Lara

Criminal
law reform Trafficking in human beings

to combat
Criminal law reform in south-eastern Europe
and
prevent
trafficking
in human
Proceedings
beings in of the final regional seminar,
south- Durrs, Albania,
30 October-1 November 2003
eastern and
Europe Final report

A contribution to the
STABILITY PACT
FOR SOUTH EASTERN EUROPE
Task Force on Trafficking in Human Beings
 LARA (2003) 45 Final
5 October 2004

LARA Project Criminal Law Reform against Trafficking in Human Beings

LARA final regional seminar

on
Criminal law reform
to prevent and combat trafficking
in human beings in South-eastern Europe
Proceedings of the regional seminar
(Durrs, Albania, 30 October - 1 November 2003)
and Final report

A contribution to the
STABILITY PACT
FOR SOUTH EASTERN EUROPE

Task Force on Trafficking in Human Beings

 LARA PROJECT CRIMINAL LAW REFORM AGAINST TRAFFICKING IN HUMAN BEINGS

The Council of Europe

The Council of Europe is a political organisation, which
was founded on 5 May 1949 by ten European countries
in order to promote greater unity between its members.
It now numbers 46 European States.1
The main aims of the Organisation are to promote democ-
racy, human rights and the rule of law, and to develop
common responses to political, social, cultural and legal
challenges in its Member States. Since 1989 it has inte-
grated most of the countries of central and Eastern
Europe and supported them in their efforts to implement
and consolidate their political, legal and administrative
reforms.
The Council of Europe has its permanent headquarters
in Strasbourg (France). By Statute, it has two constituent
organs: the Committee of Ministers, composed of the
Ministers of Foreign Affairs of the 46 Member States,
and the Parliamentary Assembly, comprising delega-
tions from the 46 national parliaments. The Congress
of Local and Regional Authorities of Europe represents
the entities of local and regional self-government
within the Member States.
The European Court of Human Rights is the judicial
body competent to adjudicate complaints brought against
a state by individuals, associations or other contract-
ing States on grounds of violation of the European
Convention on Human Rights.

The Council of Europe and Equality between Women and Men

The consideration of equality between women and
men, seen as a fundamental human right, is the
responsibility of the Steering Committee for Equality
between Women and Men (CDEG). The experts who form
the Committee (one from each member State) are
entrusted with the task of stimulating action at the
national level, as well as within the Council of Europe,
to achieve effective equality between women and men.
To this end, the CDEG carries out analyses, studies and
evaluations, defines strategies and political measures,
and, where necessary, frames the appropriate legal
instruments.

The Council of Europe and Legal Co-operation and Technical Assistance Activities
in the Field of Combating Corruption, Organised Crime and Money Laundering
The action of the Council of Europe against corrup- GRECO for corruption, MONEYVAL/PC-R-EV for
tion, organised crime and money laundering follows a money laundering) and strengthening capacities
multidisciplinary approach and is based on three pil- against these criminal phenomena through technical
lars which are inter-related: setting European standards co-operation (PACO Programme against Corruption
(through the elaboration of a series of legal instruments and Organised Crime in South-eastern Europe,
such as conventions, recommendations, resolutions, Octopus programme, LARA project, MOLI and others).
etc), monitoring compliance with these standards (e.g.

1. Albania, Andorra, Armenia, Austria, Azerbaijan, Belgium, Bosnia and Herzegovina, Bulgaria, Croatia, Cyprus, Czech Republic, Denmark,
Estonia, Finland, France, Germany, Georgia, Greece, Hungary, Iceland, Ireland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta,
Moldova, Monaco, Netherlands, Norway, Poland, Portugal, Romania, Russian Federation, San Marino, Serbia and Montenegro, Slovakia,
Slovenia, Spain, Sweden, Switzerland, the former Yugoslav Republic of Macedonia, Turkey, Ukraine, United Kingdom

3
 LARA PROJECT CRIMINAL LAW REFORM AGAINST TRAFFICKING IN HUMAN BEINGS
Contents
1 Introduction ................................................................................. 7
2 Legislative reform in South-eastern European
countries ....................................................................................... 11
2.1 General comparative table on anti-trafficking
legislation and national plans of action ........ 12
2.2 Conclusions of the first LARA regional
seminar (Zagreb, Croatia, 2-4 April 2004) .... 23
2.3 Comments on developments in the
anti-trafficking legislation and legislative
reform process
(April October 2003) ............................................... 25
2.3.1 Albania ......................................................................... 25
2.3.2 Bosnia and Herzegovina .......................................... 27
2.3.3 Bulgaria ....................................................................... 34
2.3.4 Croatia .......................................................................... 36
2.3.5 Kosovo (Serbia and Montenegro) .......................... 39
2.3.6 Moldova ....................................................................... 41
2.3.7 Montenegro (Serbia and Montenegro) .................. 43
2.3.8 Romania ....................................................................... 45
2.3.9 Serbia (Serbia and Montenegro) ............................ 48
2.3.10 Slovenia ....................................................................... 51
2.3.11 The former Yugoslav Republic of Macedonia . 53
3 Outcome of the in-country flying consultancies
and of the regional training workshop ................. 55
3.1 In-country flying consultancies .......................... 57
3.1.1 Albania: Expert opinion on the draft law on justice
collaborators and witness protection
(draft working version, June 2003) ....................... 57
3.1.2 Final Conclusions of the Workshop on Criminal
Law Reform in Montenegro : Procedural and
Substantive Aspects of the Fight against
Trafficking in Human Beings
(Podgorica, Serbia and Montenegro,
23-24 June 2003) ....................................................... 61
3.1.3 Montenegro: Expert opinion on the draft Criminal
Procedure Code (provisions regarding special
investigative means, protection of witnesses,
and collaborators of justice) ................................... 73
3.2 Conclusions of the regional training workshop
(Strasbourg, France, 8-10 September 2003) ..... 85
5
4 Proceedings of the LARA final regional seminar
(Durres, 30 October 1 November 2003) .......... 87
4.1 Opening addresses ............................................... 87
4.1.1 Blendi KLOSI, Minister of State and Stability Pact
National Co-ordinator for Anti-trafficking ......... 87
4.1.2 Helga KONRAD, Chair of the Stability Pact Task
Force on Trafficking in Human Beings ................ 89
4.2 European and international standards .............. 91
4.2.1 Update on recent developments in the field of
action against trafficking in human beings at
European level ............................................................ 91
4.2.2 Commitments and undertakings under European
and international legal instruments regarding
trafficking in human beings and their
incorporation in national legislation .................... 95
4.3 Workshop 1: Main elements of a comprehensive
legislative framework for the prevention
and prosecution of trafficking in human
beings and for the effective protection
of trafficked persons .................................................... 99
4.3.1 Session 1: Prevention of trafficking
in human beings ........................................................ 99
4.3.2 Session 2: Prosecution of trafficking
in human beings and of related offences .......... 102
4.3.3 Session 3: Assistance and protection
of trafficked persons ............................................... 104
4.4 Workshop 2: Effectiveness of co-ordination
and co-operation mechanisms in the field of
trafficking in human beings ................................ 105
4.5 Conclusions of the final regional seminar ..... 107
4.6 Closing speech ............................................................... 109
5 General conclusion of the LARA project ............ 111
6 Evaluation by participants
of the LARA project ........................................................... 113
6.1 Rating .................................................................................. 113
6.2 Impact of the LARA project on the criminal
law reform in participants countries ............. 114
6.3 Use of experience acquired through
the projects activities ............................................... 115
6.4 Persons or institutions to whom
the recommendations will be sent
for consideration and implementation .......... 115
6.5 Suggestions for future co-operation
activities ............................................................................. 116
 LARA PROJECT CRIMINAL LAW REFORM AGAINST TRAFFICKING IN HUMAN BEINGS

7 Appendices ............................................................................... 117 7.6 Reports elaborated within the framework

of the LARA project .................................................. 127
7.1 LARA Project outline ................................................ 117 7.6.1 Specific country - reports/expert opinions ....... 127
7.2 Programme of the final regional seminar ...... 119 7.6.2 General reports ........................................................ 128

7.3 List of participants in the final regional
seminar .............................................................................. 122
7.4 Reference documents distributed during
the LARA final regional seminar ...................... 125
7.5 International experts of the LARA project ..... 126
7.7 Relevant pieces of legislation ............................. 129
7.7.1 Albania: Draft law on Justice collaborators
and witness protection
(working version of June 2003) ........................... 129
7.7.2 Montenegro: Relevant articles of the draft Criminal
Code and draft Criminal Procedure Code .......... 139

For further information on activities concerning For further information on technical co-operation
equality between women and men, contact: activities in the field of combating corruption,
organised crime and money laundering, please contact:
Division Equality between Women and Men Department of Crime Problems
Directorate General of Human Rights Directorate General of Legal Affairs
Council of Europe Council of Europe
67075 STRASBOURG CEDEX 67075 STRASBOURG CEDEX
Tel: +33 (0)3 88 41 25 99 Tel: +33 (0)3 90 21 45 06
Fax: +33 (0)3 88 41 27 05 Fax: +33 (0)3 88 41 20 52
http://www.humanrights.coe.int/equality http://www.coe.int/economiccrime

The views expressed in this technical report do not necessarily reflect official positions of the Council of Europe.

6
 LARA PROJECT CRIMINAL LAW REFORM AGAINST TRAFFICKING IN HUMAN BEINGS
1. Introduction
S
ince the late 1980s, the Council of Europe has
been the natural home for activities aiming to
combat trafficking in human beings. Indeed,
trafficking touches upon a number of questions which
are dealt with within the Council of Europe, namely
gender equality, organised crime, money laundering,
migration, etc. The Council of Europe has adopted a
variety of initiatives in the field of trafficking in
human beings and related issues covering the elabo-
ration of legal standards and strategies, research
activities, legal and technical co-operation activities
and monitoring. In this respect, on 30 April 2003, the
Committee of Ministers set up an Ad hoc Committee on
action against trafficking in human beings (CAHTEH) 1
to prepare a European Convention on action against
trafficking in human beings, geared towards the pro-
tection of victims rights and the respect for human
rights, and aiming at a proper balance between mat-
ters concerning human rights and prosecution.
In order to fight against trafficking in human beings
in a more efficient way, the Council of Europe has
promoted a close co-operation with other internation-
al organisations working in this field. This co-opera-
tion also consists in the participation to existing
mechanisms of co-ordination, such as the Stability
Pact Task Force on Trafficking in Human Beings
(hereinafter SPTF), under the framework of which the
Council of Europe is one of the international organi-
sations responsible with providing technical assis-
tance on criminal law reform in South-East Europe.
Undoubtedly, an effective strategy to combat traffick-
ing in human beings needs to follow a comprehensive
approach covering both preventive, protective and
repressive aspects, while ensuring that the relevant
1 See the Council of Europe website on the fight against trafficking in human beings at http://www.coe.int/trafficking
2 See the description of the LARA project in appendix 1. The activities organised within the LARA project were funded by contributions
from Sweden (Swedish International Development Co-operation Agency) and the United States of America.
7
legislation of the Council of Europe member States is
harmonised and uniformly and effectively applied.
The Lara Project2 was launched in July 2002 and con-
stitutes a follow-up to the activities undertaken by the
Council of Europe in the field of criminal law reform
regarding trafficking in human beings in South-east-
ern Europe and in the framework of the Stability Pact
Task Force on Trafficking in Human Beings.
More specifically, it builds on the conclusions of the
Regional Training Course on Criminal Law Reform
held in Belgrade (Serbia and Montenegro, 23-24
November 2001) and the Council of Europe Pilot
Project on Criminal Law Reform in Romania and
Moldova (October 2001 February 2002).
The results obtained under the Pilot Project demon-
strated the need for and importance of a comprehen-
sive and co-ordinated legislative response at regional
level. Consequently, it was decided to enlarge this
activity to the other countries of South-eastern
Europe, namely Albania, Bosnia and Herzegovina,
Bulgaria, Croatia, Serbia and Montenegro (including
Kosovo), Slovenia and the former Yugoslav Republic
of Macedonia.
The LARA Project aims to achieve the reform of the
relevant legislations in South-Eastern European coun-
tries in the field of trafficking in human beings in
accordance with Recommendation No.R (2000) 11 of the
Committee of Ministers on the fight against trafficking in
human beings for the purpose of sexual exploitation and
the Protocol to Prevent, Suppress and Punish Trafficking in
Persons, especially women and children, supplementing the
United Nations Convention against Transnational Organised
Crime.
 LARA PROJECT CRIMINAL LAW REFORM AGAINST TRAFFICKING IN HUMAN BEINGS

Phase 1 of the Lara Project: Collection of the relevant legislation and dissemination

I
n order to collect the relevant legislation in the field
of trafficking in human beings (national Plans of
Action, primary and secondary legislation avail-
able, draft legislation), two questionnaires were sent
in August 2002 to each nominated national expert. The
first questionnaire concerned the relevant legislation
and plans of action regarding prosecution of trafficking
offences and the protect of victims and the second ques-
tionnaire concerned the relevant legislation and measures
to prevent trafficking. Upon reception of the replies to the
questionnaire, the Council of Europe Secretariat elab-
orated for each country a Country legislative profile.

Phase 2 of the Lara Project: Expertise on-line

T
he Council of Europe also entrusted to five inter-
national legal experts the review of the existing
and draft legislation in one or more countries.
Each expert was tasked with assessing and identifying
legislative gaps and/or proposing potential improve-
ments. Experts were required to draft specific recom-
mendations to address the identified problems and to
develop and strengthen the countrys legislative response
to trafficking in human beings. This review was made
on the basis of the relevant information received by
the Council of Europe Secretariat from the national
experts nominated by each participating country .
The expert opinions were sent to the national experts
for their written comments.

Phase 3 of the Lara Project: The first Regional Seminar (Zagreb, Croatia 2 - 4 April 2003)

T
he first regional seminar was organised by the
Council of Europe in co-operation with the Ministry
of Justice, Administration and Local Self-
Government of Croatia in Zagreb from 2 to 4 April 20031.
The main objectives of the seminar were:
To review the relevant anti-trafficking legislation
in the countries participating in the Lara Project;
To set up a regional co-operation and to contribute to
an effective and harmonised anti-trafficking legis-
lation throughout the region in order to better fight
trafficking and better protect victims human rights
in accordance with European and other international
standards;
To determine the needs of the countries for expert
legal assistance and to organise consultancies on
their request on training for drafting of legislation
with the objective to better fight trafficking and
better protect victims human rights.
The seminar brought together over forty participants.
It constituted an opportunity for participants to exchange
and share their experiences in the field of drafting anti-
trafficking legislation.
While all participants were engaged in national leg-
islative reforms, they recognised the importance of
co-ordinating their efforts in order to ensure a com-
mon approach to tackling the phenomenon, resulting
in an effective and harmonised anti-trafficking legis-
lation throughout the region.
The report on the first regional seminar, which
includes the opinions and comments on the legal pro-
visions on trafficking in human beings made by the
five international experts, the comments and sugges-
tions made by national experts as well as the reports
of the working groups and the general conclusions, is
available on the Council of Europe website.

Phase 4 of the Lara Project: flying consultancies for drafting of legislation

and training in drafting legislation (April September 2003)

T
he flying consultancies phase of the LARA
project aimed at assisting participating countries
in the drafting process of primary or secondary
legislation regarding trafficking in human beings,
through expert assistance in the drafting and/or train-
ing in drafting legislation on specific legal issues related
to trafficking in human beings.
During the first LARA regional seminar, several par-
ticipating countries identified areas in which flying
consultancies would be needed. Consequently, three
activities were organised during this phase: two in-
country seminars in Albania and Montenegro, as well
as a regional training seminar in drafting legislation
for the protection of victims and victim-witnesses of
trafficking in human beings2.
The present report encloses the recommendations and
conclusions of the two in-country seminars. The pro-
ceedings of the regional training seminar are available
in a separate report.

1. This seminar was financed by a contribution from the United States of America.
2. These activities were co-finances by the contributions from Sweden (SIDA) and the United States of America.

8
 LARA PROJECT CRIMINAL LAW REFORM AGAINST TRAFFICKING IN HUMAN BEINGS
Phase 5 of the Lara Project: Second Regional Seminar
(Durrs, Albania, 30 October 1 November 2003)
his seminar was the last activity organised in
T the framework of the LARA project 1.
The aim of the final regional seminar was:
To discuss and assess the achievements and results
of the legislative reform in the participating coun-
tries in the field of trafficking in human beings
since April 2003, including specific issues related
to the drafting and effective implementation of
anti-trafficking legislation and national plans of
action;
To discuss and agree on the main elements of a
comprehensive legislative framework for the pre-
vention, prosecution of trafficking in human beings
and the effective protection of trafficked persons;
To discuss the effectiveness of coordination and
co-operation mechanisms in the field of trafficking
in human beings (achievements - obstacles actions
to be taken).
Themes and structure
The discussions during the seminar dealt with the follow-
ing themes:
Theme 1: Recent legislative developments in the
participating countries which are of rel-
evance to the prevention of and the fight
against trafficking in human beings (on-
going legislative drafting process, entry
into force and implementation of legis-
lation and of the national plan of action).
Theme 2: The main elements of a comprehensive
legislative framework for the prevention,
prosecution of trafficking in human
beings and the effective protection of
trafficked persons
Theme 3: The effectiveness of co-ordination and
co-operation mechanisms against traf-
ficking in human beings: achievements -
obstacles actions to be taken.
These themes were discussed both in plenary sessions
and working groups. International and national
experts discussed and commented upon the recent leg-
islative developments, taking into account the recom-
mendations previously discussed and elaborated dur-
ing the LARA first regional seminar.
1. This seminar was financed by a contribution from Sweden (SIDA).
2 This report is available at http://www.osce.org/attf/pdf/see_asmt_july03.pdf
3 The list of participants is enclosed in Appendix 3.
9
Recommendation No. (2000) 11 of the Committee of
Ministers on the fight against trafficking in human
beings for the purpose of sexual exploitation and the
Protocol to Prevent, Suppress and Punish Trafficking
in Persons, especially women and children, supple-
menting the United Nations Convention against
Transnational Organised Crime served as the framework
for discussions in the plenary and working groups.
A comparative table on legislative reform and nation-
al plans of action as well as a general comparative
table on the current legislation were prepared by the
Council of Europe Secretariat in order to facilitate dis-
cussions on themes 1 and 2.
The conclusions of the report of the Stability Pact
Task Force on Trafficking in Human Beings on the
Assessment on Governmental anti-trafficking struc-
tures and policies in SEE countries1 were used as an
introductory basis for the discussions regarding theme 2.
Participants were very pragmatic and developed pro-
posals for action, which are important to follow up
upon through concrete practical measures.
Participants
The seminar gathered approximately fifty participants
including national experts from all participating
countries (mainly from the Ministry of Justice or
Ministry of Interior), national anti-trafficking coordi-
nators or members of the national anti-trafficking
coordination teams, representatives of the Steering
Committee for Equality between Women and Men,
four international experts as well as observers from the
Stability Pact Task Force on Trafficking in Human
Beings, OSCE offices in the region, IOM, PAMECA,
etc3. The seminar was opened the seminar was opened
by Mr Blendi Klosi, Minister of State, and by Ms Helga
Konrad, Chair of the SPTF. The Chair of the meeting
was Mr Ardian Dvorani, Director of the Codification
Directorate of the Ministry of Justice.
Documents
The present report encloses the conclusions of all
activities organised in the framework of the LARA
project as well as the opening speeches, the summary
of the status of anti-trafficking legislative reform in
the participating countries, the comments on the leg-
islative developments, the conclusions of the in-coun-
try flying consultancies, the reports on the discus-
sions held during the final seminar and the general
conclusions and evaluation of this project.
 LARA PROJECT CRIMINAL LAW REFORM AGAINST TRAFFICKING IN HUMAN BEINGS

2. Legislative reform in South-eastern European countries

During the two regional seminars on legislative reform
as well as the two in-country activities organised in
Albania and Montenegro, a series of draft pieces of
legislation were discussed. The project provided expert
assistance for ensuring that these draft texts were in line
with existing international and European standards.
As a result of the activities organised within the frame-
work of the project, the following draft pieces of leg-
islation were reviewed and commented upon by the
international experts:

COUNTRY DRAFT LEGISLATION STATUS: 31.12. 2003

Albania Draft Law on the protection of witnesses Adopted

and collaborators of justice

Bosnia Draft Criminal Code of Bosnia and Herzegovina Adopted on 24.01. 2003
and Herzegovina (in force on 1.03.2003)

Draft Law on Movement of Stay of Aliens Adopted on 18.07.2003

and Asylum of Bosnia and Herzegovina (in force 14.10.2003)

Bulgaria Draft Law on Combating the Illegal Trafficking Adopted on 7 May 2003
in Human Beings (in force on 1.01.2004)

Croatia Draft law on the responsibility of legal persons Adopted on 11.09.2003

for criminal offences

Serbia and Montenegro Kosovo

Draft Provisional Criminal Code Adopted in July 2003

Draft Provisional Criminal Procedure Code (in force on 06.04.2004)

Montenegro

Draft Criminal Code Parliamentary procedure

Draft Criminal Procedure Code

Slovenia Draft Law on amendments to the Criminal Code Parliamentary procedure

the former Yugoslav Republic
of Macedonia
Draft Law for Changes and additions Parliamentary procedure
to the Criminal Code
Draft Law for Changes and additions
to the Criminal
Procedure Code

In addition to the technical assistance provided for
drafting primary and/or secondary legislation, the
task of international experts was to review the exist-
ing anti-trafficking legislative framework, to identify
gaps and/or potential improvements, which could be
made. This review was made on the basis of the com-
pilation of the countrys relevant information pre-
pared by the CoE Secretariat. The review included a
series of specific recommendations to address the
identified problems and to develop and strengthen the
countrys legislative response to trafficking in human
beings.

11
 2.1 General comparative table on anti-trafficking legislation and national plans of action1
Albania
National Strategy against Trafficking
in Human Beings Governments decree
n 674 (07.12.2001) for 2001 2003
incorporates the National Plan of Action
and foresees the following measures:
Conduct research on trafficking
in human beings/ collection of
reports, statistics, information etc.
Raise public awareness
Ensure education of women
and children
Improve the social and economic
conditions of women
Develop training programs
and organisation of trainings
Strengthen efforts for preventing
12
trafficking in human beings
It is supplemented by the National
Action Plan 2003-2004 (agreed on
October 3, 2003), which foresees a
series of actions:
to evaluate the effectiveness
of existing Public Awareness
and Prevention Programs,
and to develop new approaches
to ensure education of women
to activate the Vlora Anti-trafficking
Centre (VATC) as a national,
regional and international
resource for Training, Analysis
and Information-sharing:
to develop a dedicated Strategy for
Combating Child Trafficking and
Protecting Child Victims of
Trafficking, which includes
preventive measures.
1 This table has been prepared by the Secretariat of the Council of Europe on the basis of information received until 19 December 2003 from the national experts of the participating countries in the LARA project.
PREVENTIVE MEASURES IN THE FIELD OF TRAFFICKING IN HUMAN BEINGS
Bosnia-Herzegovina
National Plan of Action for
Prevention of Human Trafficking
adopted in October 2001 includes a
series of public campaigns, raising
awareness activities, training and
education. However no budget has
been foreseen, nor a specific allocation
of tasks for its implementation.
BiH Council of Ministers adopted on
30 October 2003 a National Action
Plan to Fight Organized Crime.
One help line (launched in August 2002)
deals with preventive information on
trafficking in human beings and
employment conditions abroad.
Bulgaria
Law on combating trafficking in
human beings (dated 7 May 2003,
in force 1 January 2004):
Chapter 4 of the Law on Combating the
Trafficking in Human Beings establishes
the guidelines for a prevention
programme and the establishment
of a National Commission.
The National Commission shall
organise and co-ordinate the relevant
agencies and organisations involved
in the prevention and countering of
trafficking in human beings, based
on the National programme approved
by the Council of Ministers.
This National programme shall be
based on the legal definition of
trafficking in human beings, stipulated
in 1 of the Additional Provisions
and shall include all the forms of
trafficking listed in this definition.
Foreign Nationals Act
(as amended on 9 April 2003):
The Foreign National Act introduced
measures for preventing trafficking in
human beings.
Draft law against domestic violence is
under preparation.
Croatia
National Plan for the Suppression
of Trafficking in Human Beings was
adopted in October 2002. It provides
for a list of measures including the
identification and prevention of the
social and economic causes of
trafficking, information, sensitisation
and awareness-raising campaigns,
trainings for relevant state officials,
police, social workers, media, NGOs,
surveys in schools, trainings in high
schools, etc.
Moldova
A 1998 Governmental decision on
the improvement of womens situation
was adopted (not implemented due
to lack of financial resources).
A National Plan of Action was
adopted on 9 November 2001.
Several activities were envisaged
whose objectives are to raise public
awareness, to educate persons
in high-risk groups, to improve
the social and economic conditions
of persons at risks of trafficking and
to reduce activities capable of causing
trafficking in human beings.
All the district and municipal
committees approved on
13 September 2003 a territorial
action plan to control human
trafficking for the period 2003-2004.
3 counter-trafficking help-lines
On-going: Anti-trafficking campaigns
& trainings.
Set up of a database in the
Department of international
technologies
National Program for reducing poverty
for 2000 2003 (14.06.2000).
A draft law on the promotion of
equal chances is currently prepared
by the Ministry of Labour and Social
Protection.
LARA PROJECT CRIMINAL LAW REFORM AGAINST TRAFFICKING IN HUMAN BEINGS
 PREVENTIVE MEASURES IN THE FIELD OF TRAFFICKING IN HUMAN BEINGS

Romania
Art 3 11 of the Law 678/2001
on the Prevention and Combat
of Trafficking in Human Beings
(dated 21.11.2001 as amended)
National Action Plan for Combating
Trafficking in Human Beings,
adopted by Government Decision
n 1216/2001:
Chapter II Awareness Raising
Chapter III Improvement of the
economic and social situation of the
persons with a high risk to be traf-
ficked.
Law 78/2000 on Prevention,
Detection and Sanction of Corruption
Offences (dated 8.05.2000)
Ordinance 137/2000 on Preventing
Serbia and Montenegro
Serbia
A Working Group on prevention and
awareness raising has been established. currently being drafted.
Montenegro
A Victim Protection Programme
or Montenegro has been developed
in 2001; it comprises a series of
anti-trafficking projects.
for gender issues.
SOS line/ advisory hotline
Information campaign in co-operation
with IOM (since 2001)
Several trainings, seminars, training
for trainers have taken place.
UNMIK-Kosovo
Kosovos action plan to combat
trafficking in human beings is
UNMIK Regulation 2003/12
(9 May 2003) on Protection against
Domestic Violence.
Law on Gender Equality and
anti-discrimination & action plan
Slovenia
An Action Plan for the Prevention
and Combat Against Trafficking
in Human Beings was prepared by
an Inter-Agency Working Group
in the first half of 2003.
Act on Equal Opportunities
for Women and Men
(Official Gazette of the Republic
of Slovenia, No. 59/2002).
the former Yugoslav Republic
of Macedonia
National Action Plan for Illegal
Trafficking in Humans and Illegal
Migration (dated 5 February 2002)
provides for a series of preventive
activities and socio-economic
measures, to be implemented under
the authority of: Ministry of Labour
and Social Policy Department for
equality of sexes and the Ministry
of Interior.

13
and Sanctioning All Forms of
Discrimination
Law 116/2002 for combating
the social marginalisation
Law 202/2002 on equal chances
between women and men
(dated 19.04.2002)
Law 217/2003 on prevention
and combat of violence in family.
LARA PROJECT CRIMINAL LAW REFORM AGAINST TRAFFICKING IN HUMAN BEINGS
 CURRENT LEGISLATION IN THE FIELD OF TRAFFICKING IN HUMAN BEINGS

Albania Bosnia-Herzegovina Bulgaria Croatia Moldova

Trafficking in human beings:
the offence & related offences
Criminal Code of Albania:
Art 110a Trafficking in
human beings
Penalty: 5-15 years
imprisonment.
If aggravating circumstances:
minimum 15 years to life
imprisonment.
Art 114/b Trafficking of
women for prostitution
Penalty: 7-15 years
imprisonment.
If aggravating circumstances:
minimum 15 years to life
detention.
Art 128/b Trafficking of
Criminal Code of BIH
(in force 1.03.2003)
Art 186 Trafficking in Persons
Penalty: 1-10 years
imprisonment.
If crime committed against
a juvenile: min. 5 years
imprisonment. If organised crime
element: min. 10 years long-term Penalty: 1-8 years imprisonment
imprisonment. For facilitating
its perpetration through
negligence: 6 months 5 years
imprisonment.
---------------------------
Art 187 International
Procuring in Prostitution
Art 188 Unlawful
Law on combating
trafficking in human beings
(dated 7 May 2003, in force
from 1.01.2004)
Criminal Code: section IX on
Trafficking in persons
Art 159a Trafficking in persons
and fine not exceeding
8000 Levs
If acts committed against
persons under 18: 2-10 years
imprisonment and a fine not
exceeding 10.000 Levs.
Art 159b Trafficking in
persons (across the countrys
Criminal Code (as amended in Criminal Code
2003) (dated 18.04.2002, in force
on 12.06.2003)
Art 175 Trafficking in persons
and slavery (in force from Art 165 Trafficking in
1 December 2003). human beings
Penalty: 1-10 years Penalty: 7-15 years
imprisonment. imprisonment.
If crime committed against a If aggravating
child: 3-15 years imprisonment. circumstances, penalties
If organised crime element: can be of minimum
minimum 5 years life 10 to 20 / or 15 to
imprisonment. 25 years imprisonment
or life detention.
Art 206 Trafficking in
Children
Penalty: 10-15 years
imprisonment.

14
children
Penalty: 1020 years
imprisonment.
If aggravating circumstances:
minimum 15 years to life
imprisonment.
---------------------------
Art 114 Exploitation of
Prostitution
Art 115 Use of premises for
prostitution
Withholding of Identity Papers borders) If aggravating
Criminal Code of RS Penalty: 3-8 years imprisonment circumstances, penalties
can be of minimum
Art 198 Trafficking in and fine not exceeding
15 to 20 years
human beings for the purpose 10.000 Levs.
of prostitution imprisonment/ or
If aggravating circumstances
20-to 25 years or life
Penalty: 6 months 5 years of art 159a: 5-10 years
detention.
imprisonment. If crime imprisonment and a fine not
committed against a exceeding 15.000 Levs. -------------------
child or person younger
than 21: 1-12 years Art 159c- Trafficking in per- Art 166 Illegal deprivation
imprisonment. sons committed by an organ- of liberty
Criminal Code of Federation ized criminal group or case of Art 167 Slavery and
of BIH (1.08.2003): no specific dangerous recidivism slavery-like conditions
offence. Penalty: 5-15 years Art 168 Forced labour
Art 179 Unlawful deprivation imprisonment and
fine not exceeding Art 361 Forging, possession,
of freedom, Art 180 Abduction,
20.000 Levs selling or use of falsified
Art 206 Forced sexual
intercourse, Art 207 Sexual official documents, blanks,
intercourse with a child, Art 210 stamps or seals
Procuring and pandering,
LARA PROJECT CRIMINAL LAW REFORM AGAINST TRAFFICKING IN HUMAN BEINGS

Art 228 - Debauchery

Art 229 Promoting prostitution.

Non-punishment clause
for trafficked persons
Liability of legal entities
Seizure & confiscation
15
CURRENT LEGISLATION IN THE FIELD OF TRAFFICKING IN HUMAN BEINGS
Albania
No.
Criminal Code: Art 45 enables Regulated both at State
courts to rule total or partial
cessation of the activity and the Criminal Code) and entity level.
confiscation of the earnings,
means and every other property
resulting from that activity.
Criminal Code: Art 36 on
confiscation of the means for
committing the criminal act =>
seizure and transfer in favour
of the state of the means which
served or were chosen as
means to commit a criminal
act, including objects, money
& property resulting from it or
the reward given or promised
for its commission.
Criminal Procedure Code:
see Art 208-220
Bosnia-Herzegovina
Temporary Instruction on
Treatment of Trafficking
Victims, (adopted by the
Ministry for Human Rights and
Refugees in September 2002)
non prosecution of trafficked
women and girls for crimes
related to their status as
trafficking victims
(art 122 to 144 of the BIH
Criminal Code of BIH: Art 133
on seizure of property and
Chapter 12 on Confiscation of
material gain acquired through
perpetration of a criminal
offence and legal consequences
incident to conviction
(art 110 116).
Similar provisions exist in the
criminal codes of the entities.
Bulgaria
No.
The criminal responsibility is
only personal.
Confiscation as coercive
measure: see art 53 of
the Criminal Code & art 156a
and 185a of the Criminal
Procedure Code
Confiscation as a penalty:
art 37 and article 45-47
of the Criminal Code & 159c
of the CP
Confiscation is ordered only
for most severe crimes
(trafficking in human beings
as recidivism or as activity of
organised criminal groups)
Croatia Moldova
No. Victims of trafficking in human
beings are exempted from
criminal liability for offences
committed in connection
to their status provided that
they accept to cooperate with
law enforcement authorities
(art 165 (4) and 206(4)
as adopted on 29.05.2003,
in force on 13.06.2003).
Act on the responsibility Prosecution of legal persons
of legal persons for is envisaged but not for
criminal offences trafficking in human beings.
(dated 11 September 2003).
Criminal Code (art 82 on Criminal Code:
Confiscation of Pecuniary art 106 on special confiscation
Gain Acquired by a Criminal
Offence) and Criminal
Procedure Act (art 218 221
on Temporary Seizure of
Objects).
The Law on the Office for
the Prevention of Corruption
and Organised Crime (in force
since 19.09.2001) expands the
confiscation regime and sets
up a special regime of freezing
proceeds of crime for future
confiscation when criminal
offences of corruption and
organised crime are committed.
See also art 20 Confiscation
of Illegally gained benefit of
the Act on the responsibility
LARA PROJECT CRIMINAL LAW REFORM AGAINST TRAFFICKING IN HUMAN BEINGS
of legal persons for criminal
offences(2003).
 CURRENT LEGISLATION IN THE FIELD OF TRAFFICKING IN HUMAN BEINGS
Albania
Illegal border crossing Criminal Code
Art 297 Illegally crossing
state border
Penalty: fine or up to 2 years
imprisonment or, if
done for profit, up to
10 years imprisonment.
Art 298 Assisting illegal
border crossing
Penalty: fine or up 3 years
imprisonment. If done
for profit, fine or up to
7 years imprisonment.
In case of death or
serious injuries to one
or more persons,
minimum 7 years
imprisonment.
16
Foreigner legislation Law for foreigners
n 8492 (27.05.1999)
Bosnia-Herzegovina
Criminal Code of BIH
Art 189 Smuggling of
Persons
Penalty: 6 months to 5 years
imprisonment.
Law on State Border Service
(decision of the High
representative, 13.01.2000).
BIH level: Law on Movement
and Stay of Aliens and
Asylum (dated 18.07.2003, in
force 14.10.2003), Art 35
Temporary residence permit on
humanitarian grounds:
Trafficked victims for the
purpose of providing
protection and assistance
for his/ her rehabilitation
and repatriation into the
country of his/her residence
Exceptionally to an alien
victim of an organised crime
and his/her presence in BIH is
indispensable for conducting
the court proceedings where
he/she shall appear as a
plaintiff, injured party
or a witness;
Duration: 3 months renewable
Art 60 Principle of
non-refoulement.
Bulgaria Croatia Moldova
Criminal Code Criminal Code Criminal Code
Art 280 Crimes against the Art 177 Illegal transfer of Art 362 Illegal crossing of
governmental order (taking persons across the State border the state border
across frontiers individuals or Penalty: fine or maximum Penalty: fine up to 400mini-
groups of persons without 1 years imprisonment. For the mum wages or with 1-3 years
permission) organiser: 6 months to 5 years imprisonment. If aggravating
Penalty: 1-6 years imprison- imprisonment. circumstances, penalties include
ment and a fine of 500 000 to higher fines or up to 8 years
1000000 Levs. If aggravating imprisonment.
circumstances, 1-10 years
Art 362 does not apply to
imprisonment, a fine of
1000000 to 3000000 levs victims of trafficking in human
beings.
and confiscation of part
or the entire property of
the perpetrator.
Foreign Nationals Act (as Law on Foreigners (9 July 2003) Law on the legal status of
amended on 9 April 2003) opens the possibility to grant foreigners and stateless persons
regulates the treatment of all temporary residence permit to in Moldova (10.11.1994)
foreign nationals. If the person trafficked victims.
is identified as a victim of Law on Asylum (June 2003)
trafficking, the Law on
combating trafficking in human
beings applies to that person.
Art 25 of the Law on combating
trafficking in human beings:
victims of trafficking who have
declared their willingness to
cooperate for disclosure of the
trafficking offenders are granted
a special protection status
for the time of the criminal
proceedings including permission
for long-term stay in the country
and extension of the
accommodation period in the
shelters.
LARA PROJECT CRIMINAL LAW REFORM AGAINST TRAFFICKING IN HUMAN BEINGS

Trafficking in human beings:
the offence& related offences
17
Non-punishment clause for
trafficked persons
CURRENT LEGISLATION IN THE FIELD OF TRAFFICKING IN HUMAN BEINGS
Romania
Law 678/2001 on the
Prevention and Combat of
Trafficking in Human Beings
(21.11.2001 as amended)
Art 12 Trafficking in human
beings
Penalty: 3-25 years imprisonment
and denial of certain rights.
Art 13 Trafficking of persons
between 15-18 years old
Penalty: 3-25 years imprisonment
and denial of certain rights or
life imprisonment. Aggravating
circumstances if an organised
group commits the offence:
additional 3 years imprisonment.
Art 18 Child pornography
Penalty: 3-10 years imprisonment.
If offence committed as a member
of an organised crime group:
3-12 years imprisonment and
denial of certain rights.
Law 252/2000 on sanctioning
Romanian citizens committing
crimes abroad.
Law 161/2003: art 51 on Child
pornography through informatics
systems.
Law 39/2003 for preventing
and combating organised crime.
Art 20 Law 678/2001 no criminal No.
liability for prostitution if the
trafficked person reported the
crime before the start of the
criminal investigation to the
competent authorities or if, after
the start of the criminal
investigation or after the
identification of the criminal
offenders this person facilitates
the arrest of those offenders.
Serbia and Montenegro
Serbia: Criminal Code (of 1977
as amended on 11 April 2003)
Art 111b People trafficking
Penalty: 1-10 years imprisonment.
Aggravating circumstances:
minimum 3 years imprisonment,
minimum 5 years in cases of
under aged persons or if the act
led to the death of the person.
Montenegro: Criminal Code (of
1993 as amended in June 2002)
Article 201a Trafficking of
Human Beings
Penalty: 1-10 years imprisonment.
Aggravating circumstances:
min. 1-max. 12 years
imprisonment. In case of death:
min. 10 years imprisonment.
UNMIK-Kosovo
UNMIK Regulation 2001/4 on No specific offence of trafficking. Criminal Code as amended in
The Prohibition of Trafficking
In Persons In Kosovo
(12 January 2001) Chapter 1: (art 387), pimping (art 185),
Criminal Acts and Penalties
Sect. 2.1 Engaging or
attempting to engage
in trafficking in persons
Penalty: 2-12 years
imprisonment.
Sect. 2.2. Trafficking
in persons under 18 years old
Penalty: up to 15 years
imprisonment.
Sect 2.3. Organisation of a
group of persons for trafficking
Penalty: 5-20 years
imprisonment
Sect. 2.4 Negligence facilitating
the commission of trafficking
Penalty: 6 months - 5 years
imprisonment
Sect. 4 Using or procuring
sexual services of persons in a
situation of sexual exploitation
Penalty: 3 months - 5 years
imprisonment.
Provisional Criminal Code (in
force on 06.04.2004): Art 139
on Trafficking in Persons
Regulation 2001/4 Sect. 8:
a person is not criminally
responsible for prostitution,
illegal entry, presence or work
in Kosovo if that person
provides evidence that supports
a reasonable belief that he or
she was a victim of trafficking.
Slovenia
Criminal Code: enslavement
presenting persons for
prostitution (art 186), illegal
deprivation of liberty and
illegal border crossing (art 311) against a child or by the
Amendments to the Criminal
Code introducing a separate
incrimination of Trafficking in The use or procuring of sexual
human beings are in
parliamentary procedure.
No.
the former Yugoslav Republic
of Macedonia
2002
Art 418a Trafficking in
persons
Penalty: minimum 4 years
imprisonment. If acts committed
organizer: minimum 5 years
imprisonment.
services with the knowledge
that that person is a victim of
trafficking in human beings is
punished by 6 months to
5 years imprisonment, and by
minimum 4 years if the victim
is a child or juvenile.
Unlawfully withholding or
destroying the identity card,
passport or other identification
document for the purpose of
committing trafficking offences
is punished by imprisonment of
6 months to 5 years.
No
LARA PROJECT CRIMINAL LAW REFORM AGAINST TRAFFICKING IN HUMAN BEINGS

Liability of legal entities
Seizure & confiscation
Illegal border crossing
18
Foreigner legislation
CURRENT LEGISLATION IN THE FIELD OF TRAFFICKING IN HUMAN BEINGS
Romania
No. Provisions foreseen in the
draft new Criminal Code
currently in the legislative
procedure.
Law 678/2001 on the
Prevention and Combat of
Trafficking in Human Beings.
Criminal Procedure Code:
art 119
Emergency Ordinance
112/2001 on the Sanctioning
of Acts Committed outside
the Territory of the Country by
Romanian Citizens or Stateless
Persons residing in Romania
Emergency Ordinance 194/2002
on the status of aliens in
Romania as approved and
modified by Law 357/2003
Foreign citizens victims of
trafficking in human beings are
allowed to stay in Romania
(Tolerance regime) for up to
6 months, renewable for periods
of maximum 6 months until
the reason for granting the stay
permit disappears (until the end
of the proceedings).
Serbia and Montenegro
Montenegro: Criminal Code -
Art 210
Serbia: Law on Movement
and Sojourn of Foreigners.
Information supplied leads to
the conclusion that trafficked
victims do not qualify for
residence based on a claim of
temporary residence permits
on humanitarian grounds.
UNMIK-Kosovo Slovenia the former Yugoslav Republic
of Macedonia
UNMIK Regulation 2001/4: Liability of Legal Persons for No. Permitted under the draft
Section 6 Criminal Offences Act (Official amendments to the Criminal
Provisional Criminal Code Gazette Nos.59/99 and 12/2000) Code, currently under discussion.
(in force on 06.04.2004): art 106
criminal liability of a legal
person, criminal sanctions and
procedure applicable shall be
provided for separately by law.
UNMIK Regulation 2001/4, Criminal Code: art 95-98 Criminal Code: art 97
Sect. 6: Confiscation of property Criminal Procedure Code: Criminal Procedure Code:
and closure establishments. art 498-506 art 147, 203-207
Provisional Criminal Code
(in force on 06.04.2004):
art 85 on Confiscating material
benefits from legal persons.
UNMIK-Regulation 2001/10 On Criminal Code: Art 311 Illegal Criminal Code: art 402 "Illegal
the Prohibition of Unauthorized border crossing trespassing of the state border
Border/Boundary Crossings Penalty: max. 5 years Penalty: for persons crossing or
Provisional Criminal Code imprisonment. attempting to cross fine or up
(in force on 06.04.2004): to 1 years imprisonment. For
article 114 on Unauthorised Foreigners Act as amended in persons dealing with the illegal
border or boundary crossings October 2002: Art 40 provides transfer of other persons: six
that foreigners who, in accordance months to 5 years imprisonment.
UNMIK Regulation 2001/4 with the law, with international
Refugee Status acts or international principles, Law on Trespassing of the
If a victim of trafficking demonstrate well-founded reasons State Border and Movement
expresses a wish to not be that justify their stay in Slovenia, Near the State Border
returned to her or his country of may be issued with a permit
(Official Gazette 36, 1992).
citizenship or previous habitual for temporary residence by
the competent authority for
persecution, such a claim shall the period of time for which Law on movement and
be evaluated by the appropriate their presence is indispensable. residence of foreigners
authority, pursuant to the (Official Gazette No.32/92,
in force 16.07.1992)
applicable law, who may Law on Asylum (14.08.1999)
determine that the victim may
be granted residence in Kosovo Law on Asylum and
LARA PROJECT CRIMINAL LAW REFORM AGAINST TRAFFICKING IN HUMAN BEINGS
or such other assistance as Temporary Protection (dated 16
deemed appropriate. July 2003, in force 04.08.2003).
 CURRENT LEGISLATION FOR THE PROTECTION AND ASSISTANCE OF VICTIMS WITNESSES AND CO-ORDINATION ASPECTS
Legal framework for the
protection of victims-witnesses witness protection. Draft law
19
Legal framework for the
assistance of victims-witnesses
Albania
No specific legislation on
on witness protection was
adopted by the Government in
November 2003 and is currently
in the parliamentary process.
Criminal procedure code:
Application of general provisions
on protective rules for
the examination of witnesses.
The Serious Crimes Court Law
was adopted (in force 1.01.2004)
which includes provisions on
enhanced witness protection
measures.
A witness protection Task Force
has been operating informally
since May 2002, composed of
representatives of the Ministry
of Public Order, General
Prosecutors Office, IOM,
ICITAP, OPDAT, PAMECA, Save
the Children, OSCE Presence in
Albania. A Memorandum of
Understanding was signed in
July 2003.
Criminal procedure code
(Art 59)
Bosnia-Herzegovina
BIH level:
Decision enacting the Law
on protection of witnesses
under threat and vulnerable
witnesses, dated 24.01.2003
(in force 01.03.2003)
Temporary Instruction
on Treatment of Trafficking
Victims (adopted by the
Ministry for Human Rights
and Refugees in September
2002) art VII.
RS level: Law on protection
of witnesses under threat and
vulnerable witnesses
(in force on 1.07.2003)
FBIH level: Law on special
witness identity protection in
criminal proceedings
(30.07.1999 as amended)
Law on protection of witnesses
under threat and vulnerable
witnesses (1.08.2003)
Regulated both at State and
entity level in the Criminal
Procedure Codes.
BIH: Temporary Instruction on
Treatment of Trafficking Victims
RS and FBIH level only: Law
on obligations compensation
of victims for non-material
damage, physical, psychological
and material damage.
Bulgaria Croatia Moldova
4 regimes of victims protection: The general procedural provisions Law on State Protection of the
1. General protection for all for the protection of witnesses Victims, of witnesses and other
victims of trafficking in human of the Criminal Procedure Code persons who provide assistance
beings: art 9-12 and 15-20 of apply (Art 238). in criminal proceedings
Law on combating trafficking (dated 28.01.1998 amended by
in human beings Law 126 -15 of 03.05.2001).
The Law on witness protection
has been adopted in November
2. Protection of children victims:
art 21-24 of Law on combating 2003.
trafficking in human beings
with the Child Protection Act
3. Status of special protection
for victims of trafficking in
human beings who agree to
cooperate with the judicial
authorities: art 25-31 of Law
on combating the trafficking in
human beings
4. Protection of witnesses: art
97a of the Criminal Procedure
code.
On-going drafting: National
Action Plan on the protection
of victims from crime, draft law
on the protection of witnesses
and endangered participants
of criminal proceedings.
Bilateral agreements between Criminal Code: see art 127. See the Criminal Code and
the Ministry of Interior and A victim can make a separate Criminal procedure code.
different NGOs for victim civil claim or a civil claim Memorandum of Understanding
support and protection. attached to the criminal between the Center for the
Secondary legislation is proceedings. Prevention of Trafficking in
to be developed regarding Women with IOM regarding the
the implementation of the Law
provisions of legal assistance
on Combating trafficking in for victims willing to testify.
human beings, in particular
LARA PROJECT CRIMINAL LAW REFORM AGAINST TRAFFICKING IN HUMAN BEINGS
the assistance to be provided
to victims of THB.
 CURRENT LEGISLATION FOR THE PROTECTION AND ASSISTANCE OF VICTIMS WITNESSES AND CO-ORDINATION ASPECTS
Albania
Co-ordination bodies/ Working Coordination Stability Pact
groups National co-ordinator for
anti-trafficking and Minister
of State in the Office of the
Prime Minister: coordinates
government action against
human trafficking and corruption,
and the anti-trafficking and
anti-corruption efforts of
government with the
non-governmental sector.
Working groups a govern-
mental working group on the
protection of children from
trafficking and the rights of
children victims of trafficking
was established in September
20
2003. It is also composed of
national and international
NGOs and international organi-
sations.
Bosnia-Herzegovina
Appointment of a National
Co-ordinator for BIH
(17 July 2003), tasked with the
coordination of activities of all
actors involved in combating
trafficking in human beings at
domestic and international
level and with the collection of
information for the purpose of
reporting and following-up
on the implementation of
the National Action Plan.
Set up of a National Co-ordi-
nation Team composed of
the national co-ordinator,
representatives of the BiH
Ministry for Human rights
and Refugees, BiH Ministry
of Security, State Border Service,
BiH Ministry of Justice, BiH
Ministry of Foreign Affairs
and the Office of the State
Prosecutor.
Set up by the Council of Ministers
of a Strike Force for combating
trafficking in human beings and
illegal migration (August 2003).
Bulgaria
National Task Force on
Combating Trafficking
(November 2001), under the
lead of the National Service
for Combating Organised Crime
(NSBOP), includes the National
Police Service, the National
Border Service, the National
Gendarmerie and the National
Interpol Bureau.
Regional Task Forces were
created in the 28 regional
directorates of the Ministry
of Interior (April 2002).
The law on Combating trafficking Defence.
in human beings foresees the
establishment of a National
Commission for combating
trafficking in human beings at appointed as Governmental
the Council of Ministers level. anti-trafficking Co-ordinator.
Croatia Moldova
A National Committee for the A National Committee for
Suppression of Trafficking in Combating Trafficking was
Persons was established in established by resolution n 1219
March 2002 as a central on 9 November 2001 as a
governmental body. permanent consultative body
It is composed of representatives of the Government.
of all relevant ministries,
representatives of the Parliament, It is composed of representatives
State Prosecutors Office, NGOs from the Ministry of Interior,
and media. Its secretariat is set Migration department,
up in the Governmental Office Prosecutors Office, Customs
for Human Rights. Department, Ministry of Foreign
Affairs, Ministry of Labour and
The National Committee is led Social Protection.
by the Vice President of the
Governmental and Minister of The co-ordinator of this
Committee is the Vice-Prime
Minister of Moldova.
The head of the Government
Office for Human Rights has been
A Special Operative team
within the National Committee
has also been formed by
representatives of the Ministry
of Interior, Ministry of Labour
and Social welfare, Ministry of
Education, State Prosecutors
Office, IOM, Croatian Red Cross,
NGOs and the Secretariat.
LARA PROJECT CRIMINAL LAW REFORM AGAINST TRAFFICKING IN HUMAN BEINGS
 CURRENT LEGISLATION FOR THE PROTECTION AND ASSISTANCE OF VICTIMS WITNESSES AND CO-ORDINATION ASPECTS
Legal framework for the
protection of victims-witnesses
21
Legal framework for the
assistance of victims-witnesses on Protection and assistance
Romania Serbia and Montenegro UNMIK-Kosovo Slovenia the former Yugoslav Republic
of Macedonia
Law 678/2001: Chapter V Serbia: The provisions of the UNMIK Regulation 2001/20 on The provisions of the Criminal The provisions of the Criminal
on Protection and assistance Criminal Code and Criminal the Protection of Injured Parties Code and Criminal procedure Code and Criminal procedure
of victims of trafficking. procedure Code apply. and Witnesses in Criminal Code apply for protection Code apply.
Agreement between the Proceedings as amended by during the pre-trial procedure
Law 682/2002 on witness Ministry of Interior and shelter Regulation 2002/1 and main trial. See also art 141a
protection (19.12.2002) regarding the security of victims. of the CPC on protection of
UNMIK Regulation 2001/21 collaborators of justice both
Emergency ordinance Montenegro: of the Criminal on Co-operative Witnesses as during the pre-trial procedure
143/2002 protection of Code and Criminal procedure amended by Regulation 2002/2 and after the trial.
minors from sexual abuse. Code apply.
Provisional Criminal Code Work on the Law on protection
Law 281/2003 amending and Criminal Procedure Code of Victims, Witnesses and
the Criminal Procedure Code (dated 6.07.2003, in force on Collaborators of Justice is
(in force 01.01.2004) contains 06.04.2004) undergoing.
provisions on witness data
protection, data protection
special methods of hearing,
assistance and legal
representation, undercover
investigations, etc.
National Office for Witness
Protection set up within
the Ministry of Interior.
Government Decision
65/1997 as modified by
Government decision
84/2003 on the passport
regime in Romania.
Law 678/2001 Chapter V Montenegro: Chapter X of the UNMIK Regulation 2001/4 on Criminal Procedure Code: The provisions of the Criminal
Law on Criminal Procedure (CP) the Prohibition of Trafficking in art 100-111 Code and Criminal procedure
of victims of trafficking of SFRY 1977 Persons in Kosovo: Chapter 10 Code (Art 96-107 of the
on Assistance to Victims of Criminal Procedure Code) apply.
Memorandum of Understanding Trafficking.
between Ministry of Interior
LARA PROJECT CRIMINAL LAW REFORM AGAINST TRAFFICKING IN HUMAN BEINGS
and NGO: victim referral
mechanism.
 CURRENT LEGISLATION FOR THE PROTECTION AND ASSISTANCE OF VICTIMS WITNESSES AND CO-ORDINATION ASPECTS

Romania Serbia and Montenegro UNMIK-Kosovo Slovenia the former Yugoslav Republic
of Macedonia
Co-ordination bodies / An interministerial working Serbia: National Co-ordinator Administrative Directive on An Inter-agency working National Commission for
Working groups group for the coordination and on trafficking in human beings Implementing UNMIK Regulation group which involved Combating Trafficking in
evaluation of the activities in was appointed in April 2002 2001/4 provides for a position of various governmental, Human Beings and Illegal
prevention and combat of and is responsible for creating Victim Assistance Co-ordinator, inter-governmental and Migration (27 February 2001).
trafficking in human beings is anti-trafficking structures on the appointed in March 2003 non-governmental institutions It is composed by the national
to be set up under the authority level of the Republic of Serbia. (Ministry of Foreign Affairs, co-ordinator (Minister of Interior)
of the National Committee for Ministry of Justice, Ministry and members of the Commission,
the Prevention of Criminality. A National Team on trafficking of Interior, Police, Ministry as nominated upon proposal by:
in human beings was set up of Labour, Family and Social the Ministry of Interior, the
This group is to be co-ordinated in May 2002, composed of Affairs, NGOs) was set up in Foreign Ministry, the Ministry
by the General Director of the representatives of the Ministry May 2002. It was tasked to of Justice, the Ministry of
General Department of of Interior, Public Prosecutor's harmonise and co-ordinate Labour and Social Policy,
Organised Crime and anti-drug Office, Supreme Court of Serbia, activities in the field of Ministry of Health, the Customs
of the Ministry of Interior. Ministry of Justice, Ministry of prevention and combating of Administrations within the
Health and Environment trafficking in human beings. Ministry of Finance and the
An Interministerial subgroup Protection, Ministry of Finance, Public Prosecution Service of
for preventing and combating Ministry of Social Affairs, A National Co-ordinator to the former Yugoslav Republic
trafficking in children com- OSCE, IOM, ASTRA NGO, combat trafficking in human of Macedonia.

