TRAFFICKING IN HUMAN BEINGS - QUALIFICATION OF ACTIONS UNDER ART. 149 of the Criminal Code of Ukraine

In accordance with the requirements of Article 149 of the Criminal Code of Ukraine (trafficking in human beings or other illegal agreement on a person) as amended by Law No. 3316-IV (3316-15) of 12.01.2006, liability for trafficking in human beings or other illegal agreement was established. which is a man.

Thus, according to Part 1 of this article: "trafficking in human beings or the implementation of another illegal agreement, the object of which is a person, as well as recruitment, transfer, concealment, transfer or receipt of a person committed for exploitation, fraud, blackmail or vulnerable person - shall be punishable by imprisonment for a term of three to eight years. "
The method of stating this rule of law allows for its double interpretation and ambiguous approach in the course of enforcement in court proceedings.

Some jurists, judges and law enforcement officials believe that liability under this article arises in split cases, with "trafficking in human beings" being a completed crime given the objective side of the crime, and another illegal agreement involving a person. This is a different composition of the crime, and both the first and the second do not relate to the need to prove such features of the objective side of the crime as an act of exploitation "using deception", "blackmail" or "vulnerable state of the person."

Thus, it has become common practice for judges to believe that only the recruitment, transfer, concealment, transfer or receipt of a person for the purpose of exploitation, in order to establish the corpus delicti, must contain one of the 3 mandatory features of use:

deception,blackmail,vulnerable state of the person.This position is confirmed in particular by the presence of note № 3 to Art. 149 of the Criminal Code of Ukraine, which establishes that liability for recruitment, transfer, concealment, transfer or receipt of a minor under this article should arise regardless of whether such acts were committed with deception, blackmail or vulnerability of these persons or with the use or threat use of violence, use of official position, or a person from whom the victim was materially or otherwise dependent.

That is, if logical parallels are drawn, it must be assumed that liability for trafficking in human beings or other illegal transactions involving a minor must also occur regardless of whether such acts were committed through deception, blackmail or vulnerability. condition of these persons. But this is not explicitly stated in the law, so it can be considered the opposite, that trade or the implementation of another illegal agreement, the object of which is a minor or a minor will not be a crime without such acts using deception, blackmail or vulnerability, since these actions will not be a crime with an adult.
We believe that the problem is that the criminal law does not establish the concept of "trafficking in human beings", which does not contribute to the correct application of such qualifications in criminal cases. Specifically, it is not clear from the norms of the Criminal Code of Ukraine whether to consider trafficking in human beings as acts committed without the purpose of exploitation, and without the use of deception, blackmail or vulnerability of a person.

Prior to the entry into force of Law No. 3316-IV (3316-15) of 12 January 2006, Article 149 of the Criminal Code of Ukraine was in a different wording, which did not have the phrase “trafficking in human beings” at all:

"Sale, other paid transfer of a person, as well as the implementation of any other illegal agreement related to legal or illegal movement with his consent or without consent across the state border of Ukraine for further sale or other transfer to another person (persons) for the purpose of sexual exploitation, use in the porn business, involvement in criminal activities, involvement in debt bondage, adoption (adoption) for commercial purposes, use in armed conflicts, exploitation of its labor. "

At the same time, the criminal law did not establish the concept of "selling a person" either.

The Criminal Code of Ukraine of 1960 established the corpus delicti for trafficking in human beings in the disposition of Article 124-1 as:

"Open or secret seizure of a person related to legal or illegal movement with or without the consent of a person across the state border of Ukraine or without such for resale or other paid transfer for sexual exploitation, use in pornography, involvement in criminal activity, involvement in debt bondage, adoption for commercial purposes, use in armed conflicts, exploitation of its labor.

At the same time, the criminal law established that criminal possession is only the taking of a person for the purpose of further sale or other paid transfer, and only for the purpose of sexual exploitation, use in pornography, involvement in criminal activity, involvement in debt bondage, adoption for commercial purposes, use in armed conflicts, exploitation of its labor.

That is, the article before 2001, which established liability for trafficking in human beings, was not ideal, as its application in practice was difficult due to the need to prove the purpose of the actions of criminals. Meanwhile, it was more specific and set clear guidelines for qualifying the suspects' actions.

Due to the existing norm established in Art. 149 of the Criminal Code of Ukraine, a very large list of actions may fall under its qualification, because it is unclear exactly when the process of human trafficking begins and ends and how it is possible, what restrictions should be imposed on this person, and it is important that he has whether there is freedom of movement, whether the will of the person matters, etc.

From the analysis of this norm, it can be generally assumed that any trafficking in human beings is undoubtedly considered a crime, including legal, but only another agreement, the object of which is a human being, must be illegal for the presence of a crime. Is human trafficking always illegal? Then where is it written?

