offences under its internal law, the use of
services [of a victim of trafficking] … with
the knowledge that the person is a victim of
trafficking in human beings.
The Explanatory Report to the European
Trafficking Convention confirms that this
provision was prompted by a desire to
discourage the demand for exploitable people
that drives trafficking. The provision also
seeks to secure the potential criminalization
of individuals involved in trafficking against
whom the requisite elements of the crime may
be difficult to prove. For example, the owner
of business premises used for trafficking may
not have undertaken any of the “actions” set
out in the definition or used any of the required
“means”, such as deception or coercion. Article
19 would enable the criminal prosecution of
that individual if it could be shown that he or
she knowingly made those premises available
for the use of a trafficker.
The Explanatory Report (para. 232) provides an
additional example of situation in which article
19 could apply: “[t]he client of a prostitute
who knew full well that the prostitute had been
trafficked could likewise be treated as having
committed a criminal offence … as could
someone who knowingly used a trafficker’s
services to obtain an organ.” Intent is the key
element in the offence proposed under article
19. While evidence of a non-material ingredient
such as intent may be difficult to prove, the
Explanatory Report envisages (para. 235)
that the perpetrator’s intention can indeed be
inferred from objective factual circumstances.184
Criminalizing the use of the services of a trafficking
victim – where the user knew or recklessly
disregarded the fact that the individual involved
was a victim of trafficking – is well within the spirit
of the Principles and Guidelines. It addresses a
critical link in the trafficking chain and can be
considered a key aspect of a comprehensive
strategy to reduce the demand for the goods and
services produced through the exploitation of
trafficked persons. The Principles and Guidelines
provide an important framework for the important
task of fleshing out the legal and policy parameters
of this strategy. Note that this issue is also
considered in the context of the discussion on the
general obligation of criminalization set out in
Principle 12 and related guidelines.
SEE FURTHER:
• Human rights-based approach to trafficking:
part 2.1, sections 1.1-1.5
• Vulnerability to trafficking: part 2.2, sections
5.1-5.7
• Criminalization of trafficking and related
offences: part 2.4, sections 12.1-12.3
Note that article 6 (2)(f) of the Organized Crime
Convention states, in reference to criminalizing laundering
of the proceeds of crime, that: “Knowledge, intent or
purpose required as an element of an offence set forth in
paragraph 1 of this article may be inferred from objective,
factual circumstances”. The Explanatory Report on the
European Trafficking Convention cites this provision in
connection with its discussion of article 19.
184
COMMENTARY
103
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