22
posed of representatives of the Victimology Society of Serbia, beings was also appointed
Ministry of Interior, Ministry of Counselling Center against (within the Ministry of Interior).
Labour, National authority for Family Violence.
the protection of children and
adoption, Border police, IOM, Montenegro: A National
NGO Save the Children, ILO anti-trafficking Co-ordinator
Romania. was appointed in June 2003
(within the Ministry of Foreign
Affairs).
LARA PROJECT CRIMINAL LAW REFORM AGAINST TRAFFICKING IN HUMAN BEINGS
 LARA PROJECT CRIMINAL LAW REFORM AGAINST TRAFFICKING IN HUMAN BEINGS
2.2 Conclusions of the first LARA regional seminar
(Zagreb, Croatia, 2-4 April 2004)10
By the General Rapporteur, Ms Maria Grazia GIAMMARINARO, Judge, Criminal Court of Rome
This first seminar organised in the framework of the
Lara Project aimed at assessing the review of the rel-
evant legislation in the participating countries and
determine the needs of the countries to organise con-
sultancies upon their request with the objective to bet-
ter fight trafficking and better protect victims human
rights, and to contribute to an effective and har-
monised anti-trafficking legislation throughout the
region.
The participants pointed out that the process of har-
monisation of anti-trafficking legislation is under way
in all the countries involved in the Lara Project, some-
times in the context of a process of reform of the
criminal code and the criminal procedure code. They
highlighted specific fields of action concerning prose-
cution, i.e. the harmonisation of penal sanctions, the
definition of trafficking in human beings in accor-
dance with international standards, the exchange of
experience and information between countries, in par-
ticular on the protection of victims. Every country has
been able to identify precise needs for further regula-
tion. Regarding prevention, every country has a com-
prehensive national plan of action or a national strat-
egy. In the field of assistance and support for victims,
every country has taken some concrete initiatives and
recognised that protection is not only a criminal issue
concerning police protection for witnesses but
involves a comprehensive mechanism aimed at social
protection of victims and victim-witnesses of traffick-
ing in human beings.
As regards Prevention of trafficking in human beings,
the participants agreed that prevention is more a
question of implementation of policies than a ques-
tion of law reform.
The issues discussed were:
a need for initiatives in the field of information
and awareness raising that should focus on target-
ed high-risk groups
10. The full text of the report is available on the Council of Europe website at://www.coe.int/trafficking
23
a need to set up specific groups of public officials
in the fields of education and employment to deal
with the fight against trafficking
a need for new regulation concerning the labour
market
a need to incite the police to cooperate on preven-
tion and reintegration initiatives.
In the field of Prosecution, the review of the anti-
trafficking legislation of the countries of South-
eastern Europe made by the international experts con-
sidered that the process of harmonisation of the crim-
inal law provisions in most countries is satisfactory.
The provisions of the Palermo Protocol are indeed
agreed minimum standards, however States should go
beyond its provisions. The review has revealed that
such an innovative approach has been adopted in
some of the countries.
Discussions during plenary and working group ses-
sions focused in particular on the implementation of
the provisions on trafficking in human beings of the
Criminal Code and Criminal Procedure Code as well as
on the implementation of special legislation. Many
issues still remain to be tackled, in particular extrater-
ritorial jurisdiction, victims rights in criminal pro-
ceedings, protection from intimidation, protection of
privacy, legal representation, right to be assisted,
anonymity, etc.
The participants also focused their discussions on the
issue of seizure and confiscation of the proceeds of
trafficking in human beings. They considered it nec-
essary to link this to the issue of assistance to and
compensation of victims. In the light of the discus-
sions on the legal and practical obstacles encountered
in this respect, some delegations considered it would
be useful to develop a research study on the existing
legislation and best practices which would ensure an
effective compensation of the victims of trafficking in
human beings.
 LARA PROJECT CRIMINAL LAW REFORM AGAINST TRAFFICKING IN HUMAN BEINGS
The issue of Protection of victims provoked many
questions from the participants and was the main
theme of discussion. Discussions explored how best to
protect victims and to what extent States should be
responsible for ensuring an appropriate response to
the needs of victims and potential victims, not only
witnesses.
A comprehensive approach to assistance and protec-
tion should not only be seen from a law enforcement
perspective, but also include initiatives aimed at social
protection of trafficked persons. In particular, an
essential aspect of a human rights based approach to
trafficking in human beings is to develop strategies to
promote and implement gender equality issues at
national and regional level.
A mechanism should be established with a view to
giving a quick response to the needs of a person who
has not or not yet a role in criminal proceedings.
Several actions are crucial and should be taken in this
respect:
establish clear criteria/guidelines for police to
identify a trafficked person;
set up a mechanism that enables the police and
NGOs to help and assist the victim in this first
stage of the recovering process. In this respect, the
NGO should have a clear procedure to follow when
approaching the public authorities in order to
solve the issue of residence status of the person;
help the victims achieve their reintegration.
With respect to police protection of witnesses, there
are usually general provisions that deal with this
issue. The focus needs to be put on the situation of
victims of trafficking in human beings, as the crite-
ria/requirements are usually too high.
An intensive exchange of views and experiences on
how to legislate on specific issues also took place :
The stage when the person is not yet a victim or
recognised as such. What legal requirements
should be established in order to be granted police
protection (individual protection or protection of a
shelter)
Protection of families in the origin country or
abroad, granting the right to the family to come to
the country where the trafficked person is on the
24
basis humanitarian grounds, needs further regula-
tion.
How to establish an acceptable regulation, which
would grant a temporary residence status to the
trafficked person. Some examples include the
reflection period and its duration (at least 3
months), or the Italian model.
The issue of entitlements connected to the resi-
dence permit (access to social care, education,
training, right to work).
The specific need for a strategy in the case of
minors (hearing procedure, standards of assistance
and healthcare etc).
Ways and standard operating procedures with a
clear division of responsibilities between public
institutions and NGOs (issue of registration of
NGOs, conclusion of Memorandum of understand-
ing, autonomy of NGOs).
Finally, the participants recognised the importance of
co-ordinating their efforts in order to ensure a com-
mon approach to tackling trafficking in human
beings, resulting in an effective and harmonised anti-
trafficking legislation throughout the region.
The issues discussed were:
the harmonisation of anti-trafficking legislation at
European level: this could be achieved through a
thorough review and reform of the legislation in
countries of origin, transit and destination;
the effective exchange of information and experi-
ences;
the importance of laying the foundation for viable
victim and witness protection measures, not only
at national level but also in an international
framework.
The first Lara Regional Seminar conveyed a picture of
the various stages of legislative reforms and the spe-
cific needs for assistance in each country, and offered
to the participants the opportunity to exchange and
share concretely their experiences in the field of traf-
ficking in human beings and the protection of victims.
The participants agreed that the Lara Project stressed
the importance of strengthening the process of inter-
national co-operation and harmonising the fight
against trafficking in human beings, paying particular
attention to the protection of victims.
 LARA PROJECT CRIMINAL LAW REFORM AGAINST TRAFFICKING IN HUMAN BEINGS

2.3 Comments on developments in the anti-trafficking legislation and

legislative reform process (April October 2003)
The comments of the international experts on the anti-trafficking legislation and legislative reform process build
upon the previously drafted assessments and recommendations11. They were elaborated on the basis the legislative
developments made since April 2003, as reported by the participating experts in the questionnaire which was sent
for completion prior to the regional seminar.

2.3.1 Albania
Comments by Mrs Maria Grazia GIAMMARINARO, Judge, Criminal Court of Rome (Italy)
2.3.1.1 Criminal Provisions
The Criminal Code, adopted on 27.01.1995, contains a
specific provision concerning trafficking in human
beings (article 110), trafficking of women for prostitu-
tion (article 114b) and trafficking of children (article
128b).
According to article 110/a, Trafficking of humans
with the purpose of material profit or any other prof-
it shall be punished by imprisonment from 5 up to 15
years. Paragraph 2 stipulates some aggravating cir-
cumstances.
However, the definition is too vague and thus implies
a too wide scope of criminalisation. In fact the only
specific requirement is the purpose of profit.
According to this definition, it is impossible to make a
clear distinction between trafficking in human beings
and facilitation of illegal border crossing.
Article 114/b stipulates a particular form of traffick-
ing, concerning women, only for the purpose of pros-
titution: Trafficking of women for prostitution with
the purpose of material profit or any other profit is
punished from 7 up to 15 years imprisonment.
This special provision shows the same problems of
vagueness of the general definition. The same obser-
vations must be repeated for the provision concerning
trafficking of children, defined in the same way, and
punished with higher penalties.
An amendment to the criminal code is needed, aimed
at defining trafficking in a way which is consistent
with the definition envisaged in the UN Protocol on
Trafficking. A clear definition of trafficking is essen-
tial with a view to enabling law enforcement and
prosecutors to clearly identify a case of trafficking
and distinguish it from a case of voluntary prostitu-
tion or voluntary illegal migration.
Assessment: The problem concerning the amendments
to the Criminal Code has not addressed yet. However
the competent authorities are taking into considera-
tion the suggestion of the Council of Europe and plan-
ning further work on the issue of definition of traf-
ficking, as a possible outcome of the LARA Project.
2.3.1.2 Protection of victims of trafficking
No legislation exists in this field, and the importance
of a regulation has been stressed, concerning protec-
tion of victims and witnesses in criminal proceedings,
where organized crime is involved, including traffick-
ing in human beings.
Assessment: The issue of witness protection has been
identified as a priority, also in the context of the Lara
Project.
A good Draft Law concerning witness protection,
elaborated with the consultancy of experts of the
Council of Europe, is now under Parliamentary scruti-
ny. The Draft Law provides for protection, through
special protection programs, for witnesses and for jus-
tice collaborators, according to a clear distinction
between the legal requirements for each of the two
categories.
Concerning witnesses, the access to the program is
ensured when the person is in a concrete, present, and
grave dangerous situation, or when there grounds to
think that the person will be in a dangerous situation

11 For a complete picture of the specific recommendations, see the report on the first LARA regional seminar (Zagreb, 2-4 April 2003), dated
June 2003.

25
 LARA PROJECT CRIMINAL LAW REFORM AGAINST TRAFFICKING IN HUMAN BEINGS
in the future. The protection program applies also to
relatives and persons particularly close to her/him.
The protection is granted in accordance with an
assessment of the risk made by a special body, and
include inter alia, if necessary, special security meas-
ures in the residence, as well as during movement for
the fulfilment of obligations towards justice, change
of residence, change of identity, change of working
place.
These provisions can be applied also to victims of traf-
ficking, under the conditions required by the law.
2.3.1.3 Measures aimed at preventing that the traf-
ficked persons undergo negative conse-
quences for being victims of trafficking
It is necessary to provide for a clause of non-punish-
ment for crimes committed by victims, as a direct con-
sequence of their condition of subjection in the con-
text of trafficking. It is important to set very precise
legal requirements, so as to avoid the possible improp-
er use of the non-punishment clause. Indeed, improp-
er use of the clause could lead to a general impunity
of all crimes related to the condition of being an ille-
gal foreigner.
The clause of non-punishment should apply to all
offences typically related to the process of victimiza-
tion which may occur in trafficking, as defined in
Article 3 of the Protocol. All the crimes related to the
transfer of the person from one country to another
must be taken into account, first of all illegal border
crossing.
The clause should cover the crimes of:
Prostitution,
Illegal border crossing,
Crimes that are instrumental to the violation of
domestic legislation on expatriation, entry and/or
stay, like the use of forged documents, destruction
or alteration of documents, staying in the territory
of a state after expiry of regular entry papers.
26
In Albania this is a problem to be faced, since illegal
border crossing in itself is considered a criminal
offence, according to article 298 of the Criminal Code
(Illegally crossing state border). Concerning prostitu-
tion, article 113 of the Criminal Code consider as an
offence the practice of prostitution, though punishable
with a fine or with imprisonment up to three years.
A residence legal status must be granted to trafficked
persons.
Albania is at the same time a country of origin and of
transit. Therefore, it is necessary to deal with the
problem of the residence status of the trafficked per-
sons coming from abroad. This is a crucial issue both
to protect human rights of trafficked persons and
encourage their co-operation in criminal proceedings.
Actually the fear of being immediately deported is a
major obstacle for trafficked person to come forward
and report their exploiters. In addition, for NGOs it is
very difficult to accept a trafficked person in a shelter
home or in a program of assistance if the person can-
not legally stay in the country.
National regulation should envisage on which
grounds a person is entitled to have access to a spe-
cial form of residence permit.
Assessment: These issues have not been addressed yet.
2.3.1.4 Assistance and support for trafficked per-
sons
Though it is necessary to attentively evaluate budget-
ary limits, it could be taken into consideration the
project of a regulation aimed at establishing criteria
and rules for assistance activities for trafficked per-
sons. This could a first step with a view to asking sup-
port to relevant international organizations, social
actors at national and international level.
Assessment: The National Plan of Action Sept. 2003
Sept 2004 foresees to develop a dedicated strategy for
combating child trafficking, which includes protective
and preventive measures. In addition to the Centers
funded by international organizations, including the
shelter in Vlora, a project for a new shelter funded by
the State is under discussion.
 LARA PROJECT CRIMINAL LAW REFORM AGAINST TRAFFICKING IN HUMAN BEINGS
2.3.2 Bosnia and Herzegovina
Comments by Ms Laura Ivanovici, Judge, Court of Appeal, Craiova (Romania)
2.3.2.1 Introduction
This paper is meant to present the latest developments
in relation to criminal law reform in Bosnia and
Herzegovina, considering the recent adoption and
enactment of the Criminal Codes, the Criminal
Procedure Codes and the Law on Witness Protection.
Brief reference will be made to the Law on Movement
and Stay of the Foreigners and Asylum, in terms of
victim protection and to the recently appointed
National Coordinator for Anti Trafficking Activities.
The analysis will be made in the light of the UN
Trafficking Protocol (Palermo Protocol), ratified by
Bosnia and Herzegovina in March 2002. The recom-
mendations issued at the Lara seminar in Zagreb will
be used as terms of reference for the purpose of the
presentation.
The Dayton Peace Agreement, concluded in 1995,
shaped the constitutional structure in Bosnia and
Herzegovina (referred to further in the text as BiH)
imposing the creation of political and legal structures
on three tiers. Subsequently there are components of
the legislative, executive and judicial structures and
the State level and at the level of the two Entities
established by the Bosnian Constitution, meaning
Republika Srpska, (referred to further in the text as
RS) and Federation of Bosnia and Herzegovina
(referred to as FBiH). A special status was granted to
another territorial structure, Brcko District, which has
a different legal system. The legislative reform encom-
passed all the three tiers of judicial structures, the
State level and the Entities level, RS and FBiH.
At the State level, the following pieces of legislation
were imposed by the High Representative on 24th
January 2003 and entered into force on 1 March
2003: BiH Criminal Code, BiH Criminal Procedure
Code and Law on protection of Witnesses under
Threat and Vulnerable Witnesses.
On 14 October 2003, the BiH Law on Movement and
stay of foreigners and Asylum was enacted at the
State level, comprising important provisions in terms
of protection of victim, aiming to establish a practical
mechanism for assisting the victims of trafficking in
human beings.
At the RS level the following Laws were enacted, on 1
July 2003: RS Criminal Code RS Criminal Procedure
Code and the Law on protection of Witnesses under
threat and vulnerable Witnesses. At the FBiH level the
same pieces of legislation were enacted on 1 August
2003.
27
The harmonization process in terms of criminal law
reform deserves special attention in regard to the
criminalisation of the trafficking in human beings,
considering that there are significant differences
between the three criminal codes applicable in Bosnia
and Herzegovina.
2.3.2.2 Definition of the criminal offence pertaining
to trafficking in human beings contained in
the Criminal Codes applicable on the territo-
ry of BiH
In the last few years, the authorities in BiH have had
to deal with the phenomenon of trafficking in human
beings predominantly, as a destination country for
women victims as sexual exploitation. This was a seri-
ous challenge to the capacity of the law enforcement,
prosecutorial and judicial systems to deal with this
crime. It has been particularly difficult to ensure that
all responses were in compliance with the letter and
spirit of Palermo Protocol and the Recommendation
No. R (2000)11 of the Council of Europe on action
against trafficking in human beings for the purpose of
sexual exploitation.
It therefore became necessary to criminalise traffick-
ing in human beings in a manner consistent with
international standards in order to tackle all the dif-
ferent manners of perpetrating the offence and to pro-
vide adequate legal instruments for its effective pros-
ecution. It was necessary to adopt a clear definition of
this crime in order to avoid prosecution of the victims
and to prevent the judiciary to deal with the different
elements of this complex criminal offence in an
uneven manner creating lack of uniform practice.
Reform at the State level
Considering the latest reform and the adoption of the
new criminal legislation at the State level, it is impor-
tant to observe that the BiH Criminal Code adopted
partially the definition of trafficking in human beings
prescribed by Article 3 of the Palermo Protocol, which
is the minimum standard applicable on this matter.
The title refers to Trafficking in persons but failed to
embody in the legal provision all the elements com-
prised in the text.
Article 186 of the BiH Criminal Code still does not
incorporate point b of article 3 from the Protocol, in
relation to the consent of the victim of trafficking in
persons to the intended exploitation, .,shall be irrel-
evant where any of the means set forth in paragraph
a have been used. In order to determine the prosecution
 LARA PROJECT CRIMINAL LAW REFORM AGAINST TRAFFICKING IN HUMAN BEINGS
of the perpetrator when the victim consented to the act
of exploitation, it would be recommendable to include
this aspect in the definition of the criminal offence.
This would aim to complete the elements, which are to
be taken into consideration when ascertaining the
criminal aspect of the deed in regard to the perpetra-
tor. Also, this would allow practitioners to distinguish
between the trafficking in human beings and other
offences like smuggling of persons and would give
grounds to sustain the non-criminalization clause in
regard to the victim.
The legal provision incriminates perpetration of the
criminal offence against a juvenile, prescribing a min-
imum of five years imprisonment as punishment,
higher than in the first paragraph, which relates to a
minimum of one year imprisonment. The Code defines
the term juvenile in Chapter One, Article 1, as a per-
son who has not reached 18 years of age, which is
consistent with the Palermo Protocol.
On a positive note, one can emphasize that the text of
Article 186/3 of the BiH Criminal Code incriminates
perpetration of the criminal offence by an organised
group of people. This aspect is important in relation to
the linkage of trafficking in human beings and organ-
ised crime, as mentioned in Article 5 of the Appendix
to Council of Europe Recommendation No. R (2000)11.
The highest penalty will be rendered for this manner
of perpetrating the offence, with a minimum of 10
years or long-time imprisonment.
Paragraph 4 of the article 186, BiH Criminal Code
maintains the element of negligence. Article 36 of the
Code explains this element of criminal responsibility,
thus going beyond criminalisation of the offence only
when it is perpetrated intentionally.
Other related criminal offences in the BiH Criminal
Code are Establishment of Slavery and Transport of
Slaves (Article 185), International Procuring in
Prostitution (Article 187), Unlawful Withholding of
Identity Papers (article 188) and Smuggling of Persons
(Article 189).
The concern in relation to these offences refers to the
fact they are not regulated anymore by the Entity
Codes and it is unclear whether the State Court wants
to retain exclusive jurisdiction for the respective
offences or to maintain a concurrent jurisdiction with
the other Courts operating in the country.
Another potential problem may appear in relation to
the Federation of BiH Code, which refers to Promotion
of Prostitution, as opposed to International Promoting
of Prostitution prescribed in the State Code.
Considering that there is no definition of trafficking in
human beings adopted in the Federation of BiH
Criminal Code, there are grounds for considering dif-
ferent subject matter jurisdiction on the same
offence.
28
Reform at the RS level
Unfortunately, article 198 of the RS Criminal Code
defines Trafficking in Human Beings for the purpose
of prostitution by providing a different definition for
the criminal offence than in the State Criminal Code,
which is not in compliance with the Palermo Protocol.
The definition does not differ from the one existing in
the previous Criminal Code, restricting the scope of
application only to trafficking for the purpose of pros-
titution.
Human trafficking in Bosnia and Herzegovina occurs
not only for the purpose of prostitution, it appears
together with different kinds of forced labor. An
example will refer to the Roma children who are traf-
ficked for begging. Considering this scenario, the
criminal offence would not be applicable for the pur-
pose of prosecuting the perpetrator, as a trafficker.
Other significant differences encompass the manner of
perpetrating the offence, which is more limited under
the definition of the offence prescribed in the RS
Criminal Code. The latter incriminates just the incite-
ment, inducement for the purpose of prostitution,
whilst the State Code refers to whoever recruits,
transports, harbours, transfers others for the pur-
pose of exploitation. The element of exploitation is
missing completely from the definition adopted by the
RS Code.
Another difference refers to the age of a minor: while
under the State Criminal Code, it is defined as a per-
son under the age of 18 years old, under the RS Code
the age is under 21 years old.
Inconsistencies are to be seen in the punishments,
considering that the RS Code prescribes more lenient
punishment for traffickers, from six months to five
years imprisonment, while the BiH Code prescribes a
punishment between one and ten years imprisonment.
The Federation of BiH Criminal Code, enacted on 1
August 2003 does not regulate trafficking in human
beings as a criminal offence. Instead, different other
provisions may be applied, depending on the circum-
stances. The following legal provisions may be
applied: Article 179, Unlawful deprivation of
Freedom, Article 180, Abduction, Article 203 Rape,
Article 206, Forced sexual Intercourse, Article 207,
sexual Intercourse with a child, Article 210 Procuring
and Pandering.
The conclusion after the completion of the criminal
law reform is that the Entities and the State level did
not succeed to harmonize the legislation in relation to
trafficking in human beings. Each of them operates
with different definitions of the crime or tackling dif-
ferent elements as separate criminal offences.
Inconsistencies are to be seen in regard to the punish-
ments, the concepts used, like the minor, or the con-
sent of the victim. None of the definitions adopted in
 LARA PROJECT CRIMINAL LAW REFORM AGAINST TRAFFICKING IN HUMAN BEINGS
the Criminal Codes applicable in Bosnia and
Herzegovina is in compliance with the minimum stan-
dards prescribed by the Palermo Protocol.12
The recommendation from Lara seminar in Zagreb
should be maintained. The criminal legislation should
be further amended in terms of adopting the same def-
inition of trafficking in human beings at the State
level and Entities level. The Criminal Code of Bosnia
and Herzegovina should include the entire definition
of trafficking in human beings prescribed by Article 3,
Palermo Protocol in relation to paragraph b of the
aforementioned article.
2.3.2.3 Consequences of the lack of harmonization
The lack of harmonization on substantive matters may
hinder the application of the criminal procedure in
terms of determining the subject matter jurisdiction
pertaining to trafficking in human beings for the
Courts functioning in Bosnia and Herzegovina.
The main issue will be the determination of the com-
petent Court. It may undermine the prosecution, by
providing grounds for:
Negative conflict of jurisdiction between the State
Court and the Entity Courts, or between the Entity
Courts themselves; The positive conflict would be
resolved through the pre-eminence of the State
Court jurisdiction13;
Lack of uniform practice of Courts, and uneven
legal regime for the crime, resulting in different
treatment applicable to the defendant and to the
victims;
Prolongation of proceedings as a result of uncer-
tainty in terms of competence of the Courts;
It may impede on the effective prosecution of the
cases, if the above-mentioned circumstances are
met.
2.3.2.4 Effective Prosecution
Lack of harmonization in regard to the definition will
result in undermining the prosecution of cases and in
some circumstances, preventing the prosecution to
take place.
The fact that the paragraph b from Article 3
Palermo Protocol, related to the consent of the vic-
tim is not incorporated in the definition of the
criminal offence incriminating trafficking in
human beings may lead to not considering the
deed of the trafficker as a crime and therefore the
latter not being prosecuted. This approach was
prevalent for some of the practitioners in spite of
12 See in the Appendix to this material the definitions adopted by the Criminal Codes at the State level and in RS Criminal Code.
13 Article 27 of the Criminal Code of BiH.
29
the ratification of the Protocol and the incorpora-
tion in the Constitution of various international
human rights instruments.
Subsequently the practitioners have the tendency
to prosecute the victims for forging of documents,
or minor offences such as illegal crossing of the
border or prostitution. It is important to properly
qualify the criminal offence and to avoid the
incrimination of the victims instead of perpetra-
tors. This can be achieved only by having a com-
prehensive definition of the crime in accordance
with Article 3 from Palermo Protocol and clear
emphasis for the practitioners of non-criminalisa-
tion clause.
The Courts may fail to incriminate the perpetrators
in a consistent manner across the country. If the
perpetrator would be prosecuted for different crim-
inal offences, the dimension of organised crime
may not be evident.
In the process of collecting evidence, the investi-
gators should not rely solely on the statements of
victims, considering other material evidence avail-
able to the prosecution. Analysis of the Bosnian
Court practice shows the prosecution relies heavi-
ly on the victims testimonies.
In relation to the victim, the prosecution should
ensure application of effective identification tech-
niques, including trained police and multi-agency
referral mechanism, allowing victims to have a
period of time to think in order to give an
informed consent about their participation in legal
proceedings.
Considering the new criminal procedure code
(referred to further in the text as CPC) it is impor-
tant to acknowledge that for the purpose of intro-
ducing valid evidence before the Court, there are
important tools available to the prosecution:
Article 223 of the RS CPC and BiH State Code, allow-
ing preservation of evidence, a positive step in order
to introduce the testimony of the witness, who may
not be available during the whole duration of crimi-
nal proceedings; Or for preservation of other impor-
tant pieces of evidence which may be collected during
the investigation;
Special investigative measures prescribed by the CPC
in both entities and at the State level. All three
Procedure codes introduced the following special
investigative measures: simulated purchase or simu-
lating bribery supervised transport and delivery of
objects of criminal offence, undercover agents and
electronic surveillance.
 LARA PROJECT CRIMINAL LAW REFORM AGAINST TRAFFICKING IN HUMAN BEINGS
Lack of harmonization of legislation is visible in this
area as well, since the CPCs in both entities do not
refer to same investigative measures e.g. the use of
undercover agents is not prescribed in the RS CPC.
The recommendation would encompass the need for
further amendments of the CPC in terms of adopting
the same investigative measures at the State level and
entities level. Also, it would be recommendable that
the preservation of evidence of an early stage of the
pre-trial investigation ensuring all procedural guaran-
tees to be be fully observed. Thus the validity of evi-
dence would not be questionable during the criminal
trial.
2.3.2.5 Criminal liability for the legal entities
The BiH State Code dedicates the entire chapter four-
teen to the liability of legal persons for criminal
offences14. This Chapter comprises a number of articles
providing a comprehensive regulation in this field.
The punishments are very serious, ranging from fines,
banning of conducting certain economic activities,
seizure of assets to the dissolution of the legal person.
Both, the RS Criminal Code and the Federation of BiH
Criminal Code regulate the liability of the legal per-
sons for criminal offences, consistent with the norms
imposed by the State legislation.
This regulation appears to be in compliance with
Article 46 of the Council of Europe Recommendation
No. R (2000)11 and with the recommendations issued
at Lara seminar in Zagreb.
2.3.2.6 Confiscation
In BiH Criminal Code an entire chapter is dedicated to
the confiscation of material gain acquired through the
perpetration of a criminal offence, as prescribed by
Articles 110 to 116. This can be applied in the course
of criminal proceedings against the perpetrator and
after conviction for committing a criminal offence.
There are similar provisions in the Criminal Codes of
RS and Federation of BiH. This is a legal standard in
the domestic legislation and can be used by the Courts
to confiscate the illegal gain of the perpetrator. There
is no provision for such confiscated assets to be used
for compensating the victims of trafficking.
2.3.2.7 Access to compensation for the victim of
trafficking in human beings
All three Criminal Procedure Codes applicable in
Bosnia and Herzegovina enshrine the right to com-
pensation for the injured party claims under
property law.15 This procedure is perceived as a legal
14 Article 122 to 144 from the BiH State Criminal Code.
15 BiH State CPC prescribes the procedure in Article 193 to 199. The Federation of BiH CPC prescribes the procedure under Article 207
to 217.
30
standard, therefore it may be used during the criminal
proceedings instituted for trafficking in human beings
cases. There is no special provision laid out in the
criminal legislation ensuring to victims of trafficking
the right to compensation for physical, psychological
and material damages.
The Law on Obligations, both in RS and the
Federation of BiH, provides for the possibility for vic-
tims to request compensation for non-material dam-
age, for physical, psychological as well as for materi-
al damage. It is possible for the victim to request the
compensation during the criminal proceedings,
though the legal grounds for the claim are provided
by the civil legislation. Mostly, the claim for compen-
sation is dealt with in a separate civil procedure.
There is no Law on Obligations at the State level.
Therefore if the criminal case is tried before the State
Court, it is problematic to establish which Court would
be competent to decide on the civil claim and on
which grounds, if the court decides to separate the
criminal proceedings from the civil ones, according to
Article 198 of the BiH Criminal Procedure Code.
The Courts practice in Bosnia and Herzegovina is to
indicate to injured parties to file a claim for compen-
sation before civil courts. Considering the specific
case of victims of trafficking in human beings, this
results in a serious obstacle to obtain compensation.
In most of the cases, victims are not in the country for
the duration of criminal proceedings, not to mention
for the civil ones. Even if the law prescribes the right
to compensation, this right should be made effective.
There is not yet an effective mechanism for imple-
mentation, since the victims do not receive legal assis-
tance to file a civil claim before the Bosnian Courts,
neither before the criminal ones nor civil ones.
The recent Law on Asylum, enacted on 14 October
2003 provides in Article 63/3 the possibility for an
alien victim of trafficking in human beings, not to be
expelled, and to be granted temporary residence on
humanitarian grounds according to Article 35/2. This
is a positive development in the legislation and it is a
step forward in terms of access to compensation, pro-
viding the possibility for the victims to remain in the
country if they decide to file a civil claim.
The compensation mechanism is not harmonized in
the existing legislation, since there is no Law on
Obligations at the State level. The procedure for con-
fiscation is not detailed enough to be consistent with
Article 44 from Appendix to Recommendation No. R
(2000) 11, in terms of establishing a special fund
resulted from confiscation of illegal assets of traffick-
ers to be used for paying compensation to the victims.
 LARA PROJECT CRIMINAL LAW REFORM AGAINST TRAFFICKING IN HUMAN BEINGS
The previous recommendation issued at the Lara sem-
inar in Zagreb should be maintained. The procedure
for obtaining compensation should be carried out dur-
ing the criminal proceedings before Courts, following
the so-called adhesion model. A mechanism for
assisting victims to acquire civil compensation should
be put in place. Considering also the problems in
acquiring funds for putting in place a mechanism to
assist victims, it would be helpful to establish a spe-
cial fund resulted from the confiscation of illegal
assets of traffickers. This fund would be further used
for paying compensation to the victim.
2.3.2.8 Victim and Witness protection
The Law on protection of witnesses under threat and
vulnerable witnesses has been adopted, not only at the
State level, but also at the Entities level. It is a posi-
tive development that both Entities adopted this Law
and provisions are consistently harmonized. The pro-
visions of this law are applicable for all cases where
the protection may be required, not only for the cases
of trafficking.
The Law has had a limited application in practice up
to date and the impact remains to be assessed during
its actual implementation. Unless the protection of
witness is properly functioning, the evidence given by
the victim during the pre-trial investigation and dur-
ing the Court proceedings is jeopardized by the inse-
curity borne by the witness, who in a number of cases,
changed its testimony before the Court. The prosecu-
tion proved to be successful only when the protection
of the witness is secured and the person is separated
from the trafficker.
2.3.2.9 Victim support and assistance
The Law on Movement and Stay of Aliens and Asylum
(Law on Asylum), enacted on 14 October 2003, brings
an important positive development in terms of intro-
ducing the temporary residence for humanitarian
grounds, specifically related to the victims of traffick-
ing in human beings, regardless of their co-operation
with judicial authorities.
This development would be in compliance with the
Recommendation R (2001) 18 of Council of Europe in
terms of translating in domestic legislation the princi-
ples of subsidiary protection. Also, this would be con-
sistent with Article 34 and 35 from the Appendix to
the Recommendation No. R (2000) 11 of the CoE and
Article 6 and 7 of the Palermo Protocol.
Temporary residence would be granted to the victims
during the Court proceedings, which is of an extreme
importance for the prosecution and for acquiring the
compensation.
16 Ministry for Human Rights and Refugees at the BiH State level.
31
Protection of child includes granting temporary resi-
dence for the alien minor victim of organised crime.
Another important development refers to the adoption
of the principle of non-refoulement, thus preventing
deportation of victims.
Article 37 from the Law on Asylum prescribes that
MHRR16 would provide assistance and protection to
the victims of trafficking for the purpose of rehabili-
tation and repatriation.
The law refers to the possible establishment of institu-
tions specialized for the reception of aliens, including
immigration centers and centers for accommodation
of victims of trafficking in human beings.
The creation of such centers managed by the State will
be a step forward in undertaking the task of assisting
the victims. For the time being, NGOs and IOM large-
ly run the mechanism of assistance and protection,
subsequent to the application of Temporary
Instructions on Treatment of Trafficking Victims,
issued by Ministry for Human Rights and Refugees
(MHRR) at the State level. A by-law will be brought to
specify the Rules and Standards of the Treatment for
Victims of trafficking in human beings, in six months
time from the enactment of the Law.
The recommendation would encompass establishment
of a practical mechanism for implementation adopted
through the by-law. The rules and standards for treat-
ment of victims of trafficking in human beings should
establish procedures for victim identification and
specifically to maintain the clause of non-criminalisa-
tion. The by-law should embody the principles
enshrined in the Temporary Instructions, complement-
ed by practical strategy and mechanism of implemen-
tation. Co-ordination is of the outmost importance in
terms of identification of victims, rendering assistance
and co-operation with police, prosecutors and judici-
ary.
2.3.2.10 Coordination
On 17 July 2003, the Council of Ministers of Bosnia
and Herzegovina brought a decision on the procedures
and ways of coordination of the activities to suppress
trafficking in human beings and illegal immigration
in BiH. The same date the council appointed the
National Coordinator for BiH. The role of the NC is to:
Coordinate the activities of all actors involved in
combating trafficking in human beings at domes-
tic level and in international level as well;
Collect information for the purpose of preparing
reports for BiH and follow-up on the implementa-
tion of National Action Plan;
 LARA PROJECT CRIMINAL LAW REFORM AGAINST TRAFFICKING IN HUMAN BEINGS
In August 2003 the Council of Ministers brought the
decision on establishment of the Strike Force for com-
bating trafficking in human beings and illegal immi-
gration.
The tasks and the activities of the Strike Force are par-
tially overlapping with those of the NC. Both bodies
have as main task to coordinate the actors in the field
of combating trafficking in human beings and to pro-
duce reports with no indications about their interac-
tion on these matters, and therefore this aspect
requires clarification.
Recommendation
Co-ordination is of a compelling importance in terms
of identification of victims, rendering assistance and
co-operation with police, prosecutors and judiciary.
The task of NC should be to ensure that:
Law Enforcement Agencies are aware of the vic-
tims identification techniques, elaborated within
the framework of Rules and Standards of
Treatment of Victims; Subsequently they are co-
operating with the Public Prosecutor and the shel-
ters;
The Prosecutors and the Judiciary are aware of the
mechanism of protection of victims initiated by
the MHRR under the Law on asylum and of the
Rules and Standards for the treatment of victims,
including the non-criminalisation clause;
Prosecutors and Judges should initiate a request
addressed to the shelters in terms of keeping the
victims available for the prosecution; NC should
insure smooth co-operation between the judiciary
and the shelters in order to ensure adequate pro-
tection of the victims and proper participation in
the legal proceedings;
Co-operation should be established between the
Ministries of Justice form Entities and State level
and further on with the countries from SEE for
which request for rogatory commission was filed
and not pursued by the foreign authorities;
Exchange of information with the countries of SEE
through SECI mechanism; Considering the
transnational aspect of the crime of trafficking in
human beings and the fact that information
regarding the entire chain of traffickers may be
obtained through the evidence given by the vic-
tims in the countries of destination;
NC should insure multilateral co-operation is tak-
ing place in the framework of the existing interna-
tional instruments such as the European
Convention of Extradition or other bilateral or
multilateral instruments.
32
Appendix
The Criminal Code of Bosnia and Herzegovina at the
State level prescribes in Article 186 Trafficking in
persons:
(1) Whoever takes part in the recruitment, transfer,
harbouring or receipt of persons, by means of the
threat or use of force or other force of coercion, of
abduction or fraud, of deception, of abuse of
power or of a position of vulnerability or of the
giving or receiving of payments or benefits to
obtain the consent of a person having control over
another person, for the purpose of exploitation,
shall be punished by imprisonment for a term
between one and ten years.
(2) Whoever perpetrates the criminal offence referred
to in paragraph 1 of this Article against a juvenile,
shall be punished for a term not less than five years.
(3) Whoever organises a group of people with an aim
of perpetrating the criminal offence referred to in
paragraphs 1 and 2 of this Article, shall be pun-
ished by imprisonment for a term not less than ten
years or long-term imprisonment.
(4) Whoever acting out of negligence facilitates the
perpetration of the criminal offence referred to in
paragraphs 1 through 3 of this Article, shall be
punished by imprisonment for a term between six
months and five years .
(5) Exploitation referred to in paragraph 1 of this
Article especially includes exploiting other persons
by the way of prostitution or of other forms of sex-
ual exploitation, forced labour or services, slavery
or slavery like practices, serving under coercion or
removal of organs for the purpose of transplanta-
tion.
The CC of RS prescribes in Article 198 -Trafficking in
Human Beings for the Purpose of Prostitution:
1) Whoever, for the purpose of profit, induces, incites
or allures another person to offer sexual services
or in any other way enables his/her surrendering
to another to offer sexual services, or in any other
way participates in organising or leads providing
of sexual services, shall be punished with impris-
onment from six months to five years.
2) Whoever, for the purpose of profit, by force or
under threat of force or under threat of causing
serious damage, forces or by deception induces
another person to offer sexual services, shall be
punished with imprisonment from one to five
years.
3) Punishment described in Para 2 will be applicable
to whoever, for the purpose of profit, in the man-
ner described in the previous Paragraph, using the
difficult situation of a person residing in a foreign
 LARA PROJECT CRIMINAL LAW REFORM AGAINST TRAFFICKING IN HUMAN BEINGS

country, forces or induces that person to offer sex- punished with imprisonment from one to twelve
ual services, or engages professionally another years.
person for the described purpose.
5) It is of no relevance for the existence of this crim-
4) If offences described in the previous Paragraphs inal offense whether the person who is being
are committed against a child or a person younger forced, induced or procured has already been
than the age of twenty one, the perpetrator shall be engaged in prostitution.

