Lausuntoja

Rikosuhripäivystyksen lausunto Euroopan Neuvoston ihmiskaupan vastaisen yleissopimuksen sopimuspuolten komitean antaman suosituksen seurannasta

Rikosuhripäivystys antoi ulkoministeriölle lausunnon Euroopan neuvoston ihmiskaupan vastaisen yleissopimuksen Suomea koskevien suositusten toteutumisesta. Lausuntoon laadittiin ihmiskaupan uhrien parissa työskentelevän neljän järjestöjen yhteinen osuus. Lausunnossa nostetaan esille huoli ihmiskaupan uhrien pääsystä auttamistoimien piiriin sekä oleskelupiin liittyvistä vaikeuksista. Auttamistoimet eivät toteudu yhdenvertaisesti ja mm. majoittamiseen liittyvät puutteet ovat akuutti ongelma.

Ulkoasiainministeriö
Oikeuspalvelu

Rikosuhripäivystyksen lausunto Euroopan Neuvoston ihmiskaupan vastaisen yleissopimuksen sopimuspuolten komitean antaman suosituksen seurannasta

Viite: HEL7MO520-7

We are thankful for the possibility to give our comments about the GRETA Recommendation CP(2015)1 on the implementation of the Council of Europe Convention on Action against Trafficking in Human Beings by Finland.

Victim Support Finland is a general crime victim support organization with 30 offices in all parts of Finland. Our work includes providing direct assistance and support to victims of human trafficking. Of our current 42 clients that have been victims of trafficking, about half are men and half are women. Approximately 75 % of these clients have become victims of trafficking due to labour exploitation.

From our current clients’ point of view, we are currently particularly concerned about the effects of Finland’s immigration policies, as our clients who face threats in their home country due to having testified against the perpetrator in Finland, have received negative decision to their residence permit applications without regarding the risk of retaliation. Also the victims’ families in the country of origin are unprotected from threats of violence directed at the victim/witness through their close ones. Due to current policies, also family unification is extremely hard to implement in Finland.

The lack of existing services will be dealt with in the joint section below, but additionally we would like to bring up the fact that male victims of trafficking sometimes have difficulties in receiving adequate assistance when the assistance is provided by the victim’s home municipality. In some cases, male victims of trafficking are offered a bed in a shelter for homeless persons (often with substance abuse problems) as their only alternative for emergency accommodation.

Also we find the (indirect) connection between criminal investigation and assistance very harmful from the point of view of the fulfillment of a victim’s right to assistance. Victims might fall out of the system and seize to receive assistance based on the fact that there is not enough evidence for a conviction on human trafficking. This discourages victims from coming forward and seeking help.

In general, the criminal process has not been designed from a victim perspective, due to which processes are sometimes unnecessarily long, stressful and re-traumatizing. Implementing measures to lessen the burden on the victim, providing comprehensive protection including the close ones, increasing the predictability of assistance provision and improving access to residence particularly when the victim is subjected to threats, could improve the Finnish system both in terms of increased incentives to report trafficking cases and the fulfillment of a victim’s right to protection.

Joint comments of the NGO alliance

The following statement consists of joint comments by the Four-leaf clover alliance made up of the NGOs MONIKA - Multicultural Women’s Association, Refugee Advice Centre, Victim Support Finland and Pro-tukipiste. Our comments are divided in sections according to those used in the recommendation.

Definition of ”trafficking in human beings”

1. There have not been any developments to specifically include the irrelevance of consent of a victim in legislation. Our NGOs consider that such an addition could help in the identification of victims and in the successful investigation and prosecution of perpetrators.

2. There have not been further legislative developments aimed to make the distinction between extortionate work discrimination and THB for the purpose of labour exploitation clearer. Unfortunately, cases that have clear indicators of THB are still investigated and brought to trial as extortionate work discrimination, which is easier to prove.

The right to receive services from the National Assistance System is restricted to victims of trafficking, which means that persons who in the criminal process are seen as victims of extortionate work discrimination are excluded from these services. This includes those victims who were already accepted as clients by the National Assistance System but where during the investigation the criminal charge is changed from human trafficking to another, or for whom the court verdict was for a crime other than human trafficking. This can happen for any reason, including for example the lack of evidence. In practice this means that even previously identified victims can be “de-identified” and lose the right to services because of technicalities in the criminal process.

Comprehensive approach and co-ordination

3. A new Action Plan 2017-2018 was launched in 2016. However, the new Action Plan does not clearly define priorities, concrete activities or responsible stakeholders, nor does it state allocated budgetary resources.

