Remarks and propositions on the drafts of Law of Ukraine «On introduction of changes into the Criminal Code of Ukraine» No. 4179 of 19 September 2003 presented by MPs G. Buyko and V. Stretovich and No. 4280 of 17 October 2003 presented by the Cabinet of Ministers of Ukraine
After 1998, when the responsibility for human traffic was introduced to the Criminal Code of Ukraine, the norm envisaging this responsibility permanently draws the attention of scientists and experts. Not many articles of the Criminal Code generated such great number of suggested changes and alternative drafts. Some of these changes and drafts were published in special editions, and some of them were directly passed to the corresponding committees of the Supreme Rada. In spite of such activity around the norm that prohibits human traffic, it was changed only once, and new version, which is operating now, was created in the connection with coming into effect of the Criminal Code of Ukraine of 2001. On the one hand, the process of introduction of changes into the criminal legislation is stimulated by the necessity to improve it. On the other hand, the criminal law can be observed effectively and correctly only if it is stable. So, it is extremely important to assess the necessity of introduction of changes, the perfection of this norm and its concordance with the system and structure of the domestic criminal right.
Considering the law drafts on the criminal responsibility for human traffic, I want to point out that these laws almost verbally repeat the definition of human traffic contained in the Protocol on the prevention of human traffic of the UNO Palermo Convention. It should be noted that the verbal (or almost verbal) quotation of the text of international documents in the domestic legislation is not always useful. It is obvious that every branch of right in different countries has its own traditions, peculiarities and rules, and needs the special approach for introduction of the proper norm into the national laws.
Undoubtedly, decriminalization of prostitution is common for both drafts and is very correct. The mistake of legislators, who regarded prostitution as a crime, is obvious and must be corrected as soon as possible.
Neither of these drafts changes the title of Article 149, so each of them should mention the human traffic. The use of the word «traffic» implies the sale or other paid delivery of people. The analysis of the articles demonstrates the absence of the features of sale or other paid delivery, so the title of the article («human traffic») is not quite conforming to its text. By the way, the definition of human traffic used in the Protocol on the prevention of human traffic of the UNO Palermo Convention specially points out that the delivery must be paid. In our opinion, the legislators should either stipulate the payment for the delivery of people as a necessary component of this crime, or change the title of the article: to call it, for example, «exploitation of people».
I also want to point out that involving of a person into prostitution by means of application of violence or threatening by violence will be considered not only by the first part of Article 303, suggested by the drafts, but also by part 1 of the suggested Article 149 as exploitation of the person in the form of prostitution. At that, this would not be a cumulative crime, because both articles concern the same actions. The punishment envisaged by part 1 of Article 149 is much more severe than one envisaged by part 1 of Article 303. So, both articles provide the responsibility for the same action, but the punishments differ. It is impossible to acknowledge that one of these norms is general, and other is special, since neither of them has the features peculiar only to it and absent in other one. Such problem exists because the characteristic of sale or other paid delivery is not regarded as imperative for human traffic. In our opinion, this very characteristic must distinguish the human traffic from involving into prostitution, exploitation of children, swindling, violation of laws on labor and other crimes. This discrepancy can be liquidated either by the conceptual change of the text of Article 149 in law draft No. 4179 and stipulation of the responsibility for «purchase and sale or other paid delivery of people», or, if the general conception of Article 149 is really the struggle with exploitation of people, but not human traffic, by elimination of the word «involving» from the text of the article.
Article 149 of draft No. 4280 may be regarded as special relatively to the general norm stipulated by Article 303, since Article 303 does not mention such method as coercion. At the same time, the criminalization of involving into prostitution without any coercion or deception does not seem advisable, because the level of social danger of these actions is obviously insufficient. So, it should be expedient to envisage in the law draft that various forms of coercion or deception are the necessary characteristics of involving into prostitution. After this the recommendations mentioned in the previous paragraph for draft No. 4179 would be actual also for the considered law draft.
The non-ambiguous solution of the question about such characteristic as taking a person across the state frontier of Ukraine should be regarded as positive moment. The authors of the drafts do not mention this characteristic, so they consider it as optional. The existence of human traffic inside Ukraine, without crossing the frontier, confirms the appropriateness of this step.
Such method of human traffic as «destruction or damage of property», which is mentioned in draft No. 4179 by G. Buyko and V. Stretovich, may not be regarded as a tool for involving, transportation, delivery, hiding or getting of a person. Most probably, «the threat of destruction or damage of property» should be considered.
