“5.11 The term “torture”, as means of trafficking, consists
of any acts, by which strong suffering or intense physical or
mental pain is caused to a person. (…)
Physical and mental violence caused to a person,
considered in its entirety, may qualify as acts of torture
in the meaning of Article 165 CC, where it caused grave
pain or suffering and has been extremely rough and cruel
(deprivation of sleep, food and water, thermic or chemical
burns, intimidation, deprivation of medical help, of toilet
facilities etc.). (…)
Inhuman treatment is any treatment, other than torture,
which is likely to cause deliberately terrible physical or
mental suffering, which cannot be justified. (…)
Degrading treatment is any treatment, other than torture,
which gravely humiliates a person in front of other persons
or forces him/her to act against his/her will and conscience,
or which is likely to cause feelings of fear, inferiority or
anxiety to the victim, to abuse and break down his/her
physical and moral resistance, in order to ensure victim’s
obedience.”
Trafficking in human beings
and gender equality in Moldova: updated normative acts
in the absence of a consistent pattern of torture or other
gross or mass human rights violations, the protection of
refoulement of Art. 3 UNCAT applies.147 The return of trafficked persons to the country of origin can lead to harms
such as retaliation or re-trafficking, which could amount
to torture or to other forms of ill-treatment. As a consequence, the possibility of being exposed to retaliation or
re-trafficking has to be assessed by the State in order to be
able to apply the principle of non-refoulement. States are
not allowed to return a person if there is the risk of harm
such as re-trafficking or retaliation in the country of origin
which may amount to torture or – under the ECHR – to
other forms of ill-treatment. Therefore, States are obliged
to implement a meaningful and effective risk assessment.
The Palermo Protocol stresses that the return shall “preferably be voluntary” 148. Many trafficked persons want to return to their home country and return therefore voluntarily.
In reality though, it is often not necessarily the case that
the persons return voluntarily, it is rather a lack of other
alternatives. A return can only be called voluntary if the
trafficked person can legally stay in the country of destination and can therefore make an informed decision about the
return.149 The Palermo Protocol requires that the return of
a trafficked person shall be “with due regard for the safety
of that person” 150, but does not require a risk assessment in
general.
The OSCE Action Plan to Combat Trafficking in Human
Beings and Ministerial Council decisions stress that OSCE
participating States have to assess the safety of returning a
trafficked person and ensure that the non-refoulement principle is applied effectively.151
Limited experience of jurisprudence linking trafficking in
human beings to torture or other forms of ill-treatment
makes it difficult to develop the possibility of protection
from refoulement for trafficked persons due to the threat
of torture or other forms of ill-treatment in the country of
origin.
4.1.7 The Return of Victims of Trafficking in Human Beings
and Risk Assessment
The United Nations Convention against Torture:
In general, UNCAT obliges States not to expel, return or
extradite a person if this person faces the risk of being tortured in the State in which the person shall return to. The
host-State has to assess the risk of torture. States have to
assess not only the possible existence of a “consistent pattern of gross, flagrant or mass violations of human rights” 146
but also the individual circumstances of a person. Even
A Commentary
Convention against Torture and other Cruel,
Inhuman or Degrading Treatment or Punishment
Decision No. 557/Rev. 1 OSCE
Action Plan to Combat Trafficking in Human Beings
United Nations Protocol to Prevent, Suppress and
Punish Trafficking in Persons, Especially Women and Children, Supplementing the United Nations Convention against Transnational Organized Crime
Report, First Expert Meeting on Human Rights Protection
in the return of trafficked persons to countries of origin
33
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