4-8. A National Coordinator for Action against THB was appointed in 2015 to creating a mechanism for multisector co-ordination. However, the functioning of this mechanism is still unclear and there is no shared understanding about how it should function. Hence, there is not yet a functioning platform for multisector co-operation, especially when it comes to practical matters related to for example the assistance and protection of victims or criminal investigation and proceedings. Our organizations have also noticed a worrying trend that some of the governmental bodies report NGOs’ actions as actions of the Government, justifying it with the fact that the NGOs receive funding through governmental bodies.

The NGOs have been included in the different national working groups and networks against THB, but the co-operation between NGOs and authorities has not been formalized. At the municipal level, NGO participation is particularly scarce and happens on an ad hoc basis. Victim Support Finland has started a series of local multidisciplinary working groups in order to address these issues and increase cooperation between different authorities and civil society at the local level.

Pro-tukipiste has received funding from the EU ISF to develop civil society identification of THB for the purpose of sexual exploitation and establishing a basis for data-collection regarding suspected victims of trafficking encountered by civil society organizations. Measures to improve the identification of victims of forced criminality have not, to our knowledge, been introduced. This matter will be discussed further below in the section on non-punishment.

Although an independent evaluation of the implementation of the Action Plan has not been discussed to our knowledge, a project to evaluate the official assistance provided to victims of trafficking is ongoing, implemented by The European Institute for Crime Prevention and Control (HEUNI) together with the office of the National Rapporteur/Non-Discrimination Ombudsman. However, this evaluation covers only victim assistance by municipalities and the National Assistance System and our organizations would welcome a broader independent evaluation to assess whether the commitments made in the Action Plan are actually implemented and designed to improve measures for countering human trafficking and assisting victims.

International co-operation

9. Trafficking crimes are often transnational, but there is very little experience of forming joint investigation teams or other kind of transnational co-operation mechanism in the criminal investigation of trafficking crimes. For our clients who have been victims of human trafficking, this means that those criminal activities that have happened abroad are often not investigated.

Economic, social and other initiatives for groups vulnerable to THB

12. The political atmosphere regarding immigration-related issues in Finland is getting increasingly tense. In practice, more restrictive immigration policies have created an increased amount of undocumented migrants who are in a position that makes them vulnerable to THB and other forms of exploitation. At the same time, the threshold for seeking help from the authorities in these situations has been rising, since people are more and more afraid of the possibility of being deported. Also people residing in Finland with for example residence permits based on individual compassionate grounds are more and more insecure about their future in Finland. These developments increase migrants’ vulnerability to THB and other exploitation and increases the amount of THB victims who are scared to seek official assistance.

Attitudes towards immigrants and especially undocumented migrants are harshening and too often, migration control seems to be given more emphasis than the protection of migrants’ human rights. Undocumented migrants who have experienced human trafficking or other forms of exploitation might be blamed for staying in Finland instead on focusing on investigating the exploitation they have been subjected to.

Issues related to rights to residence for victims of trafficking are discussed further in the corresponding section below.

Identification of victims of trafficking in human beings

14. The process of designing a national referral mechanism has been initiated but at the time of writing this statement, a timetable of the NRM process as well as its components have not been set. Our NGOs hope that the NRM process will be concluded in an inclusive but efficient way and from a victim rather than institutional perspective.

We welcome the existence of a mechanism for the official identification of victims of trafficking. However, this process has been designed in a way that have also brought new policies with very negative side effects for THB victims as, in practice, victim assistance is now tied to the criminal investigation. A victim is removed from the assistance system and loses the right to official assistance and protection if at some stage of the criminal process an investigating officer, prosecutor or judge decides to drop charges or use another criminal charge, even if they would have been previously identified. This is particularly problematic due to the lack of training for professionals who make these decisions during the criminal process, leading to an uneven understanding of the mechanisms of THB, the fact that such a decision might be based solely on the lack of evidence, and finally due to issues such as the unclear distinction between extortionate work discrimination and labour trafficking discussed above. This is also a problem when it comes to legal assistance as victims of for example extortionate work discrimination are not entitled to free legal assistance regardless of income.

Our NGOs consider that it should be possible for the National Assistance System to identify as victims of trafficking also those whose case is investigated and tried in Finland. For those who have fallen victims to human trafficking abroad and whose cases are not investigated by the Finnish police this is possible and hence, they can also continue receiving assistance and protection independently of judicial processes.

Some of our NGOs have also identified a concerning  trend of decisions made by the National Assistance System for victims of trafficking regarding whether a potential victim is accepted into the System and those of the Finnish Immigration Service MIGRI on international protection, where they have been quoting each other. This has in practice led to situations where a negative decision about a person’s right to assistance from the National Assistance System has been taken into consideration and quoted in the decision on the same person’s right to asylum. For asylum seekers this raises the threshold of seeking help from the National Assistance System, since a negative decision might endanger their position as asylum seekers. NGOs assisting asylum seekers have pointed out that the threshold for being accepted into the National Assistance System is being kept too high. In one example case, a traumatized and already identified victim was not accepted into the Assistance System until after three requests by their lawyer and after being in Finland for several years.

