Proving trafficking for labour exploitation can be difficult. It is therefore important to thoroughly investigate and then prosecute THB for labour exploitation. Here we describe what prosecution services can do to successfully prosecute cases.
When organisations want to address all cases of THB for labour exploitation, they can decide whether to prosecute for violations of criminal, labour or tax law. If it is not possible to make a case for THB for labour exploitation, it may still be possible to prosecute for violations of labour or tax law. In order to prosecute for other crimes, it is necessary to have the police working on the case as well as the labour inspectorate and/or the tax authorities.
Although labour or tax law charges may carry lower sentences, they may still achieve significant sanctions if perpetrators are charged for multiple violations or other crimes. This way activities may be disturbed. Or small violations of labour law may be prevented from turning into THB for labour exploitation.
Select cases that are most likely to lead to a conviction
Getting a conviction for THB for labour exploitation can be difficult. It may therefore be worthwhile to focus limited resources on investigating and prosecuting the cases that are most likely to convince a judge. And to settle the other cases using other powers, for example under labour law. Whether a prosecutor is in fact allowed to select cases this way depends on national legislation.
For example, in the Netherlands, the selection of cases of THB for labour exploitation for prosecution takes place in two stages: through a central notification meeting (CMO) and a central selection meeting (CSO).
Try to prosecute suspects for more than just THB
If trafficking suspects are also prosecuted for other crimes, they may be given higher sentences. For example, they could also be prosecuted for being a member of an organised crime group. Including other crimes may also lead to the suspects being convicted of lesser crimes, if the judge decides that THB for labour exploitation has not been proven.
Try to prosecute legal persons
Legal persons are rarely prosecuted for THB for labour exploitation, even though article 5 of the EU anti-trafficking directive determines that member states need to ensure that legal persons can be held liable for THB. The conviction of one company for THB for labour exploitation may encourage other companies to invest in preventing THB.
In Belgium, for example, two companies, both the actual employer and the contractor, were successfully prosecuted for the exploitation of restroom attendants. Read more about the Carestel Case.
Publish guidance on how to prosecute cases
Prosecution services could publish guidance on prosecuting cases of THB for labour exploitation. This would promote a consistent approach to the prosecution of cases of THB for labour exploitation. It may include the sentences prosecutors are able to suggest and best practices. For example, the UK policy for prosecuting cases of THB (pdf) can be downloaded online.
Analyse jurisprudence from other countries and European courts
The scope of THB for labour exploitation is quite ambiguous. Therefore, jurisprudence is very important to offer more clarity. Prosecution services could look at verdicts of national courts, and also at those of other courts in EU member states and at the European level, including the European Court of Human Rights (ECtHR). This may enable them to analyse valuable arguments and terminology and could help them prepare their own prosecutions. For that purpose, it may be helpful to widely distribute important court decisions.
Examples of case-law
The UNODC Human Trafficking Case Law Database
In 2011, UNODC launched a database of human trafficking case-law to provide public access to officially documented instances of this crime. The database aims to make real cases available as examples of how the national laws in place can be used to prosecute human trafficking.
At the time of writing, the database contained more than 1,200 cases from 83 different countries and two supranational courts. Of these cases, 232 are concerned with verdicts in the category of ‘Forced labour or services’. The database can be browsed by country or by keyword; for example, on the form of exploitation, the means of coercion, or the sector of the economy in which the exploitation took place.
The database is available in English, Spanish and French and can be found at the UNODC website.
European Commission Study on case-law
In 2015, the European Commission published a study on case-law relating to trafficking in human beings for labour exploitation, in member states during the period 2009-2013. The aim of this study was to identify case-law relating to THB for the purpose of labour exploitation and to analyse member state practice with respect to prosecution of this crime.
Key observations highlight the diversity of practice among the member states, and stress the challenges in prosecution, among others on securing evidence and lack of sufficient protection measures. Also, the study touches upon the availability and use of resources (training of staff, size of staff, equipment, data collection), as well as the role of labour inspectors.
The study on case-law can be downloaded online.
Use the support offered by Eurojust
Read more about the support by Eurojust to prosecutors in cross-border cases.
Get a second opinion from another prosecutor
Advice from another prosecutor can help make the case as convincing and strong as it can be.