33
 LARA PROJECT CRIMINAL LAW REFORM AGAINST TRAFFICKING IN HUMAN BEINGS
2.3.3 Bulgaria
By Mr Freddy GAZAN, Adviser for Criminal Policy, Ministry of Justice (Belgium)
Bulgaria has made impressive strides in efforts to
thwart human trafficking upon its territory. Six rec-
ommendations were made at the last LARA seminar.
Each recommendation will be considered in turn.
First recommendation: to ensure that prevention
extends to all forms of exploitation. Prevention and
training should be developed in a way to target all
forms of trafficking in human beings or trafficking in
human beings.
On that front, Bulgaria promulgated on 7 May 2003
the Combating Trafficking in Human Beings Act
establishing a new basis for dealing with prevention
of human trafficking and training of the responsible
persons. This Act complies fully with the UN
Convention against Transnational Organised Crimes
and its supplementary Protocol to Prevent, Suppress
and Punish Trafficking in Persons, adopting its exten-
sive definitions and provisions, including the defini-
tion of trafficking in persons.
A National Commission is set-up to organise and co-
ordinate the relevant agencies in counter-trafficking
actions, based on the National Programme approved
by the Council of Ministers. Such national commis-
sion is assisted by local commissions. The Stability
Pact Task Force sponsored the training of judges and
prosecutors during the summer of 2003. A similar
event, under the auspices of a local NGO, the Nadja
Centre Foundation, is scheduled to be undertaken by
the end of the year for policemen on the protection of
victims and prevention techniques.
On 9 April 2003, the National Assembly passed a raft
of amendments to the Foreign Nationals Act obliging
carriers under penalty of criminal sanction to return
foreign nationals not allowed entry into Bulgaria to
the point of departure, as prescribed by Article 26 of
the Convention Implementing the Schengen
Agreement. The National Police Services Headquarters
houses specialised facilities for the temporary accom-
modation of foreign nationals who have been issued
with an order for compulsory escort to the frontier or
an expulsion order. A national register of resident for-
eign nationals based on an automated information
system of address registration has been introduced in
the Ministry of Interior.
The second recommendation regards protection meas-
ures which needed to be extended to those victims of
trafficking who are ineligible as well as the elabora-
tion of a special law on witness protection.
An inter-institutional working group for the elabora-
tion of the Draft Law on Protection of Witnesses/
endangered participants of criminal procedures must
34
present the draft law by 20 December 2003 to the
Bulgarian Government.
The broad outlines of the law are already known. It
will cover all endangered persons who could appear in
relation to a crime committed, including participants
in criminal proceedings, namely witnesses; victims of
the crime; suspected, accused and convicted persons;
experts; defendants; and attorneys for the defence. At
a secondary level, protection is to be granted to the
persons in immediate proximity to the participants in
criminal proceedings. Persons endangered due some
kind of relationship with the participants in the crim-
inal proceedings and/or proximate to such partici-
pants are to be equally protected.
The third recommendation related to the development
of a comprehensive confiscation-compensation
scheme for victims.
Bulgaria has created a Working Group on implement-
ing the European Union Council Framework on the
standing of victims in criminal proceedings. One of the
working groups main priorities will be to study the
possibility of establishing such a scheme by means of
a compensation fund.
The fourth recommendation concerned guidelines for
the law enforcement authorities and criteria for iden-
tifying the victims to be developed.
The Government has equipped the National Border
Police with the Questioning Form elaborated by the
SECI and with the SECI guidelines for identifying vic-
tims of trafficking. Such common rules encompass
law-enforcement bodies and NGOs responsible for
victims of trafficking.
The fifth recommendation revolves around the elimi-
nation of the differential wording between Article
159a and 156 of the Code of Criminal Procedure for
identical crimes with a view to equality between the
law and legal certainty.
It appears that Bulgaria has not reconsidered the dif-
ferent wording on the grounds that Article 156
criminalising the abduction of a female for the pur-
pose of placing her at the disposal for acts of
debauchery or prostitution is a resulting crime
under which the direct perpetrator can be solely
convicted. On the other hand, Article 159a criminal-
ising the selection, transportation, hiding or receipt of
individuals for the purpose of using them for acts of
debauchery, compulsory labour, removal of organs or
keeping them in forceful subordination, irrespective of
their consent punishes the perpetrators and his col-
laborators.
 LARA PROJECT CRIMINAL LAW REFORM AGAINST TRAFFICKING IN HUMAN BEINGS
The sixth recommendation advised on improvements
to the social and economic possibilities of women to
develop business activities, including better access to
the labour market.
Given that this issue touches upon the overall eco-
nomic situation in the country, its achievement is
dependent on the provision of sufficient funding to a
variety of programmes.
Observations
Bulgarias determination to eradicate human traffick-
ing is truly commendable and noteworthy. The draft-
ing and adoption of the Trafficking in Human Beings
Act, enacting the provisions of the UN Convention on
Transnational Organised Crime and its supplementary
Protocol on Trafficking in Persons, is a seminal event
and demonstrable proof. Involvement of the law-
enforcement agencies, NGOs, experts and the other
stakeholders is surely encouraging. In addition, co-
operation with international organisations and
countries like EUROPOL, SECI, France, Germany and
the Netherlands should be underlined. Agreements
with twenty-eight countries have been concluded on
35
trafficking. On 17 June 2003, a co-operation agree-
ment was signed with EUROPOL.
Nevertheless, the devil is in the rigorous and coherent
implementation of the laws on the books through a
sustained resolve and adequate resourcing. The well-
functioning co-operation among law-enforcement
bodies (Prosecution Office, National Service to
Combat Organised Crime and the National
Investigation Service) is a good start.
Furthermore, the issue of removing the difference in
wording between Articles 156 and 159a of the Code of
Criminal Procedure should be reconsidered since the
participation in the commission of a crime, i.e. select-
ing, transporting and harbouring a victim for an act
of debauchery or prostitution and the actual commis-
sion of a crime i.e. abduction of a persons for an act
of debauchery or prostitution is too fine a distinc-
tion to justify such differential treatment.
The absence of a real debate about the opportunity to
adopt the principle of liability of legal persons fore-
seen in article 10/1 of the UN Convention (and arti-
cle 5 of the Council Framework Decision of July 2002
on trafficking in human beings) has also to be men-
tioned.
 LARA PROJECT CRIMINAL LAW REFORM AGAINST TRAFFICKING IN HUMAN BEINGS
2.3.4 Croatia
Opinion by M. Laura Ivanovici, Judge, Court of Appeal, Craiova (Romania)
This paper is meant to provide a brief analysis of the
latest developments in relation to the legal provisions
enacted in the Criminal Code of Croatia in relation to
trafficking in human beings. The presentation would
take into consideration the recommendations issued at
the Lara seminar in Zagreb and the answers to the
questionnaires sent by the Council of Europe.
Reference will be made to the UN Trafficking Protocol
(Palermo Protocol), ratified by Croatia at the begin-
ning of 2003.
2.3.4.1 Criminalisation of trafficking in human
beings
In July 2003, the Croatian Parliament adopted the
amendments to the Criminal Code introducing a new
criminal offence specifically related to trafficking in
persons in Article 175. The definition of the crime
reflects all the elements encompassed by the Palermo
Protocol, incorporating also the suggestions made at
the Lara seminar in Zagreb.
Exploitation is not defined in the legal provision,
however elements of the concept embodied in the text
of the Article 3, point (a) of the Palermo Protocol are
to be found in the offence of trafficking introduced in
the Criminal Code. Exploitation should cover at mini-
mum prostitution or other forms of sexual exploita-
tion, forced labour or services, slavery practices or
practices similar to slavery, servitude or removal of
organs.
Trafficking in persons in the Croatian Criminal Code
refers to the acts comprised in trafficking, as referred
to in Article 175 paragraph (1) and to the purpose of
the acts. The acts are similar with those prescribed in
Article 3 point (a) of the UN Protocol, covering the
recruitment, transportation, transfer, harbouring or
receipt of person, deception, abduction or abuse of
power or position.
The purpose of committing the acts consists of .
relationship of slavery or slavery-like, forced labour
or servitude, sexual exploitation or illicit transplanta-
tion of human organs, or whoever keeps a person in
slavery or in a relationship similar to slavery . Thus,
the end-purpose of committing the acts provides suf-
ficient grounds to unveil the intended exploitation
committed by the perpetrator, subsequently providing
a proper configuration of the criminal deed in a large
range of situations, being consistent with UN
Protocol.
The punishments imposed for this crime range from 1
to 10 years of imprisonment, and if it is committed
against a minor the penalty applicable is from 3 to 15
years of imprisonment. It is to be noted that the most
36
serious penalty is prescribed if an organised group
committed the crime, the perpetrator shall then be
punished by at least 5 years of imprisonment or life
sentence. This appears to be in compliance with
article 5 of the Appendix to Council of Europe
Recommendation No. R (2000)11, regarding the link-
age between trafficking in human beings and organ-
ised crime.
Another aspect encompassed by the Croatian legisla-
tor refers to different manners of facilitating the com-
mission of the criminal offence through a large vari-
ety of means, as described in paragraph (4) such as
whoever provides or fixes instruments, removes
obstacles, develops plans or makes arrangements with
another person, or engages in another activity,
which are meant to create direct conditions. It is a
detailed regulation, which amounts to describe the
activities of persons, accomplices to the activity of
trafficking in persons. Most likely, the intended pur-
pose of the legislator was to incriminate different
manners of perpetrating acts of facilitation to the
commission of the main offence, of trafficking in per-
sons.
Considering that most often the perpetrators, while
committing the crime of trafficking in human beings,
confiscate or destroy the personal identification doc-
uments of the victims, the Criminal Code incriminat-
ed in Article 175, paragraph (5) the commission of
such a deed. The intention of the Croatian legislator is
to be praised as it covers all the aspects of one of the
most complex criminal offences, by offering legal
grounds for prosecuting the most common activities
in trafficking. Thus the judiciary will have a complete
picture of the dimension of the crime and possibility
to link various aspects into a single legal framework.
The legal provision incriminating trafficking in
human beings goes beyond the minimum standard
imposed by the protocol, following the Swedish
model. It envisages criminalisation of the client who
solicits the services of the trafficked women, if the
client is aware that the person was a victim of traf-
ficking.
It is to be noted that the legal provision, in paragraph
(7), makes specific reference to article 3 paragraph 3
from Palermo Protocol, meaning it is not relevant
whether the person consented to the intended
exploitation or not. This is of the outmost importance
in terms of defining the specific elements of the crim-
inal offence of trafficking in human beings and helps
practitioners to distinguish this criminal offence from
others like smuggling of persons or voluntary prosti-
tution. It is also important in order to sustain the
 LARA PROJECT CRIMINAL LAW REFORM AGAINST TRAFFICKING IN HUMAN BEINGS
non-criminalisation clause, thus avoiding the prose-
cution of the victim.
A commentary should be made in relation to the title
of the criminal offence as adopted in the Croatian
Criminal Code Trafficking in persons and slavery. It
is unclear whether the legislator intended to regulate
together the crime of slavery and the crime in traffick-
ing in persons, or to treat slavery and slavery-like
practices as a specific manner of perpetrating the
criminal offence of trafficking in persons.
It would be recommended to adopt the latter
approach, aiming to obtain a clear determination of
the elements defining the crime of trafficking, allow-
ing the prosecution to configurate a distinct criminal
offence and to conduct an efficient investigation
based on the aspects defined by the legal provision.17
It has to be mentioned that slavery practices involve
distinct features of the criminal offence and the crime
of trafficking is more complex than slavery.
Trafficking in human beings includes a large variety
of forms of exploitation and amounts to slavery, only
in some circumstances, but not always.
One should note also, that before the amendments
adopted in July 2003 by the Croatian Parliament, arti-
cle 175 from the Penal Code referred just to slavery
and slavery-like practices, of whose main elements are
still incorporated in the aforementioned legal provi-
sion.
Nevertheless, it is commendable that all the elements
of the definition envisaged by Article 3 from Palermo
Protocol are embodied in the text of the Article 175 of
the Criminal Code and trafficking in persons consti-
tutes a distinct criminal offence, as recommended at
the Lara seminar in Zagreb.
2.3.4.2 Non-criminalisation clause
In order to prevent the criminalisation of victims,
Croatia developed guidelines for Police and designed
training for police officers. The content of the guide-
lines was not available for analysis.
It has to be acknowledged that the Law Enforcement
Agencies are usually the first to have contact with the
potential victims and it is of outmost importance to
have a practical mechanism for victim identification
at the disposal of the Police Officers or Custom Police.
However it is equally important that the judiciary is
aware of the specificity of the criminal offence of traf-
ficking in persons and the investigation and the pros-
ecution are oriented towards the perpetrator, not the
victim.
17 It was not available for the purpose of the presentation the information related to other criminal offences existing in the Croatian
Criminal Code, in order to determine whether there is in the Criminal code another crime concerning slavery and slavery-like practices.
37
According to the information provided by the
Croatian delegation, the measures designed to prevent
the criminalisation of the victim were effective, since
they did not have any more charges for prostitution or
illegal migration.
2.3.4.3 Victim and Witness protection
The Government of Croatia is considering a draft of
the Law on Witness Protection but the procedure is on
going, since the draft is not yet final. Also, the author-
ities are considering a special Law on the Protection
of Victim of Trafficking, but the draft was not yet
finalised.
The questionnaire very briefly mentioned the new Law
on foreigners, which opens the possibility to grant
temporary residence permit to the trafficked persons.
Excerpts from the Law were not available to be
analysed for the purpose of the presentation.
2.3.4.4 Co-ordination
The answer to the questionnaire mentioned that at the
end of March 2002, Government of Republic of
Croatia formed a national committee for Suppression
of Trafficking in persons as a central body responsible
for coordination of all activities concerning the fight
against trafficking in persons. The Committee has a
Secretariat in the Governmental Office for Human
Rights and has the task of carrying out the adminis-
trative work and serving as liaison for international
contacts. The Vice-President of the Croatian
Government was appointed as President of the
National Committee and the National Coordinator is
Head of the Governmental Office for Human Rights.
An Operative Team was established within the frame-
work of the National Committee, with the direct par-
ticipation of the representatives from Ministry of
Interior, Ministry of Labour and Social Welfare,
Ministry of Education, IOM, Croatian Red Cross, NGOs
and the representative of the National Committee.
The high ranking officials appointed for the position
of President of the National Committee and for the
National Coordinator appear to be in the right posi-
tion for designing future policies and strategies for
combating the trafficking in human beings, having
the opportunity of direct Governmental intervention
and strong possibilities for implementation.
One should notice that there are four bodies estab-
lished in Croatia which play a certain role in the area
of coordination of the fight against trafficking in
human beings: the National Committee, the
Secretariat, the National Coordinator and the
Operative Team. It appears that most of them are
 LARA PROJECT CRIMINAL LAW REFORM AGAINST TRAFFICKING IN HUMAN BEINGS
under the umbrella of the National Committee, which
gives the possibility for all these bodies to coordinate
amongst themselves.
The concrete tasks and attributions of the National
Committee and the National coordinator were not
available for the purpose of the presentation. It
remains to be seen to what extent the bodies estab-
lished in Croatia would be able to act efficiently in
terms of implementing the strategies adopted in order
to combat trafficking in human beings.
38
The recommendations from the previous seminar
in Zagreb should be maintained, except for the
criminalisation of trafficking in human beings, which
has been accomplished, through the amendments to
Article 175 from Criminal Code.
Notwithstanding it is to be noted a positive develop-
ment in the Croatian legislation in developing mech-
anisms meant to combat trafficking in human beings
and to offer practical solutions to the problems
encountered.
 LARA PROJECT CRIMINAL LAW REFORM AGAINST TRAFFICKING IN HUMAN BEINGS
2.3.5 Kosovo (Serbia and Montenegro)
Comments by Mr Nicola LETTIERI, Prosecutor, Prosecutors Office in Naples (Italy)
As for the criminalisation aspects, the core legal anti-
trafficking instrument in Kosovo is UNMIK Regulation
2001/4 on the Prohibition of Trafficking in Kosovo
(dated 12 January 2001).
Section 1 Definitions
1.1 For the purposes of the present regulation
(a) trafficking in persons shall mean the recruit-
ment, transportation, transfer, harbouring or receipt of
persons, by means of the threat or use of force or other
forms of coercion, of abduction, of fraud, of deception,
of the abuse of power or of a position of vulnerability
or of the giving or receiving of payments or benefits to
achieve the consent of a person having control over
another person, for the purpose of exploitation.
Section 2 Trafficking in Persons
2.1 Any person who engages or attempts to engage in
trafficking in persons commits a criminal act and
shall be liable upon conviction to a penalty of two (2)
to twelve (12) years imprisonment.
2.2 Where the victim of trafficking is under the age of
18 years, the maximum penalty for the person engag-
ing in trafficking shall be up to fifteen (15) years
imprisonment.
2.3 Any person who organizes a group of persons for
the purpose of committing the acts referred to in para-
graphs 2.1 and 2.2 shall be liable upon conviction to
a penalty of five (5) to twenty (20) years.
2.4 Any person who, through negligence, facilitates
the commission of trafficking in persons commits a
criminal act and shall be liable upon conviction to a
penalty of six months to five (5) years imprisonment.
The Kosovo law adopts the whole UN definition,
rather than splitting it into several crimes. This
approach is positive because it contributes to the
international harmonisation of anti-trafficking legis-
lation.
It is important to mention Section 4 of Regulation
2001/4 which criminalises the use or procuring of sex-
ual services of a person with the knowledge that this
person is a victim of trafficking.
In short the above-mentioned Regulation complies
with the Trafficking Protocol which obliges state par-
ties to criminalise not only persons directly commit-
ting the acts as defined in its Article 3, but also
attempts to commit trafficking (see Regulation 2001/4,
Section 2.1), participating in trafficking, organizing or
directing other persons to commit trafficking.
18 Recommendation No. R (2000) 11 of the Committee of Ministers to member States on action against trafficking in human beings for the
purpose of sexual exploitation, 19 May 2000.
39
Furthermore, the law also criminalises persons who,
through negligence, facilitate the commission of traf-
ficking and establishes a penalty of 6 months to 5
years. The latter provision is important because it
allows for the prosecution of persons who cannot be
prosecuted under the basic offence because of the
lacking intention to exploit. This includes for example
taxi drivers who transport victims without being part
of the trafficking network, but who know or could
reasonably be expected to know that they are trans-
porting a trafficked person.
Regarding the prosecution of legal persons, such as
hotels, bars or employment or marriage agencies
involved in trafficking, Section 6.2 of the Regulation
allows the investigating judge to close an establish-
ment where there is ground for suspicion that it is
involved in or knowingly associated with trafficking.
This shouldnt be a criminal sanction, but rather a pre-
ventive measure during the investigation stage. The
concept of criminal liability of legal persons, as rec-
ommended for example by Council of Europe
Recommendation R 2000(11)18 in Article 46, is instead
broader and also encompasses sanctions, such as fines
or the closure of proceedings upon conviction.
In the opinion of the national experts, in these last
years, Kosovo has been transformed from transit
country into destination country.
As for prevention and the victims protection, we
have to mention:
a) the National action plan is still to be adopted. A
working group was established to draft it and a
strategy plan, including the Ministry of Labor and
Social Affairs, Health, Public Services and Office
of the Prime Minister. The draft will be submitted
to the Parliament;
b) A hotline will be set up (IOM and OSCE are work-
ing on establishing it)
c) Awareness raising initiatives encompassed train-
ing programs on trafficking in human beings,
workshops held by UNMIK and NGOs and semi-
nars. In the Ministry of Social Affairs and Labour,
special units deal with training. In this field there
is a co-operation with NGOs, which take care of
many educational programs;
d) Gender equality: the office of the Prime Minister
is dealing with the issue, namely in drafting a
law on gender equality, legal opportunities and
 LARA PROJECT CRIMINAL LAW REFORM AGAINST TRAFFICKING IN HUMAN BEINGS
anti-discrimination. A National plan for gender
issues was approved;
e) Legal migration: no legislation at the moment;
f) Labour laws: the Ministry of Labour established
centers for assistance of victims in municipalities;
g) a governmental committee, in co-operation with
NGOs, takes care of childrens rights. A task force,
in the framework of the Strategy Plan, shall be
established to protect childrens rights;
h) Media: there is a need of more trainings for media
in order to raise their awareness and the level of
information about the trafficking;
i) UNMIK regulation 2003/12 on protection against
domestic violence is in force
As for investigation and prosecution as well as
victims/witnesses protection, in 2001 an important
step for the investigation of traffickers and identifica-
tion of victims was taken by setting up a specialised
Trafficking and Prostitution Unit (TPIU). Besides,
UNMIK Regulation No. 2002/6 provides for covert and
technical measures of surveillance and investigation,
which can also be applied to the investigation in traf-
fickers, including covert photographic or video sur-
veillance, covert monitoring of conversations, inter-
ception of telecommunication or of communications
by a computer network, undercover investigation,
metering of telephone-calls, or disclosure of financial
data.
Maybe even at the level of Judiciary the concentration
of all the investigations in one only investigative
department should be recommended in order to
streamline the results. However the current criminal
procedure envisages national and international mag-
istrates in Kosovo and the anti-trafficking cases would
be essentially in charge of the international prosecu-
tors who enjoy protection measures compared to the
lack of these measures for national magistrates.
Moreover people generally ignore the anti-trafficking
regulations and this hampers the persons involved in
the fight against the traffickers from streamlining
their efforts. Awareness raising campaigns are needed
in order that private citizens, who are supposed to
have to refer the suspicious facts and perpetrators, can
collaborate.
Section 6.1 of the regulation provides for the confis-
cation of property used in or resulting from traffick-
ing, and refers to the general provisions of criminal
law and criminal procedural law.
Section 6.3 provides for confiscated assets to be used
partially to compensate victims of trafficking. Under
this provision, a reparation fund shall be set up and
funded by, inter alia, property confiscated from the
traffickers. This is an important provision from the
40
perspective of trafficked persons, because it enables
them to obtain compensation from the state even
when the assets found are not sufficient to compen-
sate the damage and loss suffered by the victim.
Section 8 of Regulation 2001/4 exempts victims from
criminal prosecution for certain offences related to
their status of trafficked persons, namely for prostitu-
tion, illegal entry, presence or work in Kosovo. This
provision is crucial for the protection of the rights of
trafficked persons and is a necessary requirement for
their access to legal redress and assistance facilities. It
is based on the assumption that it is the trafficker, and
not the victim, who has committed a criminal offence.
Trafficked persons need to be treated as victims of
crime, not as perpetrators.
Regarding the practical application of this provision
however, there are still some shortcomings which need
to be addressed. Recent research indicates that only
those victims who are willing to return to their coun-
try of origin are recognised as victims of trafficking
and offered assistance. Thus, women who do not
return voluntarily are not recognised as victims and
consequently are often charged with prostitution and
illegal residency and detained. This fact is clearly con-
trary to the intention of section 8, which exempts all
persons who provide evidence that supports a rea-
sonable belief that he or she was the victim of traf-
ficking from criminal prosecution for status-related
offences and which does not include an additional cri-
terion of voluntary return.
In Kosovo, protection services are provided by a spe-
cial unit within UNMIK police to victims of trafficking
who decide to cooperate with the police and are
threatened.
Moreover Regulation No. 2001/20 on the Protection of
Injured Parties and Witnesses in Criminal Proceedings
introduces a series of protection measures for victims
and witnesses who face serious risks to their lives,
health or property as a consequence of giving infor-
mation during an investigation or testimony in court.
Measures include the non-disclosure of records iden-
tifying the victim/witness, concealment of her/his fea-
tures behind an opaque shield, video-taped examina-
tions, testimony in camera (see also Section 7.4 of
Regulation 2001/4), or in exceptional cases, anonymi-
ty of witnesses. The regulation provides protection not
only to witnesses, but also to mere victims who do not
testify.
Further legislative measures are on the agenda, after
the approval of the National Plan of Action. The pro-
visional Criminal Code and Criminal Procedure Code
(including some elements of the regulation 2001/4)
shall enter into force on 6 April 2004.
 LARA PROJECT CRIMINAL LAW REFORM AGAINST TRAFFICKING IN HUMAN BEINGS
2.3.6 Moldova
Comments by Mrs Maria Grazia GIAMMARINARO, Judge, Criminal Court of Rome (Italy)
2.3.6.1 Criminal provisions
The provision concerning trafficking in human beings
in the previous Criminal Code, adopted on 24.03.1961,
as modified in 2001, had shown several problems,
mostly deriving from the fact that the definition was
too vague, and the scope of criminalization too broad.
Hence, a new regulation has been suggested and
drafted, with the contribution of experts of the
Council of Europe, in the context of the first pilot
project19 and then of the LARA Project.
Assessment
The new Criminal Code was passed on 08.04.2002 and
entered into force on 12.06.2003. The Code contains a
new provision on trafficking in human beings, which
complies with the obligation arising from the UN
Protocol on Trafficking in Persons, especially Women
and Children.
According to article 165 of the Criminal Code on
13-9-2002, trafficking in human beings means:
The recruitment, transportation, transfer, shelter or
the receiving of a person with the purpose of commer-
cial or non-commercial exploitation, by work or
forced services, in slavery or in conditions similar to
slavery, by using him/her in armed conflicts or in
criminal activities, of taking organs or tissues for the
transplant, committed by:
a) threat or use of physical or psychological violence
non dangerous for the life and health of the per-
son, including kidnapping, confiscation of docu-
ments and with servitude, for the repayment of a
debt whose limits are not defined in a reasonable
way;
b) fraud;
c) abuse of power, abuse of a position of vulnerabil-
ity, giving or receiving some payments or benefits
in order to obtain the consent of a person having
control over another person.
The above-mentioned article 165 stipulates a compre-
hensive definition of trafficking, which includes all
forms of transfer of the person, across the borders or
internally. The definition envisages a wide range of
illicit means including violence or other forms of
coercion, fraud, abuse of power and of a position of
vulnerability, in accordance with the trafficking
Protocol, giving or receiving some payments or bene-
fits in order to obtain the consent of a person having
control over another person. The definition envisages
19 Report on the Pilot Project on Criminal law reform on trafficking in human beings in Romania and Moldova (2001-2002),
DGI/DGII (2003)001, 19 March 2003.
41
a general illicit purpose of exploitation, which
includes sexual exploitation and other forms of
exploitation.
According to 2, the crime is aggravated when com-
mitted:
a) repeatedly;
b) against two or more persons;
c) against a pregnant woman;
d) by two or more persons;
e) with the use of torture, inhuman or degrading
treatment, in order to ensure the persons compli-
ance or through rape, physical bondage, use of a
weapon, threat of the disclosure of confidential
information to the victims family or to other per-
sons, as well as other means.
2.3.6.2 Measures aimed at preventing that the traf-
ficked persons undergo negative consequences for
being victims of trafficking
It is necessary to provide for a clause of non-punish-
ment for crimes committed by victims, as a direct con-
sequence of their condition of subjection in the con-
text of trafficking. It is important to set very precise
legal requirements, so as to avoid the possible improp-
er use of the non-punishment clause. Indeed, improp-
er use of the clause could lead to a general impunity
of all crimes related to the condition of being an ille-
gal foreigner.
The clause of non-punishment should apply to all
offences typically related to the process of victimiza-
tion which may occur in trafficking, as defined in
Article 3 of the Protocol. All the crimes related to
transferring of the person from one country to anoth-
er are to be taken into account, first of all illegal bor-
der crossing.
The clause should cover the crimes of
a) Prostitution
b) Illegal border crossing (but it must be pointed out
that article 362 of the Criminal Code, incriminat-
ing illegal border crossing, does not apply to vic-
tims of trafficking)
c) Crimes that are instrumental to the violation of
domestic legislation on expatriation, entry and/or
stay, like the use of forged documents, destruction
 LARA PROJECT CRIMINAL LAW REFORM AGAINST TRAFFICKING IN HUMAN BEINGS
or alteration of documents, staying in the territory
of a state after expiry of regular entry papers.
A Residence Status must be granted to victims coming
from aboard.
Although Moldova is mostly a country of origin, the
situation can change, since Moldova seems to become
also a country of transit. Therefore, it is necessary to
deal with the problem of the residence status of for-
eigner victims. This is a crucial issue both to protect
human rights of trafficked persons and encourage
their co-operation in criminal proceedings.
Actually the fear of being immediately deported is a
major obstacle for trafficked person to come forward
and report their exploiters. In addition, for NGOs it is
very difficult to accept a trafficked person in a shelter
home or in a program of assistance if the person can-
not legally stay in the country.
National regulation should envisage on which
grounds a person is entitled to have access to a spe-
cial form of residence permit.
Assessment
This issue has not been addressed yet.
Provisions regarding criminal procedure
In addition to the provisions contained in the new
Criminal Code of Procedure, the following regulation
has been suggested in the previous Report, concerning
victims rights in criminal proceedings:
a) anonymity, at least through a rule of confidential-
ity in criminal proceedings;
b) police protection; when the victim acts as a wit-
ness, police protection should be proportionate to
the severity of the case; if the danger is very seri-
ous and ordinary measures are insufficient, the
victim should have access to special protection
programs, including change of identity, replace-
ment and financial support; when the family in the
country of origin is threatened, the State should
facilitate the resettlements of the family in the
receiving country;
c) protection from intimidation; a special preliminary
hearing for anticipated giving evidence should be
provided for, to avoid coercion of the victim before
trial; audio-video facilities could be used in order
to avoid physical and visual contact between the
victim and the defendant;
42
d) assistance and legal representation; the victim
should be allowed to be assisted by a trusted per-
son during criminal proceedings; as far as possible,
the State should facilitate access to free legal rep-
resentation;
In addition to the provisions contained in the criminal
code of procedure, further regulation should deal with
further problems in the investigation:
a) Stipulate specific provisions concerning undercov-
er operations and the use of undercover agents;
b) Integrate financial investigation procedures within
the criminal investigation procedures in
Trafficking cases, to enable the possibility of
frozen assets and strengthen the existing legal
framework;
Assessment
No initiative has been taken, due to the fact that the
new Criminal Code of Procedure has been recently
redrafted. However, it is advisable that the issue is
addressed as soon as the first phase of implementation
is completed and monitored.
2.3.6.3 Assistance and support for trafficked per-
sons
Though it is necessary to attentively evaluate budget-
ary limits, it could be taken into consideration the
project of a regulation aimed at establishing criteria
and rules for assistance activities for trafficked per-
sons. This could be a first step with a view to asking
support to relevant international organizations, social
actors at national and international level.
Assessment
A Center of rehabilitation has been established a few
years ago, run by NGOs, where 250 victims have been
assisted.
No new initiative has been taken, due to financial
problems. However, a Memorandum of understanding
between the Center for the Prevention of Trafficking
in Women with IOM has been agreed, regarding legal
assistance for victims willing to testify.
Concerning aspects related to prevention, it must be
mentioned that a draft law on the promotion of Equal
Opportunities is under preparation by the Ministry of
Labour.
 LARA PROJECT CRIMINAL LAW REFORM AGAINST TRAFFICKING IN HUMAN BEINGS
2.3.7 Montenegro (Serbia and Montenegro)
Comments by Mr Nicola LETTIERI, Prosecutor, Prosecutors Office in Naples (Italy)
Regarding criminalisation of trafficking: Article 201a
paragraph 1 of the Criminal Code of Montenegro
establishes a distinct offence of trafficking in human
beings:
Article 201a Trafficking of Human Beings
Anyone who picks up, transports, carries or receives
persons with the intention of exploiting them for the
purpose of forced labour, prostitution or other forms of
sexual abuse by coercion, threat or deception or in any
other way, shall be sentenced to a minimum of one to
a maximum of eight years imprisonment.
Anyone who transports persons under paragraph (1)
from one country to another will be sentenced to a
minimum of 6 months to a maximum of 5 years
imprisonment.
Anyone who commits the acts under paragraphs (1)
and (2) against persons less than 14 years of age or
against a minor person shall be sentenced to minimum
of one and to a maximum of 10 years imprisonment.
The organiser of the acts under paragraphs (1), (2)
and (3) of this article shall be sentenced to a minimum
5 years imprisonment.
If an act under paragraphs 1 and 2 of this article has
the consequence of causing serious physical injury to
a person, the perpetrator shall be sentenced to a min-
imum of one and to a maximum of 12 years impris-
onment.
If an act under paragraphs (1) and (3) of this article
has the consequence of causing the death of one or
more persons, the perpetrator shall be sentenced to a
minimum of 10 years imprisonment.
Anyone who keeps or destroys an identification card,
passport or other personal identification document
belonging to another person in order to commit acts
specified under paragraphs (1) and (2) of this article
shall be sentenced to a minimum of 6 months and to
a maximum of 5 years imprisonment.
Anyone who uses or arranges for the use of sexual
favours from persons under paragraph (1) of this arti-
cle shall be sentenced to a minimum of 6 months and
to a maximum of 5 years imprisonment.
Anyone who commits the acts specified under para-
graph (8) of this article against a person less than 14
years of age or against a minor person shall be sen-
tenced to a minimum of 1 and to a maximum of 10
years imprisonment.
This crime is structured according to the model of the
UN Protocol definition (acts, means, and purposes).
However, a problem could be identified in the general
term or in any other way utilised with regard to
means: in fact this vague term could be in contrast
with the principle of specificity which is an aspect of
43
the other principle of legitimacy (nullum crimen sine
lege poenali scripta et stricta), both placed in the
modern democracies in defence of the individual
rights against the abuse of executive power and
against arbitrary interpretations of Judiciary.
Article 201a establishes penalties for trafficking in
human beings. For trafficking as defined in paragraph
1, the penalty is one to eight years imprisonment.
Taking into account the severity of the crime, it is rec-
ommended to raise the maximum penalty to ten years
imprisonment, as for example also provided by the
Criminal Code of the former Socialist Republic of
Yugoslavia and, Id like to add, even to raise the min-
imum because otherwise the sanction in these cases
would represent neither deterrence nor an incentive to
collaborate.
Persons who transport trafficked persons from one
country to another face a less severe punishment
than persons transporting victims within Montenegro,
namely imprisonment ranging between six months
and five years (paragraph 2). This discrepancy is
astonishing, as trans-border trafficking is usually
regarded as an aggravating rather than a mitigating
circumstance, and therefore deserves clarification.
Further, the term from one country to another is
ambiguous, because it does not indicate clearly if traf-
ficking from or to Montenegro, or both, is encom-
passed.
For certain aggravating circumstances, there is a
stricter penalty provided and in any case there are
inconsistencies:
a) if the victim is under the age of 18: 1 10 years
imprisonment (paragraph 3).
b) for the person who has organised trafficking under
paragraphs 1-3: at least 5 years of imprisonment
(paragraph 4),
c) if a person has suffered serious physical injury as
consequence of trafficking according to para-
graphs 1 and 2: 1 12 years imprisonment (para-
graph 5),
d) if a person has died as consequence of trafficking
according to paragraphs 1 and 3: at least 10 years
of imprisonment (paragraph 6).
Anyway, as for the first concrete application of this
article, it has been referred of one case of trafficking
for sexual abuse.
In the opinion of the national experts, in these last
years Montenegro has changed from a transit country
to a destination country.
 LARA PROJECT CRIMINAL LAW REFORM AGAINST TRAFFICKING IN HUMAN BEINGS
As for prevention and the victims protection, we
have to mention that in 2000, a multi-component vic-
tims protection programme was designed by the gov-
ernment of Montenegro, regional and international
organisations and NGOs. The corner stones of the pro-
gramme are a shelter and a SOS hotline run by
Montenegrin NGOs, which are supplemented by and a
Memorandum of Understanding.
Victims who want to return home voluntarily referred
to IOM for return assistance. The shelter is open to all
victims trafficked to Montenegro, regardless their
willingness to return. The maximum period of stay in
the shelter of victims who have decided not to return
is still negotiated. Victims who decide to testify can
now stay up to three months. However a residence
permit is in consideration: 3 months and other 3
months if the victim wants to testify.
The Ministry of Interior is considering a special pro-
gramme for victims who do not want or cannot go
back to their home countries and therefore do not
qualify for the IOM return programme. In fact victims
of trafficking currently receive protection under the
Victims Protection Programme where no specific
police witness protection programmes exist, which
include for example witness relocation or change of
identity. However a regulation on relocations will be
included in Law on WP in 2004.
In order to improve and institutionalise the co-opera-
tion between the different actors involved in the vic-
tims protection (NGOs and authorities), a
Memorandum of Understanding (MoU) was signed by
the Ministry of Interior, the Womens Safe House and
the Womens Lobby in 2001. The strength of this co-
operation model lies in the involvement of govern-
mental and non-governmental actors and in the defi-
nition of mutual responsibilities, which provides the
necessary basis for effective co-operation. However
the introduction of a legal basis is recommended.
Always in the field of prevention, the following initia-
tives need to be highlighted:
a) A specific crime which punishes domestic violence
(since 2002),
b) Set up of a hotline,
c) Training programs for police officers, prosecutors
and judges,
44
d) The review of legal instruments, namely new poli-
cies for participation of women in labour market
and legal migration,
e) Legal migration: draft law on foreigners where the
granting of a residence permit is in consideration,
f) Role plaid by media in order to raise the awareness
and the level of information about the trafficking,
e) Labour laws with amendments which introduce
more severe penalties for illegal labour.
As for investigation and prosecution as well as vic-
tims/witnesses protection, specialised Police Expert
Teams to fight trafficking in human beings operate at
the Level of the Ministry of the Interior and in eight
big towns in Montenegro. The functioning and effec-
tiveness of specialised investigative bodies in the
combat of trafficking in persons obviously depends on
the availability of sufficient funding and efficient
investigative means. The establishment of Police
National Coordinators is also to be highlighted.
Investigative means and special procedural provisions
available to the Police Expert Teams (with the possi-
bility to shadow, room and phone tapping, video sur-
veillance, undercover agent investigations, etc.) have
been introduced in the very recent procedural code.
The same applies to seizure and confiscation of pro-
ceeds stemming from trafficking.
No specific police witness protection programmes
exist, which would include for example witness relo-
cation or change of identity but the new criminal pro-
cedure reveals specific in-court witness protection
measures, such as video-link testimonies or witness
concealment in order to ensure the safety of victims
of trafficking who testify as witnesses.
A non-punishment clause is envisaged for victims
who commit crimes connected to trafficking (illegal
border crossing, prostitution or falsification of docu-
ments).
There is a draft law for liability of legal persons
involved in serious crimes, including trafficking.
Draft legal provisions to combat corruption are on the
agenda, such provisions appear to be very important,
taking into consideration a recent study published by
UN and OSCE which reports of local police being
accomplices of bar owners and traffickers by issuing
official documentation for trafficked women.
 LARA PROJECT CRIMINAL LAW REFORM AGAINST TRAFFICKING IN HUMAN BEINGS
2.3.8 Romania
Comments by Mrs Maria Grazia GIAMMARINARO, Judge, Criminal Court of Rome (Italy)
2.3.8.1 Criminal provisions
The Law n 678/2001 on Prevention and Combat of
Trafficking in Human Beings provides for a compre-
hensive anti-trafficking strategy, encompassing
aspects related to prevention, criminal provisions, and
assistance of victims.
The law stipulates the definition of trafficking, which
includes all forms of transfer of the person, across the
borders or internally. The definition encompasses a
wide range of illicit means including violence or other
forms of coercion, fraud or misrepresentation, abuse
of power, taking advantage of the persons inability to
defend her/himself or to express her/his will, giving or
receiving money or other benefits in order to obtain
the agreement of a person who has control over
another person. The definition envisages a general
illicit purpose of exploitation, which includes sexual
exploitation and other forms of exploitation (article 12).
Concerning the means used by traffickers, in addition
to violence, threats, coercion, abduction, fraud,
deception, abuse of power, the definition in the
Trafficking Protocol envisages the abuse of a position
of vulnerability. This notion covers all the situations
where the trafficked person has no choice but to sub-
mit to the abuse, such as debt bondage. The Travaux
preparatoires of the Trafficking Protocol clarify that
the abuse of a position of vulnerability refers to any
situation in which the person involved has no real
and acceptable alternative but to submit to the abuse
involved.
The definition in the Romanian Law does not reflect
the Protocol on this point, but includes the formula-
tion taking advantage of the persons inability to
defend her/himself or to express her/his will. It will be
clarified through interpretation whether this formula-
tion can deal with the abuse committed taking advan-
tage of the situation of extreme poverty, lack of job
opportunities, subordination of a woman in a patriar-
chal structure of social and family relationships. If
not, the possibility of amending the Law has been
suggested.
Assessment
In the final regional seminar of the LARA Project, the
Romanian delegation explained that, according to the
legal experience and the jurisprudence of the
Romanian Courts, the above mentioned formulation
applies not only to situations of physical inability, but
also to persons in a position of vulnerability. Hence, it
seems that there is no need for further amendments.
45
2.3.8.2 Clause of non-punishment and residence
status for victims
A particular and problematic issue is related to the
interference between the Law on Trafficking and the
legislation on immigration, including the provision
which criminalizes the illegal entry on the Romanian
territory by foreigners under Law n. 123/2001 on the
Foreigners Regime, and the special provision stipulat-
ed in article 1 of the Emergency Ordinance N.
112/2001, which criminalizes the entering or leaving a
foreign State by the illegal passing its borders, com-
mitted by a Romanian citizen or by a person without
citizenship residing on the Romanian territory.
According to the experience of different countries,
victims reporting to the police and acting as a witness
is essential for prosecution, even when other means of
investigation have been used, such as phone tapping,
electronic surveillance, financial investigation.
Since in Romania illegal border crossing is a crime, if
the victim is a foreigner, she/he will be prosecuted for
being an illegal alien. This is a serious obstacle to a
successful prosecution, because it prevents the co-
operation between the victim and the police or the
prosecutor.
Furthermore, the Emergency Ordinance N. 112 stipu-
lates that the illegally entering or leaving a foreign
state committed by a Romanian citizen is considered
as a criminal offence. This is a special rule of extrater-
ritoriality, that the majority of national legislation
stipulates only for a limited range of very serious
crimes, e.g. crimes of terrorism, crimes of corruption
committed by national public officials through abuse
of power, or other crimes of comparable gravity.
The Emergency Ordinance n. 112 envisages a too wide
scope of criminalization. Concerning trafficking,
when a Romanian victim of trafficking has passed
illegally the borders of a country of transit or of des-
tination, she/he will be prosecuted in Romania for this
crime, once voluntarily o involuntarily returned or
repatriated. This is an obstacle to the co-operation
between the victims and the police authorities, and in
general for the struggle against trafficking, not only
in Romania but also in any European country.
A possible solution could be the adoption of an act,
such as another Emergency Ordinance, stipulating a
special clause of non liability for victims of traffick-
ing, for illegal crossing of the Romanian border or of
the borders of other countries, covering not only the
cases of Romanian citizens that illegally enter other
countries (according to the Emergency Ordinance
n. 112), but also the cases of foreign citizens that ille-
gally enter the Romanian territory.
 LARA PROJECT CRIMINAL LAW REFORM AGAINST TRAFFICKING IN HUMAN BEINGS
Another possible solution is the adoption of a general
clause of non punishment for instance through an
amendment to the Law on trafficking for any crime
committed by victims as a consequence of their sub-
jection in the context of trafficking.
It is necessary to set very precise legal requirements,
so as to avoid the possible improper use of the non-
punishment clause. Indeed, improper use of the clause
could lead to a general impunity of all crimes related
to the condition of being an illegal foreigner.
The clause of non-punishment should apply to all
offences typically related to the process of victimiza-
tion which may occur in trafficking, as defined in
Article 3 of the Protocol.
The clause should cover the crimes of:
a) Prostitution
b) Illegal border crossing
c) Crimes that are instrumental to the violation of
domestic legislation on expatriation, entry and/or
stay, like the use of forged documents, destruction
or alteration of documents, staying in the territory
of a state after expiry of regular entry papers.
Article 20 of the Law n. 678/2001 on the Prevention
and Combating of Trafficking in Human Beings envis-
ages a clause of non-punishment for the crime of
prostitution stipulated in article 328 of the Penal
Code. The trafficked person who has committed the
crime of prostitution shall have no liability for that
crime, if, before the start of the criminal investigation
for the crime of trafficking in human beings, this per-
son has come forward and reported the crime to the
competent authorities or if, after the start of the crim-
inal investigation or after the identification of the
criminal offenders this person facilitates the arrest of
those offenders.
Two problems should be further dealt with:
1) A similar clause should be stipulated for illegal
border crossing and related crimes.
2) The ground on which the clause must be applied
should be revised and identified with specific ref-
erence to the condition of victim of the person
requesting application of the clause.
In the previous LARA Report, further regulation has
been suggested regarding the residence status of the
trafficked person20. In fact the problem of the resi-
dence status of the victim in Romania, which is a
country of transit or destination, is crucial both to
protect human rights of trafficked persons and
encourage their co-operation in criminal proceedings.
20 See LARA(2003)36.
46
Actually the fear of being immediately deported is a
major obstacle for trafficked person to come forward
and report their exploiters. In addition, for NGOs it is
very difficult to accept a trafficked person in a shelter
home or in a program of assistance if the person can-
not legally stay in the country.
Assessment
As to the residence status of trafficked persons, the
new regulation on foreigners regime provides for a
tolerance regime for victims of trafficking. Tolerance
may be granted to an alien in relation to whom there
are serious reasons to consider that he/she is a victim
of trafficking. Tolerance can be granted for a period
up 6 months, which may be extended for further peri-
ods of up to 6 months. The prosecutor or the Court
may order the renewal of tolerance regime if the pres-
ence of the person is necessary for criminal proceed-
ings.
No initiative has been taken with regard to the vari-
ous problems related to the incrimination of illegal
border crossing and the suggestion concerning the
clause of non-punishment. The Romanian delegation
argued that internal legislation on immigration, and
thus the criminalization of illegal border crossing,
complies with the requirements of the European
Union. But it must be pointed out that not in all the
countries of the EU illegal border crossing is punished
as a crime. In addition, the scope of criminalization
envisaged by the Emergency Ordinance n. 112 goes far
beyond the regulation in force in any of the countries
of the EU.
It must be pointed out also that the problem of how to
protect victims and to promote their co-operation
with judicial authorities is under discussion in the
states members of the Council of Europe. The debate
on the clause of non-punishment is laos underway.
It is very important to note that as a final outcome of
the LARA project, the national expert of the Ministry
of Justice Mr. Cristian Baci has stated that the
Romanian competent authorities consider the possi-
bility of seriously modifying the delicate provisions
concerning illegal border crossing, in the context of
the elaboration of the new Criminal Code.
2.3.8.3 Provisions concerning criminal proceedings
The project of reform of the criminal code of proce-
dure, which is currently under Parliamentary scrutiny,
should deal with the following issues, not encom-
passed by current legislation:
a) right of the victim to anonymity, at least through
a rule of confidentiality in criminal proceedings;
 LARA PROJECT CRIMINAL LAW REFORM AGAINST TRAFFICKING IN HUMAN BEINGS
b) protection from intimidation; a special preliminary
hearing for anticipated evidence should be provid-
ed for, to avoid coercion of the victim before trial;
audio-video facilities could be used in order to
avoid physical and visual contact between the vic-
tim and the defendant;
c) assistance and legal representation; the victim
should be allowed to be assisted by a trusted per-
son during criminal proceedings; as far as possible
victims access to free legal representation should
be facilitated.
Assessment
These issues have not been addressed yet. However,
some new legislation is relevant for the anti-traffick-
ing strategy, in particular, the new Law 39/2003 on
the Prevention and Punishment of Organized Crime,
including more precise regulation of undercover oper-
ations.
Concerning compensation of victims, a special law is
under preparation by the Ministry of Justice, encom-
passing the whole issue of protection of victims of
crimes. The Law will be drafted with expertise and
contribution of the European Union.
2.3.8.4 Assistance, support and protection for traf-
ficked persons
The Romanian Law on Trafficking establishes
Reception Centers for victims of trafficking and envis-
ages assistance and support activities,.
However, further regulation is needed in order to
improve the standard of these activities, at different
stages of the process of recovering and rehabilitation.
In particular, it must be pointed out that article 32
of the Law n. 678/2001 envisages only 10 days of
47
permanence in the shelter. Though it is a first step, this
is a very short period, absolutely not sufficient to
enable the victim to recover from the trauma and
decide about her/his future.
The minimum standard concerning the first stage of
the procedure should aim at helping the person to
recover from the trauma should be heightened.
Assessment
No initiative has been taken to amend the law on traf-
ficking on this point. However, some aspects related to
the standard of assistance and support of victims have
been addressed by the Government Decision for the
Approval of the Regulation on the Implementation of
Law n. 678/01 on the Prevention and Combat of
Trafficking. Regarding the problem of the period of
permanence in the Reception Centers, it seems that in
practice the duration of support activities is longer
than the minimum standard provided for by the law.
Concerning protection, the Law n. 682/02 provides for
witness protection and the Law 281/03, amending the
Criminal Code of Procedure, provides for witness data
protection, special methods of hearing witnesses,
assistance and legal representation. A National Office
for Witness Protection has been set up. In addition, a
new draft law on victims protection is under prepara-
tion.
Several new provisions were passed recently, that can
have an impact on the fight against trafficking. In
particular, it must be mentioned the regulation con-
cerning cyber-crime, drafted in the context of a bill
regarding transparency in public offices, as a major
measure for the fight against corruption.
 LARA PROJECT CRIMINAL LAW REFORM AGAINST TRAFFICKING IN HUMAN BEINGS
2.3.9 Serbia (Serbia and Montenegro)
Comments by Mr Nicola LETTIERI, Prosecutor, Prosecutors Office in Naples (Italy)
As regarding the criminalisation of trafficking, at the
Serbian entity level, a recent legislative change
regards the introduction of a distinct offence of traf-
ficking in human beings through the Law adopted on
11 April 2003, which amended the Criminal code by
inserting the new article 111b (People Trafficking),
according to which:
(1) Any person who, by means of force, threat, deceit
or maintaining a person in deceit, the abuse of author-
ity, trust, subordinate position or harsh circumstances
of another person, recruits, transports, transfers,
delivers, sells, buys, mediates in the delivery or selling,
hides or keeps in captivity another person for the pur-
pose of acquiring profit, exploiting the person work,
engaging the person in criminal activities, prostitu-
tion, begging or pornography, or for the purpose of
taking the persons organs for transplantation, or for
using the person in armed conflicts shall be sentenced
to imprisonment from one to ten years.
(2) If the act stated in paragraph 1 of this article is
aimed at more persons than one, by kidnapping while
performing an official duty, within a criminal organi-
zation, in an exceptionally cruel or humiliating way,
or if a severe bodily injure is inflicted the perpetrator
shall be sentenced to imprisonment of three years min-
imum.
(3) If the act stated in paragraph 1 of this article is
aimed at an under aged person or if it has led to the
death of the person, the perpetrator shall be sentenced
to imprisonment of five years minimum.
(4)If the act stated in paragraph 1 of this article is
aimed at a person under the age of fourteen, the per-
petrator shall be sentenced to a punishment as provid-
ed by law for such an act even if he did not use force,
threat or other abovementioned ways of executing the
act.
The opinion of the Council of Europe expert about this
article can be summed up as follows:
Too large scope: In the same provision, too many
and too different purposes of the traffickings ille-
gal conduct are present (the same punishment
regards facts, very different at the level of serious-
ness as trafficking for the purpose of exploiting the
person work and for the purpose of taking the per-
sons organs for transplantation); besides these
illegal targets appear not homogeneous and
offending too different legal values (for instance
the same provision punishes either the trafficking
of human beings or the smuggling of immigrates);
The formulation of certain elements of the offence
is too vague so to be in contrast with the principle
of specificity which is an aspect of the other prin-
ciple of legitimacy: it is the case, as means, of the
48
abuse of harsh circumstances of another person
and, as illegal objective, of the purpose of acquir-
ing profit (pay attention: no illegal profit but gen-
erally profit), so that the interpreter could go so far
as to consider as crime even legal facts, such as to
engage, in a legal though hard work, a person who
is induced to this engagement in order to get away
from a very harsh poverty;
The foreseen aggravating circumstances encom-
pass very harsh and atrocious facts (such as excep-
tional cruelty or death as consequence of the traf-
ficking) and, in spite of these very serious provi-
sions, the minimum penalty isnt however ade-
quate whereas the maximum sanction is the same
of the basic offence of paragraph 1.
Anyway, as for the first concrete application of this
article, it has been referred to two cases of Chinese cit-
izens who illegally resided in Serbia and who should
have been transferred to Western Europe (Italy); they
were locked up in an apartment without travel docu-
ments and they were waiting the leader of the crimi-
nal organization who had to take steps to organize
their transport. The suspects were charged with the
abovementioned offence (under the elements of forced
labour as well as of abuse of harsh circumstances and
of authority) and sentenced to three years.
As for prevention and victims protection we have to
mention the National Action Plan 2002, established at
the Federal level, that under the framework of the
Yugoslav Team to Combat Trafficking in Persons, set
up a working group on victim assistance and protec-
tion. The working groups efforts focused on the
establishment of a shelter and a National Referral
Mechanism, operating on the territory of the Republic
of Serbia.
The shelter, set up by IOM in Belgrade and run by the
local NGO Counselling against Family Violence,
provides victims of trafficking (actually 72) with
accommodation, food, clothing, psychological and
legal counselling. At a positive note, the shelter is
open to all victims of trafficking who are returning to,
transiting or departing from the Republic of Serbia.
Assistance is not linked to repatriation anymore and
also encompasses victims who were trafficked abroad
and return to Serbia. The envisaged period in the shel-
ter is one month, which can be extended.
The working group on assistance and protection has
also drafted guidelines for a National Referral
Mechanism of trafficked persons. These guidelines
define the co-operation between and responsibilities
of the actors relevant for victim protection and assis-
tance, namely Authorities, NGOs and international
 LARA PROJECT CRIMINAL LAW REFORM AGAINST TRAFFICKING IN HUMAN BEINGS
organisations (IOM and OSCE). In the shelter or
orphanage, the victim shall decide on her/his options
which include return to her/his country of origin,
seeking for asylum, or testifying in court. The
Republican Ministry of the Interior is responsible to
provide security for shelter premises.
Among the other initiatives of the working group one
has to mention the following:
a) set up of an agency against domestic violence;
b) special trainings for officials (medical workers,
teachers) on domestic violence; besides, systemat-
ical medical visits in the schools aiming at recog-
nizing the signs of possible domestic violence;
c) hotline;
d) special measures for the protection of children who
abandoned education programs, in co-operation
with the Ministry of Education, including the
social service;
e) training programs for teachers, police officers and
social-health workers;
f) training for police regarding elementary and high
schools pupils on trafficking, violence and drugs.
e) awareness raising campaigns, especially against
trafficking in children, in co-operation with NGOs
and international organizations.
Always in the field of prevention, the other initiatives
need to be highlighted:
a) Labour Laws with the amendments which intro-
duced more severe penalties for illegal labour;
b) Ministry of Labour: the introduction of a new sys-
tem of control of illegal employees;
c) Ministry of Interior: the establishment of teams for
the fight against trafficking;
d) Manual for journalists in order to raise the aware-
ness and the level of information about the traf-
ficking (to be published soon);
e) Gender equality and equal opportunity: quota
mechanism for elections at local and republican
level; inclusion of women in the police teams and
mobile teams, where women are dominating mem-
bers.
As future programs:
Social Affairs Department will finance social
emergency teams (the working group actually suf-
fers from lack of funds),
Teachers training on domestic violence and traf-
ficking issues will become part of the teaching cur-
ricula.
However it should be noted that no legal basis exists yet
for assistance facilities and the division of responsibilities
49
between the relevant actors. Nor is there any legally
granted right of victims to have access to existing
assistance facilities or to receive a preliminary or per-
manent residence status. Projects and political action
are of practical importance because they put assis-
tance measures into practical effect, but at the same
time can easily be revoked or cut down when not put
on a legal basis. Therefore the introduction of such a
legal basis is recommended.
As for investigation and prosecution as well as vic-
tims/witnesses protection the 2002 Law on
Organization and Jurisdiction of Government
Authorities in Suppression of Organized Crime intro-
duces specialized authorities to deal with a number of
offences related to organized crime, including traf-
ficking in persons. The Law establishes a Special
Prosecutors Office, a Special Service for Suppression
of Organized Crime and Corruption as part of the
Ministry of Interior and a Special Department for
Processing Criminal Cases within the Belgrade District
Court. It is a positive evolution because the concrete
experience has taught us that in this field the concen-
tration of all the investigations in one investigative
department improves the results.
The investigative means that these bodies have at
their disposal include general means such as search-
ing apartments and persons (Articles 77-81 of the
2002 Criminal Procedure Code), seizure of items
(Articles 82-86), PTT seizure (Article 85) and the sur-
veillance and recording of communications and opti-
cal recording of suspected traffickers (Articles 232f).
In December 2002, new provisions were introduced
into the Criminal Procedure Code, establishing special
procedural regulations to prosecute offences of organ-
ised crime, including undercover agents, undercover
information and tapping.
In the field of organized crime, which encompasses
the most part of the trafficking cases, appropriate pro-
visions grant reduction of penalty and protection to
collaborators of justice, therefore to traffickers who
decide to disclose the secrets of the trafficking organ-
ization.
All victims of crime have the possibility to exercise
their procedural rights through a legal representative
(Article 66). However, trafficked persons usually can-
not afford to pay for a lawyer. A solution could be
that legal aid is paid from funds created from seized
assets or by the convicted trafficker as part of his obli-
gation to pay the costs of proceedings but, anyway,
only very recently, according to the national experts,
a new law was laid down in order to allow seizure and
confiscation of proceeds stemming from trafficking.
According to the national experts, the victims often
refuse to bear witness for fear or because they take
economical advantage by their prostitution or else
 LARA PROJECT CRIMINAL LAW REFORM AGAINST TRAFFICKING IN HUMAN BEINGS

because they are repatriated before the trial. The crim- In terms of legislation, Article 109 of the 2002
inal procedure envisages the possibility to base a con- Criminal Procedure Code establishes a general obliga-
viction on written statements as long as there are even tion of the courts to protect a witness or victim from
other clues which are able to confirm the suspects insult, threat and any other attack (paragraph 1).
guilt. Persons who insult, threaten or endanger the security
of witnesses or victims before the court shall be
The Criminal Procedure Code further includes several
warned or fined and, in case of violence or threat,
provisions dealing with the examination of witnesses.
criminally prosecuted (paragraph 2). The court may
Article 100 allows witnesses to refuse to answer par-
also request the police to undertake special measures
ticular questions if such answers would expose her or
regarding the protection of a witness or a victim
close family members to serious disgrace, considerable
(paragraph 3). It is not specified what kind of special
material damage or criminal prosecution. However,
measures are meant. Recommended protection meas-
there exists no exemption from the duty to testify in
ures include police escorts or witness relocation. The
trial for victims who have suffered physical or sexual
Criminal Procedure Code does not provide for specif-
violence. The solution is once more to protect and
ic in-court witness protection measures, such as
inspire confidence to the victim called to witness both
video-link testimonies or witness concealment. It is
before and after the trial. Besides article 324 enables
recommended to the Serbian government to introduce
the court to temporarily remove the accused from the
such protection measures in order to ensure the safe-
courtroom it the witness refuses to give a statement or
ty of victims of trafficking who testify as witnesses.
if circumstances indicate that she would not tell the
truth in the presence of the accused.

50
 LARA PROJECT CRIMINAL LAW REFORM AGAINST TRAFFICKING IN HUMAN BEINGS
2.3.10 Slovenia
Opinion by Ms. Laura Ivanovici, Judge to the Court of Appeal, Craiova (Romania)
This material will provide a brief description of the
legislative developments relevant to the trafficking in
human beings in Slovenia. Reference will be made to
the previous recommendations from the first Lara
regional seminar in Zagreb and to the UN Palermo
Protocol.
2.3.10.1 Criminalisation of the trafficking in human
beings
Slovenia does not have yet a specific criminal offence
related to the trafficking in human beings. The deeds
of the perpetrators are prosecuted on the basis of other
criminal offences, connected with trafficking in
human beings, such as enslavement, pimping, and
promotion of prostitution, unlawful deprivation of
liberty and illegal border crossing. Republic of
Slovenia is the only country amongst those participat-
ing to the Lara project, which does not have a distinct
criminal offence of trafficking in human beings.
Considering the fact that in the countries members of
the SEE Stability Pact, the phenomenon of trafficking
in human beings had become in recent years an
increasing problem and taking into account that most
of the countries in the region had regulated traffick-
ing in human beings as a distinct criminal offence, it
would be recommended also for Slovenia to crimi-
nalise the trafficking in persons offence in the
Criminal Code.
It would be helpful to have a single criminal offence
covering trafficking in human beings, instead of sev-
eral others tackling different elements of this complex
crime. This would facilitate mutual legal assistance,
extradition, and serves as a uniform reference point
for all the agencies involved, in relation especially to
the referral process. According to the answer to the
questionnaire, the draft Law on Amendments to the
Criminal Code is under consideration with the
Government and it is expected that by the end of the
year 2003, the Law will be submitted to the
Parliament.
Considering the provisions of article 5, paragraph 1
from Palermo Protocol, the Slovene legislation is con-
sistent with this regulation, taking into account the
following aspects:
In relation to complicity, the regulation from the
Criminal Code Participation in Criminal Offence cre-
ates a framework for punishing the accomplice with
the same punishment as for the offence of the perpe-
trator, considering there are two or more persons
engaged jointly in committing a criminal offence. This
is perceived as a legal standard and it is applicable to
51
all criminal offences, including those prosecuted in
relation to trafficking in human beings.
Referring to attempt, one should note that in
Slovenian Criminal Code there are two legal provi-
sions, Article 22 and Article 23, regulating the attempt
and the inappropriate attempt for the commission of
criminal offence. According to Article 22, the attempt
shall be punished for the criminal offences for which
the sentence of three years of imprisonment or heav-
ier sentence may be imposed under the statute. Most
of the criminal offences under which the trafficking in
human beings can be prosecuted in Slovenia, the pun-
ishments limits will be consistent with the application
of the provisions relative to attempt.
The Criminal Code regulates the criminal association
in Article 297, incriminating whoever establishes a
group for the purposes of perpetrating criminal
offences for which a punishment exceeding five years
or imprisonment may be applied, shall be sentenced to
imprisonment for not than three years. The descrip-
tion of the deed is in compliance with article 5 para-
graph 1, point (c) from Palermo Protocol, but the pun-
ishment is too low for the gravity of the offences
criminalised by the Criminal Code. Trafficking in
human beings is a serious crime and therefore, the
punishment should reflect it.
Considering the changes envisaged by the Slovene
Government, through the Law on Amendments to the
Criminal Code, an increased penalty would be recom-
mended in this respect.
2.3.10.2 Victim and Witness Protection
According to the answer given in the questionnaire,
the Ministry of Interior and the Ministry of Justice are
considering a proposal for the Law on Protection of
Witnesses and collaborators of justice. It is expected
that the work on the draft will be completed by the
end of 2003.
The recommendation from the first regional seminar
in Zagreb should be maintained in this respect.
In regard to the protection of victims, it is to be noted
that the Slovene Foreigners Act prescribes in Article
40 that foreigners who, in accordance with this law,
with international acts or international principles,
demonstrate well-founded reasons that justify their
stay in the Republic of Slovenia, may be issued with a
permit for temporary residence by the competent body
for the period of time for which their presence is
indispensable.
This provision is not detailed enough to be consistent
with article 7 paragraph 1 of UN Palermo Protocol
 LARA PROJECT CRIMINAL LAW REFORM AGAINST TRAFFICKING IN HUMAN BEINGS

which prescribes that each State Party shall consid-
er adopting legislative or other appropriate measures
that permit victims of trafficking in persons to remain
on its territory, temporarily or permanently, in appro-
priate cases.
The text from the Slovene Foreigners Act does not
refer specifically to the victims of trafficking and does
not elaborate on well-founded reasons. It would be
difficult for practitioners to base their decisions on
legal grounds, in terms of granting permit residence to
the victims of trafficking in the absence of specific
regulation. Therefore it would be recommended to fur-
ther amend the legislation, pointing to the persons
having the right to obtain residence permits, as being
the victims of trafficking.

