DECISION OF THE PLENUM OF THE SUPREME COURT OF JUSTICE
OF THE REPUBLIC OF MOLDOVA
On application of legislative previsions in cases of trafficking in human
beings and trafficking in children
* * *
No. 37 of 22 November 2004
Bulletin of the Supreme Court of Justice of the Republic of Moldova,
2005, No. 8, page 4
* * *
Trafficking in human beings, in its various forms, including trafficking in children, comprises dangerous crimes that essentially lead to the violation of personal rights and freedoms.
In order to ensure correct and uniform application of legislation concerning trafficking in human beings, while being aware of the increased social danger of such crimes and reasoning from the need to protect the legal personal rights and interests, based on Article 2 let. e), Article 16 let. d) of the Law on the Supreme Court of Justice and Article 39 of the Code of Criminal Procedure, by means of this decision, the Plenum offers the following explanations:
1. In the meaning of Articles 165, 206 of the Criminal Code, in the light of international legislation in this area, specified in the annex, which is an integral part of this decision, the Plenum explains the meaning of the following terms and expressions:
a) “Trafficking in human beings” means the recruitment, transportation, transfer, harboring or receipt of a person for the purpose of sexual commercial or noncommercial exploitation, through forced labor or services, in slavery or in conditions similar to slavery, use in armed conflicts or in criminal activity, removal of organs or tissues for transplantation, performed through: threat with the use or actual use of physical or mental violence not dangerous to the life and health of the person, including kidnapping, seizure of documents and bondage, aimed at the repayment of a debt, the amount of which is not reasonably established; deceit; abuse of the vulnerable condition or abuse of power, offering or acceptance of payments or other benefits in order to obtain the consent of a person detaining control over another person, with the use of violence dangerous for the life and physical or mental health of the person; torture, inhuman or degrading treatment, in order to ensure the obedience of the person, or rape, taking advantage of physical dependence, use of arms, threat of disclosure of confidential information to the family of the victims or to other persons, as well as through other means;
b) „Child trafficking” means recruitment, transportation, transfer, harboring or receipt of children, as well as the offering or acceptance of payments or other benefits in order to obtain the consent of a person detaining control over the child, with a view to: sexual commercial or noncommercial exploitation, through prostitution or in the pornographic industry; exploitation through forced labor or services; exploitation in slavery or in conditions similar to slavery, also in cases of illegal adoption; use in armed conflicts; use in criminal activity; removal of organs or tissues for transplantation; abandonment abroad. The same actions, accompanied by: use of physical or mental violence against the child; sexual abuse of the child, his/her sexual commercial or noncommercial exploitation; subjecting the child to torture, inhuman or degrading treatment, in order to ensure his/her obedience, or accompanied by rape, profiting of the child’s condition of physical dependency, use of arms, threat of confidential information disclosure to the family of the child or to other persons; exploitation in slavery or conditions similar to slavery; use of the child in armed conflicts; removal of organs or tissues for transplantation.
c) Upon qualifying the actions of the perpetrator based on Articles 165 and 206 of the Criminal Code, the consent of the victim as to his/her recruitment, transportation, harboring or receipt, shall not be held account of, even if the victim had been informed about the aims to which he/she was to be used, as well as about the means employed in trafficking;
d) The recruitment, transportation, transfer, sheltering or receipt of a child, for the aims specified in Article 206 CC, shall be deemed “trafficking in human beings”, where neither of the specified means had been employed;
e) The term “child” shall mean any person under the age of 18 years;
f) “Victims of trafficking” are persons who have suffered, either individually or collectively, damage, including physical or mental injuries, material or moral losses, essential violations of their fundamental rights and freedoms, through acts or omissions specified in letters a) and b) of this item.
2. The provisions of Articles 165 and 206 CC set out the following criminal actions:
e) receipt of a person.
2.1. Such actions are committed with an aim of:
a) sexual commercial or noncommercial exploitation;
b) forced labor or services, in slavery or conditions similar to slavery;
c) use in armed conflicts or in criminal activity;
d) removal of organs or tissues for transplantation.
2.2. Actions specified with regard to child trafficking are also performed with an aim of:
a) prostitution or use in the pornographic industry;
b) illegal adoption;
c) abandonment abroad.
2.3. The said criminal actions are committed by employing the following means:
a) threat with application of physical or mental violence, not dangerous to the life and health of the person, including kidnapping, seizure of documents, bondage aimed at the repayment of a debt, the amount of which is not reasonably established;
c) taking advantage of vulnerability condition or abuse of power;
d) offering or receipt of payments or benefits in order to obtain the consent of a person detaining control over another person;
e) application of violence dangerous to the life, physical or mental health of a person;
f) torture, inhuman or degrading treatment, in order to ensure the person’s obedience, or rape, taking advantage of physical dependency, use of arms, threat of confidential information disclosure to the victim’s family or to other persons, as well as other means;
In order for the actus reus of trafficking in human beings to be deemed as existing, it is sufficient for at least one of the above-mentioned criminal actions (inactions) to have taken place, with at least one of the aims enumerated and at least one of the specified means to have been employed.
