons and shall be subject to
imprisonment for …… and/or a fine of/up to ………….
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(2) Exploitation means:
(a) forced labour or services, including forced sexual services;
(b) slavery or practices similar to slavery;
© servitude, including sexual servitude;
(d) the forced or illicit removal of organs.
UNODC Draft ML on TIP – Definition of Exploitation
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Article 8 (2)
2) Exploitation shall include:
(a) the exploitation of the prostitution of others or other forms of sexual
exploitation
(b) forced labour or services [including bonded labour and debt bondage]
© slavery or practices similar to slavery
(d) servitude [including sexual servitude]
(e) the removal of organs.
(f) [other forms of exploitation defined in domestic law].
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Non exhaustive element reflected as per Article 3, UNTOC Protocol
UNODC Draft ML on TIP - Consent
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Examples
Consent – general:
– The consent of the trafficked person to the (intended) exploitation set forth in Art.
8(2) shall be irrelevant if one of the means listed in Art 8 1 ( b) is used.
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Or:
– In a prosecution for trafficking in persons under Article 8, the alleged consent of a
person to the intended or realised exploitation is irrelevant once any of the means
or circumstances set forth in Art. 8 1 (b) is established.
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Consent – child:
– The recruitment, transportation, transfer, harbouring or receipt of a child for the
purpose of exploitation shall be considered trafficking in persons even if this does
not involve any of the means set forth in paragraph 8 (1)(b).
UNODC Draft ML on TIP – Non Liability of Victims
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Article 10. Non-liability [non-punishment] [non prosecution] of victims of
trafficking in persons (optional provision)
(1) Victims of trafficking shall not be held liable [punished] [inappropriately
incarcerated, fined, or otherwise penalized] for offences [unlawful acts]
committed by them in the course of being trafficked, including
Illegal entry, exit or stay in [name of State]
Use or possession of any fraudulent travel or identity documents that the
victim obtained, or with which the victim was supplied, for the purpose of
entering or leaving the country in connection with the act of trafficking in
persons
Working without documentation
[ Engaging in prostitution ]
(2) This provision is without prejudice to general defenses available to the
victim.
UNODC Draft ML on TIP – Non Liability of Victims
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Examples of national legislation/regulations include:
UNMIK Regulation No. 2001/4 on the Prohibition of Trafficking in Persons in
Kosovo “a person is not criminally responsible for prostitution or illegal entry,
presence or work in Kosovo if that person provides evidence that supports a
reasonable belief that he or she was the victim of trafficking.” (source: United
Nations Interim Administration in Kosovo (UNMIK), UNMIK/REG/2001/4).
The United States trafficking Victims Protection Act acknowledges that victims
of trafficking should not be “penalized solely for unlawful acts committed as a
direct result of being trafficked, such as using false documents, entering the
country without documentation, or working without documentation.” (Source:
Trafficking Victims Protection Act of 2000, 18 U.S.C. §7101(17), (19) (2000)).
UNODC Draft ML on TIP – Use of Forced Labour
and Services
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Examples - Article 11. Use of forced labour and services (optional)
Any one who knowingly makes use of or profits from, labour or services
performed or rendered under conditions of exploitation as defined in Art. 8
subparagraph (2) [labour or services performed or rendered by a victim of
trafficking in persons], shall be guilty of an offence, and shall be subject to
imprisonment for …… and/or a fine of/up to….. [a fine of the …. category].
Or
Anyone who makes use of labour or services which are the object of
exploitation as defined in Art. 8 paragraph (2), with the knowledge that the
person is a victim of trafficking in persons, shall be guilty of an offence, and
shall be subject to imprisonment for …. and/or a fine of/up to... [a fine of the
…. category].
UNODC Draft ML on TIP – Victim & Witness
Protection, Assistance and Compensation
• Article 21. General Principles
– All actions taken in relation to victims of trafficking
shall be based on, among others, the following
principles:
• The promotion, respect and protection of human rights,
dignity, including the right to adequate remedies, to
privacy, safety, assistance, protection and redress.
• The avoidance of secondary victimization and /or
stigmatization, and the prevention of re-victimization.
UNODC Draft ML on TIP – Victim Identification
• Article 24 – Identification of victims of trafficking in
persons
– A national coordinating body (NCB) established under this
(Model) Law, to establish guidelines/ procedures for the
identification of victims of trafficking in persons
– NCB to develop and disseminate to professionals likely to
encounter victims of TIP, information and materials
concerning TIP, including manuals on identification of victims
of TIP
– Requirement for competent authorities to collaborate with
State and non-state victim assistance entities
Draft ML on TIP –Rights and Entitlements of
Victims of TIP (Art 25)
• Obligation on service providers to provide benefits and
services to victims without regard to
– Immigration status of a victim, or
– His, or her ability or willingness to participate in investigation
or prosecution of alleged traffickers
Draft ML on TIP –Rights and Entitlements of
Victims of TIP (Art 25)
• Victims of TIP entitled to the following rights,
benefits and services
– Right to information and assistance
– Right to legal representation and participation in
criminal justice process
– Right to protection of privacy
– Right to compensation and restitution
– Access to temporary or long term residence status
(where applicable)
Draft ML on TIP – Recovery and Reflection Period
(Art 34)
• Identification of victim of TIP to be done within specified
period
• Once identified, victim to be granted a recovery and
reflection period of not less than 90 days to make
informed decision whether or not to cooperate with
competent authorities
• During recovery and reflection period, victim, and where
applicable, his/ her accompanying dependants to
remain legally in the country
Draft ML on TIP – Temporary or Permanent
Residence Permit (Art 35)
• Victim and accompanying dependants (where
applicable) to be issued temporary residence permits of
not less than 6 months, taking into account
compassionate and humanitarian factors
– Irrespective of whether victim is able or willing to act as
witness
• Victim has possibility to apply for refugee or permanent
residence status on humanitarian and compassionate
grounds
Draft ML on TIP – Return and Repatriation of
Victims of TIP (Art 36 & 37)
• Country of which a victim of TIP is national or had
permanent residence to facilitate and accept return of
victim
– Without unreasonable delay
– With due regard to his/her rights and safety
• Any decision to return victim of TIP to country of origin
shall be taken in the light of the principle of nonrefoulement
• No record is to be made in the identity papers of the
victim relating his/ her return, no shall personal data in
this regard be stored in any database.
Draft ML on TIP
Thank you!