52
 LARA PROJECT CRIMINAL LAW REFORM AGAINST TRAFFICKING IN HUMAN BEINGS
2.3.11 The former Yugoslav Republic of Macedonia
By Mr Freddy GAZAN, Adviser for Criminal Policy, Ministry of Justice (Belgium)
The former Yugoslav Republic of Macedonia has
exhibited some progress to erect solid foundations for
a legal framework to impede trafficking in persons.
Four recommendations were elaborated at the last
regional LARA seminar for improvements on existing
and prospective legislation.
The first recommendation suggested stipulating that
Article 418(a) of the Criminal Code, criminalizing par-
ticipation in a criminal organised group, should
regard human trafficking as an aggravating circum-
stance.
Amendments to the Criminal Code and Criminal
Procedural Law particularly for witness protection and
protection of victims of trafficking need to be adopt-
ed. Article 418 (v) of the Criminal Procedural Law,
designed to incriminate the crime of organising a
criminal group, and instigating the commission of
crimes of human trafficking and smuggling of
migrants, is awaiting promulgation.
The second recommendation concerned a provision
protecting trafficking victims from prosecution for
their illegal presence in the country or for illegal acts
connected with their exploitation. The former
Yugoslav Republic of Macedonia endeavours to col-
lect and exchange the legislative experience of other
countries.
The third recommendation is about the granting of
temporary residency status to victims of trafficking.
The country intends to collect and exchange the leg-
islative experience of other countries and draw up
adequate amendments to the Law of Movement and
Residence of Foreigners, respecting the economic and
social situation in the former Yugoslav Republic of
Macedonia. The National Commission instructed the
Ministry of Interior in September 2003 to draft as a
matter of priority a law for regulating the residency of
victims in the Transit Centre.
53
The fourth recommendation proposed the improve-
ment of national assistance programmes.
Decisions need to be taken by the National
Commission to strengthen the fight against traffick-
ing, namely by forming a centre for the support of
trafficking victims; providing lodging, medical care,
psychological assistance, legal assistance furnished by
the Transit Centre and specifying rights to victims;
and adopting a standard operating referral procedure
between Macedonian law-enforcement bodies and
assistance service providers.
Observations
The former Yugoslav Republic of Macedonia
appears to be adopting the necessary laws and amend-
ments to fashion a constructive legal context to
undermine the crime of human trafficking, though the
speed of adoption should be accelerated.
Critical bottlenecks, lack of follow-up and lax
enforcement mean that implementation is sub-opti-
mal. In particular, there is a lack of realisation of
planned-for activities and priority programmes for-
mulated by the National Commission. Its decisions,
moreover, are either ignored or executed inefficiently.
For instance, given that the former Yugoslav
Republic of Macedonia intends to ratify the UN
Convention on Transnational Organised Crime and
Protocol on Suppressing Trafficking in Persons by the
end of 2003, the Commissions insistence on amend-
ing the existing law on the movement and residency
of foreigners, establishing a centre for the support of
victims of trafficking as well as a Transit Centre and
putting in place the framework for assuring the rights
of victims have yet to be acted upon. Therefore, the
former Yugoslav Republic of Macedonia should
expand greater energy to enhance implementation.
 LARA PROJECT CRIMINAL LAW REFORM AGAINST TRAFFICKING IN HUMAN BEINGS
3. Outcome of the in-country flying consultancies
and of the regional training workshop
The flying consultancies phase of the LARA project
aims at assisting participating countries in the draft-
ing process of primary or secondary legislation
regarding trafficking in human beings, through expert
assistance in the drafting and/or training in drafting
legislation on specific legal issues.
During the first LARA regional seminar, which was
held in Croatia from 2 to 4 April 2003, several partic-
ipating countries identified areas in which flying
consultancies would be needed. They pointed out in
particular the need for training in drafting legislation
aimed at the effective protection of victims and of vic-
tim-witnesses, and the need for exchange of experi-
ences and good practices.
During the flying consultancies phase, the follow-
ing activities were organised:
Expert meeting on the drafting of the Law on the
protection of witnesses and collaborators of justice
(Tirana, 30-31 May 2003)
The purpose of this meeting was to assist the Albanian
Ministry of Justice in the drafting process of the Law
on the protection of witnesses and collaborators of
justice.
Mrs Maria Grazia GIAMMARINARO, the Italian expert
participating in the LARA Project, took part, with
other national and international experts, in the draft-
ing process of the law on the protection of witnesses
and collaborators of justice at the request of the
Albanian Ministry of Justice. This flying consultancy
was organised in the more general framework on how
to design a witness protection programme in Albania.
International and national experts discussed the fea-
tures and experiences in the existing schemes in
Europe and exchanged views on how to design a wit-
ness protection programme adapted to the Albanian
reality. The issue of the protection of witnesses of traf-
ficking in human beings and of offenders of such
crimes who would agree to cooperate with criminal
justice authorities was also addressed. As a result, the
55
main elements of the draft law on the protection of
witnesses and collaborators of justice were identified.
Workshop on Criminal Law Reform in
Montenegro Procedural and Substantive
Aspects of the Fight against Trafficking in Human
Beings (Podgorica, Serbia and Montenegro, 23-
24 June 2003)
This activity was jointly organised and financed by
the Council of Europe (LARA project), the OSCE Office
in Podgorica and OSCE/ ODIHR. The purpose of this
seminar was to assist the Montenegrin Working Group
on the Criminal Code and the Working Group on the
Criminal Procedure Code in the drafting process of
these two draft Codes, in particular with respect to the
drafting of the specific provisions relevant in the field
of the fight against trafficking in human beings. This
activity was further complemented by a written
expertise on the provisions of the draft Criminal
Procedure Code of the Republic of Montenegro
regarding special investigative means, protection of
witnesses and collaborators of justice.
Training seminar in drafting legislation for the
protection of victims and victim-witnesses of traf-
ficking in human beings, (Strasbourg, France, 8-
10 September 2003)
In accordance with the conclusions of the LARA first
regional seminar, this training seminar was organised
at the request of the countries in order to provide
assistance in drafting legislation on protection of vic-
tims and of victim-witnesses, and examples of good
practices. The aim of the training seminar was to raise
awareness on the problems which could occur when
implementing the legislation and how to avoid them
when drafting legislation. Three Belgian experts pre-
sented the Belgian legislation and their experience in
its implementation.
This chapter compiles the results and conclusions of
the in-country flying consultancies as well as the
 LARA PROJECT CRIMINAL LAW REFORM AGAINST TRAFFICKING IN HUMAN BEINGS

conclusions of the regional training workshop. The The full text of the proceedings of the Training sem-
relevant pieces of legislation that were reviewed and inar in drafting legislation for the protection of vic-
discussed among international and national experts tims and victim-witnesses of trafficking in human
are also enclosed in the appendices. beings are available in a separate report21.

21 See LARA (2003)42

56
 LARA PROJECT CRIMINAL LAW REFORM AGAINST TRAFFICKING IN HUMAN BEINGS
3.1 In-country flying consultancies
3.1.1 Albania: Expert opinion on the draft law on justice collaborators and witness protection
(draft working version, June 2003)
By Mrs Elisabetta Rosi, Judge at the Supreme Court, Rome (Italy)
General remarks
1. The Republic of Albanias draft law on protection
of witnesses and justice collaborators is in line with
Recommendation No. R (97) 13 of the Committee of
Ministers of the Council of Europe to member states
concerning intimidation of witnesses and with
Recommendation Rec (2001) 11 concerning guiding
principles on the fight against organised crime, in par-
ticular paragraph 17 of the Appendix.
2. The objective of the proposed legislation is to
afford protection both to witnesses in proceedings
regarding the commission of serious offences and per-
sons who, although parties to a crime, have decided to
collaborate with the judicial authorities, making a sig-
nificant contribution to trial proceedings or to the
fight against organised crime. State protection natu-
rally presupposes the existence of a serious, current
threat to such persons safety on account of the
importance of the information in their possession and
their willingness to testify.
3. The legislation attains its aims both at providing a
coherent definition of the conditions for granting
admission to the state protection programme and at
offering to those who were accessories to serious
crimes an incentive to collaborate, expressly provided
for in chapter 5 in the form of a reduction in a sen-
tence already imposed or leniency in future sentenc-
ing, in an attempt to sever the criminal pact linking
members of criminal organisations.
4. Consideration of the technical feasibility of the
scheme set up under the draft legislation naturally
solely from a technical point of view leads to a glob-
ally favorable verdict regarding the text, not least
from the points of view of distribution of the various
powers and responsibilities among the state agencies
to be set up to manage specific aspects of the protection
programme and of the procedure for deciding admis-
sion to the programme. The logical and functional
outcome of all the elements described is an efficient
scheme, ensuring sufficient guarantees of secrecy and
57
of protectees safety, together with good monitoring
arrangements that respect individual rights.
5. A number of changes can nonetheless be recom-
mended, some of which are merely technical improve-
ments, such as giving more details in the comments
on the individual articles, which I believe would clar-
ify the distinction between the various categories of
persons at whom the protection scheme is aimed, so as
to avoid any confusion of justice collaborators, wit-
nesses in the narrow sense and the families of the for-
mer or the latter.
6. The draft law is made up of the following six chap-
ters (with a total of 28 articles):
Chapter 1 General provisions
Chapter 2 Bodies responsible for the protection
of justice collaborators and witnesses
Chapter 3 Protection programmes
Chapter 4 Procedure for approving and imple-
menting the protection programmes
Chapter 5 Criminal-law provisions
Chapter 6 Final provisions
7. Provision is made for:
the conditions and/or requirements for activating
protection and the related decision-making proce-
dure;
the bodies responsible for the procedure to assess
whether a given person should be granted protec-
tion;
the state authorities which should enjoy powers of
initiative and administrative authority regarding
the protection programme;
the protection programmes rules and the conse-
quences of breaking these;
 LARA PROJECT CRIMINAL LAW REFORM AGAINST TRAFFICKING IN HUMAN BEINGS
criminal law penalties designed to safeguard the pro-
grammes effectiveness and provisions concerning
mitigation of penalties as an incentive to collaborate.
Comments on Chapter 1
8. As explained in Article 1 on the scope of the law,
the legislation institutes a protection scheme for per-
sons who, by reason of the information (knowledge of
facts, events and circumstances) have provided or
agreed to provide in criminal proceedings relating to
a serious crime (the wording used is similar to that of
paragraph 17 of the appendix to Recommendation
(2001) 11), are physically in danger or threatened with
loss of liberty. It should be pointed out that (as stated
in an earlier draft of the text, discussed at a meeting
in Tirana on 30 May 2003) the information in the pos-
session of an individual witness need not be deemed
important in itself, but could become so when taken
in conjunction with other evidence brought to light in
proceedings. It is accordingly a good thing that the
final wording of this article specifies that such infor-
mation is also considered relevant for the purposes
of activating the protection procedure in cases where
the above-mentioned dangers exist where it plays
an important role in the criminal proceedings.
9. As regards the definitions (Article 2), the text com-
municated is less clear than the draft examined on 30
May. The present draft defines protected persons
but, unlike the initial one, gives no separate definition
for each of the two categories justice collaborators
and witnesses. I recommend reintroducing brief defi-
nitions of these categories, which could be based on
part I of the appendix to the previously cited
Recommendation No. R (97) 13.
10. It is, however, a cause for satisfaction that the text
clearly indicates that the persons at whom the protec-
tion programme is aimed include family members,
and other persons living with witnesses, who are in
danger (a danger which the text qualifies as concrete,
actual and grave) because of their relationship with
them. The definition of a dangerous situation (sub-
paragraph b), which reiterates what has already been
said in Article 1, is also well drafted, as is the defini-
tion of a serious crime, which makes reference to the
jurisdiction of the court dealing with that category of
offence.
Comments on Chapter 2
11. This chapter allocates the various powers and
related responsibilities among the public authorities
running the protection scheme. The draft law elimi-
nates the uncertainties regarding responsibility for
administering the protection programme which were
present in the earlier draft discussed at the meeting in
May. Two bodies are established the Office for
Justice Collaborators and Witness Protection and the
58
Commission for Evaluating Protection Programmes
and their activities are outlined. The responsibilities
assigned to these bodies are well matched and, above
all, intended to guarantee the proper functioning of a
system which, given the Commissions high institu-
tional profile, is in any case designed to ensure that
the sensitive situations justifying implementation of
the protection programme receive special attention at
the highest levels of the state.
12. The Office for Justice Collaborators and Witness
Protection (Article 4) is set up as a special agency of
the state police, under the direct supervision of the
Director General of the State Police. Details of the
offices human resources, structure and functioning,
and also of funding aspects and the administration of
its budget, are left, as is logical (given that it is mere-
ly a matter of regulating the bodys functioning,) to
rules to be laid down at a later date by the Cabinet
(Council of Ministers) and to joint guidelines to be
agreed by the ministers responsible for public order,
finance and justice. Four main functions are assigned
to the office (Article 5):
a) an investigatory function regarding proposals
received from the public prosecution service con-
cerning implementation of the programme and
any additional information related to technical
aspects of the feasibility of protection itself; these
responsibilities are closely linked to the fact that
the office acts as technical secretariat for the
Evaluation Commission;
b) an autonomous function, which allows it to take
temporary protection measures pending a decision
by the Commission;
c) a managerial function regarding protection meas-
ures decided by the Commission, which primarily
consists in preparing the agreement between the
state and the protectee, which the latter must sign,
running the programme itself, including adminis-
tering the funds made available, and managing data
and information concerning protection programmes;
d) an external function: proposing measures to
coordinate its own activities with those of the
other state authorities concerned and to implement
the protection programmes; gathering basic infor-
mation needed for various forms of co-operation
with other bodies (international bodies or bodies of
other countries active in the field of protection for
justice collaborators and witnesses); drafting
reports and proposing possible changes in the law
to enhance the systems effectiveness.
13. The Commission for Evaluating Protection
Programmes (Article 6) is made up of the Deputy
Minister for Public Order, who chairs the Commission,
and six other members, who must hold senior mana-
gerial positions or be seasoned professionals (two
 LARA PROJECT CRIMINAL LAW REFORM AGAINST TRAFFICKING IN HUMAN BEINGS
judges appointed by the Judicial Service Commission
(High Council of Justice), two public prosecutors
appointed by the Prosecutor General, two police offi-
cers appointed by the Director General of the State
Police). They hold office for a one-year term, which is
renewable. The provisions governing meetings of the
Commission (Article 7) can be deemed satisfactory
since they include the basic rules on decision-making
(a majority of the members present is required, with a
quorum of at least five out of seven) and impose a
maximum time-limit on the decision-making process,
necessary to prevent temporary protection measures
from lasting too long and also to avoid delays in judi-
cial, including criminal, proceedings.
Comments on Chapter 3
14. This chapter lays down the conditions for admis-
sion to a protection programme. It is a cause for sat-
isfaction that a clear distinction is drawn between the
programme for the protection of witnesses and that
for justice collaborators, since these two categories
must, as already pointed out in the comments on
Chapter 1, always be kept quite separate in view of
their different roles in trial proceedings.
15. The heading of Article 9 refers to witnesses, which
is probably a drafting error, since the programme for
witnesses was already described in Article 8. This ref-
erence should be deleted, since it is clear that the pro-
visions relate solely to the protection programme for
justice collaborators.
16. The criteria for granting protection (evidential
value of the testimony or its usefulness in preventing
serious crime or reducing damage caused by offences
already perpetrated and existence of a situation of
danger) appear technically sound. It is also to be
appreciated that provision is made for admitting fam-
ily members or persons living with witnesses to the
programme, where they are also endangered. Article 9
is moreover well drafted.
17. The draft law goes on to stipulate means of protec-
tion, identifying thirteen measures which fully cover
the different requirements that may arise in practice.
It leaves the specifics of their implementation to be
determined by the Council of Ministers in subsequent
regulations, since these are strictly operational
aspects. The provisions on responsibility for imple-
menting the protection programme and on keeping
programme documentation (Articles 11 and 12) elabo-
rate on the description of the responsibilities of the
Office for Justice Collaborators and Witness
Protection given in Article 5.
Comments on Chapter 4
18. This chapter constitutes the core of the draft law
in that it governs the procedure for admission to the
59
programme and the rules for activating and terminat-
ing protection. It can be broken down into four parts:
a) The protection proposal and temporary protec-
tion measures (Articles 13, 14 and 15). Proposing
that protection be granted is rightly a matter for
the public prosecutor dealing with a case, although
the head prosecutor or the Prosecutor General are
also empowered to lodge a protection request.
Similar powers are naturally conferred regarding
modification, termination or withdrawal of protec-
tion. The supporting documentation that must
accompany the proposal is also described in full.
The legislation moreover permits prosecutors to
ask the Office for Protection to gather additional
information, suitable for inclusion in the file for
examination by the Commission with a view to the
protection decision, or request the adoption of
temporary protection measures in cases where the
protectee is in a situation of extreme danger,
necessitating immediate action.
b) The agreement with the protectee (Articles 16 and
17). Provision is made for the signature of a gen-
uine mutual undertaking by the protectee and the
Office for Protection required to run the pro-
gramme. The fact that the public prosecutor may
also help to draft the agreement is to be welcomed
in particular. The Office (and hence the state) acti-
vates protection, as specified in the agreement,
once the protectee has been admitted by the
Commission for Evaluation. The protectee under-
takes not only to give information in connection
with the criminal proceedings (the relevance of
such information, combined with the danger to the
protectees person, constituted the ground for the
measure), but also to accept the protection meas-
ures taken and to refrain from doing anything
which might jeopardise the running of the pro-
gramme. The protectee also agrees to inform the
Office for Protection of any changes in lifestyle or
interpersonal relations which might affect the run-
ning of the programme. All these mutual obliga-
tions are set out in full in the draft law, while more
detailed procedural rules are left to the future
guidelines to be issued by the relevant ministers. It
is highly appropriate that paragraph 3 of Article 17
requires justice collaborators to declare their assets
so as to guard against possible exploitation of the
system for pecuniary reasons.
c) Modification and termination of the programme
(Articles 18, 19 and 20). No particular comments
need be made regarding the provisions on extraor-
dinary protective measures and withdrawal or
modification of the programme (rightly linked to
breaches of the agreement, commission of offences
by the protectee or false testimony by the latter) or
termination of the programme at the protectees
own request.
 LARA PROJECT CRIMINAL LAW REFORM AGAINST TRAFFICKING IN HUMAN BEINGS
d) Appeals against the Commissions decisions
regarding protection measures (Article 22). The
public prosecutor and the protectee are rightly
granted a right of appeal against decisions by the
Commission for Evaluation concerning the adop-
tion, modification or withdrawal of protection
measures. Appeals must be lodged within a short
time-limit (5 days) with the Court of Appeal for
Serious Crimes. This constitutes a guarantee of the
fundamental right to protection from physical
harm, which could be irremediably infringed by a
Commission decision.
Comments on Chapter 5
19. The provisions set out in Chapter 5 serve two
objectives.
20. Firstly, the intention is to safeguard persons sub-
ject to a protection programme because they are in
danger by introducing criminal penalties for conduct,
by anyone at all, which reveals information on the
protected lives of justice collaborators or witnesses,
thereby placing them in the very danger which the
protection afforded by the state is intended to avoid.
Article 25 makes it a criminal offence to reveal infor-
mation placing the lives and health of protectees at
risk and provides for a more severe penalty where the
disclosure originates from a person bound by a duty
of confidentiality and responsible for keeping the
information secret. A further aggravating circum-
stance is provided for where the protectee dies as a
result of the disclosure. I propose that the provisions
60
introducing this hypothetical offence should come first
in the chapter, since they are in fact closely linked to
safeguarding the objectives of the protection system.
21. Conversely, the other two Articles, headed
Reducing the sentence for protected persons and
Review of the decision (Articles 23 and 24), solely
concern justice collaborators and accordingly consti-
tute a sub-section within the chapter on criminal-law
provisions, which should hence be placed after the
article already discussed on The prohibition of pro-
viding information.
22. Provision is made for a reduction in the severity of
penalties in the case of collaborators, including those
who have already been finally sentenced for the
offence perpetrated, allowing of review of the sen-
tencing decision. The provisions are precisely worded.
The heading of the first article should be corrected to
read Reducing the sentence for justice collaborators,
again to avoid any confusion between the two cate-
gories of protectees, which must remain separated
because of their different roles in trial proceedings.
Comments on Chapter 6
23. No particular comments are called for regarding
the Final provisions, which appropriately not only
set a time-limit for introduction of the relevant
detailed rules and regulations, but also recognise the
need for inter-institutional co-operation to ensure
optimum implementation of the protection system
which the Republic of Albania is preparing to intro-
duce under this proposed institutional law.
 LARA PROJECT CRIMINAL LAW REFORM AGAINST TRAFFICKING IN HUMAN BEINGS
3.1.2 Final Conclusions of the Workshop on Criminal Law Reform in Montenegro : Procedural and
Substantive Aspects of the Fight against Trafficking in Human Beings (Podgorica, Serbia and
Montenegro, 23-24 June 2003)
The following comments on the Montenegrin draft
Criminal Code and draft Criminal Procedure Code
were drafted in preparation for the above-mentioned
workshop and also take some aspects of the discussion
during the above-mentioned workshop into consider-
ation.
The comments focus on the areas of incrimination and
definition of trafficking, victims rights in criminal
proceedings, witness protection (prepared by Angelika
Kartusch), seizure of property gains and special inves-
tigative means in criminal proceedings (prepared by
Erin McKey).
3.1.2.1 Comments on the draft Criminal Code: arti-
cles 442 444
Definition and incrimination of trafficking in human beings
Trafficking in human beings (Article 442)
1. Article 442 of the draft Criminal Code establishes
a distinct offence of trafficking in human beings. The
definition consists of means, acts and purposes,
applying the structure of the model established under
the Protocol to Prevent, Suppress and Punish
Trafficking in Persons, Especially Women and
Children, Supplementing the United Nations
Convention Against Transnational Organised Crime
(hereafter: the UN Protocol). At a positive note, the
definition of trafficking is comparably broad in terms
of the sex of victims (covering women, men, girls and
boys) of the purpose (no restriction to trafficking into
the sex industry).
Acts
2. The definition includes the UN Protocol acts of
recruiting, transporting, and transferring. The act of
hiding may be interpreted to correspond to the UN
Protocol term harbouring.
3. The term hand over at least as far as the
English translation is regarded seems to be a repeti-
tion of transfer and could therefore be deleted.
4. The definition mentions two acts that are not
included in the UN Protocol definition, selling and
buying. It is recommended to the working group to
assess if the act of selling is already covered by the
term transferring. If yes, it could be deleted.
5. Article 442 does not cover the Protocol term
receiving. Consequently, an employer of a traf-
ficked person, who does not hide her/him or did not
buy her/him from another person, would not be cov-
ered by the definition. Adding the element of receiv-
ing would not only improve the definitions scope and
61
its compliance with the Protocol standard, but also
have the advantage that it would cover the act of
buying, which could consequently be deleted.
6. The meaning of the term keeping is unclear, pos-
sibly due to a translation problem. It could mean
receiving in this case, the previous recommenda-
tion to introduce the term receive is obsolete. If the
term has another meaning, the working group should
assess, if it the act of keeping is already covered by
the terms receiving or hiding and could therefore
be deleted.
Means
7. The means of force or threat does not exactly
reflect the UN Protocol wording the use or threat of
force or other forms of coercion. The Protocol lan-
guage implies that (physical) force and other (non-
physical) forms of coercion might be used. Force is
thus regarded a manifestation of the overall term of
coercion, the latter including physical, but for exam-
ple also psychological violence. Further, the Protocol
includes not only the actual use, but also the mere
threat of such force or coercion. From the wording of
Article 442 (force), however, it is not clear, if non-
physical coercion is also included. Further, the term
threat is not clarified and might therefore be inter-
preted in too broad terms, encompassing not only
threats to use coercion, as foreseen in the Protocol,
but also threats to cause, for example, a financial dis-
advantage. Again, this discrepancy might be a trans-
lation problem. In any case, the working group should
assess the precise meaning of the terms force and
threat and ensure that the Protocol requirements are
met.
8. The term deceit or keeping in delusion seems to
be in line with the Protocol wording deception. This
language specifies that not only the person who
caused the error, but also the person who maintains
the error on the part of the victim is encompassed.
9. The Protocol element abuse of power or of a posi-
tion of vulnerability is roughly reflected by the
expression abuse of authority, trust, relationship of
dependency, difficult position of another person.
The term abuse of authority may be interpreted
in line with the Protocol term abuse of power.
The term difficult position is vague and likely to
encompass a very broad range of conditions, for
example also persons who are sick, stressed, or not
very happy with their job or a personal relation-
ship.
 LARA PROJECT CRIMINAL LAW REFORM AGAINST TRAFFICKING IN HUMAN BEINGS
It is however unlikely that the Protocol intends to
cover all these circumstances. Instead, the inter-
pretative notes to the Protocol specify that a posi-
tion of vulnerability is a situation in which the
victim has no real and acceptable alternative but
to submit to the abuse involved22. Unless there is
only a translation problem, it is therefore recom-
mended to replace the term abuse of a difficult
position by abuse of a position of vulnerability.
The latter term may also be interpreted to include
abuse of a relationship of dependency and
abuse of trust. Consequently, this enumeration
could be restricted to the expression abuse of a
position of vulnerability, and the means of abuse
relationship of dependency and abuse of trust
could be deleted. Optionally, the law could also
specify that abuse of a position of vulnerability
is to be interpreted to include abuse of a relation-
ship of dependency and abuse of trust.
10. The UN Protocol means of giving or receiving
payments to achieve the consent of a person having
control over another person is missing. Although
similar language is used in Article 444 (submission to
slavery and transportation of enslaved persons), it
should be noted that the latter provision refers only to
the purposes of slavery and slavery-like practices,
whereas other purposes, that might not reach the
threshold of a slavery-like practice are not covered. It
is recommended that this gap is closed, especially
when taking into account that the Protocol requires
State parties to criminalise a combination of all ele-
ments, acts, means and purposes.
Purposes
11. The forms of exploitation should be established as
a non-exhaustive list. This approach, which was also
adopted by the UN Protocol, allows for flexibility on
the part of the judiciary to adapt the definition
according to new criminal trends.
12. The definition elements of prostitution and
pornographic use are part of the Protocol purpose of
sexual exploitation. Although neither the Protocol
nor any other international legally binding instrument
provide for a definition of sexual exploitation, it may
be doubted if it is advisable to base this term on such
a narrow understanding. Sexual exploitation might
also take place in other areas of the commercialised
sex industry, such as striptease dancing, or involve
acts of a non-commercial nature, such as the rape of
a woman who was trafficked for the purposes of
domestic work or faked marriage, by her employer or
22 Report of the Ad Hoc Committee on the Elaboration of a Convention against Transnational Organised Crime on the work of its first to
eleventh sessions. Addendum, Interpretative notes for the official records (travaux prparatoires) of the negotiations of the United
Nations Convention against Transnational Organised Crime and the Protocols thereto, A/55/383/Add.1, 3 November 2000, 63.
23 For a definition of forced labour please refer to the ILO Convention Concerning Forced Labour No. 29, Article 2 paragraph 1. Servitude
is not defined under international law, but Article 1 of the UN Supplementary Slavery Convention of 1956 defines serfdom and enu-
merates it as a form of slavery like practices.
62
husband. It is thus recommended to the working
group to ensure that these purposes are also included.
This could be done for example by introducing the
term of sexual exploitation and specifying that it shall
include prostitution, pornography, striptease dancing
and single sexual acts without a commercial purpose.
Such a non-exhaustive enumeration would also have
the advantage to enable courts to develop judicial
practice on the interpretation of this term and to
include other forms in the future.
13. Taking away a body part is broader than the
Protocol term removal of organs, because it includes
not only organs, but also other parts of the body, such
as limbs. This is, however, in line with the Protocol,
which establishes a non-exhaustive list of exploitative
purposes, allowing states thus to add further forms of
exploitation.
14. The same is true for the purposes of begging and
the use of armed conflicts.
15. The meaning of term exploitation of work is
ambiguous and seems to lack conceptual clarification.
It is not known to the author if a legal definition
exists under Montenegrin criminal law or in court
practice. This term might encompass a range of cir-
cumstances that are not intended to be covered by the
Protocol, such as, to give an example, employing a
person for 3 ?/hour, whereas the legally guaranteed
minimum wage is 4 ?/hour, whereas the person is free
to come and go and does not suffer any form of coer-
cion. The author does not suggest that such activities
should remain unpunished, but recommends that such
incrimination should not take place in the context of
the offence of trafficking. Trafficking focuses, among
others, on the conditions of forced labour or services
and servitude, which pose a much higher threshold
than mere exploitation of work. Consequently, it is
recommended to the working group to replace the
term of exploitation of work by the terms of forced
labour or services and servitude.23
16. The present draft of Article 442 does not require an
element of gain of financial or other nature. The
working group discussed if such a requirement should
be introduced. In the eyes of the author, it is prefer-
able not to introduce this element. Otherwise, acts of
trafficking where no gain was pursued (such as traf-
ficking in mail-order-brides who are exploited in
domestic and sexual slavery by their husbands), or
where no gain can be proven, would be excluded from
incrimination. This is also in line with the Protocol
definition, which does not include an element of gain.
 LARA PROJECT CRIMINAL LAW REFORM AGAINST TRAFFICKING IN HUMAN BEINGS
The draft however enumerates gain as a possible
form of exploitation. This purpose seems to be very
broad, compared to the overall purpose of exploita-
tion. Furthermore, each act of trafficking for the pur-
pose of gain will most likely fulfil another criterion
of exploitation. Therefore, it is recommended to the
working group to delete the element of gain from
the basic offence. Instead, it could be transformed into
an aggravating circumstance. If the working group
decides to keep this element, as part of either the basic
offence or an aggravating circumstance, it is recom-
mended to specify the meaning and scope of this term
(e.g. which kind of gain is included), unless this has
already been done under legislation or court practice
(which is not known to the author).
17. The Protocol purposes of slavery and practices
similar to slavery are missing. Whereas these purpos-
es are covered under Article 444, it should be noted
that the latter provision is relatively narrow in terms
of acts and means, compared to the Protocol defini-
tion (see below). The Protocol however obliges states
to ensure that each act in combination with each
means and each purpose are criminalised. This gap
should be closed either by adding slavery and slavery-
like practices to the means in Article 442, or by
amending Article 444 (see below, point 1.1.3).
Elements of the crime
18. According to the UN Protocol, the necessary ele-
ments of the offence of trafficking consist of certain
acts, means and purposes. However, if the victim is
younger than 18 years old, the Protocol states that
none of the coercive means need to be proven for an
act to constitute trafficking; thus, an act and a pur-
pose are sufficient. Article 442 paragraph 3 comes
close to this standard, but refers only to victims who
are younger than 14 years old, whereas persons
between 14 and 18 years are excluded. Therefore,
paragraph 3 fails to implement this Protocol obliga-
tion to apply a less strict standard of prove for all vic-
tims under the age of 18. In order to fully comply with
the Protocol requirements (Articles 3 and 5), it is rec-
ommended to replace the phrase a person who is not
yet 14 with a person who is not yet 18. This
approach would also be in line with Article 442 para-
graph 2, which provides for a stricter penalty if the
victim is younger than 18 years old.
Aggravating circumstances
19. Paragraphs 2 and 4 establish aggravating circum-
stances to the basic offence as defined in paragraph 1.
20. According to paragraph 2, the penalty shall range
between 3 and 20 years, if the victim is a juvenile.
According to Article 140 paragraph 9, a juvenile is a
person between 14 and 18 years old. In the strict sense
of the word, paragraph 2 would give higher protection
only to persons between 14 and 18, but not to persons
63
younger than 14 years. This consequence is certainly
contrary to the intention of the law to provide special
protection to victims who are particularly vulnerable
because of their young age. This ambiguity might
result from a translation problem. In any case it is rec-
ommended to the working group to ensure that all
victims under the age of 18 are encompassed by the
scope of Article 442 paragraph 2.
21. Paragraph 3 establishes a penalty of 5 to 20 years
imprisonment for certain forms of participation in
trafficking. The meaning of interfering with commit-
ting the crime is unclear, because interfering means
disturbing or disrupting something and therefore is
the opposite of supporting the crime of trafficking.
Again, this might be a translation problem.
22. This provision also establishes participation in the
organized commission of trafficking as an aggravat-
ing circumstance. This approach, compared to making
the element part of the basic offence, is positive,
because it enables authorities to prosecute such traf-
ficking cases, where no organized element was
involved or where it could not be proven.
23. The recent Criminal Code of 2002 establishes addi-
tional aggravating circumstances relating to the
degree of harm inflicted upon the victim (serious
physical injury or death), which cannot be found in
the present draft anymore. It is recommended to add
these circumstances to the present draft and to con-
sider additional aggravating circumstances, such as
the involvement of public officials.
Position of Article 442 in the draft Criminal Code
24. Article 442 of the draft Criminal Code is part of
chapter 35, crimes against humanity and rights guar-
anteed under international law. According to the dis-
cussions held in Podgorica, the working group is con-
sidering whether to keep the position of this provision
or to define it as a crime against dignity or a sexual
offence. The latter option does not seem recommend-
able, because trafficking not always involves sexual
acts or sexual violence. Instead, the present position
should be kept. Under this option, the offence of traf-
ficking would remain encompassed by Article 238
paragraph 2 of the draft Criminal Procedure Code,
which enumerates crimes against humanity and other
values protected by international law as offences to
which courts may apply special investigative means as
defined in Article 237.
Trafficking in children for adoption (Article 443)
25. The purpose of adoption is not covered by the UN
Protocol, but it is up to the states to add additional
purposes. Furthermore, the Optional Protocol to the
Convention on the Rights of the Child on the sale of
children, child prostitution and child pornography, to
which Serbia and Montenegro has become a state
party in October 2002, requires state parties to
 LARA PROJECT CRIMINAL LAW REFORM AGAINST TRAFFICKING IN HUMAN BEINGS
criminalise trafficking in children for the purpose of
illegal adoptions.
26. The requirement of a contravention of current reg-
ulations should be clarified: Paragraph 1 requires this
element only for the act of abduction, which does not
seem necessary here, because it is assumed that
abduction is always unlawful. On the other hand, the
element of unlawfulness does not refer to the acts of
transporting, or providing accommodation, which
would be necessary to distinguish such acts in the
context of trafficking from legitimate adoptions. This
should be clarified, unless it is only a translation
problem.
27. This provision encompasses persons under the age
of 14. The above-mentioned Optional Protocol to the
Child Rights Convention however requires states to
criminalise trafficking in children for the purpose of
illegal adoptions by defining the victims of this
offence as persons under the age of 18. This gap
should be closed by changing the wording of para-
graph 1 who has not reached 14 into who has not
reached 18.
Submission to slavery and transportation of enslaved
persons
28. Article 444 paragraph 1 criminalises several acts
relating to the enslavement of persons. As previously
mentioned, Article 442 does not include the purposes
of slavery and slavery-like practices, which are ele-
ments of the Protocol definition. Therefore, it has to
be assessed if Article 444 sufficiently covers the com-
ponent of trafficking for the purpose of slavery or
slavery-like practices.
29. The exact meaning of the requirement of violation
of international law is not entirely clear, taking into
account the fact that slavery or slavery-like practices
already constitute a violation of international human
rights law. The working group should, in order to
facilitate the application of the law by judges and
prosecutors, clarify the meaning of this term, and if
necessary delete it.
30. Except for one element (inducing another person
to sell her/his own freedom or the freedom of persons
she/he supports or looks after, which largely reflects
the Protocol means giving or receiving of payments
to achieve the consent of a person having control over
another person), all other means enumerated in the
Protocol (such as the threat or use of force or other
forms of coercion, deception, etc.) are missing.
31. The act of recruitment is not covered in Article
444. One might argue that it is covered under the term
of mediating in the buying, selling or handing over.
However, not all acts of trafficking involve the
exchange of money or an element of physical control,
64
as suggested by the term handing over. This gap
needs to be closed.
32. The wording of paragraph 1 suggests that, except
for the act of forcing, which covers the process of
enslaving (bringing a person into slavery or slavery-
like status), all other acts refer to a person who is
already enslaved. This might exclude a number of
cases from prosecution, such as the person transport-
ing the victim to the destination country, and should
be clarified and, if necessary, amended.
33. According to Article 444 paragraph 3, the penalty
shall range between 5 and 15 years, if the victim is a
juvenile. According to Article 140 paragraph 9, a
juvenile is a person between 14 and 18 years old. In
the strict sense of the word, paragraph 3 would give
higher protection only to persons between 14 and 18,
but not to persons younger than 14 years. This conse-
quence is certainly contrary to the intention of the law
to provide special protection to victims who are par-
ticularly vulnerable because of their young age.
Unless this is due only to a translation problem, it is
recommended to the working group to ensure that all
victims under the age of 18 are encompassed by the
scope of Article 444 paragraph 3.
Other relevant offences
34. The draft Criminal Code includes a wide range of
offences, which can be additionally invoked, if a traf-
ficker has committed, with one or more acts, more
than one offence (combination of criminal acts), for
example, trafficking and illicit crossing of the state
border. In such a case, the court shall combine the
separate punishments and impose one integrated pun-
ishment (compounded sentence) for all these acts
(Article 46). Further, if it is not possible to prove the
necessary elements of trafficking, the accused could
instead be prosecuted for one or more of these enu-
merated offences (for example falsifying official doc-
uments and bribery).
35. An analysis of all relevant offences would go
beyond the scope of the present report. One particular
provision, however, that was discussed in the work-
shop, is Article 209 (mediation in prostitution). Some
participants argued that all the acts enumerated in
Article 209 paragraph 3, which establishes the use of
force, threat or deceit as aggravating circumstances,
were covered by the broader definition of trafficking
in Article 442 and could therefore be deleted from the
text. The author in principal agrees with this analysis
and recommends the working group to discuss this
complex question in further detail, by taking both the
advantages and disadvantages of either option into
consideration.
 LARA PROJECT CRIMINAL LAW REFORM AGAINST TRAFFICKING IN HUMAN BEINGS

Non-incrimination of trafficked persons offences) and 4 (criminal organisation offences)

36. Another offence related to trafficking is Article
403 (illegal crossing of state borders). It should be
noted, however, that this provision provides a legal
basis for the prosecution not only of traffickers, but
also of victims, who often enter the transit or destina-
tion country without necessary permits and documen-
tation. Such a provision, if applied to prosecute traf-
ficked persons, constitutes an obstacle to realize their
right to legal redress, assistance and protection. It also
reduces the chance of victims cooperating with
national authorities. Therefore, it is essential to ensure
that the authorities treat trafficked persons as victims,
and not as perpetrators, as it was also stressed by a
member of the working group during the discussions
in the Podgorica workshop. The working group should
thus consider an exemption of victims from prosecu-
tion for offences related to their status as trafficked
persons, such as illegal border crossing or prostitution,
which constitutes a petty offence. Such a clause could
be inserted into Article 442, or as second best option,
promulgated in a decree. For example, UNMIK
Regulation No. 2001/4 on the Prohibition of Traffick-
ing in Persons in Kosovo states that a person is not
criminally responsible for prostitution or illegal entry,
presence or work in Kosovo if that person provides
evidence that supports a reasonable belief that he or
she was the victim of trafficking (Section 8).24
Seizure and confiscation of property gains
37. Confiscation was briefly discussed. At the outset,
the Chair of the Working Group gave a brief explana-
tion of Articles 110 and 111. He subsequently noted
that Article 73 dealing with Confiscation of Objects
was also relevant.
38. Following this explanation, the obligations
imposed by the United Nations Convention Against
Transnational Organised Crime (hereinafter: the
Convention) and its Protocol were highlighted and
some general comments were made. In particular, the
following aspects were highlighted:
The requirements of the Convention and its
Protocol concerning the seizure, confiscation and
disposal of proceeds of crime and crime related
property are set out in Articles 12-14 of the
Convention. Article 37(4) of the Convention and
Articles 1(2) and (3) of the UN Protocol make it
clear that these obligations cover both the
Convention offences described in Articles 3 (serious
and UN Protocol offences.
Importantly, in addition to traditional proceeds
derived from crimes set out in the Convention and
Protocol, the obligations in Articles 12 and 13
apply equally to proceeds and other property used
or intended for use in such offences. The obliga-
tions also apply to proceeds and other
property/instrumentalities after conversion, inter-
mingling and transformation.
To assist in the identification and tracing of assets,
necessary pre-requisites to restraint and confisca-
tion, Article 12 also includes requirements to
empower competent authorities to order access to
banking, financial or commercial records. It also
imposes an obligation to have measures in place to
enable to freezing/seizure/restraint of any item
covered by Article 12(1) of the Convention. To
maximise the effectiveness of investigations relat-
ed to proceeds of crime and other crime related
property, Article 12 expressly provides parties can-
not shelter from the obligations imposed by the
Convention by raising banking secrecy.
In short, as is evident from the foregoing, the obli-
gation in the Convention and its Protocols to take
action in relation to the proceeds of crime and
other crime related property is more than a simple
obligation to confiscate. Rather Articles 12-14
envision a comprehensive regime that allows for
the identification, tracing, restraint and confisca-
tion of proceeds of crime and other crime related
property and includes obligations to provide inter-
national assistance to the greatest extent possible
to international partners all while respecting the
rights of bona fide third parties.
Consideration should be given to reviewing
Articles 73, 110 and 111 together to determine if
they cover off all the obligations of the
Convention and its Protocol including obligations
to have a mechanism in place for obtaining the
records necessary to properly investigate and
locate proceeds of crime and other crime related
property. Particular care should also be taken to
ensure that 73, 110 and 111 cover all the necessary
offences. Finally, there appears to be some overlap
between 110(1) and 73(1) to the extent that both
provisions might be interpreted as addressing

24 This clause should however not be understood to shift the burden of proof to the victim: [T]he police as well as the public prosecutor
have the obligation to search for and provide (...) evidence [of the fact that the accused person is a victim of trafficking]. Further, even
the acquittal of the perpetrators, e.g. because of lack of evidence of their personal involvement, or the fact that there was no charge or
prosecution against them, does not necessarily exclude the application of this clause. In such cases, the court dealing with criminal
charges against the victim still has to decide if the evidence provided by the victim supports a reasonable belief that he or she was the
victim of trafficking. (...) The standard for this question is not as high as it would be to convict somebody of the crime of trafficking
because only a reasonable belief is required. Source: Kosovo Judicial Institute, Comments on Regulation No. 2001/4 on the Prohibition
of Trafficking in Persons in Kosovo, 2002, pp 15, 16.

65
 LARA PROJECT CRIMINAL LAW REFORM AGAINST TRAFFICKING IN HUMAN BEINGS
objects gained through the commission of a crim-
inal offence.
3.1.2.2 Comments on the draft Criminal Procedure
Code
Position of victims in criminal proceedings
General remarks: scope of beneficiaries
39. An important aspect of the status of victims and
their rights in criminal proceedings which was also
addressed in the workshop is the scope of beneficiar-
ies, in particular the questions if specific categories of
rights for certain victims, such as victims of traffick-
ing, are necessary, or if it is sufficient to give all vic-
tims of crime the same rights. It is obvious that draft-
ing special rights for victims of each crime, including
trafficking, would lead to enormous practical and leg-
islative difficulties and is therefore not desirable nor
necessary. Certain categories of victims, however, do
have specific needs for example as a consequence of
the degree of violence suffered which should be
addressed specifically in the criminal process.
Therefore, it might be advisable to provide certain cat-
egories of victims with special rights, such as victims
of sexual or physical violence, which could also be
relevant for victims of trafficking. This is especially
important with regard to the sensitive treatment of
particularly vulnerable victims.
Information
40. Access to information is crucial for victims of
crime. Only if a person is aware of her/his rights,
she/he is in a position to exercise these rights.
41. The draft Criminal Procedure Code establishes sev-
eral obligations of the court to provide information to
victims. To give a few examples, judges shall inform
victims about their right to claim compensation
(Articles 102, 209 and 325), the right to be exempted
from the duty to testify (Article 97), or their right to
read the record (Article 183).
42. Additionally, it is recommended to the working
group to ensure that the Criminal Procedure Code
obliges judges to provide victims with information
about all relevant rights relating to their participation
in criminal proceedings, in particular with regard to
the right to legal representation (Article 64), the right
to refuse to answer particular questions (Article 99)
and the right to have access to in-court witness pro-
tection mechanisms (Articles 108-111).
Sensitive treatment and protection of privacy
43. Victims of crime need to be protected not from
only threats to their physical security (see below, sec-
tion 3.2), but also from potential retraumatisation and
violations of their private sphere. Such violations are
likely to occur through repeated questioning by the
66
authorities, intimidating questions and comments by
the accused aiming to cast doubt about the victims
credibility, and giving testimonies about personal
details in front of the general public and the media.
44. The current draft law includes a number of provi-
sions aiming to avoid retraumatisation and violations
of the private sphere of the victim, such as exempting
certain witnesses from the duty to testify (Article 97)
or to answer certain questions violating the witness
private sphere (Article 99), exclusion of the public
from the trial or parts of the trial, if necessary to pro-
tect (i.a.) the confidentiality of information, the inter-
ests of a minor or the victims personal or family life
(Article 300), a court obligation to protect the honor
of participants from insult, threat or other assault
(Article 306), removal of the accused from the court
room if she/he insults participants or if the witness
refuses to testify or would not tell the truth in her/his
presence (Article 332), or the closure of the hearing to
the public during the examination of a minor witness
(Article 336).
45. Suggestions for improvement include the follow-
ing:
46. The Criminal Procedure Code should grant victims
the rights to be accompanied by a trustee. The court
should be obliged to inform victims of this right.
47. Victims of sexual violence should be given the
right to request being interviewed by a police officer
or judge of the same sex. Again, the court should be
obliged to inform victims of this right.
48. Article 97 exempts family members of the defen-
dant and minors who are, due to their age and men-
tal development, unable to understand the meaning of
this right, from the duty to testify. It is recommended
to add other vulnerable categories of witnesses, such
as victims of sexual offences or serious violent crimes,
which would also include certain victims of traffick-
ing. Such a provision exists for example under
Austrian criminal procedural law: victims of sexual
violence (including for example also victims of traf-
ficking) are exempted from their duty to testify, if they
have been examined by the investigating judge in the
presence of the defendant and the defence counsel.
The recording of the interview may be used for the
main trial. The requirement of prior examination aims
to create a balance between the interests of the victim,
the rights of the defence and the interests of the state
to collect evidence.
49. According to Article 99, victims may refuse to
answer particular questions, if it is likely that the
answer would cause serious disgrace, considerable
material damage or criminal prosecution. Further
exemptions from the obligation to answer particular
questions should be taken into consideration for partic-
ularly vulnerable categories of victim-witnesses. For
 LARA PROJECT CRIMINAL LAW REFORM AGAINST TRAFFICKING IN HUMAN BEINGS

example, victims of sexual violence should be allowed
to refuse to answer questions touching their personal or
intimate sphere or relating details of the offence they
cannot reasonably be expected to tell, as for instance
provided under Austrian criminal procedural law.25
50. Another possible measure, if compatible with the
national legal system, is the use of television links to
spare the victim-witness the confrontation with the
defendant. For example in Austria, victims of crime
under the age of 14 and all victims of sexual violence
have the right to testify in a separate room before the
judge, while the prosecutor, the defendant and the
defence counsel are watching the transmission from a
separate room and can ask questions to the witness.
For other witnesses, the decision whether to use this
technique lies within the discretionary power of the
judge. Television links may be applied by the investi-
gating judge in the pre-trial phase26 or by the trial
judge during the main hearing.
51. Article 336 allows for the closure of the hearing to
the public during the examination of a minor witness.
It is recommended to give this possibility also to vic-
tims of sexual violence.
52. Articles 300 and 336 provide for the exceptional
exclusion of the general public (including the media)
from the hearing. Additional measures to strengthen
the privacy of the victim could include a general ban
on taking pictures or film recording by media during
the main hearing, as for example stipulated by
Austrian legislation.27 Ideally, such protection would
additionally encompass situations where the victim is
waiting before or after the hearing.
Legal representation
53. According to Article 64, victims (injured person)
may exercise their procedural rights through legal
representatives. Article 227 paragraph 6 defines an
injured person as person whose personal or property
right has been infringed or jeopardized by the crimi-
nal offence. The definition of this term and its sys-
temic position in the law suggest that the right to
legal representation is not restricted to the victims
position as a private prosecutor or subsidiary prosecu-
tor, but is granted to any victim, including for example
the victim raising a claim for compensation, or, as far
as appropriate, the victim-witness. Victim lawyers
assist their clients in exercising their procedural rights
and prepare them for the criminal proceedings, there-
by reducing the chance of the victims retraumatisa-
tion and increasing the chance of sound and coherent
witness statements which contribute to the successful
prosecution of traffickers. According to a recent study
on victim protection in 10 countries in Africa,
America, Asia and Europe, there is a clear connection
between the victims access to legal representation
and the successful outcome of the case in terms of
prosecution and protection of the victims rights.28
54. Although this provision is an important step into
the right direction, it should be kept in mind that in
practice victims have this possibility only if they can
afford to pay for a lawyer. Unless a victim has the sta-
tus is a private prosecutor, there is no obligation of the
state nor of the convicted perpetrator to pay for the
costs of the victims legal representation:
Fees and expenses for legal representatives of vic-
tims are not covered by the obligation of the defen-
dant found guilty to pay the costs of proceedings:
they have to be paid by the victims themselves
(Article 199 paragraph 8, Article 202 paragraph 1
read together with Article 204 paragraph 1). The
latter Article does provide for an exception from
this rule: if provided by the law, certain fees and
expenses enumerated in Article 204 paragraph 1
have to be paid from budget funds. However, chap-
ter XIV does not include such a possibility for
injured persons. Article 204 paragraph 1 further
provides for budget-funded legal representation if
the payment of fees and expenses for legal represen-
tation would imperil the support of the subsidiary
prosecutor or the defendant, or of persons they are
obliged to support. Again, however, injured persons
do not fall under the scope of this provision.
Victims do not even have the possibility to have the
costs advanced from the official budget, as it is for
example provided for costs of the representative of
the defendant or the subsidiary prosecutor (Arti-
cle 199 paragraph 4, which refers only to para-
graphs 1-6, but not to 8 ,where the victims repre-
sentative is mentioned).

25 Section 153 of the Austrian Criminal Procedural Code states [translation by the author]: (2) A person who has been violated in her/his
sexual sphere by a criminal offence, may refuse to answer questions on circumstances relating to her/his essential personal sphere, as
well as questions on details on the criminal offence which she/he finds unreasonable to share. Paragraph 1 is applicable. [According to
paragraph 1, the court may insist on the witness to give testimony, if this is required by the great importance of the witness statement.
(3) As soon as grounds for the possibility to refuse testimony according to paragraphs 1 or 2 turn out, the investigating judge shall
inform the witness of this possibility.
26 As a rule, the investigating judge interviews the witness without presence of the defendant. If it can however be expected that the wit-
ness cannot be interviewed in the main trial due to factual (e.g. sickness) or legal reasons (e.g. right to refuse testimony), the defendant,
the prosecutor and the defence counsel may participate in the questioning of the witness.
27 Section 228 of the Austrian Criminal Procedural Code states [translation by the author]: (1) The main hearing is public, otherwise it is
void. (...) (4) Television and radio recordings and transmissions as well as film recordings and photos of court trials are prohibited.
28 Anti-Slavery International, Human Traffic, Human Rights: Redefining Victim Protection, 2002, p 4 (download at http://www.antislavery.
org/homepage/antislavery/trafficking.htm).