For example, people who professionally employ someone also receive money for it, and formally they sell this person to the employer, receiving money from him for their work.
Each person sells himself and his time when he works for anyone, and from the owner of the enterprise to the worker there are several other workers, who can also be formally considered intermediaries, who are actually assistants in selling people, because they can get money from the owner for that they have agreed to work with that third party.

It is clear that our judges cannot come to such an absurdity to pass sentences in such cases, but we believe that the criminal law should be as clear as possible to prevent any abuse.

The reduction of the concept of trafficking in human beings to trafficking in women is contained in the UN Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others, which was adopted in 1949. Article 1 of the Convention states that the parties to this Convention agree to punish any person who, in order to satisfy the passions of others:
1) supplies, persuades or kidnaps for the purpose of involving another person in prostitution, even with the consent of the latter;

2) exploits the prostitution of another person, even with the consent of the latter.

Although having the concept of "trafficking in human beings" in its title, the 1949 Convention actually gives the concept of trafficking in women for the purpose of their use in prostitution.
The Hague Ministerial Declaration on European Guidelines for Effective Measures to Prevent and Combat Trafficking in Women for the Purpose of Sexual Exploitation of 1997 defines trafficking in women as “any act aimed at the legal or illegal importation, trafficking, stay or export of women profitable sexual exploitation, using coercion, in particular violence, threats or deception, abuse of office or other pressure, as a result of which a person has no real and satisfactory choice as soon as to submit to this pressure or committed illegal acts ”.

The most recent international legal definition of trafficking in human beings is contained in the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the UN Convention against Transnational Organized Crime, adopted on 15 November 2000. According to Article 3 of this Protocol, trafficking in human beings means the recruitment, transportation, transfer, concealment or reception of persons through the threat of force or other forms of coercion, kidnapping, fraud, deception, abuse of power or vulnerability, or payment or receipt of money. or other gain to obtain the consent of a person who has control over another person.

The above shows that today the concept of human trafficking on a global scale is invested to some extent by various phenomena that have common features, the main of which - the sale (another paid transfer) of man. Trade is interpreted as:

"Open or secret seizure of a person related to legal or illegal movement with or without the consent of a person across the state border of Ukraine or without such for resale or other paid transfer for sexual exploitation, use in pornography, involvement in criminal activity, involvement in debt bondage, adoption for commercial purposes, use in armed conflicts, exploitation of its labor.

1) such sale of the person when its buyer receives over it all or almost all attributes of the property right (slave trade);
2) sale, which leads to the commission of human institutions and customs identical to slavery, such as debt bondage, family slavery, etc .;
3) export for sale or sale of a person abroad or in his own country for use in prostitution or pornography;
4) sale of a child for illegal adoption;
5) use of an embryo or human fetus for selfish purposes (actually sale of the embryo or fetus);
6) sale of a person for the purpose of illegal removal of his organs, etc.

In our opinion, the most complete definition of this phenomenon is given in the Human Rights Standards for the Treatment of Victims of Trafficking in Human Beings from 1999, developed by the non-governmental organizations World Alliance against Trafficking in Women (Thailand), the Foundation against Trafficking in Women (Netherlands) and the International Law Group. according to which trafficking in human beings is “any act and encroachment on acts aimed at selecting, transporting within or outside borders, buying, selling, transferring, receiving or harboring a person through deception, coercion (including the use of force or threats of force or abuse of office) or debt bondage for the purpose of enslaving or keeping such a person for a fee or without such in involuntary slavery (domestic, sexual or reproductive), in forced or serfdom or in conditions similar to slavery anywhere, except in the place where such person lived at the time of the initial deception, coercion or debt enslavement ”.

According to these standards, the main features of trafficking in human beings are fraud, coercion or debt bondage and the purpose is exploitation for which fraud, coercion or debt bondage is used.
The nature of the work or services as such, including the sex industry, is not relevant to the violation or non-violation of the victim's human rights. A serious violation of the fundamental rights of all people is the use by traffickers of deception, coercion or debt bondage to force a victim to work in conditions similar to slavery or other conditions of exploitation and abuse that deprive the victim of his or her right and ability to dispose of his or her body.

Thus, we consider the existing jurisprudence in Ukraine to be wrong, because human trafficking, as well as other illegal agreement, the object of which is a person, should be criminally punished only if they are committed for the first time for exploitation, and the second with one in the above signs.

We believe that it is necessary to amend Art. 149 of the Criminal Code of Ukraine in such a way that there is no possibility of double interpretation and ambiguous approach to the qualification of actions of suspects in this type of crime. In addition, the concept of "trafficking in human beings" needs to be established in criminal law.