3. Upon construing trafficking actions the following explanations must be taken into account:
3.1. Recruitment aimed at trafficking human beings implies involving persons through selection into a certain activity, determined by the aims provided in Articles 165 and 206 CC.
The circumstances, in which recruitment occurred, are irrelevant, whether this happens in recreational places, unconventional networks, by offering jobs or opportunities for study, by pro forma marriage etc.
The means for recruitment may be constraint, kidnapping, total or partial deceit, etc.
3.2. Transportation is the shift of a person from one place to another within one state or by border-crossing, by using various transportation means on foot.
3.3. Transfer of a person is the transmittal of the victim from one person to another through sale and purchase, exchange, rent, concession against a debt, donation and other similar transactions, with or without reward.
3.4. Harboring of a victim is his/her placement in a hidden place, in order not to be detected by the representatives of state bodies or third parties, who could denounce the act of trafficking.
3.5. Receipt of the victim is the trafficked victim’s taking over by another person from the person, who conveyed him/her through sale and purchase, exchange, rent, concession against a debt, donation and other similar transactions, with or without reward.
4. The aims specified in Articles 165 and 206 CC shall be construed as follows:
4.1. Sexual exploitation means forcing the person to engage in prostitution or other actions of a sexual character.
Commercial sexual exploitation means profit-bringing activity, which results in the increase of the assets of the perpetrator or of other persons, expressed in the use of the victim, through constraint to engage in prostitution or in the pornographic industry.
Noncommercial sexual exploitation means such activity, which has no direct impact on the assets of the perpetrator or of other persons, expressed in marriage (including polygamous marriage), cohabitation and other such forms of living together, etc.
4.2. Exploitation through forced labor or services, as provided by the Convention on forced or compulsory labor of the International Labor Organization, means:
a) constraining the victim to perform work, which he/she would have not performed of his/her own initiative;
b) to bring the victim into a condition of performing work, which he/she was not bound to perform;
c) keeping a person in bondage for repayment of a debt;
d) obtaining performance of work or services through deceit, constraint, violence or threat of violence;
4.3. Slavery is the state or condition of a person, over which one or all powers, deriving from the right of ownership, are exercised;
Conditions similar to slavery mean bringing or keeping a person in such condition, where another person has mastery over him/her or where he/she is compelled, through the use of force or constraint, deceit or threat of violence, to render certain services, including engaging or remaining in relations of cohabitation or marriage;
4.4. Use of victim in armed conflicts means his/her forced engagement in military actions;
4.5. Use in criminal activity means forced engagement in committing deeds that constitute crimes;
4.6. Removal of organs or tissues for transplantation takes place in the case of concussing the victim for the removal of organs, tissues or other elements of the human body for transplantation, in breach of the Law on transplant of human organs or tissues (Official Monitor of the Republic of Moldova No. 94-95/474 of 26 August 1999);
4.7. Child’s abandonment abroad, provided in Article 206 CC, means child’s dereliction on the territory of a foreign state and failure to return him/her to the territory of the Republic of Moldova. Abandonment may take place as a consequence of illegal removal of the child from the Republic of Moldova.
5. The means of performance of trafficking in human beings shall be construed as follows:
5.1. Physical violence not dangerous for the life and health of the person is the deliberate causation of corporeal injuries, which do not result in short-term health disturbance or an insignificant, but stable disturbance of labor productivity, or the deliberate battery or committal of other acts of violence, which have caused physical pain, where these have not posed a threat to the life or health of the victim.
Norms are provided by the Regulation on medico-legal estimation of gravity of bodily injuries (Official Monitor of the Republic of Moldova No. 170-172 of 08 August 2003).
5.2. Mental violence consists of a mental threat towards a person, under which the victims cannot direct their will freely, and perform actions at trafficker’s will.
5.3. Violence dangerous for the life and mental or physical health of a person means deliberate grave or medium injury, provided by Articles 151 and 152 CC.
Where the violence exercised in connection with trafficking in human beings consists in the deliberate grave injury of body integrity or health, the acts shall qualify as cumulative crime, under Article 165 or, as the case may be, Articles 206 and 151 of the Criminal Code.
Such dangerous actions as those mentioned above are injuries, which are dangerous for the life of the victim, by themselves, at the very moment of their infliction, or which may bring or actually bring to the victim’s death, according to their usual evolution, if left unattended.