67
 LARA PROJECT CRIMINAL LAW REFORM AGAINST TRAFFICKING IN HUMAN BEINGS
Granting subsidiary prosecutors the right to free legal
aid is already an important step to improve the status
of certain categories of victims in criminal proceed-
ings. Additionally, to make the victims right to legal
representation more effective, it is recommended to
extend the scope of beneficiaries for free legal aid also
to victims of trafficking who are not subsidiary pros-
ecutors, such as victim-witnesses and claimants for
compensation. Legal aid could be paid from a fund
created from appropriated assets or by the convicted
trafficker as part of his obligation to pay the costs of
proceedings.
Compensation
55. Chapter XV of the draft Criminal Procedure Code
incorporates the so-called adhesion model. This model
enables victims of crime to raise claims for compen-
sation in the course of criminal proceedings and to
have the criminal law judge deciding on the claim,
instead of instituting separate civil proceedings for
compensation. The victim thus adheres to the crim-
inal proceedings and becomes a party to the proceed-
ings in as far her/his civil claim is concerned.29 The
advantage of this model is that it spares victims sep-
arate time-consuming and civil proceedings. This pos-
sibility is important for victims of crime in general,
and for victims of trafficking in particular, who usu-
ally do not have a regular residence status in the
country of destination, nor financial means to insti-
tute separate proceedings.
56. Judges are obliged to inform victims of their right
to claim compensation in criminal proceedings
(Article 102 paragraph 4, Article 209 paragraph 4,
Article 325 paragraph 2). These provisions are crucial
because victims are usually unaware about their rights
and their position in criminal proceedings and there-
fore need information in order to be able to use their
rights.
57. Article 112 of the draft Criminal Code gives the
victims claim to compensation priority over seizure of
proceeds. This provision is important from the victims
perspective, as it increases the likelihood that victims
successfully receive compensation for harms suffered
in the hands of the traffickers.
58. In practice, however, victims rarely receive com-
pensation in the course of criminal proceedings, but
are usually referred to a civil court, because the deci-
sion on the claim is regarded too complex and/or
time-consuming. As the discussions in the Podgorica
workshop revealed, the same is also true for
Montenegro. Discussions also showed that both, the
interests of the criminal justice system to carry out
29 Marion Brienen, Ernestine Hoegen, Victims of Crime in 22 European Criminal Justice Systems. The Implementation of Recommen-
dation (85)11 of the Council of Europe on the Position of Victims in the Framework of Criminal Law and Procedure, 2000, chapter 26,
section 3.1 (download at www.victimology.nl).
30 Hoegen, chapter 26, section 3.1 (see supra note 8).
68
criminal proceedings efficiently and without great
time delay on the one hand, and the interest of the
victim to receive compensation in the most efficient
and least bureaucratic on the other hand, need to be
taken into consideration. The author recognises that
the obligation to award compensation, often implying
to deal with a non-familiar area of law, might impose
additional workload upon criminal law judges, which
seems to be hard to reconcile with the necessity to
work as time efficient as possible. At the same time,
however, it should be noted that the referral to civil
law courts, on the long run, does not save any
resources. Further, although the existence of the adhe-
sion model is very positive, it is only of very limited
practical value if it is not applied. Therefore it is sug-
gested to the working group to consider measures to
motivate criminal law judges to award compensation
to victims in the course of criminal proceedings,
instead of referring most cases to civil courts. Possible
legal measures include the following:
Article 212 should explicitly restrict the possibility
of criminal law judges to wholly or partly refer
compensation claims to a civil court to cases
where the complexity of the claim so requires.
Additionally, judges could be obliged to give sub-
stantial reasoning for their refusal to decide on the
claim and on their assessment of the claim as too
complex or too time-consuming.
Another, more far-reaching option would be to
introduce a legal obligation of judges to decide
upon the claim if the criminal proceedings end
with a conviction (as for example provided by leg-
islation in Italy, Spain and Switzerland).30
Measures could also be taken to reduce the work-
load upon judges to determine the claims. For
example, the prosecutor or investigating judge
could be given the task to prepare the compensa-
tion claim.
59. Additional measures of a non-legal nature that
could support such legislative amendments include:
research on the reasons for the reluctance of crim-
inal law judges to award compensation;
training and guidelines for criminal law judges on
how to measure (especially non-material) dam-
ages.
60. It is not known to the author, if subsidiary state
compensation schemes exist to compensate victims
whose claims could not be satisfied, for example
because there were no assets of the trafficker
found. Unless they already exist, it is recommended to
 LARA PROJECT CRIMINAL LAW REFORM AGAINST TRAFFICKING IN HUMAN BEINGS

introduce such compensation funds, which could be
funded from fines or confiscated property.31
Witness protection
In-court protection
61. Articles 108-112 provide for the following in-court
witness protection measures: exemption from obliga-
tion to answer questions on personal details (ques-
tioning under pseudonym), exemption from obliga-
tion to answer certain questions or giving statement
altogether (Article 108 paragraph 1, Article 109 para-
graph 2), and questioning under the use of devices
distorting the image and voice of the witness (Article
109 paragraphs 1 and 3). Even though the list is
exhaustive and enables the development of further
protection measures, it is recommended to the work-
ing group to consider adding further measures, such
as expunging the name the witness and any other data
likely to reveal the witness identity, total anonymity
(as for example provided in Kosovo by UNMIK
Regulation No. 2001/20 on the Protection of Injured
Parties and Witnesses), or the right of the witness to
be informed about any release of the accused, so that
she/he is able to undertake relevant safety precau-
tions.

Excursus: Anonymous witnesses and the European Convention on Human Rights

The European Court of Human Rights has at several occasions dealt with the compatibility of anonymous wit-
nesses with the rights of the defence to a fair trial under Article 6 of the European Convention on Human Rights.
According to the Court, the principle of a fair trial also requires interests of victims and witnesses to be taken
into consideration: Article 6 does not explicitly require the interests of witnesses in general, and those of vic-
tims called upon to testify in particular, to be taken into consideration. However, their life, liberty or security of
person may be at stake, as may interests coming generally within the ambit of Article 8 of the Convention. Such
interests of witnesses and victims are in principle protected by other, substantive provisions of the Convention,
which imply that Contracting States should organise their criminal proceedings in such a way that those inter-
ests are not unjustifiably imperilled. Against this background, principles of fair trial also require that in
appropriate cases the interests of the defence are balanced against those of witnesses or victims called upon to
testify.32
The Court has stated at several occasions that that the use of statements made by anonymous witnesses is not
in all circumstances incompatible with the Convention. However, the handicaps faced by the defence as a
consequence of the anonymity of prosecution witnesses must be sufficiently counterbalanced by the procedures
followed by the judicial authorities. With this is mind, an applicant should not be prevented from testing the
anonymous witness reliability.33
The Court has not adopted a precise formula testing this counterbalance. The following principles can be derived
from its jurisprudence:
Evidence obtained from witnesses under conditions in which the rights of the defence could not be secured to
the extent normally required by the Convention should be treated with extreme care.34
There must be sufficient reasons for maintaining anonymity. These reasons must also be considered and assessed
by the courts in each individual case.35

31 See for example UNHCHR Recommended Principles and Guidelines on Human Rights and Human Trafficking, E/2002/68/Add.1,
Guideline 4.4, which recommends states to establish a compensation fund for victims of trafficking and to use confiscated assets to
finance such a fund.
32 European Court of Human Rights, Cases Doorson v. The Netherlands, 26/03/1996, 69, 70, Van Mechelen and Others v. The Netherlands,
23/04/1997, 53.
33 European Court of Human Rights, Cases Birutis and Others v. Lithuania, 28/03/2002, 29, Kostovski v. The Netherlands, 20/11/1989,
42, Visser v. The Netherlands, 14/02/2002, 43, Van Mechelen, 52, 54, Doorson 70, 73, 75. In the Doorson case, anonymous wit-
nesses were questioned in the presence of the counsel by an investigating judge who was aware of their identity, whereas the lawyer
and defence were not. The counsel could ask the witness whatever questions he considered to be in the interests of the defence, except
in so far as they might lead to the disclosure of their identity, and these questions were all answered. In this case, the Court considered
the counterbalancing procedure sufficient.
34 European Court of Human Rights, Cases Doorson 76, Visser 44.
35 European Court of Human Rights, Cases Doorson 71, Van Mechelen 61, Visser 47. In the Doorson case, it was regarded a sufficient
reason that drug dealers frequently resorted to threats or actual violence against persons who gave evidence against them, and that one
witness already suffered violence and the other had been threatened. In the Visser and Van Mechelen cases, the Court denied reason-
able justification of the use of anonymous witnesses, because no assessment of the seriousness and well-foundedness of the reasons for
the anonymity (threats of reprisals) had been carried out by the court.

69
 LARA PROJECT CRIMINAL LAW REFORM AGAINST TRAFFICKING IN HUMAN BEINGS

Any measures restricting the rights of the defence should be strictly necessary. If a less restrictive measure can
suffice than that measure should be applied.36.37
[N]o conviction should be based either solely or to a decisive extent on anonymous statements.38 Additional
means of evidence include for example other statements and indirect evidence, such as on-site inspection
records, material evidence, or expert examinations, which can be challenged by the applicant.39
When assessing whether the procedures had been sufficient to balance the difficulties caused to the defence, due
weight has to be given to the extent to which the anonymous testimony had been decisive in convicting the
applicant. If this testimony was not in any respect decisive, the defence was handicapped to a much lesser
degree.40

62. The wording of the English translation of Article
108 paragraph 1 (, until his safety is secured) sug-
gests that once protection measures, such as the use of
a pseudonym, have been applied, the witness might
lose her/his protected status and consequently be
obliged to give the personal information she/he was
originally allowed to keep secret. This provision is
misleading, because it could be assumed that if it is
too dangerous for a witness to give her/his personal
duty, this danger will not cease to exist after she/has
testified by pseudonym or behind a protective wall. In
the discussion, the working group members stated that
this was only up to a misleading wording and that a
witness could not lose her/his right to protection. It is
recommended that the relevant language of this para-
graph should be clarified.
63. Article 108 establishes certain preconditions for the
application of protection measures (grounds to fear
that the witness would endanger her/his own or
her/his spouses or close relatives life, health, bodily
integrity, freedom or property of great value by giving
a statement or answering certain questions). From the
wording of Articles 108 and 109, it seems that these
requirements are necessary only for the measures
included in Article 108 paragraph 1 (refuse to answer
certain questions or to give testimony), but not to the
use of devices distorting the image and voice of the
witness. It seems more logic, however, that these
requirements are also applicable to the latter meas-
ures. Unless this is only a translation problem, the
working group should clarify the requirements for all
protective measures foreseen.
64. Last, but not least, witness protection measures are
by their very nature likely to interfere with the rights
of the defence to a fair trial. Therefore, safeguards are
necessary to ensure a balance between the interest to
protect the safety of the witness and the rights of the
defence. The draft Criminal Procedure Code establish-
es several of such safeguards, such as the right of the
defendant to appeal against the courts decision to
apply witness protection measures and the ban on
basing the judgement solely on a statement given by
a protected witness.
Other protection measures
65. The draft Criminal Procedural Code provides for
in-court protection measures. According to Article 108
paragraph 3, protective measures outside criminal
proceedings shall be regulated by a separate law. This
law should ensure that protection measures, such as
police escorts, panic alarms, relocation, or change of
identity are available, as long as they are by their very
nature not only relevant for witnesses, to all vulnera-
ble groups of victims, including persons who cooper-
ate with authorities without being witnesses or who
participate in the proceedings as claimants for com-
pensation, and their family members.
Special investigative means
66. After a brief overview of Articles 237-240 by the
drafters, the following suggestions and comments
were made:
As drafted Article 237 appears to set out a finite
list of techniques which can be the subject of an
application. In view of the rapid development of
technology, it was suggested that consideration
should be give to drafting Article 237 as a non-
exhaustive list. This would allow investigators to
seek approval to use new Special investigative
means as these develop and emerge. [For instance,
tracking devices, DNA technology, dial number
recorders are all investigative techniques that have
recently gained acceptance. ]

36 European Court of Human Rights, Cases Doorson 76, Van Mechelen 55, 60, Visser 43. In the Van Mechelen case, for instance, the
Court did not find the handicaps counterbalanced, inter alia, because extreme limitations on the right of the accused (communication
via sound link, defence was unaware of the witnesses identity and had no possibility to observe their demeanour and test their relia-
bility) were used, whereas neither the necessity of such limitations was explained, nor were less far-reaching measures considered, which
would have been available (e.g. using make-up or disguise, prevention of eye contact).
37 European Court of Human Rights, Case Van Mechelen 60.
38 European Court of Human Rights, Cases Van Mechelen 55, Doorson 76, Birutis 29, Visser 43.
39 European Court of Human Rights, Case Birutis, 32.
40 European Court of Human Rights, Case Visser 46.

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 LARA PROJECT CRIMINAL LAW REFORM AGAINST TRAFFICKING IN HUMAN BEINGS
Section 237 applies a threshold of grounds for
suspicion without requiring that the grounds be
reasonable. It was suggested that consideration
should be given to requiring that regardless of the
threshold ultimately adopted, the grounds must be
reasonable.
Section 237 applies the same threshold [grounds
for suspicion] to all the listed Special investigative
means, regardless of the nature of the technique or
degree of intrusiveness. It was suggested that con-
sideration should be given to assessing the nature
of the conduct required to implement each partic-
ular investigative technique, as well as assessing
the degree of intrusiveness each represents with a
view to determining whether or not differing
thresholds should apply [e.g. reasonable
grounds/belief for more intrusive techniques vs.
reasonable suspicion for less intrusive techniques].
As drafted in English, it is not clear whether or not
237(2) refers to a covert/surreptitious search
and/or recording. It was suggested that if the
intention is to cover covert searches and record-
ings this should be clear on the face of the provi-
sion.
As drafted 237(3) appears to require judicial
approval even for recording in public places.
Clarification was sought as to whether or not this
was intentional? It was suggested that if 237(3) is
intended to apply to optical recordings in both
public places and private places, consideration
should be given to setting a differing threshold
(e.g. reasonable grounds to believe where there is
a reasonable expectation of privacy, reasonable
suspicion where there is a minimal expectation of
privacy).
It was suggested that, to the extent possible, con-
sideration should be given to ensuring that there is
no prohibition against using the Special investiga-
tive means in response to a requests from interna-
tional partners, in particular other signatories to
the UN Convention on Transnational Organised
Crime. Better still, consideration should be given to
expressly permitting such international assistance.
Article 238(2) covers human trafficking because of
the placement of the offence in the Code Chapter
addressing Crimes Against Humanity and Other
Values Protected by International Law. On this
basis, it was recommended that Article 412 remain
in its current position rather than moving it to
Crimes Against Dignity as discussed previously.
The impact of moving Article 412 to Crimes
Against Dignity would be to restrict the ability of
those investigating offences under Article 412 to
apply to use special investigative means only
when the organized crime threshold has been met.
71
It was suggested that the list in Article 238(2) was
too narrow and consideration be given to expand-
ing the list to include more offences typically asso-
ciated with organised crime including both rev-
enue generating offences (e.g. money laundering,
fraud, forgery, etc.), as well as crimes of violence
and intimidation, as well as corruption offences.
Failure to expand the list beyond its current scope
effectively creates an organised crime threshold
in that investigators could only avail themselves of
the Special investigative means once they had
established a possible link to organised crime. Of
note, the drafters responded by indicated that there
may well have been a drafting error. In this regard,
the drafters indicated their recollection that Article
238(2) should have also included all offences pun-
ishable by imprisonment for a period of five years
or more. Depending on which offences this would
capture, such an addition might address the con-
cern that the list is too narrow.
It was noted that the reference in Article 238(4) to
offences punishable by imprisonment where there
is reasonable doubt.. is somewhat odd in
English. It would be more appropriate to refer to a
reasonable belief or reasonable suspicion depend-
ing on what threshold is desired.
It was noted that Article 238(4) refers to a group
of people or criminal organisation. It was sug-
gested that consideration should be taken to ensur-
ing that the Article will apply to an organised
criminal group as defined in Article 2(a) of the UN
Convention on Transnational Organised Crime.
Currently, Article 239(1) only contemplates
approval of the use of the special investigative
means for up to six months. Given the complex
nature of organised crime investigations and the
difficulty in penetrating organised criminal
groups, it was pointed out that organised crime
investigations are often inherently lengthy.
Accordingly, it was suggested that consideration
be given to expanding the amount of time avail-
able to use special investigative means.
Article 239(1) provides that the written order spec-
ify the method, extent and place of implementa-
tion. While this could certainly include terms
imposing conditions necessary to minimise any
intrusions of privacy, consideration might be given
to expressly referring to the imposition of such
conditions within the text of Article 239(1). For
instance, ..reference to the method, extent and
place of implementation including such terms or
conditions considered necessary to minimise the
intrusion of privacy..
Article 239 does not expressly require notification
to those affected by any of the special investiga-
tive means provided for in 237. It was suggested
 LARA PROJECT CRIMINAL LAW REFORM AGAINST TRAFFICKING IN HUMAN BEINGS

that consideration should be given to whether or
not to impose notification requirements for any or
all of the special investigative means, recognising
that provisions would have to be made to allow for
the protection of the integrity of the investiga-
tions.
It was noted that controlled deliveries are not dealt
with in Articles 237-239 and the use of this partic-
ular special investigative means appears to be
restricted to the context of Article 524, Chapter
XXX Special Regulations for Criminal Offences of
Organised Crime.

72
 LARA PROJECT CRIMINAL LAW REFORM AGAINST TRAFFICKING IN HUMAN BEINGS
3.1.3 Montenegro: Expert opinion on the draft Criminal Procedure Code (provisions regarding special
investigative means, protection of witnesses, and collaborators of justice)
By Mr Goran Klemencic (Slovenia), Council of Europe expert
In July 2003 I have been requested by the Council of
Europe to prepare a written expertise on provisions of
the draft Criminal Procedure Code of the Republic of
Montenegro regarding special investigative means,
protection of witnesses, and collaborators of justice.
Adoption of a regulative framework for more efficient
and successful detection, investigation, prosecution
and adjudication of serious crimes, such as trafficking
in human beings, corruption, money laundering and
other forms of serious criminal activity is a step in the
right direction and should be welcomed. However,
regulation of such intrusive state powers as is covert
surveillance, and introduction of legal measures such
as anonymous witnesses and collaborators of justice
all very sensitive from the perspective of Article 6 of
the ECHR, must be approached with caution.
In the light of the above I found that some of the solu-
tions in the proposed legislation require additional
review to bring them up to the European standards
and to provide an efficient institutional and legal
framework for addressing the pressing issues of
organised crime, trafficking of human beings corrup-
tion and money laundering with due respect of human
rights.
One general remark is the overall problem with
Chapter XXX of the draft Criminal Procedure Code
(hereafter: draft CPC). Provisions of this Chapter
closely resemble Amendments to the Serbian Criminal
Procedure Code (FRY, Official Gazette, no. 68/2002)
which had at its adoption a number of serious flaws.
3.1.3.1 Special Investigative Means (Article 237-242
and 519-524 of the draft CPC)
Special investigative means (more accurate term:
measures of covert or technical surveillance and
investigation) penetrate intrusively into individuals
privacy. It is relevant to note that the European Court
of Human Rights when considering those measures (in
the light of Article 6 and Article 8 of the ECHR) recog-
nises that they are required if crime in all its modern
and serious forms and variations is to be adequately
tackled. The Court does not therefore preclude covert
surveillance, telephone tapping, undercover opera-
tions, etc. It does however require that the interference
with privacy, and its degree, is necessary and propor-
tionate. And perhaps more importantly, it requires
that it is accompanied by sufficient procedural safe-
guards, as to their conduct and authorisation, to
ensure that they are not utilised in an arbitrary,
unpredictable and uncontrolled manner. See Klass v
Germany (1979-80) 2 EHRR 213, Malone v United
73
Kingdom (1985) 7 EHRR 14, Halford v United
Kingdom (1997) 24 EHRR 523, Huvig v France
(1990) 12 EHRR 528, Kruslin v France (1990) 12
EHRR 547, Valenzuela Contreras v Spain (1999) 28
EHRR 483, PG v United Kingdom [2002] EHRLR 262,
Taylor-Sabori v United Kingdom [2001] EHRLR 94,
Khan v United Kingdom (2001) 31 EHRR 45, Govell v
United Kingdom [1999] EHRLR 121, Ludi v
Switzerland (1993) 15 EHRR 173, Teixeira de Castro
v Portugal (1999) 28 EHRR 101, Radermarcher and
Pferrer v Germany 13th May 1991 application num-
ber 12811/87, Shahzad v United Kingdom [1998]
EHRLR 210, X v United Kingdom (1976) 7 DR 115,
Charlene Webb v United Kingdom (1997) EHRR CD
73, Baragiola v Switzerland (1993) 75 DR 76.
Montenegro is one of very few jurisdictions in Europe
that currently does not legislate the use of SIMS for
the purposes of criminal investigations; the draft CPC
and draft Police Act is the first legislative attempt to
introduce a comprehensive regulatory framework in
this area. For this reason, I want to outline a compar-
ative perspective regarding SIMS in countries in tran-
sition (Im not claiming that all statements below
apply to Montenegro as well):
a) Most countries in the region of South-eastern
Europe have developed a legal framework for the use
of some forms of SIMS. At the same time, law
enforcement agencies apply at least some types of
SIMS not regulated by law, which contradicts the
ECHR standards. In addition, different countries have
different (and sometimes inadequate and contradicto-
ry) standards regarding the evidentiary value of the
information collected by the use of SIMS.
b) There is a lack of consensus as to which police
activities fall under the term of SIMS (interception of
telecommunications, electronic surveillance and
observation, undercover agents, pseudo purchases and
agents provocateurs, etc.).
c) In most countries in the region, there is a lack of
experience in the field of regulation and implementa-
tion of SIMS for the purposes of criminal law enforce-
ment (in contrast with secret and intelligence servic-
es); including a lack of training of the staff/units
implementing or directing SIMS in practice. In addi-
tion there is a lack of knowledge of evolving human
rights standards in this area.
d) For understandable historical reasons, the suspicion
and resistance of the public and academic community
towards the SIMS is higher in South-eastern Europe
than in other countries.
 LARA PROJECT CRIMINAL LAW REFORM AGAINST TRAFFICKING IN HUMAN BEINGS
e) The possible benefits from the use of SIMS (in com-
parison to the use of traditional investigative meas-
ures) are sometimes overrated by the law enforcement
community (SIMS are considered a magic stick for
controlling the problem of organised crime).
f) The importance of internal administrative and
external (parliamentary) in addition to judicial
control and supervision over the use of SIMS is not
developed or even widely accepted in many SEE
countries.
Regulation of SIMS in the draft CPC raises a number
of concerns which I will divide into the following
groups:
a) contradictions between SIMS regulated in the draft
CPC and draft Police Act;
b) catalogue of criminal offences for which SIMS can
be used;
c) differentiation of specific types of SIMS;
d) targets of SIMS;
e) probability standard / threshold for the use of
SIMS;
f) implementation;
g) subsequent notification;
h) evidentiary value of information obtained by
SIMS;
i) undercover investigators and prohibition of
provocation [entrapment];
j) external oversight mechanism.
In addition, I want to make a general remark: SIMS
under the draft CPC are regulated both in the general
part of the CPC and in Chapter XXX which is reserved
for organised crime only. Both regulations are some-
times conflicting and overlapping; a possible solution
would be to carefully incorporate all SIMS in the gen-
eral part of the draft CPC to enable consistency.
3.1.3.2 SIMS under draft CPC and draft Police Act
While the provisions of the draft Police Act are not a
subject to this analysis, I noticed overlapping and
contradictions between the regulation of SIMS in both
codes. Draft Police Act (Article 91-95) includes SIMS
that are also regulated in a significant different way
in the draft CPC: electronic surveillance and under-
cover operations. As it is obvious that the regulation
of SIMS in the draft Police Act had been inspired by
the Slovenian system (Article 49 of the Slovenian
Police Act) it is perhaps interesting to mention that
this provision of the Slovenian legislation had been
recently (May 2003) found unconstitutional and
annulled by the Slovenian Constitutional Court as to
vague and lacking efficient safeguards against abuse.
74
Not to delve into details of the regulation of SIMS as
proposed by the draft Police Act, I suggest limiting the
regulation of SIMS to the CPC and deleting them from
the draft Police Act.
Catalogue of criminal offences for which SIMS can be used
First question with practical consequences is the range
of criminal offences for which SIMS can be applied.
Countries can use two ways of designating these
offences: a) the so-called catalogue principle, where
the criminal offences to which these methods may be
applied are explicitly set out, and b) another principle,
where the criterion for the use is the duration of the
imposed sentence. A combination of both is also pos-
sible. At any rate, one has to be careful that the range
of these criminal offences is not too narrow or too
wide, since in the former case they would not have the
expected effect, and in the latter case these methods
would be put on a par with the other, traditional,
methods of gathering evidence.
Prior to a decision on the permitted range of criminal
offences for which these methods may be used, each
country has to solve the question of the basic criteri-
on for the designation of this range: a) merely whether
the perpetrators is part of the organised criminal
activity, b) the threat posed by each criminal offence,
b) the difficulties in collection evidence by traditional
means of investigation associated to certain types of
criminal offences.
Consequently, taking into consideration the invasive
nature of SIMS the country should observe three guid-
ing principles to satisfy the legal principle of propor-
tionality: a) serious criminal offences (e.g. offences
with a high prescribed punishment regardless of the
organised crime element); b) criminal offences typical
for organised criminal activity; c) criminal offences of
which investigation and collection of evidence with
traditional investigative techniques is particularly dif-
ficult (many victimless crimes such a corruption and
corruption related offences regardless of the organised
crime element). All these should be spelled out in the
law in exact terms to satisfy the requirement of acces-
sibility and foresee ability as required by the ECHR
jurisprudence.
In the light of the above, I suggest reconsidering
Article 238 of the draft CPC, especially its paragraph
4. This provision might be considered a violation of
the proportionality principle of proportionality
(required by ECHR) as it opens the door for the use of
very intrusive state powers for investigation of a vast
number of criminal offences (all offences punishable
by imprisonment) providing that a very vague stan-
dard of a group of people or criminal organisation is
meet.
 LARA PROJECT CRIMINAL LAW REFORM AGAINST TRAFFICKING IN HUMAN BEINGS
Differentiation of specific types of SIMS
SIMS is a generic word for a variety of covert and
technical measures of surveillance and investigation,
each of which poses a different threat to the right to
privacy or fair trial. Consequently, only a regulation
of SIMS which is very precise and differentiated can
satisfy the requirement of the proportionality and the
quality of law (especially accessibility and foresee-
ability / lex certa) principles as required by the ECHR
and its case-law.
In contrast, the draft CPC puts most SIMS under one
roof in one article (236). It regulates in same way
and under same conditions the most intrusive SIMS
(e.g. covert surveillance in private premises) and less
intrusive SIMS (e.g. optical recording on public
places); it regulates in the same way technical SIMS
(e.g. wiretapping) and undercover operations (e.g.
simulated-purchases of items).
As has been the case that the European Court of
Human Rights and many national Constitutional
Courts recently annulled regulation of SIMS of differ-
ent countries on the grounds that definitions of differ-
ent SIMS is to vague I suggest further specifying SIMS
and putting their definitions directly in the law. A
possible example:
Covert photographic or video surveillance in pri-
vate premises means the monitoring, observing,
or recording of persons, their movements or their
other activities when in private premises by means
of photographic or video devices (but not by audio
devices this falls under the measure of covert
monitoring of conversations), without the knowl-
edge or consent of the persons subject to the meas-
ure [order for the covert photographic or video
surveillance in private premises or covert monitor-
ing of conversations may authorize the Law
Enforcement Officer to enter private Premises if a
Judge determines that such entry is necessary to
activate or disable the technical means for the
implementation of such measures. If the Law
Enforcement Officer enters private Premises pur-
suant to a order, his or her actions in the private
Premises shall be limited to those specified in the
order and cannot amount to the cover search of
the Premises];
Covert search of letters, packages, containers and
other parcels means a search of letters and other
postal items which may include the use of X-ray
equipment, without the knowledge or consent of
the persons subject to the measure;
Controlled delivery of letters, packages, containers
and other parcels means covert controlling/
monitoring of the route of delivery by a Law
Enforcement Officer of letters, parcels and other
75
items without the knowledge or consent of the per-
sons subject to the measure;
Covert monitoring of conversations means the
monitoring, transmitting, recording, or transcrib-
ing of private conversations (conducted either in
private or public premises or open spaces) by tech-
nical means without the knowledge or consent of
the persons subject to the measure;
Metering of telephone calls means obtaining a
record of telephone calls (number called/received
and duration of the call) made from a given tele-
phone number without the knowledge or consent
of the person subject to the measure;
A simulated purchase means an act of buying an
item [or a suspected victim of trafficking in human
beings this is currently not covered by Art
237/2.4 as the provision is limited to the purchase
of items] from the suspect by a Law Enforcement
Officer or person acting under his or her direction
and supervision, which may serve as evidence in
criminal proceedings;
A simulation of a corruption offence means an
act performed by a Law Enforcement Officer or
person acting under his or her direction and super-
vision (such person is not criminalised for that
act), which is the same as a crime of corruption,
except that it has been performed for the purpose
of gathering information and evidence in a crimi-
nal investigation;
Disclosure of financial data means obtaining
information from a bank or another financial
institution on deposits, accounts or transactions
without the knowledge or consent of the person
subject to the measure;
Covert observation and surveillance in public
places means targeted (directed) monitoring,
observing, or recording of persons, their move-
ments or their other activities on public or open
spaces by means of photographic or video devices
(but not by audio devices this falls under the
measure of covert monitoring of conversations),
without the knowledge or consent of the persons
subject to the measure.
Use of tracking or positioning devices means the
use of electronic devices, which identify the loca-
tion of the person or object to whom it is attached
without the knowledge or consent of the persons
subject to the measure;
Recording of conversations with the prior
informed and voluntary consent of at least one per-
son participating in the conversation means the
monitoring, transmitting, recording, or transcrib-
ing of private conversations (conducted either in
private or public premises or open spaces) by a
 LARA PROJECT CRIMINAL LAW REFORM AGAINST TRAFFICKING IN HUMAN BEINGS
Law Enforcement Officer or person acting under
his or her direction and supervision by technical
means without the knowledge or consent of the
persons subject to the measure;
Deployment of undercover agents means the
planned interaction of a Law Enforcement Officer
or person acting under his or her direction and
supervision, who is not identifiable as a Law
Enforcement Officer or person acting under his or
her direction and supervision, with persons sus-
pected of being involved in criminal activity, for
the purpose of gathering information and evidence
in a criminal investigation.
Targets of SIMS
Article 238/2 enables that the target of the surveil-
lance of communications is not only the suspect but
also persons conveying the messages to the suspect.
Such provision should be expanded along the follow-
ing lines:
The interception of telecommunications, the intercep-
tion of communications by a computer network,
metering of telephone calls, covert search of letters,
packages, containers and other parcels, controlled
delivery or disclosure of financial data may be ordered
against:
(i) A Suspect;
(ii) A person who is suspected of receiving or trans-
mitting communications originating from or
intended for the suspect or participating in finan-
cial transactions of the Suspect;
(iii)A person whose telephone or point of access to a
computer system, the suspect is suspected of using.
The use of tracking or positioning devices and covert
observation and surveillance in public places may be
ordered against:
(i) A Suspect;
(ii) A person other than the Suspect if strong probabil-
ity exists that monitoring of such person could
lead to the discovery of the location or full identi-
ty of the suspect.
Probability standard / threshold for the use of SIMS
The old SFRY CPC in general as well as most codes in
the region (I might say in the Continental Europe as a
whole) do not always adequately and completely
address various thresholds (probability standards) for
intrusion in different rights of the suspect/ defendant
/ accused. Rigorous application of distinctive thresh-
olds in the law is a pre-condition for the principle of
proportionality of intrusions into rights of the defen-
dants. Systematic use of distinctive terms for different
thresholds allows that its practical application (e.g.
case law) puts meaningful substance in otherwise
76
abstract probability standards. The CPC should strive
to adopt two basic levels thresholds when condition-
ing state intrusion into a defendant. e.g. reasonable
suspicion (lower threshold suitable for some police
and prosecutorial actions at the beginning of the pre-
liminary procedure and investigation) and grounded
suspicion (all procedural or investigative actions that
directly intrude into rights of the suspect/defendant
such as covert surveillance measures, searches and
seizures, deprivation of liberty, etc.).
The two mentioned terms should primarily be used to
describe the probability that a specific person has
committed a criminal offence. Other probability stan-
dards are also applied in the code (e.g. probability that
the defendant will escape or hide; sufficient evidence
to go to trial, etc.). They shouldnt be confused with
the above mentioned standards and can be much more
descriptive according to the probability they
address.
This introduction which touches upon the possible
systemic imperfection of the CPC in general was to
highlight the problem with Article 237 and 520 of
draft CPC. According to both, the statutory threshold
for the use of SIMS is reasonable suspicion, which is
the standards that the CPC uses for most much less
intrusive police powers in preliminary proceedings
(e.g. Article 230). This is inadequate protection of the
right to privacy, especially in regard to SIMS that
involve interception of communications.
Another matter that might became a source of contro-
versy a mistaken interpretation is the part of Art 520
which prescribes that SIMS can be used (only!) against
person suspected of preparing a criminal offence (ex
ante application). In contrast, Article 237 speak about
a person suspected of committing a criminal offence
(ex post application). SIMS are generally used to
investigate past criminal offences, only exceptionally
the offences in the preparation stage for similar the-
oretical and practical reasons as the substantive crim-
inal law in principle prohibits the incrimination of
preparatory acts.
Implementation
A lack of differentiation of SIMS is also apparent in
time limits for their implementation. All measures
from Article 237 can be ordered for 3 months with
one extension and for the measures from article 520
for 6 months with two extensions. SIMS, such as sim-
ulated purchase or simulated corruption offence are
typical one-instance measure and shouldnt have
time limits; therefore the law could be amended: An
order for the measures of a simulated purchase and a
simulation of a corruption offence shall be limited to
a one-instance simulated purchase or simulated cor-
ruption offence. Requests for each further measure
 LARA PROJECT CRIMINAL LAW REFORM AGAINST TRAFFICKING IN HUMAN BEINGS
against the same person must contain the reasons that
justify their repeated use.
Generally, providers of telecommunication services
should only enable surveillance of telecommunica-
tions on the production of a court order. However, the
Court order includes information that needs to be
keeps strictly confidential during the implementation
of the measure (e.g. names of the suspects, other cir-
cumstances of the investigations). Therefore it is
advisable always to issue two Court orders: one for the
court file and one for the providers of telecommuni-
cation services only; the latter including only the tele-
phone number and the signature of the judge. For this
purpose the law could include an additional para-
graph along the following lines:
In addition to an order for interception and recording
of telecommunications the investigative judge shall
issue a separate order containing only the identifica-
tion of the means of telecommunication to be inter-
cepted (such as a telephone number or e-mail address)
and the duration of the order. On the presentation of
this separate order providers of telecommunication
services shall enable the technical execution of the
order.
After the order for SIMS is issued the Court and even
the prosecutor have very little monitoring power on
how the order is implemented. Apart from internal
control mechanism (within the law enforcement body
responsible for the implementation of a specific SIMS)
which are of high importance (and can/should be reg-
ulated by internal guidelines) there are three instru-
ments that the law can adopt: i) a requirement that the
implementation of the order for a specific SIM has to
commence in for example 5 days after being
issued, or else the order automatically becomes void;
ii) periodical reviews by the Court and/Prosecutor of
reports which the police is obliged to prepare; iii) an
immediate notification of the authorising authority of
the time when the implementation of SIMS ended.
In this regard it would be advisable to provide for
additional safeguards along the following lines:
The police shall commence the implementation of the
order no later than fifteen (15) days after it has been
issued.
The implementation of the order shall be conducted in
such a way as to minimize the intrusion into privacy
of persons not subject to the measure.
The police implementing the measure shall make a
record of the time and date of the beginning and end
and nature of each action taken in implementing the
order. Such records shall be annexed to the final
report.
The police shall every 15 days send a written report on
the progress of the implementation of the measure to
77
the public prosecutors, and on the request of the
investigating judge also to him/her, for review in order
to ensure that the criteria on which the authorisation
was granted still applies. If the public prosecutor is
not satisfied that they do, he or she shall immediately
inform the investigating judge of this fact. In such
cases the investigating judge can order a termination
of the measure.
If any of the conditions for ordering the measure cease
to apply, the implementation of the measure shall be
immediately terminated. In such case the police shall
immediately notify the Prosecutor and in case the
measures had been ordered by the Judge the Prosecutor
shall notify him or her in writing.
Handling of the collected information and subsequent
notification of the target
Confusion arises out of a different regulation of han-
dling the material obtained with the use of SIMS.
Article 521 requires that the material is handed over
to the prosecutor (with no obligation for the prosecu-
tor to hand over the material to the investigating
judge!). Article 240 requires the police to hand the
material over to the investigating judge (who after-
ward invites the prosecutor to inspect the material).
Normally, the police should in all cases immediately
hand all the materials over to the prosecutor for
inspection and the prosecutor transfers it to the inves-
tigation judge. The prosecutor should also have the
possibility to inspect the collected information at any
time during the implementation of the measure (see
also the suggestion to introduce reporting obligation
from the previous heading).
Draft CPC also diverge on regulation of subsequent
destruction of the obtained material: compare Articles
240 and 522. None of them specifies time limits for
the destruction
Besides and even more importantly the draft CPC
is silent on the notification of persons that were the
targets of SIMS. In principle, subsequent notification
is important (and preferred by the ECHR case-law)
since SIMS are covert measures and if no criminal
proceedings are later initiated against the target, such
person is deprived of any knowledge that he/she was
subject to intrusion into privacy and consequently
deprived of a legal remedy to challenge the legality of
this intrusion. Therefore notification procedures
should be part of any comprehensive regulation of
SIMS. However, full notification is not possible in
every case in the interest of other on-going investi-
gations or life and security of other people. The ECHR
case-law is of opinion that it is not a requirement in
every case after secret surveillance has been suspend-
ed, that the subject of the surveillance must be
informed. The Court indicated that subsequent notifi-
cation to each individual affected by a suspended
 LARA PROJECT CRIMINAL LAW REFORM AGAINST TRAFFICKING IN HUMAN BEINGS
measure might well jeopardise the long-term purpose
that originally prompted the surveillance and that it
would not therefore be practical to have a rule of gen-
eral application invariably requiring post facto disclo-
sure. Where, however, there is no good reason for
refusing to reveal that surveillance had occurred, it
seems likely that the failure to do so would be in
breach of the Convention.
Accordingly there is a need to adopt a rule along the
lines of:
(1) If the public prosecutor decides that he or she will
file an indictment against the person against whom
the measures were conducted he or she shall inform
the investigating judge in writing. In such case or if
the public prosecutor fails to inform the investigating
judge within two years after the end of implementation
of SIMS against a specific person, the obtained mate-
rial shall be destroyed under the supervision of the
investigating judge. The investigating judge shall pro-
duce an official note on such destruction.
(2) Prior to destruction, the investigating judge shall
inform the person against whom the measures were
implemented of the use of such measures against him.
That person shall have the right to inspect the mate-
rial collected.
(3) If there are strong reasons to believe that inform-
ing of the person or the inspection of the obtained
material could constitute a serious risk to the lives or
health of people or endanger an on-going investiga-
tion, or for other grounded reasons, the investigating
judge, at the request of the public prosecutor or ex
officio, may decide not to inform the person in ques-
tion or not to allow him or her to inspect the materi-
al obtained.
Evidentiary value of information obtained by SIMS
Article 13 of the ECHR provides that anyone whose
Convention rights have been violated shall have an
effective remedy before a national authority.
Regardless of whether unlawful SIMS leads to a crim-
inal prosecution, the sate must provide a remedy for
any breach of Article 8 (right to privacy) and Article
6 (right to a fair trial). This remedy could be the exclu-
sion of evidence at a subsequent trial, in the form of
damages or, if necessary, an injunction to prevent
future interference.
Article 240 of the draft CPC provides for such reme-
dy: it is a rule of evidence providing for inadmissibil-
ity of SIMS evidence obtained without the court order
or in violation of the court order. On the other hand
no such provisions is found for SIMS under Article
520.
Article 520/3 limits the evidentiary use of SIMS mate-
rial only to the proceedings for offences which are
part of organised criminal activity. Under the present
78
draft, it is possible that the following situation hap-
pen: in the course of an investigation of organised
criminal group information is collected about a mur-
der, which, however, is not linked to the organised
criminal activity. Such evidence seems to be subject of
exclusion??!!
Furthermore, Article 240/5 provides that information
collected by the use of SIMS from privileged witness-
es (Article 98) is excluded. This can present a huge
strain on the successful investigation and prosecution
and is not applied in most countries; I suggest limit-
ing the privilege to, and only to, defence attorneys.
Undercover investigators and prohibition of provocation
[entrapment]
Article 237/3 prohibits the provocation of criminal
offences (entrapment). Three concerns regarding this
issue: i) the provision could give more guidelines to
the courts what constitutes a provocation under the
subjective-objective test as adopted by the ECHR case-
law; ii) the prohibition is presently without sanction;
iii) the provisions does not apply to the use of under-
cover investigators under Article 523. These problems
could be fixed along the following lines:
(1) In implementing the measures of simulated pur-
chase, simulated corruption offences and in employing
undercover agents [Article 523] the police and their
agents shall not provoke criminal activity. In deter-
mining whether the criminal activity was provoked,
the court shall give primary consideration to whether
the measure as implemented led to the committing of
a criminal offence by a person who would otherwise
not have been prepared to commit this type of crimi-
nal offence. It shall not be deemed that the criminal
activity was provoked where it is obvious from all the
circumstances that the police and their agents did no
more (whether by passive or active means) then to
provide the suspect the opportunity to commit the
offence, of which he or she freely took advantage in
circumstances where it appears that he or she would
have behaved in a similar way if offered the opportu-
nity by someone else.
(2) If the criminal activity was provoked, this shall be
a circumstance that excludes the initiation of criminal
proceedings for criminal offences committed in con-
nection with the measures.
3.1.3.3 External oversight mechanism
Due to the dangers associated with SIMS most coun-
tries developed external oversight mechanisms to
monitor the situation in this area. Those are usually in
the form of parliamentary oversight bodies. It is also
advisable to establish a less political Surveillance
Review Panels, which can be composed of three
Supreme Court judges assigned by the Parliament to
oversight the legality of the use of SIMS. Apart from
 LARA PROJECT CRIMINAL LAW REFORM AGAINST TRAFFICKING IN HUMAN BEINGS
periodical reports from the agencies implementing
SIMS such Surveillance Review Panel could have
powers to (while as a rule they dont intervene in con-
crete cases):
a) adjudicate on complaints in respect of SIMS from
persons that consider that they have been the sub-
ject of SIMS which is unlawful and decide on com-
pensation where appropriate;
b) request general reports on SIMS from the police or
prosecutors;
c) be consulted on the adoption of the internal police
guidelines for the implementation of SIMS;
d) to terminate the order for SIMS, if it is still in
force; order the destruction of the collected mate-
rials; order the notification of the target if they
find that the order or implementation of SIMS was
unlawful;
etc.
3.1.3.4 Witnesses Protection (Articles 95 112 of
the draft CPC)
Different forms of witness protection are not only a
matter of the fight against organised crime, the need
to protect vulnerable victims and witnesses can arise
in any even relatively insignificant criminal pro-
ceedings. Different levels of witness anonymity is an
instrument that cuts deeply into the right of the
accused to a fair trial and is still not allowed in many
countries in Europe (the case-law of the European
Court of Human Rights seems to suggest that different
levels of witness anonymity would be allowed, but
only in extreme case as a last resort and only under
systems with sophisticated procedural safeguards).
It should be welcomed that provisions of the draft CPC
address the protection of vulnerable witnesses.
However, these provisions (Articles 108 111) mainly
focus on the technical procedure for the questioning
of the protected witness, which I found unsatisfacto-
ry partly on the expense of the fair trial (Article 6 of
the ECHR), but also on the expense of the protection
of vulnerable witnesses which is a necessary element
of every modern criminal procedure.
The main objections to the proposed system can be
summarised as following:
a) the procedure for granting the protection status
is not specific enough (e.g. requirement that the
police provides the court with the risk assessment);
b) there is no procedure (or requirement) that the
judge checks the credibility of the anonymous
witness before granting the protective measure
(requirement by the ECHR case-law);
c) there is no clear requirement that protective meas-
ures are subject to strict proportionality principle
79
(since they infringe on the right of the defence)
this is also apparent in Article 111/2 which pro-
vides for an unusual and counter-productive strict
evidentiary rule when any of the protective meas-
ures (even the most mild one) is used);
Below is a possible legislative model for regulating
witness protection which I believe is self-explanatory
and can be used for improving the solutions in the
draft CPC.
Article A
(1) At any stage of the proceedings, the public prose-
cutor, the private prosecutor, defence counsel, injured
party or witness may file a written petition with a
competent judge for a protective measure or an order
for anonymity where there is a serious risk to an
injured party, witness or their family member.
(2) The petition shall contain a declaration of factual
allegations. The competent judge shall file the petition
and declaration in a sealed envelope and only judges
and the public prosecutor may have access to the
sealed contents.
(3) The competent judge may make an order for a pro-
tective measure or an order for anonymity for an
injured party or witness where he or she determines
that:
(a) There exists a serious risk to the injured party, wit-
ness or their family member; and
(b) The protective measure is necessary to prevent seri-
ous risk to the injured party, witness or their family
member.
(4) After receipt of the petition, the competent judge
may order appropriate measures for the protection of
an injured party or a witness, or if it deems it neces-
sary prior to making a decision on a petition, convene
a closed hearing to hear further information from the
prosecutor, the defendant, the defence counsel, the
injured parties or the witnesses. In the case of a peti-
tion requesting an order made pursuant to Articles C
and D, the competent judge shall convene a hearing in
closed session.
(5) The public prosecutor shall be immediately notified
by the competent judge of any petition made by
defence counsel, an injured party, witness, private
prosecutor or subsidiary prosecutor and is entitled to
make recommendations and statements regarding the
facts to the competent judge at a hearing and in writ-
ing if there is no hearing ordered by the competent
judge.
Article B
(1) The competent judge may order such protective
measures as it considers necessary, including but not
limited to:
 LARA PROJECT CRIMINAL LAW REFORM AGAINST TRAFFICKING IN HUMAN BEINGS
1) Omitting or expunging names, addresses, working
place, profession or any other data or information that
could be used to identify the injured party or witness;
2) Non-disclosure of any records identifying the
injured party or witness;
3) Efforts to conceal the features or physical descrip-
tion of the injured party or witness giving testimony,
including testifying behind an opaque shield, through
image or voice-altering devices, or contemporaneous
examination in another place communicated to the
courtroom by means of closed-circuit television, or
video-taped examination of the injured party or wit-
ness prior to the court hearing with the defence coun-
sel present;
4) Assignment of a pseudonym;
5) Closed sessions to the public;
6) Orders to the defence counsel not to reveal the iden-
tity of the injured party or witness or disclose any
materials or information that may lead to revealing
identity;
7) Temporary removal of the defendant from the court-
room if a witness refuses to give testimony in the pres-
ence of the defendant or if circumstances indicate to
the court that the witness will not speak the truth in
the presence of the defendant; or
8) Any combination of the above methods to prevent
disclosure of the identity of the injured party or wit-
nesses.
(2) Other provisions of this Code shall not apply where
they conflict with measures under paragraph 1 of this
Article and police officers shall be informed by the
court of their right in all cases to give their police sta-
tion or work address rather than their residential
address.
(3) A decision to order a protective measure shall be
in writing and shall not contain any information
which could lead to the discovery of the identity of the
injured party, witnesses or the family members, or
which could reveal the existence of, or expose to seri-
ous risk, the operational security of ongoing and con-
fidential police investigations.
(4) Once a protective measure has been ordered in
respect of an injured party or witness, the petitioning
party may subsequently request an amendment of a
protective measure. Only the competent judge granting
such measures may amend or rescind the orders, or
authorize the release of protected material to another
competent judge for use in other proceedings. If at the
time of a request for amendment or release, the origi-
nal court no longer has jurisdiction over the case, the
president of the court may authorize such amendment
or release, after giving written notice to, and hearing
of, any argument of the public prosecutor.
80
Article C
Where measures under Article B paragraph 1 are
insufficient to guarantee the protection of a witness
proposed to the competent judge by the defence, the
competent judge may in exceptional circumstances
make an order for anonymity whereby a witness pro-
posed to the competent judge by the defence shall
remain anonymous to the public, the injured party, the
subsidiary prosecutor, or the private prosecutor and
their legal representatives or authorized representa-
tives. In making an order for anonymity, the compe-
tent judge shall conduct a hearing, in a closed session,
which includes only the public prosecutor, essential
court and prosecution personnel, the defence counsel
and the witness at issue to consider all appropriate
facts through questioning of the witness, and others
such as other persons found necessary by the compe-
tent judge, such as police or military personnel neces-
sary for security. The competent judge can only issue
such an order if it first finds that:
1) There exists a serious risk to the witness or a fam-
ily member of such witness if the complete anonymity
of such witness is not preserved;
2) The testimony of the witness is relevant to a mate-
rial issue in the case so as to make it unfair to com-
pel the defence to proceed without it;
3) The credibility of the witness has been fully inves-
tigated and disclosed to the competent judge in the
closed session; and
4) The need for anonymity of the witness to provide
justice outweighs the effect of the interest of the pub-
lic, the injured party, the subsidiary prosecutor, or the
private prosecutor and their legal representatives or
authorized representatives, in knowing the identity of
the witnesses in the conduct of the prosecution.
Article D
Where measures provided for in Article B paragraph 1
are insufficient to guarantee the protection of an
injured party or of a witness not proposed by the
defence, the competent judge may in exceptional cir-
cumstances make an order for anonymity whereby the
injured party or witness shall remain anonymous to
the defendant and the defence counsel. In making an
order for anonymity, the competent judge shall con-
duct a hearing in a closed session, which includes only
the public prosecutor, essential court and prosecution
personnel, and the witness or injured party at issue to
consider all appropriate facts through questioning of
the witness or injured party, and others such as other
persons found necessary by the competent judge, such
as police or military personnel necessary for security.
The competent judge can only issue such an order if it
first finds:
 LARA PROJECT CRIMINAL LAW REFORM AGAINST TRAFFICKING IN HUMAN BEINGS
1) There exists a serious risk to the injured party or
witness or to his or her family member if the complete
anonymity of the injured party or such witness is not
preserved;
2) The testimony of the injured party or witness is rel-
evant to a material issue in the case so as to make it
unfair to compel the prosecution to proceed without it;
3) The credibility of the witness or injured party has
been fully investigated and disclosed to the competent
judge in the closed session; and
4) The need for anonymity of the witness or injured
party to provide justice outweighs the interest of the
defendant in knowing the identity of the witnesses in
the conduct of the defence.
Article E
(1) A decision by the competent judge to an anonymi-
ty order shall be in writing and shall not contain any
information which could lead to the discovery of the
identity of the injured party, witness or his or her fam-
ily member or which could reveal the existence of or
expose to serious risk, the operational security of
ongoing and confidential police investigations.
(2) Information in the record of the closed session
shall be removed from the record and sealed and stored
as an official secret immediately after the identifica-
tion and prior to examination of the witness.
(3) The restricted data may be inspected and used by
the prosecution and the competent judge only in the
appeal procedure against a decision under Article 181
of this Code. The decision on anonymity and the use
of methods to prevent disclosure of identity to the pub-
lic, witnesses, injured parties, defence counsel and the
defendant may be appealed only in an appeal of the
judgment.
Article F
(1) The court shall prohibit all questions to which the
answers could reveal the identity of the witness or the
restricted information.
(2) The trial panel shall not find any person guilty
solely or to a decisive extent upon the evidence of tes-
timony given by a single witness whose identity is
anonymous to the defence counsel and the defendant.
3.1.3.5 Cooperative Witnesses (Article 511 516 of
the draft CPC)
Cooperative witnesses also known in European legal
terminology as crown witnesses (Germany), collab-
orators of justice (Italy) present an important tool
in the fight against organised crime. However, one
must note that they are not widely accepted (or
utilised) by all criminal justice systems (especially in
Europe) and the controversy remains among scholars
and practitioners about the practical benefits of this
81
instrument in contrast with possible negative effects
on the fairness, credibility and transparency of crimi-
nal proceedings and on the principle of legality of
criminal prosecution and equality before the law. In
fact, many Continental European legal systems where
prosecutors do not normally have discretion to prose-
cute but are in contrast with common law systems
bound by the principle of legality of prosecution, are
highly restrictive to the use of cooperative witnesses
especially when these are granted de facto immunity
from prosecution in exchange for a particular testimo-
ny. I mention this to highlight the need for cautious
and well-though approach when regulating coopera-
tive witnesses.
A system which the draft CPC seeks to introduce a
total stop of the criminal proceedings against a coop-
erative witness regarding certain criminal offences
is not know in western legal system of Continental
Europe. Even in Italy which has perhaps the most pub-
licly known system of collaborators of justice the law
only provides for up to a 2/3 reduction of a prescribed
punishment (plus some additional benefits for the wit-
ness).
Generally, a cooperative witness is a suspect or a
defendant in respect of whom the indictment has not
yet been read at the main trial and who is expected to
give evidence in court which is:
a) likely to prevent further criminal offences by
another person;
b) likely to lead to the finding of truth in criminal
proceedings;
c) voluntarily made with full agreement to testify
truthfully in court;
d) adjudged by the court to be truthful and complete;
or
e) such that it might lead to a successful prosecution
of other perpetrators of a criminal offence.
The benefits for a cooperative witness can consist of
immunity from prosecution for certain offences, a
waiver or reduction of punishment. It is advisable that
the immunity can only be granted before the indict-
ment is filled, after the main trial commence only a
waiver or reduction of punishment should be applied.
Certain categories of offenders are usually excluded:
organiser or the leader of a group of two or more per-
sons which commits a criminal offence; a person sus-
pected of criminal offences punishable by e.g. ten or
more years of imprisonment; recidivists of serious
offences etc. All decisions regarding to cooperative
witnesses must be taken by the court and not by the
prosecutor or the police. Rights of the defence also
need to be taken into consideration.
The systems of cooperative witnesses introduced by
the draft CPC is in my opinion seriously flawed.
 LARA PROJECT CRIMINAL LAW REFORM AGAINST TRAFFICKING IN HUMAN BEINGS
Looking at the legislative text is seems an almost ver-
batim copy of the the Amendments to the Serbian
Criminal Procedure Code (FRY, Official Gazette, no.
68/2002) which was also subject of criticism and is
already shown problem in implementation. Below are
some of the concerns:
a) The system provides for a full immunity from
prosecution for certain offences. While this is a
policy decision, I feel obliged to stress again that
this is not at all a practice in most legal systems in
Europe and that it cuts deeply into the established
principles of administration of criminal justice sys-
tem.
b) Definition of the cooperative witness (Article 511).
Im not sure I fully understand this provision.
Therefore my comment might be mistaken.
However, from par. 1 of this article it seems that a
cooperative witness can only be a suspect/defen-
dant who anyway fulfils the criteria for a waiver
or reduction of punishment under the Criminal
Code. Where is the incentive for such witness
then?
c) Exclusion of certain categories of persons (Article
512/4). Currently, the only excluded category is
organiser or the leader of a criminal group. I urge
to reconsider this provision and exclude also per-
sons suspected of serious criminal offences (e.g.
punishable by ten or more years of imprisonment),
recidivists of serious offences, persons that were in
the past found guilty of offences against the
administration of justice (e.g. perjury).
d) Sealing of prior testimonies of cooperative witness
(Article 513/4). A total exclusion of all prior testi-
monial evidence of a cooperative witness for all
criminal proceedings will in my opinion cause
problems. Such testimony might be crucial for the
defence of other suspects (e.g. for scrutinizing the
credibility of the witness impeachment proceed-
ings) and could infringe on the rights of Article 6
of the ECHR, it could also be used in proceedings
not covered by the immunity. Usually, only
statements given by the suspect/accused on the
hearing where its status as a cooperative witness is
decided can be sealed.
e) Contents of the immunity order. The ruling of the
court to grant a status of cooperative witness
should in detail specify the criminal offences, by
describing the acts and their qualifications, for
which prohibition of initiation or continuation of
criminal proceedings is ordered, the nature and
substance of co-operation given by the co-opera-
tive witness and the conditions for the revocation
of the order. I couldnt find any such provision in
the present draft law.
82
f) Ne bis in idem (Article 515/2). According to this
article the court dismisses the indictment against
the cooperative witness. This in theory makes the
cooperative witness an instrument of substantive
and not procedural criminal law, which is not the
usual practice and can cause theoretical systemic
problems (like the ne bis in idem principle in case
of revocation of the status). Instead, I would sup-
port the approach as described in the model below.
g) Offences outside immunity. Article 516/2 suggests
that if additional offences of the cooperative wit-
nesses are discovered during the criminal proceed-
ing the prosecutor shall apply for the extension of
immunity. I found this problematic. As a rule in
such cases the status of cooperative witness should
be revoked.
h) Evidentiary value of the testimony of cooperative
witness. Due to the disputed value of the credibil-
ity of evidence given by the cooperative witness I
would strongly suggest that Montenegro follows
solutions of many countries which include in the
law an evidence rule along the following lines:
The court shall not find any person guilty solely
upon the evidence of testimony given by the coop-
erative witness. Furthermore, the case-law of the
European Court of Human Rights requires that a
defendant is made fully aware by the court if a
particular witness testifying in his/her case has a
status of a cooperative witness and what were the
benefits given for such testimony. I didnt found
such provisions in the draft law.
Following is a possible legislative model for regulat-
ing cooperative witnesses. I include it for comparison
with the solutions provided in CPC.
Article A
A co-operative witness is a suspect or a defendant in
respect of whom the indictment has not yet been read
at the main trial and who is expected to give evidence
in court which is:
(i) Likely to prevent further criminal offences by
another person;
(ii) Likely to lead to the finding of truth in criminal
proceedings;
(iii) Voluntarily made with full agreement to testify
truthfully in court;
(iv) Adjudged by the court to be truthful and complete;
or
(v) Such that it might lead to a successful prosecution
of other perpetrators of a criminal offence.
Article B
(1) The public prosecutor may make written applica-
tion to a court for an order that a person be declared
 LARA PROJECT CRIMINAL LAW REFORM AGAINST TRAFFICKING IN HUMAN BEINGS
a co-operative witness. The application shall contain
a separate declaration of factual allegations by the
public prosecutor, whose declaration may include a
request to keep these allegations secret from the other
parties and their legal representatives and the reasons
for such a request. The court may at any time after
receiving a request for secrecy from the public prose-
cutor make an order for secrecy with respect to factu-
al allegations contained in a declaration.
(2) Upon receiving the application, the investigative
judge shall hear the application in a session that is
closed to the public. The public prosecutor and the
legal representative of the co-operative witness may
participate in a hearing to evaluate the credibility of
the co-operative witness and to ensure that the
requirements of Article A are met. Statements made to
the judge during this examination cannot be used in
criminal proceedings against the co-operative witness
or against any other person as evidence to support a
finding of guilt.
(3) The provisions applicable to the examination of
witnesses shall be appropriately applied to the exam-
ination of the co-operative witness, and the statement
shall be recorded.
(4) The competent investigating judge or the presiding
judge of the trial panel shall issue the order.
(5) At the conclusion of the hearing the investigative
judge may issue an order declaring that a person is a
co-operative witness and such order shall state that
there shall be no initiation or continuation of criminal
proceedings against the co-operative witness for the
criminal offence specified in the order and that no
punishment shall be imposed for the criminal offence
so specified.
(6) The order shall specify the criminal offences, by
describing the acts and their qualifications, for which
prohibition of initiation or continuation of criminal
proceedings is ordered, the nature and substance of
co-operation given by the co-operative witness and the
conditions for the revocation of the order.
(7) A judge shall not issue such an order if the co-
operative witness is suspected by the public prosecu-
tor or charged by indictment for criminal offences
punishable with ten (10) or more years of imprison-
ment, or who is accused of being the organiser or the
leader of a group of two or more persons, which com-
mits a serious criminal offence. For the purposes of
this article a serious criminal offence is any offence
punishable with seven (7) years or more years of
imprisonment that resulted in the death or great bod-
ily injury of a person.
83
(8) The order shall not prohibit the initiation or con-
tinuation of criminal proceedings against a co-opera-
tive witness for criminal offences committed after the
order was issued or for criminal offences punishable
by ten or more years of imprisonment. The prosecutor
may apply for a further order, or may apply for revo-
cation of the original order, if the co-operative witness
is suspected of committing a subsequent criminal act.
Article C
(1) Upon an application by the public prosecutor, the
order may be revoked by a three-judge panel if it is
established that the testimony of the co-operative wit-
ness was false in any relevant part, or that the co-
operative witness omitted to state the complete truth.
(2) The co-operative witness shall be warned of the
consequences of giving false testimony in any relevant
part or purposely omitting to state the complete truth
before being heard by the investigative judge under
paragraph 2 of Article B, and before testifying at any
main trial under the protection of the order. Such
warning shall be given by the public prosecutor or
police before testimony is made before them and any
such testimony must be either in written form in the
co-operative witnesss language, signed by him or her
to acknowledge its truthfulness, or recorded on audio
or video tape which is determined to be authentic by
the court.
Article D
(1) The defendant against whom the co-operative wit-
ness is expected to testify shall be served with a copy
of the order prior to the main trial of the defendant.
Any promises to, threats against, or inducements,
payments or offers of such to the Cooperative Witness
shall be provided to the Defence.
(2) The trial panel shall not find any person guilty
solely upon the evidence of testimony given by the co-
operative witness.
Article E
(1) Upon an application by the public prosecutor, the
court may waive the punishment of a perpetrator who
is not a co-operative witness, or to reduce such pun-
ishment in accordance with provisions of the Criminal
Code when the perpetrator voluntarily cooperated and
his or her co-operation prevented any further criminal
offences by others, or led to a successful prosecution
of other perpetrators of a criminal offence.
(2) If the perpetrator is found guilty of a criminal
offence for which a punishment of at least ten years of
imprisonment can be imposed, the court shall not sus-
pend or waive the punishment.
 LARA PROJECT CRIMINAL LAW REFORM AGAINST TRAFFICKING IN HUMAN BEINGS
3.1 Conclusions of the regional training workshop41
(Strasbourg, France, 8-10 September 2003)
This training seminar organised in the framework of
the Lara project aimed to provide assistance to the
participating countries in drafting legislation on pro-
tection of victims and victim-witnesses on trafficking
in human beings, and examples of good practices. It
offered to the participants the opportunity to
exchange experiences, compare and discuss their
national legislation.
The training provided direct practical assistance in the
scope of application of the legislation on the protec-
tion of victims and victim-witnesses, the role of police
and assistance to and protection of victims on the
basis of the Belgian experience.
The three Belgian experts pointed out that the struc-
ture of their system enabled trafficking in human
beings to be approached at both at federal and local
levels, at the level of the police services and at the
judiciary and administration levels.
They pointed out that their system for combating traf-
ficking in human beings was based on a difficult com-
promise between, on the one hand, the willingness to
protect the victims and to offer them prospects for the
future, while on the other hand, the necessity of wag-
ing an effective fight against the criminal networks.
For the Belgian system, it was in this context that the
victims of trafficking who agreed to work together
with the judicial authorities and to be assisted by a
specialized shelter might be granted a specific resi-
dence status.
While every country has taken concrete initiatives in
the field of assistance and support of victims, they
recognised the importance to set up a global and com-
prehensive mechanism to protect victims and victim-
witnesses of trafficking in human beings.
The following items were discussed as issues to be
taken into account when drafting legislation:
recognise and state that trafficking in human
beings constitutes a violation of human rights and
an offence to the dignity and integrity of the
human being
41 The report on this training seminar is available on the Council of Europe website at : http://www.coe.int/trafficking
85
the legislative framework to combat trafficking in
human beings
the setting up of secondary legislation in the
framework of the protection of victims and victim-
witnesses in trafficking in human beings
the legal basis needed regarding the shelters which
are in charge of the victims of trafficking in
human beings
the multidisciplinary approach by the police serv-
ices, the judiciary and the administration
the development of cooperation, coordination and
exchange of information between the police, the
shelters and the judiciary in the framework of a
data base
the setting up of specialised centres to assist the
victims and provide them with socio-psychologi-
cal, medical assistance and legal aid
promote cooperation between shelters and NGOs
which are involved in assistance to victims of traf-
ficking in their countries of origin
provide the victims with access to legal aid
grant the victims of trafficking in human beings a
specific residence permit
grant compensation to the victims which include
regulations on the confiscation of the proceeds of
crime
promote and implement strategies on gender
equality perspective and to develop legislation and
The training seminar conveyed a picture of the
Belgian system in which the dynamic collaboration
between the specialised shelters, the police forces and
the judiciary is indispensable in order to pursue an
effective policy on the fight against trafficking in
human beings.
The participants agreed on the importance to draft a
law on the protection of victims and victim-witnesses
of trafficking in human beings and recognised that a
 LARA PROJECT CRIMINAL LAW REFORM AGAINST TRAFFICKING IN HUMAN BEINGS