«Destruction or damage of property» is not mentioned in draft No. 4280, but this draft contains another method – «breach of confidence». I believe that it is not correct to consider the transportation or involving with the use of breach of confidence as human traffic in all cases, even if these actions are committed with the purpose of exploitation. So, it is obvious that the laws should concern not «involving, transportation, delivery, etc», but «sale or other paid delivery of people».
The authors of all law drafts call exploitation the final purpose of human traffic. The draft of the Cabinet of Ministers of Ukraine proposes to regard as exploitation the involving into criminal activities, debtor’s slavery, use in armed conflicts. Naturally, these actions can be the final purpose of human traffic, but they hardly correspond to the concept of exploitation. Maybe, it would be more expedient to state that the final purpose of human traffic is the illegal use of people, that is the use of their physiological (body or internals), social (ability of a child to be adopted) or mental (skills and experience) qualities? In this way we will bound the sphere of the final purposes of human traffic with the actions that restrict the rights and freedoms of citizens stipulated by the Constitution and other legal acts. Besides, one must remember that the sale of people with the purpose of legal use is not a crime, for example, the transfer agreements concerning sportsmen or traditional bride-money.
We believe that this is inexpedient to quote, verbally or almost verbally, in the Criminal Code of Ukraine the definition of human traffic adduced in the Convention. The complicacy of the construction of the norm, peculiar to the international definition of human traffic, is contrary to such important and traditional for the Ukrainian criminal right principles as the principles of exactness and laconicism, which lie in the basis of formulation of the texts of criminal juridical norms. Instead of the too cumbersome operating article, the authors of the draft propose to introduce another article, not less cumbersome, but new and unknown to the judicial and law-enforcing organs. Besides, it does not seem wise to regard involving, transportation or hiding of a person as human traffic, independently of the methods and purpose of these actions. These actions may be considered only as a preparation to human traffic or the participation in human traffic, whereas sale or other paid delivery of people should be acknowledged to be human traffic.
So, on the basis of all above-said we want to suggest the following text, which takes into account the remarks stated in this material.
Article… Human traffic
1. Purchase and sale or other paid delivery (getting) of a person with the purpose of illegal use, -
are punished with the restriction of liberty for the term up to two years or by deprivation of liberty for the same term.
2. The actions envisaged by part 1, committed by means of deception, breach of confidence or threatening, or by the person, on whom the victim depended materially or otherwise, -
are punished with the deprivation of liberty for the term from three to five years.
3. The actions envisaged by parts 1 and 2, committed by means of using the helpless state of person, application of physical violence or deprivation of liberty, or committed against several persons, or repeatedly, or against a minor, -
are punished with the deprivation of liberty for the term from six to nine years with confiscation of property or without it.
4. Human traffic that resulted in factual slavery of the person, or caused the grave consequences, or was committed by an organized group, or was committed with the purpose of seizure from the victim of organs or tissues for transplantation, or coercive getting of donor blood, -
are punished with the deprivation of liberty for the term from eight to fifteen years with confiscation of property.
The suggested text of the article gives the opportunity to differentiate the responsibility for human traffic committed in different ways. The methods of the commitment of this crime correspond to four variants of the state of freedom of person, and this combination (method and state of freedom) characterizes the level of gravity of the crime.
The first variant is characterized by the free will of the sold person. In that case the criminal uses the vulnerable state of the victim and sells the latter for the illegal use by his/her consent. The responsibility for human traffic by the person’s consent is envisaged by part 1 of the presented article. Taking into account the low level of social danger of this variant of human traffic, it should be regarded as a not-grave crime.
Another variant envisages the falsification of the will of a person by deception or breach of confidence. Since the deception or breach of confidence, stipulated by part 2 of the article, are more socially dangerous methods of human traffic, it is proposed to regard them as a crime of medium gravity.
The third variant implies the ignoring of the will of the victim. In contrast to the previous variants, where the illegal agreement was made with the consent of three sides (seller, purchaser and the victim of the crime), there the agreement is concluded only by only two sides (seller and purchaser). Moreover, the victim and his/her interests are roughly ignored, the helpless state of the victim is used, or he/she is kidnapped or deprived of liberty. The human traffic under such circumstances should be regarded as a grave crime and envisaged by part 3 of the article.
The fourth variant is connected with the exertion of criminal influence on the will of the victim by threatening, blackmail, using of the material or other dependence, accompanied or not accompanied with physical violence. Depending on the character of the criminal influence on the will of the victim, different methods of this kind are described in parts 2 and 3 of the suggested article.
Part 4 of the article envisages the most dangerous types of human traffic, which are, by their character, especially grave crimes.
We believe that copying in the national legislation of the «spirit», but not the «letter» of the international Convention would not deteriorate the quality of implementation, on the contrary, that would raise it to more professional level.