Assistance to victims

15. For persons living in marginalized positions and who lack trust in the authorities’ willingness or ability to help them, the threshold for seeking help from the National Assistance System and reporting to the police about exploitation is still high. When advising presumed victims of trafficking, it is difficult to give predictable information about possible scenarios regarding criminal proceedings, assistance (as it is tied to the criminal process) and possibilities for staying in the country, if the victim build the courage to come forward.

The possibilities for receiving adequate support and assistance are unequal, depending on where the victim has been identified and what their residence status is. The possibility to receive assistance differs between municipalities and even between individual caseworkers. Also the available assistance seems to differ on the basis of whether the victim is getting their services directly form the assistance system, through the municipality or whether the victim is an asylum seeker and resides in a reception center that provides the victim with their basic services.

If a person is not accepted into the National Assistance System, the appeal process is inadequate. The person’s need for assistance is usually urgent, but the processing of the appeal takes at least several months.

Lots of work needs to be done on the municipal level to raise awareness and to provide tools for adequate identification and assistance of victims of trafficking. Various victims of trafficking have been clients of municipal social and health care services during their exploitation without ever having been identified. In most cities there are no kind of policies or mechanisms for identifying victims or for providing victims with the assistance and protection they are entitled to by law. In most municipalities there is no understanding or awareness of trafficking victims’ rights to assistance and protection. Some services do not exist, for example there are very few available options for accommodation for adults who would require long-term psychosocial support and supported housing, but who are assessed to not face threats to their physical security or who do not have (mental) health conditions that require hospital treatment.

The first Finnish Act on Shelters entered into force on January 1, 2015, and turned shelters into state-funded shelter service providers on 1 July 2015 (Ministry of Social Affairs and Health/National Institute for Health and Welfare). NGOs continue to be the main shelter service providers in Finland. Mona; the shelter run by Monika, Multicultural Women’s Association; is one of these shelter service providers. The Mona shelter has 10 years of experience in supporting victims of human trafficking. The current act on shelters has no explicit stipulations on the provision of services to victims of human trafficking, but the applied practice has made it impossible to offer shelter services to victims of human trafficking if they have not also been subjected to intimate partner violence.

A new act on shelters is currently under review and a new proposal has been made. The proposal has already been circulated for comments. The new proposal includes stipulations on the provision of shelter services to victims of human trafficking, but again limits the right to such services to victims of human trafficking who have also suffered from intimate partner violence. We find this limitation problematic. In some cases of human trafficking, it is extremely difficult to determine whether or not violence towards a victim can be classified as intimate partner violence. In practice, it is also impossible to support a victim only in relation to intimate partner violence, while ignoring other types of violence and abuse.

Therefore, in this respect, the new proposal fails to bring the clarity needed to helping victims of human trafficking in shelters. It is crucially important that the preparation of the proposal be continued via wide-scale cross-governmental cooperation in order to explore alternatives and possibly find a new system to replace the current policy, thereby guaranteeing equal services to victims of human trafficking.

Recovery and reflection period

17. Victims of trafficking have the right to obtain a recovery or reflection period. However, when this period ends, the information based on which the person was accepted into the National Assistance System is automatically passed to the police, regardless of what the victim has decided to do during the recovery or reflection period. The police then also has the rights to access all information that the NAS has on the client’s case. This means that a victim of trafficking who is afraid must actually reflect on whether they want their case known to the police before they enter the National Assistance System, which for some victims means that they choose not to seek official help in the first place. In our opinion, these victims of trafficking might change their mind and build the courage to cooperate with law enforcement if given the possibility of a genuine recovery and reflection period.

Residence permits

18. The residence permits for victims of trafficking and severe labour exploitation are both theoretically free of charge, but in practice the victim has to pay a relatively large amount of money when handing in the application, and the money is returned only if the victim is granted the permit. This is not a problem for those who are clients of the National Assistance System as they pay for permit applications, but for others this might present a practical obstacle for even applying for permits that they have the right to. Both permits are also tied to cooperation with the police and those victims who are unable to cooperate during the pre-trial investigation are not entitled to these residence permits. On many occasions, these permits have also not been rewarded because the police has given the immigration authorities a statement that the victim is no longer needed in the pre-trial investigation, which has led to their permit being denied even when they have cooperated with the police. In practice, this means the deportation of the victim even before the pre-trial investigation has finished and before the case has been tried in court.

In practice, tightened immigration policies have also weakened the possibility to obtain continuing residence permits for example on the grounds of individual compassionate grounds (permits that have previously been granted to several victims of trafficking), even if there haven’t been any improvements in the person’s situation. This leads to serious concerns that are discussed further in the section on repatriation and return.