5.4. The kidnapping of a person implies actions contrary to the wish or the will of the victim, accompanied by change of his/her residence or temporary whereabouts, accompanied by victim’s confinement.
The capturing, forced change of residence, accompanied by the victim’s confinement, constitute mandatory elements as means of committing human trafficking through kidnapping.
The kidnapping of a person implies the existence of the following successive stages:
a) capturing the victim;
b) taking the victim and transferring him/her from his/her permanent or temporary whereabouts (place of living, working, resting, treatment etc);
c) person’s confinement against his/her will or by disregarding his/her wishes.
5.5. Seizure of documents means depriving the victim of his/her identity, travel and other documents (passport, identity card, residence permit, travel documents etc.).
5.6 Bondage (state of dependency) means the situation when the victim is confined, including deprivation of the freedom of movement, taken as hostage, until he/she or a third party repays a debt, either legally or illegally established.
5.7. Deceit consists in misleading of and causing damage to a person by representing sham or distorted facts as true, with the aim to accomplish trafficking in human beings for oneself or for another person.
Deceit as means of committing a crime may consist either of actions, by communicating false information on certain circumstances or facts, or of inactions that reside in holding back real circumstances or facts (for instance, false promises to offer a legal job, dissembling the real conditions, in which the victim is forced to work etc.).
5.8. Taking advantage of vulnerability condition (Article 165 para.(1) let.c) consists of trafficker’s taking advantage of the special state in which a person finds himself/herself, as a result of:
a) an insecure situation from the viewpoint of social survival;
b) a condition due to pregnancy, illness, infirmity, physical or mental disability;
c) an insecure and illegal situation in connection with entering or residing in a transit or destination country.
The state of vulnerability may be conditioned by various factors: the victim’s isolation, his/her difficult material or mental state, family problems or the lack of social resources etc.
The abuse of the state of victim’s vulnerability is an element of trafficking. The victim’s state of vulnerability shall mean any kind of vulnerability: mental, affective, family, social or economic.
It encloses the range of desperate situations that may make a human being accept his/her own exploitation.
5.9. Abuse of power is the exaggerated use by a special subject – responsible person, representing the public authority – of his/her powers, he/she has been vested with by law. In such case there is no need for supplementary qualification under Article 327 of the Criminal Code.
5.10. Offering or receiving payments or benefits, in order to obtain the consent of a person holding control over another person consists of an understanding between the persons mentioned, interested in obtaining the consent regarding the transfer of the victim and his/her use for the ends mentioned in Articles 165 and 206 CC.
A person holding control over another person is such a person that legally or illegally keeps under control the victim’s activity and profits by such power in the process of trafficking.
5.11. The term “torture”, as a means of trafficking, consists of any acts, by which strong suffering or intense physical or mental pain is caused to a person.
Torture is deliberate causation of strong suffering or great physical or mental pain, for the aims specified above.
The distinction between torture and other form of maltreatment must be made in accordance with the intensity of the pain caused. The gravity or the intensity of pain caused may be determined by several factors: duration; physical or mental consequences; sex, age and victim’s state of health; means and manner of execution.
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.).
Torture is an aggravated and deliberate form of inhuman and degrading treatment.
Inhuman treatment in the meaning of Article 165 CC is a totality of operations applied to a person, aimed at obtaining his/her obedience. 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 force 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 abase and break down his/her physical and moral resistance, in order to ensure victim’s obedience.
5.12. By use of rape in human trafficking one understands attempting by the trafficker at the social relations concerning sexual liberty and inviolability of a person, regardless of gender, with the aim to exploit human beings. Such actions do not require additional qualification under Article 171 of the Criminal Code.
Sexual abuse of a child means violent actions of sexual character, constraint to actions of sexual character, perverse actions and other such acts, which do not require additional legal qualification under Articles 172, 173, 175 CC.
5.13. Physical dependency means the physical or mental state which results from the interaction of the victim’s body with narcotic or psychotropic substances, characterized by alterations of behavior and other reactions, always accompanied by the need to use such substances continuously or periodically, in order to experience the mental effects and, sometimes, to avoid suffering.
6. According to paragraphs (2) and (3) of Articles 165 and 206 CC, criminal liability may ensue, where the provisions of paragraphs (1) of these Articles are accompanied by the respective qualifications.
6.1. The crime shall be deemed repeated where two or more crimes of trafficking were committed by a person, who has not been convicted, and the term of limitation for criminal accountability had not expired.
Any other persons participating in the committing of a crime appear as organizers, instigators, accomplices and co-authors.
