Improvement regulations of the Criminal Law on human trafficking and sending of persons for sexual exploitation initiated
13 March, 2007
The Department of Criminal Cases of the Supreme Court and the Division of Case-law have summarized the court practice in cases on human trafficking and sending of persons for sexual exploitation. The summary of the court practice has been sent to the district (town) courts and regional courts, the Minister of Justice and the Prosecutor General. The proposals for amendments to separate regulations of the Criminal Law were sent to the Legal Commission of the Saeima (Parliament).
The research provides analysis of the materials of criminal cases reviewed in 2005 and the first half of 2006 regarding commitment of criminal offences stated in Article 154.1 (human trafficking) and Article 165.1 (sending a person for sexual exploitation) of the Criminal Law. The statistics reports on criminal cases reviewed in 2002 – 2006 have also been used.
For sending persons for sexual exploitation, 20 persons were sentenced in 2003, 2 persons – in 2004, 31 persons – in 2005, till September 11, 2006 - 13 cases were completed on charges under Article 165.1 of the Criminal Law. No criminal Cases were heard on human trafficking in 2003 and 2004, in 2005 – 1 person was sentenced, till September 11, 2006, 2 criminal cases were completed with judgments on charges under Article 154.1 of the Criminal Law. During the course of the research, in total court rulings in 41 criminal cases were analyzed. It was concluded that in practice, when qualifying human trafficking crimes, in separate cases the understanding of corpus delicti and the qualifying elements varies what causes erroneous qualification solutions. To ensure uniformity in the court practice, the Department of Criminal Cases and the Division of Case-law provide the interpretation of constituent elements of the criminal offence of human trafficking and sending persons for sexual exploitation. It is stressed that such crimes have to be regarded as completed by any action promoting human trafficking or sending persons with their consent for sexual exploitation, for example, actions the aim of which is to recruit women to be sent. Sending a person under 18 abroad in any manner for sexual exploitation, even having his/her consent, constitutes human trafficking stipulated in Article 154.1 of the Criminal Law. It is pointed out that in these crimes the aim to profit does not have to be related to acquisition of actual benefit, it may not, as well, be influenced by a circumstance that a specific sum has not been stated which the person having committed the crime wished to receive, or a person who would transfer this sum. The conclusions contain suggestions in what way to decide the matter on committing the crime of human trafficking in an organized group.
In the course of analysis of the practice of determination of punishment in criminal cases on crimes of human trafficking, it is concluded that the general principles of determination of punishment are not always followed, deviations from instructions on determination of a milder punishment than the one stipulated in the law and on the application of suspended sentence are allowed, in the result of which the imposed sentences rather frequently are inadequate to the committed crime and the personality of the offenders. Out of 74 persons convicted for human trafficking and sending persons for sexual exploitation, 2 persons were fined, 26 persons were sentenced to deprivation of liberty, and 46 persons – to suspended deprivation of liberty. 27 persons or 36% of the accused when applying the provisions of Article 49 of the Criminal Law, a milder sentence was imposed than the one stated by the law. Confiscation of property as an additional punishment was imposed on 17 persons, partial confiscation of property – on 2 persons.
The performed analysis of the court practice shows that for correct qualification of the crimes of human trafficking and their prevention, it is necessary to improve the constituent elements and the constitution of the crimes stipulated in Articles 154.1 and 165.1 of the Criminal Law. The reference on sending a person abroad for sexual exploitation with his/her consent has to be excluded, thus making it a crime also inside the country. The researchers consider that the qualifying elements of whether the actions have been committed in regard to a juvenile or a minor have to be excluded from Article 165.1 of the Criminal Law as in all the cases they constitute human trafficking. Besides, as the crimes of human trafficking in most cases are committed repeatedly, and rather frequently one crime is committed regarding several persons, the Criminal Law should be supplemented by these qualifying elements. Like the regulation of the Criminal Law on human trafficking, the regulation on sending persons for sexual exploitation should stipulate more severe responsibility for committing a crime in a group of persons pursuant to prior agreement, as not always a joint action of several persons has elements of an organized group, and therefore is left without any legal assessment.
Full summary of the court practice is accessible on the website of the Supreme Court www.at.gov.lv, section Summaries of court practice.
Information prepared by Division of Communications of the Supreme Court
Author: Rasma Zvejniece, Head of the Division of Communications of the Supreme Court
E-mail: firstname.lastname@example.org, telephone: 7020396, 28652211