multidisciplinary approach is necessary to achieve it. trafficking and its implementation and to exchange
They expressed that it was very useful to learn about experiences and discussed about their national legis-
the Belgian legislation on protection of victims of lation.

86
 LARA PROJECT CRIMINAL LAW REFORM AGAINST TRAFFICKING IN HUMAN BEINGS
4. Proceedings of the LARA final regional seminar
(Durres, 30 October 1 November 2003)
4.1 Opening addresses
4.1.1 Blendi KLOSI, Minister of State and Stability Pact National Co-ordinator for Anti-trafficking
Dear Chairman
Distinguished participants
Ladies and Gentleman
It is a real pleasure to welcome you, on behalf of the
Government of Albania, to Durres and to Albania.
We are delighted that the Council of Europe has cho-
sen Albania to host this last Regional Seminar in the
LARA project on Criminal Law Reform to Combat
Trafficking in Human Beings.
I am addressing this meeting in my capacity as
Stability Pact National Coordinator for Anti
Trafficking and as Minister of State in Office of Prime
Minister with particular responsibilities for coordinat-
ing government action against human trafficking and
corruption, and coordinating the anti-trafficking and
anti-corruption efforts of government with the non
governmental sector, which has also an important role
to play in these areas.
The position of Minister of State in Office of Prime
Minister reflects the high priority attached by
Government of Albania to combating both phenome-
na which present similar challenges to all developing
countries in the region, and are also most effectively
countered through enhanced regional co-operation,
and assistance from our partners in the established
democracies of the EU where we all see our common
home. Presence at this meeting of keynote speakers
and experts from Italy, Belgium and Romania is
indicative of the standards to which all of us in SEE
aspire.
In this context, I also would like to pay tribute to the
important normative and intra-regional coordination
role played by the Council of Europe and the Stability
Pact for SEE, and in particular the valuable contribu-
tion of the Council of Europe LARA and PACO
87
programmes, from which Albania has benefited great-
ly in its efforts to combat both human trafficking and
corruption.
Allow me to express my particular appreciation also
for the presence of Dr. Helga Konrad, Chair of the
SPTF, with whom I had the pleasure of inaugurating
yesterdays first session of Albanias newly formed
Child Trafficking Working Group in Tirana.
Last but by no means least, a very special welcome to
all our partners from South East Europe. Regardless of
our different social, cultural and historical back-
grounds, we are neighbours, we all have a common
goal, share common problems, and have much to
learn from one another in the process of transition
and EU integration. Too often, in this process, each of
us are tempted through lack of knowledge of the
experiences of others, to try to re-invent the wheel in
our domestic legislation and practices, when it makes
so much more sense to learn from one another and
share our common experiences and difficulties in
adjusting to the evolving realities and standards of
modern Europe. It is in this context that we in Albania
so much appreciate meetings such as the one we are
attending today.
Without going into details, in order to leave the space
to our national experts, I would like to say a few
words, from the perspective of the National Anti-traf-
ficking Co-ordinator, about Albanias current
approach to both legislation and implementation, and
about the difficult balance that countries such as
Albania need to strike between legislation and corre-
sponding capacity as well as institution-building
assistance and support.
Albania has taken positive steps to combat Trafficking in
Human Beings through enhanced law enforcement and
prosecution efforts, and the coordinated implementation
 LARA PROJECT CRIMINAL LAW REFORM AGAINST TRAFFICKING IN HUMAN BEINGS
by all involved institutions of the law enforcement, pros-
ecution, protection and prevention strategies contained
in the National Anti-Trafficking Strategy 2001-4,
international legal instruments, as well as the recom-
mendations of the Council of Europe, the European
Union, the Stability Pact and other international
partners.
The proposed Albanian priority actions for 2003-4 in
the areas of anti-trafficking and related anti-corrup-
tion measures give high priority to witness protection
measures, action to address the specific issue of child
trafficking and action to improve co-operation in all
areas of anti-trafficking between NGOs, governmental
and non governmental activities, and law enforce-
ment and prosecution agencies.
It includes a set of very ambitious interventions and
measures in the following mains pillars:
1. Criminal Procedure Issues.
2. Victim Protection and Law Enforcement.
3. Public awareness.
4. Investigative Issues.
5. International Criminal and Judicial Co-operation.
As outlined in this brief summary, the Albanian Anti-
trafficking Action Plan 2003-4 is a complex of inter-
related legislative, international co-operation, and
institution and human capacity building initiatives.
Albania readily accepts the challenge of the initiatives
it has undertaken, as well as the tight deadlines it has
set itself for their implementation over the next twelve
months.
But successful and timely implementation poses a
considerable test for Albanian institutional, human
and financial resources.
Finally, therefore, I would like to return to the issue of
implementation as the logical and necessary conse-
quence of legislation, and the challenge for countries
with limited financial and human capacity to imple-
ment modern European legislation.
Anti-trafficking legislation to acceptable internation-
al standards and the creation of a common legislative
88
framework is the focus of this meeting, and this
approach has Albanias wholehearted support. But it is
important also to bear in mind that legislation to
modern European and international standards brings
with it a heavy institutional and human capacity-
building burdens for SEE countries such as Albania.
As noted by other regional participants at the
September 2003 PACO Seminar in Sarajevo, the
implementation of up to date witness protection pro-
gram legislation will, for example, require consider-
able financial and know-how resources, which may
be beyond the means of many regional governments
in the short term.
This need for ongoing institution and capacity build-
ing as well as financial support from our European
and other international organisations partners applies
to many other initiatives undertaken in Albanias cur-
rent Action Plan for example, the creation of even
one serious crimes court, sophisticated criminal proce-
dures techniques to protect victim/witnesses in court,
our organized crime task force strategy, and the devel-
opment of multi-rolled shelter procedures to the high-
est international standards.
In short, drafting legislation is relatively inexpensive
in relation to the cost of follow-up. Institution and
capacity building to implement modern legislation
does not come as cheap, and the cost of failing to
implement what we have committed ourselves to
implementing can often attract as much international
criticism as failure to legislate. This too, I would sug-
gest, is one of the challenges facing this meeting, and
our common aim of developing a unified legislative
approach for the region.
With these possibly sobering intentionally challeng-
ing and hopefully, constructive thoughts, I will end
my introductory remarks. I wish you all well in your
work over the next two days; I hope you enjoy your
short stay in Albania, and I look forward with consid-
erable interest to reading the report of the outcome of
the meeting.
Thank you for your kind attention.
 LARA PROJECT CRIMINAL LAW REFORM AGAINST TRAFFICKING IN HUMAN BEINGS
4.1.2 Helga KONRAD, Chair of the Stability Pact Task Force on Trafficking in Human Beings
Final Lara Regional Seminar
Durres/Albania
30 October 2003
Let me welcome you most cordially, you the repre-
sentatives of the countries of the region, of the
Council of Europe, and the experts. I would like first
and foremost thank you warmly for the work you
have performed in the service of our cause.
Your work is of outstanding importance in the fight
against trafficking in human beings.
Legal reform designed to provide in each of the coun-
tries the necessary legal instruments for accomplish-
ing our objectives is critical for all of our work. A
strong legal framework to address trafficking must
exist in each country and across the region. It is a pre-
condition of much of what our countries need to
accomplish.
Law is built upon words, but we must never lose sight
of the real-world impact of what you do here:
Governments must have the legal tools to prosecute,
convict and punish the traffickers to a degree that
reflects the severity of the crime of human trafficking.
Laws also must specify ways in which governments
shall satisfy their legal responsibility to provide for
the safety and care of the citizens of their countries
and those of other countries found within their bor-
ders who, as a result of this crime, have suffered harm
often severe harm.
This is no mere academic exercise.
Every country in South Eastern Europe has signed and
ratified the Palermo Protocol against trafficking in
persons. The Protocol contains the minimum steps
that States need to take individually and collectively.
And please note that it does not call for States only to
adopt a criminal provision. Doing no more than mak-
ing trafficking in human beings a crime is inadequate
for the fight against human trafficking. It requires a
comprehensive and integrated legal and social frame-
work.
Any country that fails to recognize and embrace this
fundamental fact will have little if any success against
human trafficking.
That is why countries shall both criminalize the act of
human trafficking and also provide for the possibility
of an extended stay for victims of trafficking in the
respective country. It is understood that temporary
residence not only helps the victim but it increases the
likelihood of their being willing and available to serve
as witnesses for successful prosecutions of the traf-
fickers. Therefore, a criminal provision without tem-
porary residence will not be effective.
89
Similarly, without strong mechanisms of protection
provided by law for the safety of trafficking victims,
there will not be enough co-operation on the part of
the victims to satisfy the needs of law enforcement
and the judicial process.
Every aspect of a countrys legislation must ensure
that governments treat trafficking victims as victims
of a violent crime and not act as if they were crimi-
nals.
We must keep in mind how these new laws can be
used in combination with existing legal tools such as
those available to thwart organized crime activities in
general and money-laundering across borders.
It has recently come to my attention that there is some
confusion about the role and importance of harmo-
nization of laws. Harmonization of laws does not
mean that all countries have the same anti-trafficking
law. Harmonization of anti-trafficking laws means
that every country has enacted a law that contains at
least the minimum elements as identified in the
Palermo Protocol and the Convention against
Transnational Organized Crime. We hope that coun-
tries will enact and implement even stronger laws so
that they will become recognized as leaders in this
effort.
The critical importance of harmonization of laws is to
end any safe havens for traffickers where they can
escape prosecution. If one country provides a tough
law that typically sentences traffickers to high prison
sentences, like 10 years and its neighbour adopts a
weak law so that traffickers risk is more likely to be
several months or may be even a fine, where do we
think traffickers will base their operations? Where do
we think trafficking will flourish?
In addition, harmonization is to ensure that victims
will not fall into the gaps no matter in which of your
countries they are found.
The legislation to fight trafficking must be compre-
hensive. This year, the SPTF has emphasized three
areas that must be part of a comprehensive law: I have
already mentioned two: the temporary residence and
victim/ witness protection. The third is how to appro-
priately address trafficking of children and minors.
Recent research by the Regional Clearing Point con-
firms that there is a trend in the region toward
increased trafficking of those under the age of 18.
Enacting special provisions for those under the age of
18 giving them the benefit of additional legal pro-
visions in their favour and protection by the law is
critical. By signing and ratifying the Palermo
Protocol, your countries committed themselves to
adopt this approach in favour of all those under 18
and I might add, regardless of whether those under 18
 LARA PROJECT CRIMINAL LAW REFORM AGAINST TRAFFICKING IN HUMAN BEINGS

are called minors, children, juveniles, adolescents or In conclusion, thank you for what you have done and
something else in your current national law. We are for what you are doing the Council of Europe, the
going to be vigilant in ensuring that this will happen. experts from the region If you carry on in the same
spirit and in the awareness of how serious this issue
This may be the final meeting of the Lara Project, but
is, your contribution will result in important positive
this is not the end of the anti-trafficking law reform
changes.
process across the region. Until these laws are enact-
ed and implemented in each of the countries our work
will continue.

90
 LARA PROJECT CRIMINAL LAW REFORM AGAINST TRAFFICKING IN HUMAN BEINGS
4.2 European and international standards
4.2.1 Update on recent developments in the field of action against trafficking in human beings at
European level
By Mrs Maria Grazia GIAMMARINARO, Judge, Criminal Court of Rome (Italy)
A process of reform of national legislation on traffick-
ing is underway in all the countries of the Region,
according to the standards established by the UN
Convention against Transnational Organized Crime
and the Protocol on Trafficking in Person, especially
Women and Children.
In this context, it is important to mention some very
interesting developments of national legislation, i.e.
the Bulgarian law on trafficking, providing for a resi-
dence permit for the victims of trafficking and estab-
lishing shelters and support activities for them. The
Albanian draft law on victims and witness protection
is also to be mentioned as a good example of regula-
tion on a topic that many countries consider as a cru-
cial issue in the fight against organized crime and
trafficking as well.
At the European level, the most important develop-
ment is the establishment of the CAHTEH (Ad Hoc
Committee on Action against Trafficking in Human
Beings), which will draft a proposal for a Council of
Europe Convention on action against trafficking.
According to the Terms of Reference of the Council of
Europe Committee of Ministers, the Convention shall:
put a special focus on the human rights of the
victims of trafficking and design a comprehensive
framework for the protection and assistance of
victims and witnesses, also taking gender equality
aspects into consideration, as well as on the effec-
tive prevention, investigation, prosecution and on
international co-operation;
define a monitoring mechanism to ensure compli-
ance of States parties with the provisions of the
Convention;
take into account the standards of the Council of
Europe in the fields of human rights, criminal law
and judicial co-operation which are specific to this
offence, in particular on the basis of existing legal
instruments dealing with trafficking in human
91
beings and those dealing with other serious forms
of crime which are related to it;
take into account the existing universal and
regional legal instruments dealing with trafficking
in human beings; in particular the Committee
should take the Protocol to prevent, suppress and
punish trafficking in persons, especially women
and children, supplementing the United Nations
Convention against transnational organised crime
as the basis of its work, with a view to improving
the protection afforded by it and to developing the
standards contained therein. Moreover, it should
abstain from altering the protocol definition of
trafficking in human beings and should, if pos-
sible, integrate it as such among the provisions of
the future European Convention.
The special focus on human rights
The Terms of Reference identify a wide range of pur-
poses, and the need of a balance between the protec-
tion of human rights of trafficked persons and the pre-
vention, combat and punishment of trafficking as a
criminal phenomenon.
Article 2 of the Protocol to prevent, suppress and pun-
ish trafficking in persons, especially women and chil-
dren, supplementing the United Nations Convention
against transnational organised crime (in the follow-
ing referred as UN Convention and Protocol) comprise
within the purposes of the Protocol the assistance and
protection of victims, in addition to prevention and
combat of trafficking.
However, the provisions concerning assistance and
protection have been formulated in a context particu-
larly aimed at prosecuting organized crime. As a con-
sequence, the Protocol primarily focuses on investiga-
tion, prosecution and law enforcement.
Therefore the future European Convention shall adopt
a special focus on human rights of trafficked persons.
 LARA PROJECT CRIMINAL LAW REFORM AGAINST TRAFFICKING IN HUMAN BEINGS
In fact, the protection of the human rights of traf-
ficked persons is one of the most serious problems to
be dealt with at European level. According to nation-
al experiences over the past five years, the protection
of the human rights is a decisive element in strategy
against trafficking.
Any inconsistency between declarations and policies
in this field results in a failure in the fight against
trafficking.
Trafficking as a gross violation of the human rights
of the trafficked person
According to the definition of trafficking contained in
the UN Protocol, it is necessary to keep in mind a clear
distinction between trafficking and smuggling.
Trafficking always implies a behaviour of the perpe-
trators characterised by violence, threat or abuse. In
addition, the crime is committed with the purpose of
exploitation, sexual or labour exploitation, slavery or
other forms of servitude.
The definition in the Protocol establishes two criteria
to distinguish trafficking from smuggling of migrants:
The trafficked person is not a migrant who has
consented to the illegal border crossing. She/he
has been subject to a behaviour that infringes
her/his rights. The violation of her/his rights can
be perpetrated in any moment of the trafficking
process, and not necessarily in the country of ori-
gin. The person could have consented to the illegal
migration at the beginning. However, if in any of
the countries of transit of destination one or some
of the means identified in the definition have been
used, the whole process must be qualified as traf-
ficking.
The purpose of the traffickers is not limited to earn
a disproportionate amount of money to organise or
favour the illegal border crossing of a migrant, but
consists in a following activity of exploitation.
Since very rarely the first trafficker is also the final
exploiters, the person will be sold and bought, may
be several times, until the exploitation will start.
Although sometimes it is difficult to identify the
whole chain of trafficking, it is helpful to keep in
mind that the link between the person and the traf-
fickers does not end with the illegal border cross-
ing. The person will be kept in some kind of rela-
tionship with the traffickers, by means of violence
or other abusive means, with a purpose of subse-
quent exploitation.
Bearing in mind the distinction between trafficking
and smuggling, it is clear that the trafficked person is
not merely an illegal migrant. She/he is a person who
has suffered a severe infringement of her/his human
rights.
92
According to some recent developments in the
jurisprudence of the European Court of Human Rights,
trafficking implies the infringement of the right to
freedom and self-determination (article 4 ECHR), the
right to physical and psychical integrity as an aspect
of the protection of personal life (article 8 ECHR), the
right to be free from torture and inhuman treatments
(article 3 ECHR).
A victim-friendly approach to the actions against
trafficking
An important consequence of the distinction between
trafficking and smuggling concerns the general
approach that must be adopted in dealing with the
two phenomena, both at the national and internation-
al level, in drafting and implementing new regulation.
So far, very often trafficking cases are not identified
and are treated as smuggling cases. This means that a
high number of people, mostly women and girls, are
daily deported without any investigation aimed at
finding out if behind that case of smuggling there is a
violent or abusive behaviour infringing human rights
of the person involved. Even if a case is identified as
a trafficking case, the person sometimes is deported
after reporting to the police or making a statement.
Some national legislation allows the person to stay
longer in the territory of the receiving country on
judicial grounds. But after the end of the criminal pro-
ceedings, the person is supposed to be repatriated.
The future European Convention should aim at deal-
ing with trafficking with a different approach, which
must be consistent with the qualification of the traf-
ficked persons has been subject to a gross violation of
her/his rights.
There are a number of implications of this general
approach, that is helpful to identify:
a) The trafficked person is subject to social marginal-
isation and stigmatisation for reasons directly con-
nected to the fact she/is has been trafficked. Hence,
effective action should be taken, aimed at an effec-
tive implementation of the principle of non-dis-
crimination.
b) The trafficked person should not undergo negative
consequences for being subject to a process of vic-
timisation. For that reason she/he should not be
prosecuted for crimes committed as a direct conse-
quence of her/his position of victim of trafficking,
such as illegal border crossing, use of false docu-
ments, prostitution, in the countries where these
behaviours are punished as crimes.
c) The rights of the trafficked person in criminal pro-
ceedings should be codified. The rights of the vic-
tim must be balanced with the rights of the defen-
dant. However, while the rights of the defendant
 LARA PROJECT CRIMINAL LAW REFORM AGAINST TRAFFICKING IN HUMAN BEINGS
are normally codified and guaranteed in national
criminal codes of procedure, a few provisions are
dedicated to the protection of the rights of the vic-
tim. New regulation is needed, aimed at improving
the position of the victim. This involves a number
of problems related to the right to privacy,
anonymity, assistance and legal representation,
compensation.
d) The trafficked person should be supported, protect-
ed and granted a residence permit. Support and
protection should be guaranteed to the trafficked
person as soon as the competent authorities iden-
tify reasonable grounds to assume that the person
as been subject to trafficking.
Support and protection should be granted merely on
grounds of suspected trafficking, and not upon condi-
tion that the person involved report to the police or
make a statement in criminal proceedings, at least at
an early stage of the procedure. It is important to bear
in mind that in the case of any traumatised victim, co-
operation cannot be expected form the beginning. The
victim needs time to recover, re-gain self-esteem, take
control on her/his life and start to build a plan for the
future.
As some successful national experiences show very
clearly, if the public institutions guarantee to the traf-
ficked person support and protection, at an early stage
and unconditionally, the person will be much more
willing to co-operate with police and judicial author-
ities. Hence, the unconditional protection of the
human rights of the trafficked person is also the best
means to make prosecution more effective.
Gender- equality aspects
Emphasis should be given to a gender perspective as
an essential aspect of the human rights approach. The
root causes of trafficking in human beings are in
patriarchal structures that worldwide keep so many
women in a condition of subordination to men, lack
of recognition of their human rights, lack of equal
opportunities, unemployment and poverty.
Tackling root causes of trafficking should be centered
on the problem of gender inequalities, aim at empow-
erment of women, and should foster promotion of the
position of women in societies, including access to
education, employment, credit, equal pay and decision
making.
Trafficking should be regarded as a form of gender-
based violence. Many times, behind a case of traffick-
ing there is a violent parent, an abusive family, or a
family where a girl is considered a burden. Trafficking
in itself is favored by the demand of sexual services of
women by men, which mostly derives from the patri-
archal background still characterizing all our societies,
93
both in western countries, underdeveloped countries,
countries with economies in transition.
A gender-based approach should not emphasize the
victimisation process as the essential element of the
identity and position of a trafficked woman.
Sometimes trafficked women and girls are particular-
ly vulnerable. But sometimes they are very strong per-
sons. Sometimes they have left their countries because
they were the only resource for their families and chil-
dren. Sometimes they had their own project, may be
including illegal migration, may be including exercis-
ing prostitution for some years, or participating in the
sex industry for some years. For these women and
girls, trafficking means the failure of a migration proj-
ect, aimed at ensuring a better life to them and their
children.
In order to avoid any discrimination or stigmatization,
the approach of institutional and social actors to
women and girls who have been trafficked should be
based on the idea that they are not criminals, nor ille-
gal aliens or prostitutes, but victims of a crime.
But it is important to underline that the definition of
victim is a legal concept. A cultural and social
approach should not stress the condition of victim as
the essential aspect of the identity of a trafficked
woman. On the contrary, trafficked women and girls
should be regarded as persons willing to escape from
traffickers, to reach full self-determination and free-
dom in their own lives.
The best interest of the child
Every action based on the human rights approach
should incorporate the principle of the well-being and
the best interest of children. Whether they are used in
slavery-like labor or services, domestic servitude,
prostitution or other forms of sexual exploitation, all
the public institutions, at national and international
level, should join the efforts to help children to escape
from traffickers and to follow a way of rehabilitation
and social integration. This implies, inter alia, that
national legislation should stipulate more protective
standards of assistance and social protection for
minors, considering the vulnerability and special
needs of children.
Even taking into account the obscure figure of traf-
ficking, which escapes from any assessment and
which probably concerns just the most serious forms
of exploitation, child trafficking does not represent
the majority of the cases of trafficking in human
beings . This means that it is possible and realistic to
put in place effective action against child trafficking.
However, in order to make it possible, it is important
to stress that a more protective approach is needed,
concerning the broader problem of foreign unaccom-
panied minors. Every case of an unaccompanied
 LARA PROJECT CRIMINAL LAW REFORM AGAINST TRAFFICKING IN HUMAN BEINGS
foreign child could hide a case of trafficking. A child
should not be deported or repatriated with coercive
measures, at least not before having listened to
her/him; qualified persons must also estimate if repa-
triation is in the interest of the child.
It should be established, through statutes or adminis-
trative regulation, a procedure of listening to the child
before any decision about her/his status, aimed at
evaluating the reasons of the entrance, the relation
with the native family, her/his concrete outlooks for
the future. Such a practice should give to the child an
effective right to be listened to in every proceeding
regarding himself stipulated by the Convention of
New York. Furthermore, it occurs to consider the
opportunity to establish a sort of tutor, to help the
child to understand end explain her/his own feelings
and plans, and simultaneously to help the competent
authorities to evaluate the best interest of the child in
the concrete case.
Generally speaking, the mere fact that the police dis-
covers where the family is located, even if indispensa-
ble, cannot be considered enough for the decision on
repatriation. Indeed, it must be also valued if the
rejoining with the family in the native country is real-
ly in the interest of the child, according to both to
her/his actual aspirations and the reasons of the
departure.
94
In the case it is stated that it is in the interest of the
child to stay in the receiving country, it must be also
evaluated that, with the help of the tutor, considering
the age of the minor and her/his opportunities for
integration, it must be decided which alternative is
more suitable to follow, if the national legislation
gives different options, for instance between a resi-
dence permit for minors or for victims of trafficking.
Since child trafficking must be considered as a high
priority, also policies concerning assistance and pro-
tection of children should ensure a more protective
standard of protection of the rights of children.
Entitlements of the trafficked person
At this point, it is possible to summarise the entitle-
ments of the trafficked person:
Safety and protection;
Support aimed at redress and reintegration;
Residence status in the receiving country;
Participation and protection of the rights of the
victim in criminal proceedings and other relevant
procedures.
These entitlements should be at the core of any new
regulation concerning the fight against trafficking, at
the national and European level.
 LARA PROJECT CRIMINAL LAW REFORM AGAINST TRAFFICKING IN HUMAN BEINGS
4.2.2 Commitments and undertakings under European and international legal instruments regarding traf-
ficking in human beings and their incorporation in national legislation
By Mr Freddy GAZAN, Adviser for Criminal Policy, Ministry of Justice, Belgium
Since time immemorial, humans, particularly women
and children, have been paraded as private chattel to
be exploited as slave labour or objects of sexual grat-
ification without concern for the inherent inhumani-
ty, or detrimental consequences, of such activities.
Trafficking in persons is a human rights issue touch-
ing upon the primordial cornerstones of societal
decency and integrity.
Statistics foretell a depressing picture of the perva-
siveness of the global commerce in human beings,
especially in South-Eastern Europe. The International
Organisation for Migration has found in its 1999
groundbreaking report that trafficking from this
region once minimal during the Cold War now
rivals traditional source regions, such as Asia, Africa
and the Caribbean. Bad news does not end there: the
United Nations Global Report estimates that there are
between two-hundred thousand and half-a-million
sex workers in the European Union, two-thirds of
which come from Eastern and Central Europe.
Following vigorous awareness-raising campaigns by
trafficking victims, NGOs, international organisations
and several national governments, two noteworthy
international legal instruments against trafficking
have been promulgated, namely the United Nations
Convention against Transnational Organised Crime
and its supplementary Protocol to Prevent, Suppress
and Punish Trafficking in Persons, Especially Women
and Children and the European Union Council
Framework Decision on combating trafficking in
human beings and related legislation.
I shall discuss each one in turn.
United Nations Convention and Protocol
After two years of intense and heated negotiations,
the UN General Assembly drafted the UN Convention
on transnational organised crime and its supplemen-
tary protocol on trafficking in persons. Although, the
Convention entered into force on 29th September
2003, the Protocol is expected to be in force by
Christmas 2003.
Both instruments introduce some major innovations
to tackle comprehensively and robustly the crime of
human trafficking. Article 5 of the Convention crimi-
nalizes participation in an organised criminal group
defined as three or more people in a structured entity
acting in concert desirous in committing a serious
crime established thereunder. Articles 6 and 7 choke
off the financial incentives of trafficking by respec-
tively criminalising the laundering of proceeds of
crime and specifying measures to combat money
95
laundering. Article 8 criminalises corruption, notably
of public officials, while Article 9 specifies measures
against it. Articles 16 to 27 provide mechanisms for
intra-State co-operation and mutual legal assistance,
including joint investigations, extradition of criminal
perpetrators and the protection of witnesses.
Buttressing the Convention is the Protocol on human
trafficking, incorporating a triple objective of prevent-
ing and combating trafficking in persons, specifically
targeting women and children that is persons under
eighteen years of age, protecting and assisting victims
thereof, and promoting international co-operation
among State Parties in order to meet the stated objec-
tives.
With a view to ensuring the widest possible scope and
coverage, the Protocol defines exhaustively traffick-
ing as the recruitment, transportation, transfer, har-
bouring or receipt of persons, by means of the threat
or use of force or other forms of coercion, of abduc-
tion, of fraud, of deception, of the abuse of power or
of position of vulnerability or of giving or receiving
of payments or benefits to achieve the consent of a
person having control over another person, for the
purpose of exploitation. Exploitation shall include, at
a minimum, the exploitation of the prostitution of
others or other forms of sexual exploitation, forced
labour or services, slavery or practices similar to slav-
ery, servitude or the removal of organs. Notice the
inclusion of organ removal and transfer within the
definition. Consent of the victim is irrelevant if any of
the stipulated illicit means for its procurement are
used. Trafficking in children is considered as traffick-
ing in persons for the purpose of exploitation, even in
the absence of threats, use of force, deception and
other illegal enumerated means.
Article 6 includes measures for the protection and
assistance of victims of trafficking in persons, such as
protecting the privacy and identity of a victim of traf-
ficking. Article 7 obliges the State Parties to consider
adopting legislative or other means that permit vic-
tims of trafficking to remain on its territory, temporar-
ily or permanently, in appropriate cases.
Repatriation of victims to the country of permanent
residence or nationality is mandated under Article 8.
State Parties are also required to establish multi-
faceted national policies and programmes to prevent
trafficking in persons. Articles 10, 11 and 12 necessi-
tate respectively that State Parties should: exchange
information between each other, strengthen border
controls, and ensure the quality of travel documents.
Requests of verification from one Party to another of
 LARA PROJECT CRIMINAL LAW REFORM AGAINST TRAFFICKING IN HUMAN BEINGS
the legitimacy of travel or identity documents are
foreseen under Article 13.
Throughout the Convention and Protocol, internation-
al co-operative actions are triggered by the existence
of the twin criteria of transnationality that is, the
prevention, investigation and prosecution of a specif-
ic offence involving two or more State Parties and
criminal organised group, meaning three or more
people in a organised structure who intend to commit
a serious crime. However, the prosecution of crimes
can proceed in the absence of either or both of those
criteria.
Taken together, both instruments furnish a reference
point for individual and collective action for combat-
ing the global scourge of trafficking in persons. For
the first time, there is an internationally accepted def-
inition of trafficking in persons and obligations to
criminalise human trafficking, corruption of public
officials and so on. Notwithstanding those achieve-
ments, these texts are dominated by the language of
compromise, exhortation and persuasion at the
expense of precise legally binding commitments.
Take, for instance, Article 6 paragraph 1 of the
Protocol, which reads: In appropriate cases and to the
extent possible under its domestic law, each State
Party shall protect the privacy and identity of victims
of trafficking in persons or paragraph 3 of the same
Article: Each State shall consider implementing
measures to provide for the physical, psychological
and social recovery of victims in persons. Another
example is the permission granted to a Party prior to
ratification or accession to opt out of the dispute set-
tlement sub-clauses on arbitration. Formulations and
opt-outs, like in appropriate cases, to the extent
possible, shall endeavour and shall consider are
prevalent throughout the Convention and Protocol.
Such dilution was fundamental to the attainment of
such accords acceptable to more than one hundred
countries with a multitude of positions, policies and
concerns. Nevertheless, the significance of these
agreements cannot be exaggerated, supplying global
benchmarks and policy-directions for the eradication
of human trafficking.
European Union Council Framework Decision on
combating trafficking in human beings
Now turning to European legal instruments, the
European Union is adamant to stamp out human traf-
ficking using a variety of measures either implement-
ed or under consideration.
The primary instrument is the Council Framework
Decision on combating trafficking in human beings of
19 July 2003. It largely follows the spirit and black
letter of the UN Convention and Protocol, but goes
further by fixing a minimum term of imprisonment of
96
eight years, where an offence of human trafficking
deliberately or by gross negligence endangers the life
of a trafficking victim or where such offence targets a
child below the age of sexual majority, as defined
under national law, for the purpose of prostitution or
sexual exploitation.
EU Member States must achieve full implementation
prior to 1st August 2004.
This Council Framework is given teeth by its counter-
part Decision on the European Arrest Warrant and the
surrender procedure between Member States of 13
June 2003, instituting simplified and accelerated pro-
cedures for the arrest, detention and extradition of an
alleged perpetrator or a convicted offender for thirty-
one different crimes, including participation in a
criminal organisation, trafficking in human beings,
sexual exploitation of children and child pornogra-
phy, illicit trade in human organs and tissue, corrup-
tion, fraud, laundering of the proceeds of crime, facil-
itation of unauthorised entry and exit, and rape.
Essentially, if a EU Member State has charged an
alleged perpetrator or convicted him of one or more
crimes mentioned under the Decision, and such perpe-
trator or convicted criminal has escaped to another EU
Member State to evade capture, a court in the first
State is empowered to issue an arrest warrant and
transmit a request to the second State for his surren-
der or extradition. The courts of the second State
must in conformity with the principle of mutual
recognition treat the arrest warrant as if issued
locally, thereby arresting the alleged perpetrator and
extraditing him expediously to the requested State.
EU Member States must fully implement the Decision
by 31st December 2003.
Apart from the EU Framework and Decision, which
have to be considered within an arsenal of other
measures, such the Council Framework Decision of 15
March 2001 on the standing of victims in criminal
proceedings, there are other measures in the pipeline
to extend protections to trafficking victims and
encourage prosecutions. One such measure is a pro-
posal on the short-term residence permit issued to vic-
tims of action to facilitate illegal immigration or traf-
ficking in human beings who cooperate with the com-
petent official authorities. Although under on-going
negotiations between the EU Member States, its broad
outlines are quite clear.
Non-EU trafficking victims, having exceeded the age
of majority as defined under national legislation, are
granted a period of reflection enabling them to
recover and escape the influence of the traffickers so
that they can make an informed decision as whether
to cooperate with the competent national authorities.
During this period, EU Member States must provide
adequate financial assistance and access to emergency
 LARA PROJECT CRIMINAL LAW REFORM AGAINST TRAFFICKING IN HUMAN BEINGS
medical treatment. Also, there is a moratorium on
possible expulsion proceedings.
Following the conclusion of the reflection period, the
requisite victim shall be granted a short-term residen-
cy permit if his or her prolonged presence in an EU
Member State is necessary for an investigation or
judicial proceedings; that he or she has shown a
demonstrable intention to cooperate with the author-
ities; and he or she has severed all relations with the
purported traffickers. Minimum residency is fixed at
six months, but could be shortened or lengthened
conditional upon progress in such investigation or
proceedings. If the victim at any time restores links to
the purported traffickers, ends all co-operation or the
co-operation provided and/or complaint is fraudulent
or wrongful, the residency permit shall be terminated.
Throughout the duration of residency, the cooperating
victim is entitled to exercise an economic activity and
have access to vocational training and education as
well as guaranteed access to necessary health care,
including at a minimum at least emergency and basic
medical treatment.
Special needs, such as pregnant women, the disabled
or victims of sexual violence must be met and minors
shall receive access to the educational system under
the same conditions as nationals. EU Member States
must establish the identity and nationality of unac-
companied minors.
Initiatives: Council of Europe, Stability Pact and
Budapest Process
Aside from international legal measures, there are
interesting regional European plans and ideas for the
suppression of trafficking in persons.
The Council of Europe, having adopted the
Recommendations R (2000)16 on the protection of
children against sexual exploitation and R (2000)11
on action against trafficking in human beings for the
purpose of sexual exploitation, is in the process of
drafting a new convention on enhanced measures
against such trafficking and on the protection of its
victims beyond the standards of the UN Convention
and Protocol.
There is also the Stability Pact Task Force on
Trafficking in Human Beings, launched in September
2000, an initiative to encourage and strengthen co-
operation between the countries of South Eastern
Europe, in addition to streamline existing efforts in
the war against human trafficking in that region, act-
ing under the auspices of the Organisation for
Security and Co-operation in Europe. The Stability
Pact is a political declaration of commitment and a
framework agreement created by the European Union
in June 1999 to develop a shared strategy for stabili-
ty and growth in Europes south eastern corner.
97
Another initiative is sponsored by the Budapest
Process, so-named after the Ministerial Conference in
Budapest (Hungary) in February 1993, which led to
the formation of the Budapest Group of Senior offi-
cials. It is a flexible multilateral forum for annual
meetings of forty governments aimed at preventing
irregular migration in a pan-European context.
Following particularly its recommendations of Prague
(1997) and Rhodes (2003), States Parties commit
themselves to act concretely against trafficking.
Observations
Given the recent spate of agreements and initiatives
on human trafficking, we may be tempted to rest on
our laurels. Complacency, however, is not an option.
Drafting and enacting agreements is the easy part.
Now comes the hard and arduous slog of implementa-
tion. It has become customary for support for an issue
to reach fever pitch, only to be followed by delayed
reactions or inaction, dissipating enthusiasm and ulti-
mate disappointment.
Rigorous enforcement and implementation demands a
healthy concoction of peer-reviews, capacity-building
and regular analysis. Peer-views in the sense of
experts in one country checking-up and proffering
advice on performance in another country, as exem-
plified by the Council of Europes LARA project.
Capacity-building means the setting-up and strength-
ening in developing countries of appropriate institu-
tions and programmes to defeat the plague of human
trafficking, encompassing the fields of health and
education, law-enforcement and civil society.
Encouragingly, the follow-up meeting on the UN
Convention is scheduled to take place in April 2004.
Regular analysis refers to research and studies to
determine the effectiveness of the measures in meet-
ing their goals and objectives by reverting to bench-
marks and disseminating results and best-practice.
As seen, our States have to take into consideration
several international instruments. I mentioned the UN
convention and its protocol, but I also have to add the
Optional protocol to the convention on the rights of
the child, on the sale of children, child prostitution,
and child pornography, and certainly the ILO
Convention n. 182 concerning the prohibition and
immediate action for elimination of the worst forms of
child labour. Very recently, on 23rd July of this year,
the Economic and Social council adopted the
Resolution 2003/30 on Strengthening international
co-operation in combating trafficking in persons and
protective victims of such trafficking.
Outside the framework of the UN but still a at a world
scale, we have to mention with regard to sexual com-
mercial exploitation of children, the Stockholm Action
Plan reactivated in Yokohama two years ago under
 LARA PROJECT CRIMINAL LAW REFORM AGAINST TRAFFICKING IN HUMAN BEINGS
the form of the Yokohama Global Commitment with
its European Explanatory Declaration.
At the EU level, we commented on the framework of
the decision but we could also elaborate on the 12
Brussels Commitments of 28th September 2001 in the
fight against trafficking in human beings binding the
Candidate Members. These Brussels commitments are
not to be confused with the IOM Brussels Declaration
of September 2002 on Preventing and Combating
Trafficking in Human Beings. This important docu-
ment needs also our attention.
In this perspective, the EU, which is also adopting a
new recommendation, is now setting up an expert
group to establish an action plan.
98
At a wider level, the Budapest Process (and I think
that we are all members of it) adopted, still recently,
recommendations, in particular about trafficking in
human beings and the level of penalties.
In conclusion, with such an unanimous international
consensus about the importance of the problematic
and the high grade of priority that we would invest, I
couldnt imagine that we dont succeed significantly
to tackle this phenomenon. To do it, all representa-
tives of an authority, we have to accomplish our task.
In this view: we are important!
 LARA PROJECT CRIMINAL LAW REFORM AGAINST TRAFFICKING IN HUMAN BEINGS

4.3 Workshop 1: Main elements of a comprehensive legislative framework

for the prevention and prosecution of trafficking in human beings and
for the effective protection of trafficked persons

Trafficking in human beings can be effectively com-
bated only through the development of a balanced
and integrated anti-trafficking policy, which covers
the aspects of prevention, prosecution and protection,
as well as through the adoption of a multidisciplinary
and co-ordinated approach involving all the parties
concerned at national, regional and international
level. This has been widely recognised at internation-
al and European level by States and reflected in exist-
ing international and European legal instruments.
The first working group session was therefore dedicat-
ed to a discussion on the elements of a comprehensive
legislative framework regarding these three aspects
prevention, prosecution, protection and on how they
could be better integrated in an effective anti-traffick-
ing strategy at national level.
National experts discussed upon the elements of their
national legislative framework from a comparative
perspective. This enabled them to engage in a reflec-
tion and discussion about further developments which
could be expected in this respect in their countries in
terms of policy, legislation, institutional aspects,
implementation and monitoring. The outcome of the
discussions and the main elements are summarised
below.