6.2. Human trafficking is deemed to have been deliberately committed with regard to a pregnant woman, where the perpetrator knew about the victim’s pregnancy.
Where the trafficker did not know at the time of committal that the victim was pregnant, such acts, committed in the absence of other aggravating circumstances, must qualify as ordinary trafficking in human beings.
6.3. Use of arms in the meaning of letter f) para.(2) of Article 165 consists in the use of any arm, including firearms, cold steel or other forms of arms, since the legislator did not specify the type of arm employed. The use in human trafficking of other objects, employed as arms, may not serve as grounds for aggravating criminal liability under para.(2) of Articles 165 and 206 CC.
By use of arms one must understand their use with a view to the destruction of the victim or the persons trying to free the victim (targeted shots, stab with cold steel, demonstrating an arm with the aim of intimidation, setting an arm against the victim’s throat, shooting a gun in the immediate vicinity of the victim etc).
6.4. Threatening with confidential information disclosure consists of the use of certain confidential data for intimidation of the victim, as a mechanism of control over him/her (threatening a person to disclose intimate information to his/her family etc.).
6.5. Organized criminal group or criminal organization, as provided in para.(3) of Article 165 CC, is deemed the criminal association that encompasses the specifics provided in Articles 46 and 47 CC. Under the UN Convention on transnational organized crime, of November 15, 2000, an organized criminal group is the structured group of 3 and more persons, which functions for a certain amount of time and acts in order to commit one or several grave crimes, defined by the Convention, with the aim to obtain, directly or indirectly, pecuniary benefits or any other material benefits.
7. Any form of participation in human trafficking shall be incriminated in accordance with the provisions of Chapter IV of the Criminal Code, General Part.
8. The preparation and attempt of committing trafficking in human beings shall qualify in the light of Articles 26 and 27 of the Criminal Code.
9. Where other acts attempting at other social relations have been committed at the same time with human trafficking, and they do not qualify under Articles 165 and 206 CC, such actions shall be qualified separately, as cumulated offences, including trafficking.
10. Human trafficking, as well as child trafficking, are deemed as formal crimes and are considered consummated as of the committal of any action specified by Articles 165 and 206 CC, regardless of the occurrence of damaging consequences.
11. The subjective aspect of human trafficking is direct intention.
12. The subject of crimes provided by Articles 165 and 206 CC shall be any natural person of sound mind, over the age of 16 years.
The special subject of the crime provided by Article 206 CC is the person of sound mind, who has the child entrusted for care or supervision at the moment of committing crimes provided in para.(1) letter g) – abandonment of child abroad.
13. The legal object of the crime provided by Article 165 CC consists of the social relations, the normal development of which depends on the liberty of a person.
14. The legal object of the crime provided by Article 206 CC consists of the social relations concerning the normal physical and mental development of the child and his/her personal liberty.
15. Under Article 220 CP pimping implies unlawful actions of the pimp, who mediates prostitution in order to gain personal material benefits from such occupation. Such activity is accomplished through:
a) abetment or prompting to engage in prostitution;
b) facilitating engagement in prostitution;
c) taking advantage from engagement in prostitution;
d) recruitment of persons for engagement in prostitution.
In the case of pimping, the prostitute is not a victim. In such a case, there are certain voluntary relations between the pimp and the prostitute.
Pimping is a crime against public health and social cohabitation. This is how pimping should be distinguished from trafficking in human beings.
16. Distinguishing human and child trafficking from illegal border-crossing lies in the object of such offences and, namely, illegal border-crossing violates the normal activity of public authority and state security, while trafficking is a crime against a person.
The objective side of illegal border-crossing, in the meaning of Article 362 CC, consists of the illegal border-crossing of the state (guarded) frontier, on land, water or by air, without necessary documents, required permission or in unauthorized places.
In the case of trafficking, the transfer of persons across the border may take place either legally or illegally.
17. Under Article 23 of the Criminal Procedure Code, courts shall undertake concrete actions, based on law, to ensure the rights and protection of the victim, taking into account the specifics of examination of criminal cases concerning trafficking in human beings, the need to impede the re-victimizing of the person by tactfully offering him/her the help required, and by being aware of the need of psychological, medical and social rehabilitation from the traumatic stress.
The law enforcement bodies and courts must undertake adequate measures in order to ensure the security and efficient protection of the victim and witnesses from repressions and possible intimidation and avoid the influence of traffickers on such persons. Legal assistance to the victim shall be ensured by an appointed attorney, where needed.
18. Appeal and cassation courts must undertake necessary measures as regards the improvement of administration of justice in cases of human trafficking and the remedying of possible non-administration of justice.
Chairman of the Supreme Court of Justice
Chisinau, 22 November 2004