The definition of trafficking in human beings is laid down in the Protocol to Prevent, Supress and Punish Trafficking in Persons, Especially Women and Children, supplementing the UN Convention against Transnational Organised Crime (Palermo Protocol) to which Bulgaria is a party. Pursuant to Article 3 (а), there is a situation of trafficking in persons when three elements are in place simultaneously – actions of recruitment, use of force and purpose of exploitation. There is a growing tendency for only two elements to be sufficient in order to initiate investigation into trafficking in human beings.
The consent of a victim of trafficking in persons to the acitivity for which the victim has been trafficked and exploited is deemed irrelevant where any of the means listed have been used. Regardless of whether a person consented to performing a certain activity which resulted in a situation of trafficking, the person is considered a victim if the person was deceived or defrauded about the conditions of work and received false promises; if the person had to pay debts and excessive costs to an intermediary; if coercion, manipulation or violence were used; if the means earned through work were taken away.
Trafficking in human beings is a crime which is always aimed at involving a person in exploitation and maintaining this situation.
Trafficking does not always entail transferring the person across one or several borders. Trafficking can also occur in the state of residence and even in the place where the victim lives if the means listed above are in place and the purpose is exploitation.
2.The Bulgarian legislation
The definition of the crime of trafficking in human beings is laid down in the Bulgarian legislation in the Combatting Trafficking in Human Beings Act and the Criminal Code.
- Pursuant to the Combatting Trafficking in Human Beings Act (2005), “trafficking in human beings” is the recruitment, transportation, transfer, harbouring or receipt of persons regardless of the will they have expressed when carried out with the purpose of exploitation; “exploitation” is the illegal use of persons for debauchery, for removal of an organ, tissue, cell or bodily fluid from the victim, for forced labour, for begging or for forced servitude, for slavery or for a position similar to slavery.
- According to the provision of Article 159а, paragraph 1 of the Criminal Code (introduced in 2003), trafficking in human beings is the recruitment, transportation, harbouring or receipt of individual persons or groups of people to be used for debauchery, for forced labour or for beginning, for the removal of an organ, tissue, cell or bodily fluid or for being kept in forced servitude regardless of their consent.
What is particular about the Bulgarian legislation is that traffickers may be punished even if they did not use any special methods (“means” as per the Palermo Protocol) – coercion, deceit, fraud, etc. The special meethods are listed in the next paragraph (Article 159а, paragraph 2) as aggravating elements of the crime entailing a stricter punishment – deprivation of liberty for a longer period of time and a higher fine when:
- The act was committed with respect to a person under 18 years of age;
- Through the use of coercion or misleading the person;
- Through abduction or unlawful deprivation of liberty
- Through the use of a state of dependency;
- Through abuse of power;
- Through promising, giving or receiving benefits;
- By an official or in relation to the performance of official duties.
Cross-border (international) trafficking is also a crime. The recruitment, transportation, harbouring or receipt of individual persons or groups and their transfer across the State border with the purpose of exploitation is punishable by deprivation of liberty for three to twelve years and a fine from ten thousand to twenty thousand levs.
A trafficker bears criminal liability even in the cases when the victim was aware of the activities the victim would be involved in and consented, which often happens in reality.
Pursuant to the Bulgarian legislation (Article 159c of the Criminal Code), the use of victims of trafficking for debauchery, forced labour, removal of an organ, tissue or cell, or for begging, or keeping them in servitude, regardless of the victim’s consent, is also a crime and punishable.
Regardless of the type of trafficking in human beings, the victim’s consent to the exploitation or planned exploitation is irrelevant to seeking the trafficker’s criminal liability.
Trafficking in human beings and forced labour
Trafficking in human beings for the purpose of labour exploitation is often confused with forced labour. Pursuant to Convention No. 29 of the International Labour Organisation on Forced or Compulsory Labour (1930), the phrase “forced or compulsory labour” means all work or service which is exacted from any person under the menace of any penalty and for which the said person has not offered themselves voluntarily.
The menace of penalty could mean physical violence or restriction as well as psychological violence, for example threats that the victim will be reported to the police or immigration authorities when the victim works illegally.
Even if a person began work “voluntarily”, any following violence or prohibition to leave work, including withholding one’s salary, may be considered forced labour.
The boundaries between forced labour and trafficking in human beings for the purpose of labour exploitation are very difficult to define. Exorbitant fees immigrants pay to recruitment agencies, inexplicable deductions from work salaries, prolonged working hours, poor conditions of living and work are often considered forms of fraud and coercion.
For trafficking for the purpose of labour exploitation to be in place, not only should the workers work in conditions of “slavery, forced servitude or slavery for debts” but also in conditions of work and pay which are incompatible with those applicable to the citizens of the country of residence. In the case of trafficking, labour exploitation is combined with isolation, control, abuse of a position of vulnerability, violence, loss of personal freedom and of freedom of movement.
Trafficking in human beings and prostitution
Not every case of prostitution constitutes trafficking in human beings. In many European countries, prostitution has been legalised and is an officially licenced activity. The provision of sexual services is voluntary and takes place in exchange for an amount set by the two parties. The difference between prostitution and trafficking in human beings for the purpose of sexual exploitation is the coercion over the victims of trafficking (force, fraud, threat) to be involved in exploitation. The victims of trafficking in human beings are forced to prostitute despite their will with force, fraud or coercion.
Even if they have consented to prostituting, the moment the persons lose the freedom to choose their clients and when to work, they do not receive what they have earned or receive only a small part of it, when they cannot stop prostituting or suffer violence in the case of insubordination, then the crime of trafficking in human beings is in place.
Trafficking in human beings
Trafficking in human beings and illegal border crossings
Unlike trafficking in human beings, illegal border crossing is a “service” – most often transportation and supply of fake documents to a person who voluntarily seeks illegal access to a foreign country.
However, it is possible for the crime to begin as illegal border crossing and grow into trafficking in human beings.
There are three main differences between trafficking in human beings and illegal border crossing: in terms of place; consent; and exploitation.