In cases where there are exploitative labour conditions but the case is investigated as extortionate work discrimination and not as THB, a residence permit can only be obtained by a person who was undocumented at the time of the exploitation (Aliens Act 52d§). Hence, when it comes to possibilities of staying in the country when seeking legal redress, the situation of exploited undocumented workers is better than that of those persons who have worked in Finland with a legal right to reside in the country, which constitute the majority of identified exploited labour in Finland. This situation can arise when an investigation starts as labour trafficking but for different reasons continues as for example extortionate work discrimination. These kinds of uncertainties can raise the threshold for seeking help if a person experiences exploitative working conditions and wishes to stay in Finland after the situation is reported to law enforcement.

The effects of changes made in September 2016 to legal aid provisions for persons seeking international protection in Finland have limited trafficking victims' ability to receive legal aid from specialized lawyers and made the identification of trafficking victims among asylum seekers more challenging. Before the law reform it was possible for victims to get free legal counselling by private sector expert lawyers who would get a legal aid decision for assisting a human trafficking victim who needed information about their rights in Finland. Since the law reform, legal aid has not been granted in several cases known to the victim assisting NGOs. Currently, asylum seekers in the first stages of the asylum process are thus only assigned a lawyer from the governmental public legal aid office, which is often seen as a state authority by the asylum seekers. This understandably causes trust issues among the applicants, which has in many cases led to them not wanting to get legal aid at all.

In the appeal stages of the asylum process the applicants can choose their lawyer outside the public legal aid office. In the appeal stage the limited time assigned to talks between lawyers and their clients also makes it more difficult to build trust, which is necessary for identification. NGOs are concerned that victims of trafficking are not identified by lawyers in the asylum process with the same capacity than they used to be before the above mentioned law reform. There have been cases where a foreign person has met a public legal attorney in the beginning of the process and only met a specialized expert in the appeal stage and been identified as a human trafficking victim only then, after being in Finland for several months and also having met representatives of the Finnish Immigration Service.

Compensation and legal redress

19. In some cases, the police has failed to freeze the assets of the perpetrator during the pre-trial investigation, which has led to difficulties in collecting assigned compensation.

The partially unclear distinction between THB for the purpose of labour exploitation and extortionate work discrimination also affects the possibility to gain compensation in cases where the perpetrator is convicted of extortionate work discrimination. This is because extortionate work discrimination is a labour crime and as such not included in the category of severe crimes for which the victims can seek compensation from the State Treasury in cases where the awarded compensation cannot be collected from the perpetrator.

Repatriation and return of victims

21. The fact that residence permits are increasingly harder to obtain and more and more victims receive a negative decision on their application for a continued permit, leads to a situation where a THB victim who has taken the risk of testifying against a perpetrator, might be deported to a country of origin where the perpetrator is in an influential position, even in situations when Finnish authorities are fully aware of threats to the victim’s life and the perpetrator’s ability to act on those threats. In these cases, the government clearly does not comply with the need to protect THB victims from retaliation.

Non-punishment of victims of trafficking in human beings

22. There are particular difficulties in the identification and investigation of trafficking for the purposes of forced criminality. In our experience, the non-punishment principle is not implemented in practice except for in the case of some minor offenses, and there are cases with clear indicators of trafficking where the victim is charged for crimes that they committed under coercion and no investigation is conducted on suspected human trafficking.

Investigation, prosecution and procedural law

23. Criminal proceedings are in a central role when it comes to victims’ rights to assistance, residence and protection. There are, however, no specialized police units, and knowledge about investigating or identifying trafficking crimes is not centralized in any way. This not only makes the criminal processes unpredictable, which creates a lot of uncertainty for victims, but also puts victims in unequal positions as the amount of awareness and knowledge on THB differs between regions and units.

Proactive investigation methods, surveillance and coercive measures are too rarely used in THB investigations, leading to a lack of evidence and often complete reliance on the victim’s testimony in the investigation and prosecution of human trafficking cases. This not only puts the victim in a difficult situation as many risk their security when testifying against the perpetrator (especially taking into account the problems related to the denial of residence permits for victims and the tying of assistance and protection to the results of the criminal process), but also puts an unreasonable amount of pressure on the victim if the case rests mainly on the victim’s testimony.

Pre-trial investigations are currently also very long and can take up to several years, during which time the victim lives under constant uncertainty and stress. Our NGOs consider that the best solution to this would be specialized units focused on investigating human trafficking cases.

Protection of victims and witnesses

24. Especially in those cases where intimidation and threats are made outside the country, focusing on the victim’s family or other close ones, Finnish law enforcement is unable to take any protection measures. The possibility of introducing additional measures to protect victims of trafficking from intimidation and indirect threats should be investigated.

Leena-Kaisa Åberg, toiminnanjohtaja         
Pia Marttila,  ihmiskaupan uhrien auttamistyön koordinaattori

Takaisin