99
 LARA PROJECT CRIMINAL LAW REFORM AGAINST TRAFFICKING IN HUMAN BEINGS
4.3.1 Session 1: Prevention of trafficking in human beings
With reference to the relevant provisions of the
Palermo Protocol and the Committee of Ministers
Rec(2000) 11, experts identified and outlined the min-
imum elements of a comprehensive anti-trafficking
legislative framework as well as other short and long-
term measures to be envisaged regarding the question
of prevention of trafficking in human beings:
Policy
National anti-trafficking strategy/action plan
which includes preventive measures
Gender-equality/ equal opportunities policies
Management migration policy
Preventive action against violent behaviour, par-
ticularly against women
Special measures for the protection of children
Special measures for the employment of women
Support measures to tackle poverty and marginal-
isation
Measures to reduce the demand for sexual servic-
es and cheap labour
Special programmes for diplomatic and consular
staff
Legislation
Criminalisation of trafficking in human beings and
related offences/ specific law regarding trafficking
in human beings
domestic violence
gender-equality / equal opportunities
labour laws
legislative provisions/regulation for the protection
of children (including passport and visa regula-
tions) and the protection of minorities
Institutional aspects
National commission to combat trafficking in
human beings
National rapporteur/ coordinator on the fight
against trafficking in human beings
National mechanism for implementing gender
equality
Independent centre for collecting data and statis-
tics on victims of domestic violence and of traf-
ficking segregated by sex
100
Implementation and monitoring aspects
Awareness-raising and information campaigns,
particularly in schools, disadvantaged areas, rural
areas, etc. (e.g. on trafficking in human beings
issues, on employment opportunities abroad, etc)
Telephone Hotlines/access to counselling
Referral mechanisms
Education campaigns, sensitivisation programs on
gender discrimination
Training activities (special training for social
workers, judges, prosecutors, police, diplomats,
NGOs, employment agencies; specific training for
media professionals on ethical questions, including
on gender mainstreaming)
Research in the field of prevention of trafficking
for the purpose of sexual exploitation, including
via the new information technologies and in the
field of the prevention of violence;
Development of databases
Elaboration of manuals/guidelines/ codes of con-
duct and self regulation for media professionals
Develop partnership with local NGOs
Annual reports on implemented preventive short-
term and long-term measures and their impact
Monitoring of newspapers/adverts
Discussions focused especially on problem areas and
general principles of legislation addressing some of
the root causes of trafficking, such as:
Violence against women
Domestic legislation should ensure legal protection
against gender-based violence, including domestic
violence, and provide for appropriate measures and
sanctions. For instance, examples were given by
national experts, such as the recently adoption in
2003 of the Law on the prevention and combat of vio-
lence in family (Romania) or the UNMIK Regulation
2003/12 on the Protection against Domestic Violence.
Additional examples of provisions of the criminal
codes enabling to take action against perpetrators of
violence and redress the wrong done to women are
victims of violence were also given (eg. criminalisa-
tion of sexual acts committed against non-consenting
persons, of sexual violence and rape between spouses,
of abuses of vulnerable persons, etc). In Montenegro,
domestic violence has become a criminal offence in
2002.
 LARA PROJECT CRIMINAL LAW REFORM AGAINST TRAFFICKING IN HUMAN BEINGS
Equal social and economic opportunities, enhancement of
womens empowerment and participation in society and
economic life, including increased representation in deci-
sion-making institutions
Participants agreed that the law enforcement aspects
of anti-trafficking policies must be complemented by
effective programmes which address the social and
economic needs of persons at risk. Discussions on this
issue included legislative measures which would pro-
mote womens economic empowerment, eliminate
forms of discrimination related to employment, pro-
101
mote the integration of individuals at risk into the
labour market and combat social marginalisation, etc.
Measures were taken regarding the enhancement of
womens representation in decision-making institu-
tions, for instance through election regulations setting
quota systems (e.g. Serbia, Kosovo). Other examples of
measures which have already been adopted were
given and references were made to the acts on equal
opportunities for women and men (e.g. Romania,
Slovenia, Kosovo) or to the law on combating social
marginalisation (e.g. Romania).
 LARA PROJECT CRIMINAL LAW REFORM AGAINST TRAFFICKING IN HUMAN BEINGS
4.3.2 Session 2: Prosecution of trafficking in human beings and of related offences
Discussions in the second working group session
aimed at identifying the nature and scope of the leg-
islative tools for prosecuting efficiently traffickers for
trafficking in human beings and trafficking-related
offences.
Exchanges of views focused in particular on the main
elements enabling the prosecution of this phenome-
non and of related offences:
Legal basis to prosecute trafficking in human beings
All participating countries with the exception of
Slovenia where relevant amendments to the criminal
code are in parliamentary procedure have estab-
lished a distinct offence of trafficking. In some coun-
tries, this offence covers all forms of trafficking, in
others it needs to be further amended to comply fully
with the definition of the UN trafficking protocol. It is
also worth mentioning the example given of the defi-
nition of trafficking in the newly adopted Criminal
Code of Moldova, which goes beyond the require-
ments set by the Palermo Protocol and includes some
innovative elements. Experts insisted on the necessity
of a harmonised definition of trafficking at state level
(in the case of Bosnia and Herzegovina), regional and
European level. The techniques used vary, in some
countries, such offence exists only in the criminal
code, in others such provisions are enacted in special
laws.
Criminalisation of related offences
Experts agreed upon the need to criminalise other
related offences which undermine anti-trafficking
efforts, in particular corruption and money laundering
whose impact on such efforts is compounded by the
involvement of organised crime groups. In this
respect, reference was made to the conclusions of the
regional seminar organised by the Council of Europe
in Slovenia in June 2002 regarding trafficking in
human beings and corruption42.
Views diverged regarding the adoption of legislative
measures sanctioning clients of victims of trafficking
in human beings who were aware of the situation of
these persons when making use of their services.
Liability of legal persons
Experts referred to current practices at national level
establishing the criminal, civil or administrative lia-
bility of legal entities involved in trafficking and to
the difficulties related to enforcing such measures.
42 Council of Europe 2002: Trafficking in human beings and corruption. Project PACO Networking. Report on a regional seminar held in
Portoroz, Slovenia (June 2002) (PACO TP 28). Strasbourg.
102
Sanctions
Furthermore, experts stressed the need for dissuasive
sanctions as well as the importance of a harmonisa-
tion of sanctions, in particular in origin and destina-
tion countries. Problem areas in this respect regarded
the application of such provisions, as it appeared that
sentences were lenient in a number of countries.
References were also made to further penalties and
measures, including seizure and confiscation of pro-
ceeds of crime, closure of establishments associated
with trafficking.
Non-punishment clause for victims of trafficking in human
beings
International experts had recommended in their leg-
islative reviews that countries should consider adopt-
ing a non-punishment clause for victims of trafficking
in human beings, so as to avoid trafficked victims to
undergo additional negative consequences as a result
of their situation. Such a clause could cover, as rele-
vant, the offences of prostitution, illegal border cross-
ing, violation of domestic legislation on entry and/or
stay, the use of, destruction or alteration of identity
documents and fraudulent documents, would require
precise grounds to prevent improper use or abuse.
Such a clause already exists in the region (e.g. Bosnia
and Herzegovina, Moldova, Kosovo) but their scope of
application differs considerably. Some experts men-
tioned that even without such a legal provisions, in
practice, victims were not always prosecuted for
crimes committed as a result of their situation.
Discussions revealed the importance of regulating and
setting clear criteria for such a clause, so as to avoid
that its application is left at the discretion of the
authorities or to prevent improper use or abuse. Views
diverged regarding the effectiveness of restricting the
application of such a clause to cases in which the vic-
tim would agree to co-operate with the authorities.
Extraterritorial jurisdiction
Extraterritorial jurisdiction is crucial in transnational
trafficking cases for the purpose of successfully inves-
tigating, procuring evidence and enabling to prose-
cute traffickers, so as to prevent them from escaping
criminal prosecution in one country by moving to
another. Discussions acknowledged that transnational
trafficking cases still remain beyond the reach and
control of national authorities. Hence, such a provi-
sion, if adopted and applied efficiently, would limit
the existing procedural and practical roadblocks.
 LARA PROJECT CRIMINAL LAW REFORM AGAINST TRAFFICKING IN HUMAN BEINGS
International judicial and police co-operation
Due to the transborder nature of trafficking, criminal
prosecution of traffickers require bilateral and multi-
lateral co-operation among relevant law enforcement
authorities and as appropriate, international organisa-
tions, for the purpose of information exchange, mutu-
al legal assistance, joint investigations, extradition,
etc. In this respect, discussions emphasised the impor-
tance of signing and ratifying the relevant European
legal instruments. Reference was made in particular to
the second additional protocol to the European
Convention on Mutual Assistance in criminal matters
(ETS 182) and to the conclusion of bilateral treaties to
facilitate co-operation in criminal matters.
Experts identified and outlined the minimum elements
of a comprehensive anti-trafficking legislative frame-
work as well as other short and long-term measures to
be envisaged regarding the prosecution aspects:
Policy
Criminalisation of trafficking in human beings and
related offences
Adoption of measures to reduce the demand for
sexual services and cheap labour
Harmonisation of anti-trafficking legislation at
European level
Enhancement of bilateral, regional and interna-
tional co-operation in combating this phenome-
non
Legislation
Criminalisation of trafficking in human beings, in
accordance with the provisions of the Palermo
protocol, and aggravating circumstances
Criminalisation of related offences (e.g. corruption,
money laundering, conduct related to fraudulent
acts, membership in an organised crime group)
103
Liability of legal persons
Dissuasive sanctions
Seizure and confiscation of proceeds of crime
Non-punishment clause for victims of trafficking
in human beings
Use of special investigative means in trafficking
cases
Extraterritorial jurisdiction
Info systems/databases (data protection)
International police and judicial co-operation, in
particular the ratification and implementation of
the Second additional protocol to the European
Convention on Mutual Assistance in Criminal
Matters (ETS n 182)
Institutional aspects
Conclusion of Memorandum of understanding
between relevant national actors, setting the basis
for co-operation
Regular co-ordination meetings between all the
actors involved in the fight against trafficking at
national level to be foreseen in the national plans
of action
Implementation and monitoring
Set up of specialised bodies/units to investigate
and prosecute trafficking in human beings
Adequate training for the police, border guards to
identify victims of trafficking
Training for other officials (e.g. migration services,
diplomats, and NGOs)
Reporting on an annual or bi-annual basis on the
results of the fight against trafficking
 LARA PROJECT CRIMINAL LAW REFORM AGAINST TRAFFICKING IN HUMAN BEINGS
4.3.3 Session 3: Assistance and protection of trafficked persons
During the third working group session, experts iden-
tified and outlined the minimum elements of a com-
prehensive anti-trafficking legislative framework as
well as other short and long-term measures to be
envisaged regarding the question of assistance and
protection of trafficked persons.
Policy
Health care (medical and psychological assistance),
housing, financial support
Education (of particular relevance for children)
Development of programmes for the rehabilitation
of victims
Provide victims with information and other practi-
cal assistance in view of their participation in pro-
ceedings
Training of professionals involved in protecting
and assisting victims
Specific training programmes for individuals
responsible for the care and protection of the child
victim
Raising awareness of professionals within the
criminal justice system to limit traumatic effects
on witnesses through their action
Conduction of risk/threat assessments
Legislation/procedures
Clear procedures for the identification of victims/
referral mechanism
Legislation allocating financial resources for assis-
tance measures
Protection of privacy of victims, of identity of vic-
tims in appropriate cases
Protection of the safety of victims (concealment of
identity, relocation, identity documents)
Protection against potential retaliation or intimi-
dation of witnesses in criminal proceedings (e.g.
relocation, limitations on the disclosure of infor-
mation on their identity and whereabouts, eviden-
tiary law measures)
Non-criminalisation of trafficked persons
104
Special measures for children victims of trafficking
(e.g. appointment of a guardian, special safety
measures
Participation of victims in criminal proceedings/
including provisions not to order or carry out
orders of deportation of a victim while the person
is required in criminal/civil proceedings
Seizure and confiscation of assets
Legal aid
Access to compensation or restitution
Data protection
Regulations regarding the establishment of shelters
(including funding)/ the activities of non-govern-
mental organisations dealing with victims
Residence permits for the victims
Institutional aspects :
Establishment of shelters and other reception cen-
tres
Special support structures for children victims
Experts acknowledged that in the region, there is a
clear urgent need to set up sustainable structures to
assist victims of trafficking. Such assistance is cur-
rently in all countries primarily provided by national
or international non-governmental organisations.
Experts discussed also whether regular witness protec-
tion programmes could include victims of trafficking
in human beings. While procedural witness protection
measures are certainly of benefit to victims, the police
protection programmes which currently are in a
very initial stage in all participating countries did
not appear to be adapted to the specific needs of vic-
tims of trafficking.
In addition, the majority of experts concluded that
even though the cooperation of victims as witnesses is
crucial for the criminal justice process, access to assis-
tance and protection mechanisms should not be made
dependent upon whether victims agree to act as wit-
nesses or not. Furthermore, an important precondition
for having access to these mechanisms is a clear reg-
ulation regarding the residence status, as well as the
fact that they are not criminalised because of their
irregular residence and/or employment status.
 LARA PROJECT CRIMINAL LAW REFORM AGAINST TRAFFICKING IN HUMAN BEINGS
4.4 Workshop 2: Effectiveness of co-ordination and co-operation mecha-
nisms in the field of trafficking in human beings
The objective of this workshop was to exchange infor-
mation on the current situation in each country
regarding the effectiveness of co-ordination and co-
operation mechanisms.
In introducing the subject, Ms Daja Wenke, represent-
ing the Chair of the Stability Pact Task Force on
Trafficking in Human Beings, presented the conclu-
sions of the assessment published in July 2003 of gov-
ernmental anti-trafficking structures and policies in
South-eastern European countries43.
All countries have appointed a national governmental
anti-trafficking co-ordinator, most at senior official
level, and set up a multidisciplinary national working
group or committee were set up in view of co-ordinat-
ing or organising the anti-trafficking policy and
action as well as interacting with other non-govern-
mental or intergovernmental organisations. However,
it was stressed that often the co-ordinators could not
effectively perform their tasks, as many of them
lacked access to support structures.
The efficiency of the multidisciplinary working groups
varied. In particular in was stressed that some of them
are too large in their composition, which impacts on
the decision making process. On the opposite, others
were reduced to small inter-ministerial committees
and the input of local and international organisations
was rather limited. In most cases, thematic working
groups have proved effective.
Experts discussed the conclusions of this report and
well as problems encountered at national level regard-
ing co-ordination with other institutions.
43 See this report at: http://www.osce.org/attf/pdf/see_asmt_july03.pdf
105
Their interventions underlined the following issues,
which remained to be addressed at national level:
necessity to identify the relevant actors in the anti-
trafficking field at national level, as there appears
to be a proliferation of actors involved in respond-
ing to trafficking,
importance to formally establish co-ordination
structures/bodies/teams and determine precisely
their mandate and composition (multidisciplinary
and cross-sectoral)
need to provide adequate training to the members
of the working groups and co-ordinating bodies
importance to ensure the sustainability of their
action and provide adequate staff and financial
means
necessity to facilitate co-operation and exchange
of information and experience at European and
international level
Finally, experts concluded that the co-ordination
between the governmental authorities, civil society
and international organisations is undoubtedly an
essential element of an integrated approach to traf-
ficking.
Progress in this respect is evident and important
efforts have been made in the countries of the region
for establishing such national mechanisms. However,
their action and work needs to be further strengthened
and require sustained efforts and commitment.
 LARA PROJECT CRIMINAL LAW REFORM AGAINST TRAFFICKING IN HUMAN BEINGS
4.5 Conclusions of the final regional seminar44
The objective of the last seminar organised in the
framework of the LARA project was to review and dis-
cuss the legislative developments which took place in
the participating countries in the fight against traf-
ficking of human beings. In the previous seminar (
Zagreb, April 2003), the national and international
experts pointed out the main issues which should be
taken into consideration by the countries.
The assessments of the legislative framework for pre-
venting and combating trafficking in human beings
conducted for each participating country illustrated in
most cases a good indication of progress. However,
there were clearly also a number of gaps and areas of
concern which still remain to be addressed.
In the field of prevention, it appeared that, in the past
years, a series of preventive measures were included
either in the anti-trafficking national plans of action
or/and sometimes in anti-trafficking acts. Such meas-
ures included among others the establishment of hot-
lines, the promotion of targeted training and educa-
tional courses. Their implementation mainly took place
in co-operation with NGOs and international organisa-
tions. Experts highlighted also the importance of sup-
porting polices activities regarding the monitoring of
newspapers adverts and the establishment of supervi-
sory mechanisms for matrimonial agencies. Other leg-
islative initiatives were also mentioned such as the
adoption of legislation guaranteeing gender equity and
equal opportunities aiming at providing favourable
conditions for the access of women to the labour mar-
ket as well as legislation aimed at protecting women
and children from domestic violence.
National experts agreed that there is a clear need to
develop and properly implement the legislation on the
protection of women and children against violence.
Other areas where further actions are needed includ-
ed: the collection of data (at national but also at
regional and European level), the regulation of the use
of new information technologies, and the develop-
ment of codes of conduct for media professionals.
Furthermore, they addressed the issue of policies aimed
at reducing the demand, including the criminalisation
44 Prepared by Mr Nicola Lettieri, General rapporteur.
107
of the use of services by clients of trafficked persons,
and insisted upon the necessity to undertake a thor-
ough assessment of the demand and supply factors
their dynamics when designing such measures.
The review of the existing anti-trafficking legislation
of the participating countries concluded that all par-
ticipating countries, with the exception of Slovenia,
criminalized the offence of trafficking in human
beings and that the level of harmonisation of the
criminal law provisions was satisfactory. Romania,
Bulgaria and Kosovo adopted statutes/regulations
regarding specifically trafficking in human beings.
International experts assessed that in some countries,
the definition of the offence in certain countries
should be reviewed in order to fully respect the obli-
gations arising from the Palermo Protocol. The level
of the penalties appeared also to be too low and prac-
tice seemed to lead to a certain leniency of sentences.
The exchange of views among international and
national experts revealed that the implementation of
the anti-trafficking legislation was still considered to
be in its early stages. The upcoming challenges
remained: the regulation of the use of special inves-
tigative means, of the liability of legal persons, the
gathering and use of evidence, the issue of extraterri-
torial jurisdiction, the effective implementation of
provisions on seizure and confiscation of proceeds of
crime, the use of channels for international judicial
cooperation in cases of trafficking in human beings.
Discussions regarding the issues of assistance and
protection of victims concluded that for all countries
there are still many gaps both in legislation and
practice to be tackled, in order to have a compre-
hensive framework for the assistance and protection
of trafficked persons (e.g. measures to encourage
cooperation of victims and witnesses with criminal
justice authorities, protective measures for victims,
witnesses and other vulnerable targets, the issue of
residence permit, compensation of victims, measures
to encourage and facilitate co-operation/co-ordina-
tion between relevant authorities, officials and NGOs
at national level and international level, etc, return
and reintegration policies, etc.).
 LARA PROJECT CRIMINAL LAW REFORM AGAINST TRAFFICKING IN HUMAN BEINGS
4.6 Closing speech
By Mrs Anne Marie FARADJI, Administrator, Council of Europe
Ladies and Gentlemen, dear colleagues
We launched the LARA Project in July 2002 with an
ambitious aim: to achieve the reform of the relevant
legislation on action against trafficking in human
beings, to contribute to the effective criminalisation of
trafficking in human beings and to the protection of
human rights of victims in South eastern countries in
accordance with the standards set up in
Recommendation (200) 11 of the Committee of
Ministers of the Council of Europe on action against
trafficking in human beings for the purpose of sexual
exploitation and the Protocol to prevent, suppress and
punish trafficking in persons, especially women and
children, supplementing the United Nations
Convention against Transnational Organised Crime.
International experts have reviewed your national
legislation and plans of actions and national experts
made comments. During the first seminar organised in
Zagreb last April, we assessed the review of the rele-
vant legislation and recommendations were made. We
also determined the needs of the countries to organise
consultancies on their request on training for drafting
of legislation with the objective to better fight traf-
ficking and better protect the human rights of victims.
During the flying consultancies phase, we organised
flying consultancies in Albania in May and in
Montenegro in June and we organised last September
a training seminar on drafting legislation for the pro-
tection of victims for all the countries involved in the
project.
Our final evaluation seminar allowed us to assess the
progress made, the lacks and gaps still to be complet-
ed, and to draft recommendations and proposals for
further steps to be taken.
During the opening session of this seminar, Minister
Klosi, Ms Konrad and Mr Dvorani insisted on the need
for a unified approach in action against trafficking
with the support of other countries and international
organisations and to develop a strong modern and
comprehensive legislative framework in the region.
When I consider the comparative table we asked you
to complete, I can see that a lot was accomplished and
109
I agree with Ms Konrad when she said that a strong
legal framework is now being set up in the countries
and in the region.
Of course, further developments are needed and we
identified them during the seminar. I am sure that
these developments will be achieved, and I hope soon,
in particular as regards the implementation of the leg-
islation and its monitoring.
Ladies and Gentlemen, I am also sure that you will
remember, as one of the conclusions of this seminar,
the necessity and the importance of an interdiscipli-
nary approach in all aspects legal, judicial, social
of action against trafficking in human beings, and the
need for international co-operation, exchange of
information and experiences.
During the seminar held in Strasbourg last September,
we mentioned that the Conclusions of the Zagreb
seminar were put at the disposal of the Ad Hoc
Committee on action against trafficking in human
beings which is drafting a European Convention on
action against trafficking in human beings. I think
that the conclusions of this Seminar will also be of
great interest for the Committee.
I hope that all the action undertaken at national,
European and international levels will now lead to a
quick and efficient response to trafficking in human
beings.
I would like to thank you all for the efficient and use-
ful work achieved during this project. I thank the
international experts for their excellent and qualita-
tive work. If the LARA project is a success, it is cer-
tainly due to their valuable contribution. I thank the
national authorities which supported the project and
helped us to implement it, the national experts who
participated actively in the preparatory phase of the
project and in the different seminars.
I would also mention the strong support given by the
Stability Pact Task Force on trafficking and its Chair,
Ms Konrad and thank the Swedish and United States
authorities for their contributions which allowed us to
implement and develop the project.
 LARA PROJECT CRIMINAL LAW REFORM AGAINST TRAFFICKING IN HUMAN BEINGS
I thank very much the Albanian authorities for their
warm hospitality, in particular Mr Dvorani who
chaired this meeting so smoothly and our Albanian
colleague, Ms Cano who helped us to organise it.
Finally I would like to address my warm thanks to my
colleagues of the Council of Europe with whom I
worked on the LARA Project.
110
I hope sincerely that we will continue to join our
efforts to give the most efficient response to traffick-
ing in human beings.
I wish you all a safe trip back in your countries and
all the success in your work. Thanks for your atten-
tion.
 LARA PROJECT CRIMINAL LAW REFORM AGAINST TRAFFICKING IN HUMAN BEINGS
5. General conclusion of the Lara Project
The aim of the LARA project was to contribute to the
effective criminalisation of trafficking in human
beings and to secure protection of victims fundamen-
tal rights in accordance with European and interna-
tional standards in South-eastern Europe.
In order to have a comprehensive view of the impact
of the LARA project for each country and at regional
level, one should take into consideration all recom-
mendations formulated during the first regional sem-
inar, the final regional seminar and the in-country
activities.
From a short-term perspective, the recommendations
provided to countries food for thought for further
actions to be taken to improve the legislative frame-
work designed to prevent and combat trafficking in
human beings.
A number of recommendations made by international
experts regarding the draft pieces of legislation, which
were subsequently reviewed by national experts and
discussed during the implementation of the LARA
project, were subsequently taken into consideration at
national level.
The review of the legislation of other countries in the
region and the discussions on the recommendations
gave an opportunity to practitioners to be construc-
tively critical with regard to the current legislative
framework in place in their countries and encouraged
them to examine reforms which could be envisaged in
their countries. Also, in some countries, the recom-
mendations could be used in reforms currently being
implemented.
From a medium and long-term perspective, if recom-
mendations are distributed in an appropriate manner,
they could have an impact on the legislative reform
and structural changes in the countries in question.
Given that most of the recommendations relate to leg-
islative reform, it is difficult to assess how much time
is needed for their implementation, as this will depend
111
largely not only on the political approach and the
criminal law policy but also on the nature of the
measures to be taken and the financial burden which
they entail. While some might be implemented in the
medium- term, others require a long-term strategy.
International experts participating in the LARA proj-
ect noted the progress accomplished by most countries
in developing and implementing anti-trafficking leg-
islation since the beginning of the LARA project, par-
ticularly regarding the status of criminalisation of
trafficking in human beings in South eastern Europe.
Since July 2002, such changes occurred for instance
in Bosnia and Herzegovina, Bulgaria, Croatia, Serbia,
with the introduction of provisions in the Criminal
Code on trafficking or the adoption of an anti-traf-
ficking law in compliance with the minimum stan-
dards laid down in international and European legal
instruments. By the end of the project, all SEE coun-
tries have criminalised trafficking in human beings,
with the exception of Slovenia, where such draft
amendments to the Criminal Code were in parliamen-
tary procedure. SEE countries clearly acknowledged
the imperative need to secure the protection of victims
and victims rights. This area still remains to be fur-
ther developed, as in most countries reforms are still
underway to consolidate the current legal framework
and institutional capacities.
In conclusion, the legislative and policy reform to
curb trafficking in human beings in South-eastern
Europe has been put high on the agenda, and in most
countries the foundations for a viable anti-trafficking
legislative framework have been laid down.
Continuous technical expert support may be necessary
to further support the sustainability of the on-going
reforms. Undoubtedly, the effective implementation of
anti-trafficking legislation and policies by law
enforcement, criminal justice and other relevant insti-
tutions remains a challenge for SEE countries in the
near future.
 LARA PROJECT CRIMINAL LAW REFORM AGAINST TRAFFICKING IN HUMAN BEINGS

6. Evaluation by participants of the LARA project

On the final day of the last regional seminar, the representatives of the participating countries evaluated the use-
fulness of the LARA project by completing an evaluation form. Some of the participants did not answer all the
questions. The overall opinions expressed were very positive. They are summarised below.

6.1 Rating

Overall assessment of the final seminar

The overall assessment of the last regional seminar by
participants is very positive. It is to be pointed out
that though 35% of the participants did not rate this
question, they have rated most of the constituting ele-
ments, that is the organization, content and relevance
of the programme, the quality of experts and logisti-
cal aspects as very good.

Questionnaires completed prior to the seminar

In view of the preparation of the final seminar, a ques-
tionnaire was sent to all participants by e-mail or fax,
which aimed at gathering updated information on the
legislative developments and measures adopted since
April 2003 implementing the recommendations of the
first LARA regional seminar. This questionnaire was
used as a basis for elaborating some of the working
documents, to be used during the working group ses-
sions. The majority of participants considered that the
questionnaire was a good tool for the preparation of
the activity.

Programme of the final seminar: organisation

The seminar was organised in co-operation with the
Albanian Ministry of Justice and the Council of
Europe office in Tirana. The majority of participants
appreciated the programme and rated it as very good.
One participant stressed that the duration of this type
of seminar could have been extended. Facilities
allowed for meetings and discussions in plenary and
working groups, as well as social activities and oppor-
tunities for networking.

113
 LARA PROJECT CRIMINAL LAW REFORM AGAINST TRAFFICKING IN HUMAN BEINGS

Programme of the final seminar: contents and rele-

vance
The rating for the contents and relevance of the pro-
gramme are similar. 53% of the participants consid-
ered that the content of the programme was very good
and the topics discussed were relevant to achieve the
aims of the meeting. The final programme of the sem-
inar is enclosed in appendix 2. The concept of the
seminar, which devoted a major part of the agenda to
interactive working groups sessions was particularly
appreciated by participants.

Experts/rapporteurs
Participants were asked to evaluate the quality of the
presentations and legislative reviews made by the
international experts participating in the LARA proj-
ect, as well as the summaries presented in the plenary
following the working group sessions by the rappor-
teurs. 96% of the participants rated as good or very
good the work performed by experts and rapporteurs.
Some of the participants indicated that they appreci-
ated the objectiveness of the expert opinions.

Overall assessment of the project

The overall assessment of the LARA project is very
good. 13% of the participants in the final seminar did
not answer that question, one of the reasons for many
of them being that they had only participated to the
last regional seminar and did not consider to have
enough information on the other projects activities so
as to evaluate the whole project. Some participants
were of the opinion that an added value would have
been to associate in this project the main destination
countries in Europe, particularly as regards the aspects
of developing criminal legislation and the exchange
of experience in its implementation.

6.2 Impact of the LARA project on the criminal law reform in participants
countries
Participants were asked their opinion on the impact of
the LARA project on the criminal law reform in their
country.
The concrete impact of the LARA project has varied in
each country, depending on the stage of the criminal
law reform process and the legislation under prepara-
tion.
In most participating countries, the LARA project has
contributed, through expert assistance, to the drafting
of primary and/or secondary legislation regarding
trafficking in human beings.
In Albania and Montenegro, specific in-country work-
shops were organized. In Albania, an expert meeting
contributed at providing expert assistance in the
drafting process of the law on the protection of wit-
nesses and collaborators of justice. In Montenegro, a
workshop was organised on the Procedural and sub-
stantive aspects of the fight against trafficking in
human beings and assisted the Montenegrin author-
ities in the drafting of the relevant provisions of the

114
 LARA PROJECT CRIMINAL LAW REFORM AGAINST TRAFFICKING IN HUMAN BEINGS
draft Criminal Code and draft Criminal Procedure
Code.
Some delegations acknowledged that the activities
organized in the framework of the project have facil-
itated the criminal law reform exercise, by drawing
attention to the important issues that should be dealt
with and by pointing at existing legislative gaps and
weaknesses in the national legislation.
Participants expressed their appreciation of the oppor-
tunities given by the LARA project, during in-country
and regional seminars, to improve their knowledge of
the anti-trafficking legislation of other countries of
the region, to exchange experiences with counterpart
experts on legislative reform regarding trafficking in
6.3 Use of experience acquired through the projects activities
Participants indicated that the experience gained dur-
ing the activities of the project had and is expected to
have a positive impact on their daily work.
Participants who attended for the first time the LARA
seminar indicated that they did not have yet the
opportunity to make use of it.
Several examples of how the experience acquired
through the LARA project was used in their work were
given, as follows:
in the implementation of the recommendations elabo-
rated during the LARA first seminar while drafting the
law on the amendments to the criminal code
in the preparation of national recommendations
addressed to the national working groups drafting
the new criminal code, criminal procedure code
and the Act on the State Prosecutor
6.4 Persons or institutions to whom the recommendations will be sent
for consideration and implementation
All participants indicated that they would send the
final recommendations to the competent structures
and authorities dealing with legislative reform as well
as with anti-trafficking activities. Several institutions/
relevant persons were mentioned, as follows:
Ministry of Justice
Ministry of Interior
Ministry of Human Rights and Minorities
the Office for Human Rights
Ministry of Foreign affairs
members of the Working groups on the draft crim-
inal code, the draft criminal procedure code and
the State Prosecutors Act
115
human beings and legal solutions which could prove
beneficial for their countries and lead to a harmoniza-
tion of the legislation and action plans in this field.
One participant indicated that its participation to the
project has enabled pushing forward the reform in his
country and completing the anti-trafficking legisla-
tive framework and strategy.
Most participants also stressed that as the legislative
reform process is not over in their countries, the
results of the seminar, the conclusions of the project
and the recommendations of the expert opinions will
be taken in consideration in the process of elaborating
new legislation, or when amending existing legal pro-
visions in the field of trafficking in human beings.
in the preparation of the draft act on combating
trafficking in human beings and expected use in
the elaboration of the future secondary imple-
menting legislation
in the framework of the activities of the inter-
agency working groups on elaborating the draft
law on protection of endangered participants in
criminal proceedings
in project activities on the legal reform of police
services with respect to aspects regarding the
countering of trafficking in human beings
Several participants indicated that they have already
and will continue to share their experience with other
relevant professionals involved in the criminal law
reform in their country.
members of the inter-agency working group elab-
orating secondary legislation to the anti-traffick-
ing acts and of the inter-agency working group
elaborating legislation on the standing of victims
in criminal proceedings
National anti-trafficking committee/team/commis-
sion
National anti-trafficking co-ordinator
National co-ordinator for Stability Pact issues
Focal points dealing with gender issues
NGOs
 LARA PROJECT CRIMINAL LAW REFORM AGAINST TRAFFICKING IN HUMAN BEINGS
6.5 Suggestions for future co-operation activities
During the final regional seminar, a consensus
emerged among participants that in-country and
regional activities such as the ones organized in the
framework of the LARA project on criminal law
reform should be continued and further developed.
In addition, several suggestions for future co-opera-
tion activities were also made, as follows:
co-operation activities for drafting legislation
implementing the European standards on the
standing of victims in the criminal procedure
activities dealing with the issue of confiscation of
the proceeds from crime
116
activities assisting countries to sign and ratify the
second additional protocol to the Convention on
mutual assistance in criminal matters, including
training activities on this issue
activities regarding how Council of Europe mem-
ber states regulate the protection and assistance of
victims (in general and with a focus on trafficking
in human beings) as regards the compensation
aspects, as well as through a comparative study
co-operation activities with international organi-
zations on preventive measures and development
of projects on the preventive aspects , in particular
for young women in rural areas.
 LARA PROJECT CRIMINAL LAW REFORM AGAINST TRAFFICKING IN HUMAN BEINGS

7. Appendices
7.1 LARA Project outline
Project outline Yugoslav Republic of Macedonia and UNMIK-
Kosovo. Countries of transit and destination such as
Version 19 September 2003 Greece, Turkey and Italy may be invited in addition,
Project title: Support to Regional Criminal Law subject to availability of additional funding.
Reform to Combat and Prevent
Trafficking in Human Beings Outputs
Duration: July 2002 December 2003 1. Plans for the implementation of criminal law
Project area: South-Eastern Europe reform on human trafficking will be drafted or
completed on the basis of advice and guidance
Implementing provided by the project.
agency: Council of Europe Directorate
General for Human Rights and 2. Drafts for primary legislation and recommenda-
Directorate General for Legal tions for secondary legislation to criminalize
Affairs human trafficking in accordance with European
standards and the UN Convention and its Protocol
Funds required: EURO 272,900 will be available for adoption.
Source of funding: Voluntary contributions / Sweden 3. Training plans to improve the drafting of legisla-
and the United States of America tion and to ensure the application of the anti-traf-
ficking legislation will be elaborated.
Objective
The project aims to contribute to the effective crimi- Activities
nalisation of human trafficking and the protection of
victims human rights in SEE in accordance with A. Information gathering and dissemination by the
Recommendation No. R(2000)11 of the Committee of Council of Europe Secretariat (July October 2002)
Ministers of the Council of Europe on action against (Output 1)
trafficking in human beings for the purpose of sexual
exploitation and the UN Protocol to Prevent, Suppress National Experts: Appointment of national experts
and Punish Trafficking in Persons, Especially Women at each Ministry of Justice /office
and Children supplementing the United Nations of codification or other Ministries
Convention against Transnational Organised Crime. in each of the SEE countries
The project builds on the conclusions drawn from the Pool of Experts: Three (or more) experts from the
Regional Training on Criminal Law Reform, which CoE, one from UNCICP, one from
was held in Belgrade (23-24 November 2001) and the the OSCE/ODHIR
Council of Europe pilot project with Romania and
Regional Compilation of National Action
Moldova (October 2001- February 2002).
Information: Plans and relevant legislation (or
draft legislation) of each SEE
Participants/Beneficiaries country
Representatives from Albania, Bosnia and Information The compiled information will be
Herzegovina, Bulgaria, Croatia, Moldova, Romania, Dissemination: made available on the website of
Serbia and Montenegro, Slovenia, the former the Council of Europe and sent out

117
 LARA PROJECT CRIMINAL LAW REFORM AGAINST TRAFFICKING IN HUMAN BEINGS
to each national expert at the
Ministry of Justice or other
Ministries.
B. Expertise On line (November 2002 March 2003)
(Output 1 and 2)
Prior to this activity, a network system will have been
set up between the international legal experts and the
local focal points, whereby the Council of Europe
Secretariat will serve as liaison.
International Five (or more) international Expert
Review: experts will review the legislation
of one or more countries and
make comments and observations
for consideration by the respective
country
Focal Points: Assessment of the legislation of
other SEE countries, provision of
comments and a list of questions
or issues (peer review)
Comparative Preparation of a comparative
Country Table: country table, including the cur-
rent state of legislation and other
mechanisms in place in each SEE
country (updated information).
C. First Regional Seminar (Zagreb, 2-4 April 2003)
(Outputs 1, 2 and 3)
With the participation of five (or more) international
experts and the national experts from the Ministry of
Justice (or other Ministries), the workshop will cover:
Plenary sessions where results of the review by
international experts will be presented and com-
ments made by national experts
118
Working sessions on updating the comparative
country table and on identification of flying con-
sultancies
The expected results will be:
Update of the comparative country table with
respect to the legislative reform;
Identification of the need for flying consultan-
cies and in which specific legal area;
Organisation of flying consultancies for drafting
of legislation and training in drafting legislation
D. Flying Consultancies for drafting of legislation
and training in drafting legislation (April October 2003)
(Output 1)
Expert teams (national and international) will, on
request, be sent to those countries which have identi-
fied needed assistance in drafting of legislation in a
specific legal area, particularly with regard to second-
ary legislation.
E. Second Regional Seminar (Albania, 30 October-
1 November 2003)
(Output 1, 2 and 3)
The Council of Europe Secretariat will summarise the
latest developments in legislative reform;
A second regional seminar will be held, where
achievements and assessments of countries in the
process of drafting legislation will be made, where the
results of the reform of criminal law will be assessed.
The results of the harmonisation of legislation in the
region will also be assessed and experts will indicate
actions that need to be taken to strengthen the reform.
 LARA PROJECT CRIMINAL LAW REFORM AGAINST TRAFFICKING IN HUMAN BEINGS

7.2 Programme of the final regional seminar

Thursday, 30 October 2003

09h00 09h30 Registration of participants
09h30 10h00 Plenary session: Opening of the seminar
Opening session Addresses by:
Mr Blendi KLOSI, Minister of State to the Prime Minister
Ms Helga KONRAD, Chair of the Stability Pact Task Force on Trafficking in Human Beings
Mr Alexander SEGER, Programme Adviser, Directorate General I Legal Affairs, Council of
Europe
10h00 10h30 Presentation of the participants
10h30 10h45 Coffee break
10h45 12h45 Presentation by national experts of recent legislative developments in their countries, which
are of relevance to the prevention of and the fight against trafficking in human beings (on-
going legislative drafting process, entry into force and implementation of legislation and of the
national plan of action, etc) (10 minutes each)
12h45 14h15 Lunch
14h15 15h45 Comments and discussion with international experts on the replies to the questionnaires and
the update, in the light of the previously elaborated recommendations
Speakers:
Mr Freddy GAZAN, Adviser for Criminal Policy, Ministry of Justice, Belgium
Ms Laura IVANOVICI, Judge seconded to the OSCE Mission in Bosnia and Herzegovina
Mr Nicola LETTIERI, Prosecutor, Prosecutors Office, Naples, Italy
15h45 16h00 Coffee break
16h00 17h00 Presentation of the outcome of the flying consultancies and the training seminar
Speakers:
Mr Ardian DVORANI, Director, Ministry of Justice, Albania
Ms Anne Marie FARADJI, Administrator, Directorate General II Human Rights, Council of
Europe
Ms Livia STOICA BECHT, Programme adviser, Directorate General I Legal Affairs, Council
of Europe

Friday, 31 October 2003

09h15 09h45 Plenary session: Update on recent developments in the field of trafficking in human beings
at European level and international level
Speaker:
Ms Maria Grazia GIAMMARINARO, Judge, Criminal Court of Rome, Italy

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09h45 10h30 Commitments and undertakings under European and international legal instruments regarding
trafficking in human beings and their incorporation in national legislation
Speaker:
Mr Freddy GAZAN, Deputy General Adviser for Criminal Policy, Ministry of Justice, Belgium
10h30 17h00 Working group session
Review of the comparative country table on the legislative reform and national plan of action
(issues and problems related to the implementation and application of anti-trafficking legisla-
tion: obstacles proposed solutions examples of good practices)
Discussion on the main elements of a comprehensive legislative framework for the prevention,
prosecution of trafficking in human beings and the effective protection of trafficked persons
Working group 1 Albania, Moldova, Romania, Serbia and Montenegro, UNMIK- Kosovo
Working group 2 Bosnia and Herzegovina, Bulgaria, Croatia, Slovenia, the former Yugoslav
Republic of Macedonia
Moderators working group 1: Ms Maria Grazia GIAMMARINARO and Mr Nicola LETTIERI
Moderators working group 2: Mr Freddy GAZAN and Ms Laura IVANOVICI
Session 1: The elements of a comprehensive legislative framework for the prevention of
trafficking in human beings: overview of a comprehensive legal framework and its main ele-
ments further developments to be expected in this respect in each country (policy, legislation,
institutional aspects, implementation, monitoring)
Rapporteur working group 1: Mr Drino GALICIC
Rapporteur working group 2: Mr Sandi CURIN
11h15 11h30 Coffee Break
11h30 12h15 Working group session 1 continued
12h15 13h45 Lunch break
13h45 15h30 Working group session (continued)
Session 2: The elements of a comprehensive legislative framework for the prosecution of
trafficking in human beings and of related offences: overview of a comprehensive legal
framework and its main elements further developments to be expected in this respect in each
country (policy, legislation, institutional aspects, implementation, monitoring)
Rapporteur working group 1: Mr Ardian DVORANI
Rapporteur working group 2: Ms Tanja KIKEREKOVA
15h30 15h45 Coffee break
15h45 17h00 Session 3: The elements of a comprehensive legislative framework for the assistance and
protection of trafficked persons: overview of a comprehensive legal framework and its main
elements further developments to be expected in this respect in each country (policy, legis-
lation, institutional aspects, implementation, monitoring)
Rapporteur working group 1: Mr Rajko ATANACKOVIC
Rapporteur working group 2: Ms Antonia BALKANSKA
17h00 18h00 Plenary session: Presentation of the results of the working group session by the Rapporteurs

Saturday, 1 November 2003

09h00 10h15 Plenary session: Discussion on the effectiveness of coordination and co-operation mechanisms
against trafficking in human beings (achievements obstacles actions to be taken)
Introductory remarks by:
Speaker:
Ms Daja WENKE, Anti-trafficking Officer, Stability Pact Task Force on Trafficking in Human
Beings
10h15 10h30 Coffee Break

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10h30 11h15 Plenary session: Presentation of the recommendations proposed and conclusions of the semi-
nar by Mr Nicola LETTIERI, General Rapporteur and the Council of Europe Secretariat
11h15 11h30 Plenary session: Evaluation of the Lara Project by the participants
11h30 12h00 Closing session Addresses by:
Mr Ardian DVORANI, General Director, Codification Department, Ministry of Justice (Albania)
Ms Anne-Marie FARADJI, Administrator, Directorate General II Human Rights, Council of
Europe
12h00-13h00 Lunch

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 LARA PROJECT CRIMINAL LAW REFORM AGAINST TRAFFICKING IN HUMAN BEINGS
7.3 List of participants in the final regional seminar
Durrs, Albania, 30 October-1 November 2003
ALBANIA
Mr Blendi KLOSI, Minister of State to the Prime
Minister, Council of Ministers, Blv. Deshmoret e
Kombit, Tirana
Alfred AVDULAJ, Legal expert, Legal Directorate,
Ministry of Public Order, Bd. Skenderbej n 3, Tirana
Ardian DVORANI, Director General, General
Directorate of Codification, Ministry of Justice, Bul.
Ahmet Zogu 1, Tirana
Mr Fatmir HOXHA, Head of Anti-trafficking section,
Department of Criminal Policy, Ministry of Public
Order, Bd. Skenderbej n 3, Tirana
Ms Najada RAMA, Lawyer, Department of
International Treaties and Jurisdictions Relations,
Ministry of Justice, Bul. Ahmet Zogu 1, Tirana
Michael ROBINSON, Adviser Minister of State, Office
of the Prime Minister
Ms Ketrin TOPCIU, Head of Section of Legal Study,
General Directorate of Codification, Ministry of
Justice, Bul. Ahmet Zogu 1, Tirana
Mr Dolor TOZAJ, Adviser to the Minister of State on
Trafficking in Human Beings, Council of Ministers,
Blvd. Deshmoret e Kombit
BOSNIA AND HERZEGOVINA
Ms Saliha DUDERIJA, Head of Department, for the
Protection for Human Rights/ National Group for
Anti-trafficking, Ministry for Human Rights and
Refugees; Trg BiH 1, BiH-71000 Sarajevo
Ms Samra FILIPOVIC HADZIABDIC, Director, Gender
Centre of the Federation of Bosnia and Herzegovina,
Hakije Kulenovica 12, 71000 Sarajevo
Ms Snjezana SUSNJARA, Consultant, Gender Centre
of the Federation of Bosnia and Herzegovina, Hakije
Kulenovica 12, 71000 Sarajevo [APOLOGISED]
122
BULGARIA
Ms Antonia BALKANSKA, Chief Judicial Inspector,
Ministry of Justice, Court Inspectorate, Slavyanska
street, 1040 Sofia
Ms Mitka ZAHARLIEVA, Chief expert, International
Legal Co-Operation Department, Ministry of Justice, 1
Slavyanska street, 1040 Sofia
CROATIA
Ms Radmila VRLINIC-SAMARDZIC, Head of
Department, Criminal Law Department, Ministry of
Justice, Administration and Local Self-Governement,
Republike Austrije 14, 10000 Zagreb
Ms Stefica STAZNIK, Counsellor, Ministry of Foreign
Affairs, Permanent Mission of the Republic of Croatia
to the UN, 820 Second Avenue, 19th Floor, New York,
NY 1007
[APOLOGISED]
Ms Sanya STIMAC, Head of Department, Mutual legal
assistance, co-operation and Human Rights depart-
ment, Ministry of Justice, Administration and Local
Self-Government, Republike Austrije 14, 10 000
Zagreb
MOLDOVA
Mr Tudor GHERCAVII, Main Adviser, Direction for
Special Problems, State Chancellery of the Republic of
Moldova; 1 Piata Marii Adunari Nationale Str.,
Chisinau
Mr Alexander URSU, Adviser, Ministry of Justice,
Department of International Affairs, Ministry of
Justice, 82, 31 August str., MD-2012 CHISINAU
ROMANIA
Ms Iulia CIMPOIASU, Legal adviser, Department of
Draft Legislation, Study and Documentation, Ministry
of Justice, Apollodor Street no.17, Sector 5,
BUCHAREST
 LARA PROJECT CRIMINAL LAW REFORM AGAINST TRAFFICKING IN HUMAN BEINGS
Mr Dan Valentin FATULOIU, Deputy General Director,
General Directorate for Combating Organised Crime
and Anti-drug/ Co-ordinator of the Interministerial
Working Group, Ministry of Interior, Str. Eforie 7,
BUCHAREST
SERBIA AND MONTENEGRO
M. Rajko ATANACKOVIC, Senior Legal Associate,
Harmonisation with EU Legislation Unit, Ministry of
Justice of Serbia, Nemanjina 22-26, 11000 Belgrade
Ms Jasmina STANKOVIC TATARAC, Counselor,
Ministry of Foreign Affairs, K. Milosa 26, 11000
Belgrade
Mr Vuksan V. VUKSANOVIC, Legal adviser, Judiciary
Sector Department, Ministry of Justice of Montenegro,
Vuka Karadzica 3, 81000 Podgorica
Mr Predrag ZLATIC, Head of section for foreigners,
Department of Border Police, Ministry of Internal
Affairs, Bulevar AVNOJ-a 104, 11070 Novi Beograd
Mr Habit Hajredini, Director of the Office for Good
Governance, Human Rights, Equal Opportunities and
Gender Issues. Office of the Prime Minister of Kosovo,
Mother Theresa St. Government Building, Office n
319, 38000 Prishtina
Mr Fitim Mulolli, Officer, Office of the Prime Minister,
Mother Theresa St. Government Building, Office n C-
501, 38000 Prishtina
SLOVENIA
Mr Sandi CURIN, National Coordinator to combat
trafficking in human beings, Ministry of Interior,
Mackova ulica 2, 1000 Ljubljana
Ms Andreja LANG, Counsellor to the Government,
Office for the Preparation of Legislation, Criminal
Legislation department, Ministry of Justice, upancice-
va 3, SLO-1000 Ljubljana
Ms Violeta NEUBAUER, Co-ordinator for International
Co-operation, Equal Opportunities Office of the
Slovene Government, Trzaska 19a, SLO 1000
Ljubljana [APOLOGISED]
THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA
Ms Elena GROZDANOVA, Head of Unit for Promotion
of Gender Equality, Ministry of Labor and Social
Policy, Dame Grvev n 14, SKOPJE
Ms Tanja KIKEREKOVA, Head of the Human Rights
Department, Sector of EU Integration, Ministry of
Justice, Dimitrija Cupovski bb, 1000 SKOPJE
123
OBSERVERS
Citizens Advocacy Office
Mr Spahiu KRESHNIK, Executive Director, Citizens
Advocacy Office, Bd Gjergj Fishta Pallatet Project
2000, 3rd floor, suite 12, Tirana
Delegation of the European Commission to Albania
Mr Joaqun TASSO VILALLONGA, Head of Sector,
Justice and Home Affairs Operations Section I,
Delegation of the European Commission to Albania,
Rruga Donika Kastrioti, 42 Villa n 2, TIRANA,
Albania
IOM
Mr Peter BRYANT, Police Trainer, Counter- Trafficking
Department, IOM, Rr Brigade Villa 3, Tirana
Ms Hera SHANAJ, Counter Trafficking Programme
Co-ordinator, Counter Trafficking Department, IOM,
Rr Brigade Villa 3, Tirana
Management Systems International (MSI)
Mr Carlos GUERRERO, Project director in Albania,
MSI Project in Albania, Bd Gjergj Fishta Pallatet
Project 2000, 6th floor, suite 25, Tirana
Ms Alma KODHELI, ACAC Executive Secretary,
Albanian Coalition against Corruption Department,
MSI, Bd Gjergj Fishta Pallatet Project 2000, 6th floor,
suite 25, Tirana
Ms Edlira MUHEDINI, Anti-trafficking specialist, MSI
Project in Albania, Bd Gjergj Fishta Pallatet Project
2000, 6th floor, suite 25, Tirana
ORGANISATION FOR SECURITY
AND CO-OPERATION IN EUROPE
Mr Drino GALICIC, Programme Officer Legislation,
OSCE Office in Montenegro, Cetinjski put bb, 81000
Podgorica, Montenegro, Serbia and Montenegro
Ms Gabriele REITER, Officer on Anti-Trafficking
Issues, OSCE / ODIHR, Al. Ujazdowskie 19, 00-557
Warsaw, Poland [APOLOGISED]
PAMECA
Mr Rosario AITALA, Criminal Justice Project Officer,
Criminal Justice Team, PAMECA, Rruga Mustafa
Matohiti 4, Tirana,
Mr Guenther BECHTLOFF, Project co-ordinator for
Organised Crime, Department of Organised Crime
Element, PAMECA, Rruga Mustafa Matohiti 4, Tirana,
 LARA PROJECT CRIMINAL LAW REFORM AGAINST TRAFFICKING IN HUMAN BEINGS
Mr Knut GUENIKER, Criminal Justice Project Officer,
Criminal Justice Team, PAMECA, Rruga Mustafa
Matohiti 4, Tirana,
SIDA
Mr Oscar LARS, SIDA, Embassy of Sweden in Rome,
Rn Pjeter Budi N 76, Tirana, Albania
Stability Pact Task Force
on Trafficking in Human Beings
Dr. Helga KONRAD, Chair of the Task Force on
Trafficking in Human Beings, Ballhausplatz 2, A-1010
VIENNA
Ms Daja WENKE, Anti-trafficking Officer, Stability
Task Force on Trafficking in Human Beings,
Ballhausplatz 2, A-1010 VIENNA
INTERNATIONAL EXPERTS
Mr Freddy GAZAN, General Adviser for Criminal
Policy, Ministry of Justice, Belgium
Ms Maria Grazia GIAMMARINARO, Judge in the
Criminal Court of Roma, Italy
124
Mr Nicola LETTIERI, Prosecutor, Prosecutors Office in
Naples, Italy
Ms Laura IVANOVICI, Judge seconded to the OSCE
Mission in Bosnia and Herzegovina
COUNCIL OF EUROPE SECRETARIAT
Ms Eridana CANO, Programme Assistant, Council of
Europe Office in Tirana, Albania
Ms Laurence DADOUN, Lara Project Coordinator,
Equality Division, Directorate General of Human
Rights (DG II), F-67075 Strasbourg
Ms Anne-Marie FARADJI, Administrator, Directorate
General of Human Rights (DG II), Equality Division, F-
67075 Strasbourg
Mr Alexander SEGER, Programme Adviser, Directorate
General of Legal Affairs (DG I), Economic Crime
Division, F-67075 Strasbourg
Ms Livia STOICA-BECHT, Programme Adviser,
Directorate General of Legal Affairs (DG I), Economic
Crime Division, PACO Programme/ Lara project, F-
67075 Strasbourg
 LARA PROJECT CRIMINAL LAW REFORM AGAINST TRAFFICKING IN HUMAN BEINGS

7.4 Reference documents distributed during the LARA final regional seminar

United Nations Convention against Transnational LARA (2003) 38 rev

Organised Crime Draft Programme
Protocol to Prevent, Suppress and Punish
LARA (2003) 34E
Trafficking in Persons, especially Women and
Draft general comparative table
Children, supplementing the United Nations
Convention against Transnational Organized LARA (2003) 36
Crime LARA regional seminar (Zagreb, 2-4 April 2003):
Recommendation n(2000) 11 of the Committee of Proceedings
Ministers to Member States on Action against traf-
ficking in human beings for the purpose of sexual LARA (2003) 39E
exploitation, adopted by the Committee of Report on activities organised under the flying con-
Ministers of the Council of Europe on 19 May 2000 sultancies phase (April October 2003)

Recommendation Rec(2001)16 of the Committee of LARA (2003) 41E

Ministers to member states on the protection of
children against sexual exploitation, adopted by
the Committee of Ministers of the Council of
Europe on 31 October 2001
EU Framework Decision of 19 July 2002 on
Combating Trafficking in Human Beings
LARA (2003) 28E rev
Comparative table on legislative reform and national
plans of action
Replies to the questionnaire
Draft list of participants
Matrix: Assessment of the LARA project by partici-
pants
Stability Pact Task Force on Trafficking in Human
Beings: Assessment on Governmental anti-trafficking
structures and policies in SEE countries.

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7.5 International experts of the LARA project

Mr Freddy GAZAN Mr Gerald STABEROCK

General Adviser for Criminal Policy Co-ordinator of the National Implementation
Ministry of Justice Programme
Belgium International Commission of Jurists
Ms Maria Grazia GIAMMARINARO SWITZERLAND
Judge, Criminal Court of Rome
ITALY Ms Katy THOMPSON
Legal Adviser of the OSCE Mission in Bosnia and
Ms Laura IVANOVICI Herzegovina
Judge, Court of Appeal, Craiova (seconded to the United KINgdom
OSCE Mission in Bosnia and Herzegovina)
ROMANIA Ms Georgina VAZ CABRAL JARITZ
Legal expert (nominated by OSCE/ ODIHR)
Ms Angelika KARTUSCH AUSTRIA
Ludwig Boltzmann Institute of Human Rights
Hessgasse 1
AUSTRIA

Mr Nicola LETTIERI
Prosecutor
Prosecutors Office, Naples
ITALY

Ms Eunice SHANG-SIMPSON
European & International Division
Crown Prosecution Service
UNITED KINGDOM

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7.6 Reports elaborated within the framework of the LARA project

7.6.1 Specific country reports/expert opinions

Country Title Reference

Albania Opinion and commentary on the legal provisions on trafficking in
human beings applicable in Albania LARA(2003)32
Expert opinion on the draft law on justice collaborators and witness
protection LARA(2003)39
Comments on anti-trafficking legislation and legislative reform process
(April October 2003) LARA(2003)45
Bosnia and Opinion and commentary on the legal provisions on trafficking in
Herzegovina human beings in Bosnia and Herzegovina LARA(2003)12
Comments on the Opinion and commentary on the legal provisions on
trafficking in human beings applicable in Bosnia and Herzegovina LARA(2003)37
Comments on anti-trafficking legislation and legislative reform process
(April October 2003) LARA(2003)45
Bulgaria Opinion and commentary on the legal provisions on trafficking in
human beings in Bulgaria LARA(200218
Additional information and commentary on the opinion and
commentary on the legal provisions on trafficking in human beings
in Bulgaria LARA(2003)29
Comments on anti-trafficking legislation and legislative reform process
(April October 2003) LARA(2003)45
Croatia Opinion and commentary on the legal provisions on trafficking in
human beings in Croatia LARA(2003)13rev
Comments on the Opinion and commentary on the legal provisions
on trafficking in human beings applicable in Croatia LARA(2003)38
Comments on anti-trafficking legislation and legislative reform process
(April October 2003) LARA(2003)45
Moldova Opinion and commentary on the legal provisions on trafficking in
human beings applicable in Moldova LARA(2003)33
Comments on anti-trafficking legislation and legislative reform process
(April October 2003) LARA(2003)45
Romania Opinion and commentary on the legal provisions on trafficking in
human beings applicable in Romania LARA(2003)31
Comments on the Opinion and commentary on the legal provisions
on trafficking in human beings applicable in Romania LARA(2003)35

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Comments on anti-trafficking legislation and legislative reform process

(April October 2003) LARA(2003)45
Serbia and Opinion and commentary on the legal provisions on trafficking in
Montenegro human beings applicable in Serbia and Montenegro LARA(2003)15
Comments on anti-trafficking legislation and legislative reform process
in Serbia and Montenegro (April October 2003) LARA(2003)45
Opinion and commentary on the legal provisions on trafficking in
human beings in Kosovo LARA(2002)11rev
Serbia and Comments on the Opinion and commentary on the legal provisions on
Montenegro trafficking in human beings in Kosovo LARA(2003)16
Final Conclusions of the workshop on Criminal Law Reform in
Montenegro: procedural and substantive aspects of the fight against LARA(2003)
trafficking in human beings (30 September 2003) CoE/OSCE1
Expert opinion on the Draft Criminal Procedure Code of Montenegro
(provisions regarding special investigative means, protection of
witnesses, and collaborators of justice) LARA (2003)37
Slovenia Opinion and commentary on the legal provisions on trafficking in
human beings applicable in Slovenia LARA(2003)14 rev
Comments on the Opinion and commentary on the legal provisions on
trafficking in human beings applicable in Slovenia LARA(2003)39
Comments on anti-trafficking legislation and legislative reform process
(April October 2003) LARA(2003)45
The former Opinion and commentary on the legal provisions on trafficking in
Yugoslav Republic human beings applicable in the former Yugoslav Republic of
of Macedonia Macedonia LARA(2003)17
Comments on the Opinion and commentary on the legal provisions on
trafficking in human beings applicable in the former Yugoslav
Republic of Macedonia LARA(2003)30
Comments on anti-trafficking legislation and legislative reform process
(April October 2003) LARA(2003)45

7.6.2 General reports

Title Reference doc

Proceedings of the LARA Regional Seminar on Criminal Law Reform to Combat and Prevent
Trafficking in Human Beings in South-eastern Europe (Zagreb, 2-4 April 2003) LARA (2003)36
Report on activities organised under the flying consultancies phase
(April October 2003) LARA (2003)39
Report on the Training seminar in drafting legislation for the protection of victims and
victims-witnesses of trafficking in human beings (Strasbourg, 8-10 September 2003) LARA (2003)42
Proceedings and final report of the LARA Final Regional Seminar on Criminal Law Reform
to Combat and Prevent Trafficking in Human Beings in South-eastern Europe
(Durres, 30 October 1 November 2003) LARA(2003)45
General comparative table on legislation and national plans of action in South-eastern
European countries (19 December 2003) LARA (2003)34 rev
Comparative table on legislative reform and national plans of action: status of
implementation and proposed improvements (19 December 2003) LARA (2003)28 rev

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7.7 Relevant pieces of legislation

7.7.1 Albania: Draft law on Justice collaborators and witness protection (working version of June 2003)

REPUBLIC OF ALBANIA
THE ASSEMBLY
LAW
No.____, Dated__/__/

ON JUSTICE COLLABORATORS AND WITNESS PROTECTION

Based on Articles 78 point 1, 81 point 1 and 83 point 1 of the Constitution,
by proposal of the Council of Ministers,

THE ASSEMBLY OF THE REPUBLIC OF ALBANIA

DECIDED

CHAPTER I
GENERAL PROVISIONS
Article 1
Scope of the law
This law provides for the competencies, bodies and state structures, procedures and rules on witness protection,
whose life, physical integrity and liberty is in danger as a result of their knowledge of events, facts and circum-
stances which play an important role in the criminal proceedings related to a grave crime, for which they have pro-
vided or agreed to provide information to the procedural and judicial bodies.

Article 2
Definitions
For the implementation of this law the following words and expression mean as follow:
a) protected persons are considered, separately or jointly, the justice collaborators, witnesses and other persons
close or related to them because of cohabiting or living together with the witnesses and, according to the circum-
stances, are in concrete, actual and grave dangerous situation because of their relationship with the witnesses, alto-
gether included in a program for their protection, in accordance with the provisions of this law.
b) Dangerous situation is a situation in which the persons foreseen in the letter a) of this article in danger for
their lives, health, enjoyment and exercise of their rights and freedoms as provided by law, because of the infor-
mation provided or agreed to provide before the prosecutors office and the court related to serious crimes;
c) Serious crime is the criminal offence, which falls for judgement under the competencies of the court of serious crime.

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CHAPTER II
RESPONSIBLE BODIES FOR JUSTICE COLLABORATORS AND WITNESS PROTECTION
Article 3
Responsible bodies
Responsible bodies for preparation, evaluation, approval and implementation of the justice collaborators and wit-
ness protection programs are:
a) the Office for Justice Collaborators and Witness Protection;
b) the Commission for Evaluating Protection Programs.

Article 4
The Office for Justice Collaborators and Witness Protection
1. For preparing, pursuing and implementing the procedures and protection programs, hereby it is established an
Office for Justice Collaborators and Witness Protection, as a special structure in the State Police under direct super-
vision from the General Director of State Police.
2. Organizational structure, number of personnel, and questions related to the organization, functioning and treat-
ment of the personnel of the Office of Justice Collaborators and Witness Protection are decided by the Council of
Ministers.
3. Special rules related to the administering and use of necessary assets and funds for the exercise of activities in
the competence of the Office of Justice Collaborators and Witness Protection, in accordance with the legislation in
force, are decided by common guidelines of the Minister for Public Order, Minister of Finances and Minister of
Justice.

Article 5
The area of activity of the Office for Justice Collaborators and Witness Protection
The Office for Justice Collaborators and Witness Protection exercises the following competencies:
a) prepares for review and approval by the Commission of Evaluation of the Protection Program, proposals sent
by the prosecutor for implementing the protection programs;
b) on request by the Prosecutor or the Commission of Evaluation of the Protection Programs, review, investigates
and presents additional information related to technical aspects of the proposal for implementing the protec-
tion program;
c) carries on the functions of the technical secretariat of the Commission of Evaluation of Protection Program;
d) according to cases and manners foreseen by this law, decides the implementation of temporary protection meas-
ures until the final decision by the Commission of Evaluation of Protection Program;
e) prepares and signs the agreements for the protection program with any person protected according to this law;
f) take measures for pursuing and implementing the protection programs approved by the Commission of
Evaluation of Protection Programs;
g) secures and administer the data base related to the activity of the Office and on the protection programs;
h) takes measures to secure and administer all information related to the activity of the Office and of the protec-
tion programs according to the necessary scale of classification of their information according to the provisions
in force;
i) takes measures for effective administering and use, according to the provisions in force, of the assets and funds
in possession of the Office and of the protection programs;
j) pursue and propose measures for coordinating its activities with those of other institutions responsible by law,
or interested in developing and implementing the activities and protection programs;

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k) secures the implementation and proposes the forms of co-operation with international structures or structures
from other countries in the area of justice collaborators and witness protection;
l) prepares reports and proposes measures for adopting and improving the legislation on functioning of institu-
tions and procedures related to the implementation of the justice collaborators and witness protection programs;
m) carries on other duties as provided by law.

Article 6
The Commission of Evaluation of Protection Program
1. For evaluating the circumstances and approving the protection program, for amending, revoking or ending it,
hereby it is established the Commission of Evaluation of Protection Programs.
2. The Commission of Evaluation of Protection Program is composed of:
a) the Deputy minister of Public Order, as its chairperson;
b) two judges, one of whom as deputy chairperson, appointed by the High Council of Justice;
c) two prosecutors, appointed by the General Prosecutor;
d) two officers of the judicial police, appointed by the General Director of State Police.
3. The High Council of Justice, General Prosecutor and General Director of State Police, each appoint a replace-
ment member in case of absence or impossibility of exercising their function by the respective members of the
Commission. The chairperson of the meeting, in case by case, calls them to participate in the meetings of the
Commission.
4. The judges, prosecutors and officers of the judicial police appointed as members of the Commission of
Evaluation of Protection Programs, should be in high directing positions or possess exceptional professional expe-
rience.
The members of the Commission are appointed for a term of one year with the right to be re-appointed.

Article 7
The meetings of the Commission
1. The Commission of Evaluation of Protection Programs is summoned by its chairperson, or in case of absence
or impossibility, by its deputy chairperson, within 10 days of submission for review of a proposal by the prosecu-
tor for implementing the protection program by the Director of the Office, as well as when it is requires by the
General Prosecutor. In particular and emergency cases, the Commission is summoned immediately.
2. The meetings of the Commission are valid when at least 5 members are present. The Commission takes deci-
sions with the majority of votes of members present in the meeting.
3. The Commission should take decisions approving or not the prosecutors proposal for implementing a protec-
tion program within 30 days from the first meeting where such proposal is reviewed and, in every case, not later
than 60 days from the deposition of documents and proposal by the prosecutors office.
4. The detailed rules related to the functioning and procedures of the work of the Commission, as well as the rights,
obligations and treatment of its members, are determined by common guidelines of the General Prosecutor, Minister
of Public Order, Minister of Justice and Minister of Finance.

CHAPTER III
Protection Programs
Article 8
The general conditions for implementing the witness protection programs
1. If other measures of protecting the witness and guaranteeing his/her life, human rights and freedoms are not
sufficient, in accordance with the circumstances, conditions and procedures provided by this law, the responsible

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organs implement the witness protection programs for the witness who accepts and cooperates with the prosecu-
tors office and the court and, through his testimony, gives information, which:
a) constitute deciding evidence related to a criminal proceeding for serious crimes;
b) help preventing serious crimes or reducing their effects;
c) help in recovering of losses and damages caused by committing a serious crime.
2. The implementation of the witness protection program is decided if the following conditions are met:
a) the witness is in a grave, actual and concrete dangerous situation;
b) there is sufficient data that the person will face a dangerous situation in the future;
3. Depending upon the concrete circumstances, ways and means as determined by the Commission of Evaluation
of Protection Programs, the protection program is implemented also for persons close to the witness or particular-
ly related to him/her.
4. In the meaning of point 3 of this article:
a) close persons are those persons who are related by family, gender or in laws with the protected person, accord-
ing to article 16 of the Code of Criminal Proceedings and is verified that, for these reasons, are or will be in a
dangerous situation because of witnesss co-operation with the justice bodies;
b) persons particularly related to the witness are the concubines or persons in other strong relationships and is
verified that, because of these reasons, are or will be in a dangerous situation because of witnesss co-operation
with the justice bodies.

Article 9
General conditions for implementing the justice collaborators and witness protection programs
1. If other protective measures are not sufficient to guarantee life and human rights and freedoms or to facilitate
a particular and exceptional treatment, according to circumstances, conditions and procedures provided by this law,
the responsible bodies implement protection and treatment programs for the justice collaborator who accepts and
cooperates with the prosecutors office and the court and that:
a) gives light to facts and important circumstances that serve as evidence in detecting and proving the occurrence
of criminal offences;
b) testifies or give light to facts or circumstances having a deciding character for preventing, detecting and prov-
ing other criminal offences;
c) help or testifies for recovering of losses and damages caused by the occurrence of criminal offences as foreseen
above in letters a) and b).
2. In particular cases, depending upon the concrete circumstances, the Commission of Evaluation of Protection
Programs, can decide to implement protection programs also for persons close or particularly related to the justice
collaborator.
3. The circle of persons close or particularly related to the justice collaborator is that foreseen in point 4 of arti-
cle 7 of this law.

Article 10
The ways of protection and treatment of protected persons
1. The ways of protection and treatment of protected persons, established separately or jointly in the protection
programs by the responsible bodies according to this law, are:
a) identity protection;
b) protection of the witnesss statement;
c) giving and administering the witnesss statements under another identity or by special means to distort the voice
and his/her real look;

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d) protection and special treatment, when for another criminal offence the protected witnesses is accorded a secu-
rity measure or is sentenced to jail;
e) particular security measures in the residence, as well as during the movement for meeting the obligations
towards the justice bodies;
f) change of residence;
g) change of identity;
h) change of physical look;
i) transfer to another social environment;
j) professional re qualification;
k) change of working place;
l) giving financial aid in the time between 2 employments;
m) other ways according to law.
2. The Council of Ministers takes measures for proposing necessary legal provisions in implementing protection
and treatment ways as foreseen in point 1 of this article, as well as decides detailed rules related to their imple-
mentation.

Article 11
The responsibilities for implementing the protection program
1. Adopting measures and pursuing the conditions for implementing the protection and treatment program for wit-
nesses, persons close and persons particularly related to the witness, are realized by the Office of Justice
Collaborators and Witness Protection, other structures of the state police in charge, as well as other state bodies,
in accordance with the competencies and obligations provided by law.
2. Adopting measures and pursuing the conditions for implementing the protection and treatment program are
realized by the Office of Justice Collaborators and Witness Protection, structures of the General Department of
Prisons, as well as other state bodies, in accordance with the competencies and obligations provided by law.
3. The structures mentioned in point 1 and 2 of this article, continuously inform and respond to the requirements
of the Commission of Evaluation of Protection Program and of the prosecutors office, related to the protection pro-
gram, respecting of the conditions of the protection agreement, and for the development of circumstances and con-
ditions that caused the decision to implement the protection program.
4. The detailed rules related to the rights and obligations, forms and procedures of information, technical and oper-
ational aspects of implementation and pursuit of the protection programs are decided by common special guide-
lines of the Minister for Public Order, Minister of Justice and General Prosecutor.

Article 12
Administration of the documentation of the program of witness protection
1. Documentation concerning to the proposal, approval and following up of the implementation of the program
of the protection is in possession and is hold by the Office for the Protection of the Witnesses and the Collaborators
of the Justice.
2. Documentation relating to the procedures and dates on the authentic identity of the protected persons under a
protection program, constitutes a classified information that exceptionally, can be known to the public, only in case
if the circumstances that make possible the implementation of the protection program have been further.
3. The criteria and procedures on the protection, administration and classification of the information concerning
the protection program, are settled by a common order of the Minister of Public Order, Minister of Justice and the
General Prosecutor.

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CHAPTER IV
THE PROCEDURES ON THE APPROVAL AND IMPLEMENTATION OF THE PROTECTION PROGRAMES
Article 13
Presentation of the proposal
1. The prosecutor assigned for the management of the investigations relating to a penal proceeding, the prosecu-
tor of the highest level appointed by the law for the proceeding of that case or the General Prosecutor, have the
right to appeal and propose discussion, approval and implementation of a protection program.
2. In cases when the prosecutor argues and there are reasons that justify the implementation of the protection pro-
gram, the prosecutor decides and proposes to the Commission of the Assessment of the Protection Program the
approval of a protection program.
3. The proposal for the approval of a protection program, the explanations (details) and the fundamental informa-
tion according to this law, are to be deposited to the technical secretariat attached to the Office for the Protection
of the Witnesses and Justice Collaborators. This office prepares the proposal and the appropriate documentation for
examination by the Commission for the Assessment of the Protection Program.
4. The Prosecutor when makes the proposal and sets forth the necessary reasons, can request to the Office for the
Protection of the Witnesses and Justice Collaborators, to implement temporarily appropriate protection measures.
5. The regulations and the procedures predicted in this article are to be implemented in cases of proposal for
change, revoke or termination of the protection program too.

Article 14
Temporary measures of protection
1. In specific and urgent cases, the Office for the Protection of the Witnesses and the Collaborators of Justice, upon
the prosecutor request, decides on the immediate implementation of the temporary protection measures. The deci-
sion of the Office can be implemented after the Head of the Commission for the Assessment of the Program of the
Protection and the General Prosecutor or any prosecutor authorized specially, give their approval.
2. The temporary protection measures are to be set up in accordance with the rank (status) of the dangerous of the
situation, in such forms that guarantee temporary and preliminary the minimal indispensable protection level.
3. The detailed regulations concerning the circumstances, procedures and the methods of the temporary protec-
tion, have to be settled by a common order of the Minister of the Public Order, Minister of Justice and the General
Prosecutor.

Article 15
Content of the proposal and the attendant (accompanied) documentation
1. The proposal of the prosecutor on the implementation of a protection program, contains indispensability the
following dates:
a) information concerning the proper penal proceeding;
b) personal dates of the person who has been proposed to be protected;
c) some dates and the importance of the declarations done or that can be done by the witness or the collaborator
of justice;
d) circumstances where or because of the witness or the collaborator of justice is aware of and that concern the
dates or the declarations done or that can be done by him;
e) dates and other explanations that assist to motivate and support the assessment of the dangerous situation
where the person that is proposed to be protected already is or is supposed to be.
f) Information on the financial status of the witness;
g) Other information according the prosecutor appraisal.

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2. The prosecutor can request to the Office for the Protection of the Witnesses and the Collaborators of Justice, the
elaboration and preparation of detailed information or additional information on the motives and the effects of the
implementation of the protection program.

Article 16
The Agreement with protected person
1. In the shortest time, at any case not later than 15 days from the approval of the program of the protection. The
Office for the Protection of the Witness and the Collaborators of Justice, takes the necessary measures for the prepa-
ration, negotiation and signing of the special agreement on the implementation of the witness protection program
with the witness, collaborator of justice and other persons that are protected through protection programs.
2. In cases and in the dimension that he appraises, the prosecutor can take part in the preparation and negotia-
tion of the special agreement on the implementation of the protection program. In any case, the prosecutor is
informed and gives his consent prior the Office and the protected person sign the agreement.
3. The responsibilities, the rights, the obligations and the effects of the protection program for the Office and for
the protected person, begin at the time and in the form predicted in the agreement.
4. For the minors, the protection agreement has to be signed by their legal tutor an in case that there is not any
or if they do not sing it, the protection agreement has to be signed by the minor, according the court decision.

Article 17
Content of the agreement
1. In the protection agreement the following issues are to be obligatory;
a) the rights and the obligations of the protected persons;
b) the rights and the obligations of the Office for the Protection of the Witnesses and the Collaborators of Justice
in order to offer to the protected person the proper protection according to the level and the circumstances of
danger;
2. In any case, the protection agreement predicts conditions and obligations for the witness or the collaborator of
justice in order to:
a) give information concerning all the facts, events and circumstances that regard the criminal offence and about
which he is aware of;
b) to accept and respect the measures mentioned in the protection program;
c) to avoid every action or inaction that can put in danger the implementation of the protection plan or that put
it in dangerous situations;
d) to inform at once the Office on issues that are valuable for it or in relation with every change of the life or its
personal activity, and also about the contacts and relations to the third parties that can endanger the imple-
mentation and the guaranties offered by the protection program;
3. Apart the issues predicted in point 1 and 2 of this article, the collaborator of justice has to inform in details the
Office on the kind and the quantity of the properties (wealth) owned by him or his relatives or special persons relat-
ed to him.
4. The Office for the Protection of the Witnesses and the Collaborators of Justice, informs the Commission of the
Assessment of the Program of the Protection on the on going, deadline of the implementation of the program, at
the time and manner indicated by it related to the protection program, the timeline for implementation of the pro-
tection program, respecting the conditions of the protection agreement, and in case by case for the problems and
circumstances not foreseen in these documents.
5. Detailed rules related to the contents, forms, procedures of talks and signature of the protection agreement, and
for following the implementation of the conditions of the agreement are decided with a common guideline of the
Minister for Public Order, Minster of Justice and General Prosecutor.

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Article 18
Extraordinary protective measures
1. State Police or pre-detention and prison institutions, in accordance with the circumstances and the level of risk
involved for the protected person, can order and implement extraordinary protective measures. These measures are
communicated immediately to the Office of Justice Collaborators and Witness Protection and to the case prosecu-
tor.
2. The extraordinary measures, with the consent of the Office and of the cases prosecutor, can be extended for a
determined period of time, until the danger motivating these measures is avoided or until the Commission of
Evaluation of the Protection Program has taken the appropriate decision.

Article 19
Amending and revoking the protection program
1. The protection program is amended or revoked in these cases:
a) with a written request of the witness or justice collaborator;
b) if during the investigation and trial of the criminal offence, is evidenced that the witness or the justice collab-
orator are giving false testimony or information;
c) if the witness or the person included in the program commit a premeditated crime;
d) if there is evidence that after being included in the program the witness or the person included in the program,
participates in a criminal organization or group;
e) if the witness, justice collaborator or other protected persons do not fulfill the obligations mentioned in the pro-
tection agreement or refuse, neglect or gives false information related to one of the aspects of his/her situation.

Article 20
Ceasing the protection program
1. The protection program is ceased in the following cases:
a) with a written request of the witness or the person included in the protection program;
b) if life, health or physical integrity of the witness or of the person included in the program are not in danger
anymore;
c) if the witness or the person included in the program dies.

Article 21
1. The Office of Justice Collaborator and Witness Protection informs immediately, in writing, the prosecutor for
the circumstances mentioned in article 19 and 20 of this law.
2. In the case of request for ceasing the protection program or in death of the protected person, the protection pro-
gram is ceased immediately for the person requiring or for the dead person, but continues in accordance with the
case for the witness or any other person included in the program.

Article 22
Claims
1. Against the decisions of the Commission of Evaluation of the Protection Program approving or rejecting the
proposal for implementing the protection program, amending, revoking or ceasing it, the prosecutor or the protect-
ed person can make a claim before the court of appeal for serious crimes.
2. The claim is made within 5 days of taking knowledge of the decision of the Commission of Evaluation of
Protection Program.

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3. The claim is reviewed by the court of appeals for serious crimes within 10 days from deposing the claim, with
a panel comprised of three judges.

CHAPTER V

CRIMINAL PROVISIONS

Article 23

Reducing the sentence for the protected persons

The person who is a collaborator in committing a serious crime, which is under proceedings and, before or during
the investigation, cooperates with the criminal proceedings bodies in accordance with the conditions and criteria
of this law, gets a reduction in the sentence equals to one third of the sentence given for the respective criminal
offence.

Article 24

Review of the decision

The person who is a collaborator in committing a serious crime which is under proceedings and, before or during
investigations, cooperates with the criminal proceedings bodies in accordance with the conditions and criteria of
this law, has the right to request a review of the decision, for reviewing and reducing the sentence given by the
court.

Article 25

The prohibition of providing information

1. Providing information contrary to the law on information which risk the life and health of the protected per-
son, as well as any other information influencing this and can risk the life, physical integrity or freedom, is pun-
ished with a fine or imprisonment up to 2 years, and when there are damaging effects for their health with a fine
or imprisonment up to 4 years.

2. Providing information, in accordance with the above paragraph, committed by one of the persons responsible
to maintain their classified and confidential character, is punished by a fine or with imprisonment up to 5 years.

3. When the actions and failures to act foreseen in points 1 and 2 of this article, result in death or suicide of the
protected person, the culpable is punished with imprisonment from 3 to 10 years.

CHAPTER VI

FINAL PROVISIONS

Article 26

Inter-institutional co-operation

The institutions of national security, when are involved in the activities of the witness protection, for implement-
ing this law, cooperates with the Prosecutors office, Ministry of Public Order and the Ministry of Justice.

Article 27

Transitory disposition

Bylaws as foreseen to be issued according and in application of this law are to be approved by the competent
authorities within 6 months from the date of entry into force of this law.

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Article 28
Entry into force
1. This law entries into force six months after the publication in the Official Journal.
2. Expert opinion on the draft law on justice collaborators and witness protection (working version: June 2003)

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7.7.2 Montenegro: Relevant articles of the draft Criminal Code and draft Criminal Procedure Code
Relevant articles of the draft Criminal Code
Force and threat
Article 12
(1) An act which has been done under the influence of absolute force shall not be considered a criminal offence.
(2) If an act has been committed in order that an offender averts from him/herself or from someone else a danger
that was caused by a force which is not absolute or under threat, the offender shall be treated according to Article
11 of this Code, considering the force and threat as an unwarranted danger.
(3) If a criminal offence is committed under force or threat and the conditions of paragraph 1 and 2 of this Article
are not met, an offender thereof can be punished leniently and if the offence was committed under particularly
mitigating circumstances, s/he can be acquitted of any punishment.
(4) In cases referred to in paragraphs 1 and 2 of this Article if a person who has been under force or threat is not
considered a perpetrator of that criminal act, then the person who has inflicted the force and threat thereof shall
be considered a perpetrator.

Combination of criminal offences

Article 46
(1) If an offender by one action or several actions has committed several criminal offences for which s/he is tried
at the same time, the court shall first assess the punishment for these offences respectively and then pronounce an
integrated punishment (compounded sentence).
(2) The court shall pronounce the integrated punishment by the following rules:
a) If life sentence has been defined by the court for one of the combined criminal offences, it shall pronounce that
punishment only;
b) If the court has defined prison sentence for combined criminal offences, it shall increase the most severe pun-
ishment pronounced provided that the integrated punishment does not reach the sum of determined punish-
ments nor exceed twenty years of prison;
c) if prison sentences of maximum three years in prison are prescribed for all criminal offences combined, the inte-
grated punishment must not exceed ten years of imprisonment;
d) if for combined criminal offences only fines are prescribed, the court shall pronounce one fine in the amount
of the sum of determined fines, but it must not exceed ? 10 000, or ? 5 000 when one or more criminal offences
have been committed out of greed.
e) if for some criminal offences in combination the prison sentence is prescribed and for other offences the fines
are prescribed, the court shall pronounce one prison sentence and one fine pursuant to lines 2-4 of this para-
graph.
(3) The court shall pronounce the fine as an accessory punishment if it has been prescribed for at least one of the
criminal offences in combination, and if the court has determined more than one fine it shall pronounce one fine
pursuant to line 4, paragraph 2 of this article.
(4) If the court determined prison sentence and juvenile penitentiary for criminal offences in combination, it shall
pronounce prison sentence as the integrated punishment by applying the rules prescribed in line 2, paragraph 2 of
this article.

SEIZURE OF PROPERTY GAINS

Grounds for Seizure of Property Gains
Article 110
(1) No one shall be allowed to keep any property gain obtained by a criminal offence.

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(2) The gain referred to in Paragraph 1 of this Article shall be seized on conditions envisaged by the present Code,
by a judicial decision ascertained by which is perpetration of a criminal offence.

Conditions and Manner of Seizure of Property Gains

Article 111
(1) Money, things of value and all other property gains obtained by a criminal offence shall be seized from the per-
petrator; should such a seizure be not possible, the perpetrator shall be obliged to pay for the monetary value of
the obtained property gain.
(2) A property gain obtained by a criminal offence shall be seized from the persons it has been transferred to, with-
out compensation or against compensation that is obviously inadequate to its real value.
(3) Seized shall also be any property obtained by a criminal offence in favor of other persons.

Protection of Injured Persons

Article 112
(1) Should, in the course of a criminal procedure, a property claim of the injured party be adopted, the court shall
decide on the seizure of a property gain solely if such a property gain exceeds the property claim of the injured
party adjudicated in that amount.
(2) The injured party who, in the course of a criminal procedure, has been referred to institute a civil action in
respect to any kind of property claims, may ask to be compensated from the property gain, should he/she institute
civil action within the period of six months of the day of coming into effect of the decision on his/her referral to
the civil action and should he/she, within the period of three months of coming into effect of the decision adopt-
ed by which is his/her property claim, ask to be compensated from the seized property gain.
(3) The injured party who, within a criminal procedure, has failed to lodge a property claim, may request to be com-
pensated from the seized property should, for the purpose of his/her claim, he/she institute a civil action within
three months of the day of coming to the knowledge of the sentence pronounced by which is seizure of a prop-
erty gain, and at latest within the period of three years of the day of coming into effect of the decision on seizure
of a property gain and should he/she, within the period of three months of the day of coming into effect of the
decision on adoption of his/her property claim, ask to be compensated out of the seized property gain.

Interpretations and Definitions Applicable to this Code

Article 140
(1) The abbreviation SMN (SCG) shall mean the state union of Serbia & Montenegro (Srbija & Crna Gora).
(2) The territory of Montenegro shall be deemed to include the land territory, coastal sea and water surfaces with-
in its borders, as well as air space above it.
(3) Criminal legislation of Montenegro shall be deemed to mean the present Code, as well as all other criminal pro-
visions embraced by other laws of Montenegro.
(4) Persons in an official capacity shall be deemed to mean:
a) a person who performs official duties with state authorities,
b) elected, appointed or designated person in a state authority, local self-government body or a person who per-
forms on a permanent or temporary basis official duties or official functions in these bodies,
c) a person in an institution, enterprise or other organization assigned to whom is performance of public powers,
who decides on rights, obligations or interests of natural and legal persons or public interests,
d) a person in charge of specific official duties or tasks,
e) a military person, with the exception of provisions of Chapter Thirty Four (against official duties) of the
present Code.

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(5) A responsible person represents the owner of an enterprise or other organization, or a person with an enter-
prise, institution or other organization assigned to whom is, by virtue of his function, funds invested or his pow-
ers, a specific scope of duties in the management of property, production or other business activity or in supervi-
sion thereof or who is in charge of specific tasks. A responsible person shall also be deemed a person in an offi-
cial capacity, in the event of criminal offences for which a responsible person is designated as a perpetrator, such
offences being not envisaged by the present Code in the Chapter dealing with criminal offences against official
duties i.e. as criminal offences of a person in an official capacity.
(6) A military person shall mean a professional soldier (professional military officer, sergeant, officer by contract,
sergeant by contract and soldier by contract), soldier serving his military obligation, student of a military acade-
my, student of a military high school, person from reserve military forces while on military duty as a military ser-
vant, as well as a civil person who performs a specific military duty.
(7) When a person in an official capacity, a responsible person or a military person is designated as a perpetrator
of specific criminal offences, persons referred to in Paragraphs 4, 5 and 6 of this Article can be perpetrators of these
acts, unless the nature of an individual act or individual regulation implies that the perpetrator can be solely some-
one of these persons.
(8) A child shall be considered a person who has not reached the age of fourteen years.
(9) A juvenile / minor shall be considered a person who has reached the age of fourteen, but not the age of eight-
een.
(10) An underage person is a person who has not yet reached the age of eighteen.
(11) Perpetrators shall be deemed to be the persons who have committed a criminal offence, participated in its per-
petration, instigated it and helped that such act be committed.
(12) Force / violence shall also mean the use of hypnosis or hypnotizing means with the purpose to bring some-
one against his will to the state of unconsciousness or inability to give resistance.
(13) Elections are to be understood the elections for the Assembly of the state union of Serbia and Montenegro,
president of the state union of Serbia and Montenegro, president of the Republic of Montenegro, municipal assem-
blies and other elections called for and conducted on the basis of the constitution and the law.
(14) Referendum is pronouncement of citizens where they decide on specific issues as specified by the constitution
and the law.
(15) Narcotics are substances and preparations declared by relevant regulations to be narcotics.
(16) A movable thing is also considered to be every generated or collected energy for production of light, heat or
for movement, as well as a telephone impulse, computer data and computer program.
(17) A computer data is deemed to be a presented information, knowledge, fact, concept or order that is entered,
processed or memorized, or has already been entered, been processed or memorized in a computer or computer net-
work.
(18) A computer network is considered to be an assembly of mutually connected or interconnected computers that
communicate mutually by exchanging data and information.
(19) A computer program is defined as a regulated assembly of orders the aim of which is to control the comput-
er operation, as well as to solve a specific task by means of a computer.
(20) A computer virus is a computer program or some other assembly of orders entered into a computer or com-
puter network designed to multiply itself and so act upon other programs or data in a computer or computer net-
work by adding that program or assembly of orders to one or more computer programs or data.
(21) A business entity is deemed to be an enterprise, other legal person that conducts a business activity, as well
as an entrepreneur. A legal person that, in addition to its primary activity, conducts also a business activity, shall
be deemed a business entity solely when engaging in that business activity.
(22) A protected natural property is deemed to be a property that, under regulations on protection of natural
wealth, enjoys such protection.
(23) A cultural property is deemed to be a property that, under regulations on preservation of cultural property,
enjoys such protection, as well as a part of cultural property and protected environment of an immovable cultur-
al property.

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(24) Money means both metal coins or paper money or money made of some other material that is statutory pre-
scribed to be in circulation in the state union of Serbia and Montenegro or a foreign country.
(25) Value symbols are deemed to be also foreign value symbols.
(26) A motor vehicle is every transportation means with a motor drive used in the land, water and air transporta-
tion.
(27) A document shall be deemed to be anything that is suitable for or prescribed to serve as an evidence of a spe-
cific fact of relevance for legal relations, as well as a computer data.
(28) A letter, mail and document can also be in an electronic form.
(29) A family or family community are also deemed to be former marital partners and their children, as well as
parents of former marital partners.
(30) The term shall not be punished means that there exists no criminal offence in that event. .
(31) When an imperfective verb is used to express the action of a criminal offence, it shall mean that the offence
is committed if the action is done once or several times.

Mediation in prostitution
Article 209
(1) Anyone who leads or encourages another person to prostitution or who by means of public communication or
other similar means promotes or advertises prostitution, shall be punished by pecuniary penalty or maximum one
year imprisonment sentence.
(2) Anyone who takes part in giving a person to another for prostitution shall be punished by imprisonment sen-
tence ranging from three months to five years.
(3) If an act as of paragraphs 1 and 2 herein is done to a minor or by use of force, threat or deceit, the perpetra-
tor shall be punished by imprisonment sentence ranging from two to twelve years.

Illegal crossing of the state border

Article 403
Whoever without the prescribed permission crosses or tries to cross the state border of Serbia and Montenegro or
who enables another for gain to illegally cross the border, shall be punished by imprisonment for a term from six
months to five years.

Trafficking in human beings

Article 442
(1) Whoever by force or threat, deceit or keeping in delusion, by abuse of authority, trust, relationship of depend-
ency, difficult position of another person or by keeping back identification papers: recruits, transports, transfers,
hands over, sells, buys, mediates in sale, hides or keeps another person for gain, exploitation of work, commission
of crimes, prostitution or begging, pornographic use, taking away a body part for transplantation or for use in
armed conflicts shall be punished by imprisonment for a term from one to ten years,
(2) If the offence referred to in paragraph 1 of this Article is committed to a juvenile person, the offender shall be
punished by at least three years imprisonment.
(3) For crimes referred to in paragraph 1 of this Article committed to a person who is not yet 14, the offender shall
be sanctioned by punishment imposed for that crime even when there was no force, threat, or any other of the stat-
ed methods present in the commission of the crime.
(4) Whoever interferes with committing crimes referred to in paragraphs 1 to 3 of this Article or participates in their
organized commission together with several other persons shall be punished by imprisonment for a minimum term
of five years.

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Trafficking in children for adoption

Article 443
(1) Whoever abducts a juvenile person who has not yet reached fourteen for adoption in contravention of current
regulations or whoever adopts such a person or mediates in such adoption or whoever for that purpose buys, sells
or hands over another person who has not yet reached fourteen or transports, provides accommodation for or hides
such a person, shall be punished by imprisonment for a term from one to five years.
(2) Whoever conducts activities referred to in paragraph 1 of this Article or participates in their organized commis-
sion together with several other persons, shall be punished by imprisonment for a minimum term of three years.

Submission to slavery and transportation of enslaved persons

Article 444
(1) Whoever by violation of international law forces another person into slavery or other similar position or keeps
another person in such a position, or buys, sells, hands over to another person or mediates in buying, selling or
handing over of such a person or induces another person to sell own freedom or freedom of persons he/she sup-
ports or looks after, shall be punished by imprisonment for a term from one to ten years.
(2) Whoever transports persons in the position of slavery or other similar position from one country to another
shall be punished by imprisonment for a term from six months to five years.
(3) For crimes referred to in paragraphs 1 and 2 of this Article committed to a juvenile person, the offender shall
be punished by imprisonment for a term from five to fifteen years.

Relevant articles of the draft Criminal Procedure Code

Article 64
(1) The private prosecutor, the injured person, and the subsidiary prosecutor as well as their legal guardians may
exercise their procedural rights through legal representatives.
(2) When proceedings are carried out upon the request of the subsidiary prosecutor for a criminal offense punish-
able by imprisonment for a term of more than five years, the court may upon the request of the subsidiary prose-
cutor assign a legal representative to him if this is to the benefit of the proceedings and if the subsidiary prosecu-
tor due to his financial situation has insufficient means to pay for the legal representation. The investigating judge,
single judge or the president of the panel shall decide on this request, and the president of the court shall appoint
a legal representative from the ranks of the Bar.

Article 95
(1) Persons who are likely to provide information regarding the criminal offence, the perpetrator and other relevant
circumstances shall be summoned as witnesses.
(2) The injured person, subsidiary prosecutor and private prosecutor may be examined as witnesses.
(3) Every person summoned as witness is bound to appear at the court and, unless otherwise prescribed by this
Code, to testify as well.

Article 96
(1) The following person may not be examined as a witness:
(2) A person who, by giving testimony, would violate the duty of keeping a state, military or official secret until
the competent authority releases him from this duty;
(3) A defense counsel cannot testify with regard to information the defendant has confided to him in his capacity
as defense counsel;

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(4) A person who, by giving testimony, would violate the duty of keeping a professional secret (a religious confes-
sor, Prosecutor at law, physician, nurse etc.) unless he is released from this duty by a separate regulation or state-
ment of a person to whose benefit the keeping of secret is established.

Article 97
(1) Unless otherwise determined by this Code the following persons are exempted from the duty to testify:
a) The defendants spouse and his cohabitee;
b) The defendants linear relatives by blood, collateral relatives by blood to the third degree and relatives by affin-
ity to the second degree;
c) The defendants adoptive child or adoptive parent;
(2) The court conducting the proceedings is bound to remind the persons stated in paragraph 1 of this Article that
they are exempt from testifying before their examination or as soon as the court finds about their relation to the
defendant. The reminder and the answer shall be entered in the record.
(3) A minor who due to his age and mental development is unable to understand the meaning of the right to
exemption from testifying may not testify as a witness, except if the defendant so requests.
(4) A person entitled to refuse to testify with regard to one of the defendants shall be exempted from the duty to
testify with regard to other defendants if his testimony cannot be, by nature of the manner, limited only to other
defendants.

Article 98
If a person who may not testify as a witness (Article 96) has given testimony or if a person who is exempted from
testifying as a witness (Article 97) has given testimony and was not reminded of his right to exemption from tes-
tifying or has not expressly waived this right, or if the reminder and the waiver were not noted in the record or if
a minor who is unable to understand the meaning of the right to exemption from testifying has testified or if a
witnesss testimony was obtained by force, threat or other similar forbidden means (Article 134 paragraph 4), the
courts decision may not be based on such a witness testimony.

Article 99
Unless otherwise determined by this Code a witness is not under the duty to answer particular questions if it is like-
ly that he would thus expose himself or persons referred to in Article 97 paragraph 1 of this Code to serious dis-
grace, considerable material damage or criminal prosecution.

Article 102
(1) After general questions, the witness shall be called upon to state everything known to him about the case,
whereupon questions shall be directed to him in order to check, complete or clarify his testimony. It is forbidden
to deceive the witness or to ask leading questions.
(2) The witness shall always be asked to indicate the source of his knowledge regarding the testimony given.
(3) Witnesses may be confronted if their testimonies do not correspond regarding the relevant facts. Only two wit-
nesses may be confronted at a time. The provisions referred to in Article 90 paragraph 2 of this Code shall be
applied regarding confrontation of witnesses.
(4) The injured person testifying as a witness shall be asked whether he intents to assert a claim for indemnifica-
tion in the criminal proceedings.

Article 108
(1) If there are grounds to fear that by giving a statement or answering certain questions a witness would put in
danger his, his spouses or close relatives a life, health, body integrity, freedom or property of great value, he may

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withhold from giving the details referred to in Article 101 paragraph 3 of this Code (identity details), answering
certain questions or giving the statement altogether until his safety is secured.
(2) Witness protection consists of special ways of participating and questioning witnesses in criminal proceeding.
(3) Protection of witnesses and other persons from paragraph 1 can be secured outside criminal proceeding as well,
which is regulated and applied in accordance with special Law.

Article 109
(1) Special ways of participating and questioning witnesses in criminal proceeding are: questioning of witnesses
under pseudonym, questioning with assistance of technical equipment (protective wall, voice simulators, devices
for transmission of picture and sound) etc.
(2) If special way of questioning witnesses consists only of withholding the details referred to in Article 101 para-
graph 3 of this Code, questioning shall be done under pseudonym, while in other part of the procedure question-
ing shall be done in accordance with general provisions of this Code regulating questioning of witnesses.
(3) If special ways of participating and questioning witnesses in criminal proceeding consists of withholding the
details referred to in Article 101 paragraph 3 of this Code as well as of hiding the face of the witness, questioning
shall be done with assistance of devices for transmission of picture and sound. The specialist referred to in Article
259 paragraph 8 of this Code shall operate with the technical devices. During the questioning, face and voice of
the witness shall be changed. During the questioning, witness shall be in the room other than the one where are
investigating judge and other persons present at the questioning. Investigating judge shall forbid all the questions,
answers to which could lead to revealing identity of the witness.
(4) After the questioning has been completed, witness shall sign the record using pseudonym in presence of the
investigative judge and clerk of the court only.
(5) Persons who in whatever capacity, learn the details about the witness referred to in paragraphs 2 and 3 of this
Article shall be obliged to keep them secret.

Article 110
(1) The ruling on special ways of participating and questioning witnesses shall be rendered during the investiga-
tion by the investigative judge upon a motion of a witness, state prosecutor or ex-officio, and during the trial by
the panel.
(2) Details of the witness who is to participate in a special way in the proceedings shall be sealed in a special enve-
lope and kept by the investigative judge. A note shall be put on the envelope saying Protected witness Secret.
The envelope may be opened only by the second instance court in appellate proceeding, but the opening thereof
shall be noted in the record together with the names of the members of the panel who came to the knowledge of
its content. After this the envelope shall be sealed again and returned to the investigative judge.
(3) Parties and witness shall have a right of appeal against the ruling from the paragraph 1 of this Article.

Article 111
(1) As regards questioning of the protected witness during the trial, provisions of the Articles 109 to 111 of this
Code shall be applied.
(2) A judgement may not be based solely on the statement given by the witness in a way regulated in Articles 109
to 111 of this Code.

Article 112
Provisions of Articles 109 to 111 of this Code shall apply mutatis mutandis to participation and questioning of the
injured person in the proceeding as well

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Article 183
(1) The interrogated person, the persons whose presence is mandatory during the conduct of a procedural action,
as well as parties, the defense counsel and the injured person if they are present shall have the right to read the
record or to request that it be read to them. The person performing the procedural action shall inform them of this
right and the record shall note whether this information was given to them and whether the record was read. The
record shall always be read if no court reporter is present and the note thereof shall be entered in the record.
(2) The interrogated person shall sign the record. If the record contains several pages, the interrogated person shall
sign each page. A refusal by the interrogated person to sign a record or leave a fingerprint on it shall be noted in
the record as well as the reason for the refusal.
(3) The interpreter, if there is one, the witnesses whose presence during the conduct of an investigatory action is
mandatory, and in the case of a search, the person who is searched or whose dwelling is searched shall put his sig-
nature at the end of the record. If the record is not written by a court reporter (Article 180 paragraph 2), it shall
be signed by the persons present while the action is being carried out. If there are no such persons or if they can-
not understand the contents of the record, the record shall be signed by two witnesses except if it is not possible
to provide for their presence.
(4) In lieu of his signature an illiterate person shall leave the print of the right hand index finger, and a court
reporter shall note in writing his name and surname below the fingerprint. If the print of the right hand index fin-
ger cannot be taken, the print of some other finger or the print of left hand finger shall be taken and shall be noted
in the record from which finger and hand the print was taken.
(5) If the interrogated person has no arms-he shall read the record and if he is illiterate, the record shall be read to
him and this shall be noted in the record.
(6) If the procedural action cannot be carried out without interruption, the date and hour of the interruption as well
as the date and hour of the resumption of the procedural action shall be noted in the record.
(7) If objections are raised regarding the contents of the record, they shall be noted in the record as well.
(8) The person performing procedural action and the court reporter shall sign the record at the end of it.

Costs of Criminal Proceedings

Article 199
(1) Costs of criminal proceedings are expenses incurred by reason of criminal proceedings from their institution to
their termination, including costs for undertaking investigatory actions before an investigation.
(2) Costs of criminal proceedings shall consist of:
a) Expenses for witnesses, expert witnesses, interpreters and experts and expenses of on-the-spot insight and
expenses of stenographic and technical recording and copies of records;
b) Expenses of transportation of the defendant;
c) Expenses of bringing the suspect, defendant, witness, expert witness;
d) Travel expenses of officials;
e) Expenses of medical treatment of the defendant in detention as well as expenses of child delivery, except
expenses which are collected from the medical insurance funds;
f) Expenses of technical examination of a vehicle, blood analysis and transportation of corpse to the place of
autopsy;
g) Fees and necessary expenses of the defense counsel, necessary expenses of the private prosecutor and subsidiary
prosecutor and their legal guardians, and fees and necessary expenses of their legal representatives, as well;
h) Necessary expenses of the injured person and his legal guardian, as well as fees and necessary expenses of his
legal representative;
i) A lump sum for the expenses not mentioned in previous subparagraphs.
(3) The lump sum shall be determined according to the duration and complexity of the criminal proceedings and
according to the financial situation of the person required to pay the sum.

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(4) The expenses referred to in paragraph 2 subparagraphs 1 to 6 of this Article, as well as fee and necessary
expenses of the appointed defense counsel and appointed legal representative of the subsidiary prosecutor (Articles
70 and 204) in proceedings for criminal offenses subject to public prosecution shall be advanced from the budget
of the authority carrying out the criminal proceedings and shall be later collected from the persons required to
repay them according to the provisions of this Act. The authority carrying out criminal proceedings is bound to list
all advanced expenses which are paid and to attached the list to the files.

(5) The expenses of translation into languages of national minorities which occur by the application of the provi-
sions of this Act on the right of national minorities to use their language shall not be collected from persons who
are according to the provisions of this Act required to pay the costs of criminal proceedings.

Article 202

(1) When the court finds the defendant guilty, it shall state in the judgement that he must pay the costs of the crim-
inal proceedings.

(2) A person charged with several criminal offenses shall not bear the costs regarding the offenses for which he
was acquitted if these costs can be separated from the overall costs.

(3) In a judgement pronouncing several defendants guilty, the court shall order what proportion of the costs each
of the defendants shall pay, and if this is not possible, the court shall order that the defendants shall be jointly
liable for the costs. The payment of the lump sum shall be determined separately for each defendant.

(4) The court may, in a decision on costs, decide that the defendant shall not pay the entire or partial amount of
costs of the criminal proceedings referred to in Article 199 paragraph 2 subparagraphs 1 to 6 and 9 of this Act if
payment of these costs could imperil the support of the defendant or persons he is bound to support. If these cir-
cumstances are determined after the decision on costs is rendered, the president of the panel may, in a separate rul-
ing, dispense the defendant from the duty to bear the costs of the criminal proceedings.

Article 203

(1) When the criminal proceedings are discontinued or when a judgement of acquittal or a judgement rejecting the
charge is rendered, the court shall state in its ruling or judgement that the costs of the criminal proceedings referred
to in Article 199 paragraph 2 subparagraphs 1 to 6 of this Act as well as the necessary expenses of the defendant
and the necessary expenses and fees of the defense counsel shall be paid from budget funds, except in the cases
referred to in the following paragraphs.

(2) A person who has been found guilty of false reporting shall bear the costs of the criminal proceedings, he or
she prompted by false reporting.

(3) The private prosecutor shall pay the costs of the criminal proceedings referred to in Article 199 paragraph 2
subparagraphs 1 to 6 and 8 of this Act, the necessary expenses of the defendant and the necessary expenses and
fees of his defense counsel if the proceedings are terminated by a judgement of acquittal or a judgement rejecting
the charge or a ruling discontinuing the proceedings except if the proceedings are discontinued or if a judgement
rejecting the charge is rendered because of the death of the defendant or his permanent mental illness or because
the period of limitation for the institution of prosecution has expired due to delay of proceedings which cannot be
blamed on the private prosecutor. If the proceedings are discontinued because the prosecutor withdraws the charge,
the defendant and the private prosecutor may reach a settlement on their mutual expenses. If there is more than
one private prosecutor, they shall be jointly liable for costs.

(4) The injured person who withdraws the motion for prosecution shall bear the costs of the criminal proceedings
unless the defendant has declared that he will do so.

(5) When the courts rejects a charge due to lack of jurisdiction, the decision on costs shall be brought by the court
having jurisdiction. If the request for compensation of necessary expenses and fees referred to in paragraph 1 of
this Article is not satisfied, or if the court does not decide thereon within a term of three months from the day the
request was submitted, the defendant and defense counsel are entitled to assess their claims in a civil proceedings
against the Republic.

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Article 204
(1) Fees and necessary expenses of the defense counsel and the legal representative of the private prosecutor or the
injured person shall be paid by the person who retains them regardless of who, according to the judicial decision,
shall bear the costs of the criminal proceedings, except when according to the provisions of this Act the fees and
necessary expenses of the defense counsel shall be paid from budget funds. If the court appoints a defense coun-
sel to the defendant, and the payment of fees and necessary expenses would imperil the support of the defendant
or persons he is bound to support, the fees and necessary expenses of the defense counsel shall be paid from budg-
et funds. This shall also apply when a legal representative to the subsidiary prosecutor has been appointed.
(2) A legal representative who is not a member of the Bar or attorney apprentice shall not be entitled to fees but
only to the recovery of necessary expenses.

CHAPTER XV
CLAIMS FOR INDEMNIFICATION
Article 207
(1) A claim for indemnification arising out of the commission of a criminal offense shall be considered in criminal
proceedings upon the motion of authorized persons, provided that this does not considerably delay proceedings.
(2) The claim for indemnification may consist of a demand for the compensation of damages, recovery of an object
or the annulment of a certain legal transaction.

Article 208
(1) A motion to assert a claim for indemnification in criminal proceedings can be made by a person who is enti-
tled to litigate an issue in a civil action.
(2) If a damage arising out of the commission of a criminal offense is made to a state or social property, the author-
ity entitled by law to protect such a property may participate in criminal proceedings according with the powers
provided by that law.

Article 209
(1) A motion to assert the claim for indemnification in criminal proceedings shall be submitted to the authority
charged with receiving a crime report or to the court conducting the proceedings.
(2) The motion may be submitted prior to the conclusion of the trial before the court at the first instance, at the
latest.
(3) The person entitled to submit a motion must specify his claim and offer supporting evidence.
(4) If the authorized person fails to submit a motion for indemnification in criminal proceedings until the charge
is preferred, he shall be informed of his right to make the motion until the conclusion of the trial. If a damage aris-
ing out of the commission of a criminal offense is made to a state or social property and a motion is not submit-
ted, the court shall inform the authority referred to in Article 208 paragraph 2 of this Act hereof.

Article 210
Persons entitled to assert a claim for indemnification (Article 208) may withdraw their motion until the conclusion
of the trial and submit it as a civil action. In the case that the motion has been withdrawn it cannot be submitted
again.

Article 211
(1) The court conducting the proceedings shall examine the defendant with respect to the facts set out in the motion
and explore the circumstances which are of importance for the decision on the claim for indemnification. Even
before such a motion is submitted, the court is bound to collect evidence and carry out inquires into circumstances
necessary for the adjudication of the claim.

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(2) If an inquiry into a claim for indemnification would considerably protract the criminal proceedings, the court
shall restrict itself to collecting only the information whose determination would be impossible or considerably
impeded later on.

Article 212

(1) The court shall have jurisdiction to decide on claims for indemnification.

(2) The court may in a judgement for conviction satisfy the claim of the authorized person fully, or it may satisfy
it partially while directing the authorized person to assert the rest of the claim in a civil action. If data established
in criminal proceedings furnish no reliable basis for either full or partial adjudication, the court shall direct the
authorized person to assert his claim in its entirety in a civil action.

(3) When rendering a judgement of acquittal, a judgement rejecting the charge, or a ruling discontinuing criminal
proceedings, the court shall direct the authorized person to assert his claim for indemnification in a civil action.

(4) When the court declares itself incompetent to conduct criminal proceedings, it shall instruct the authorized per-
son that he may assert him claim for indemnification in criminal proceedings which shall be instituted or contin-
ued by a court having jurisdiction.

Article 213

When the claim for indemnification is a claim to recover an object, the court shall order in its judgement that the
objects be delivered to the injured person if it establishes that the objects belongs to the injured person and that it
is in the possession of the defendant or accomplices or a person to whom they entrusted the object.

Article 214

When the claim for indemnification concerns the annulment of a particular legal transaction and the court finds
it justified, it shall adjudicate the full or partial annulment of that legal transaction, with all the consequences
deriving there from, without effecting the rights of third parties.

Article 215

(1) In criminal proceedings the court may alter a final judgement which decides on a claim for indemnification
only upon a request for the reopening of criminal proceedings, for the protection of legality or request for the
review of legality of the final judgement.

(2) Except for the case referred to in paragraph 1 of this Article, a final judgement which decides on a claim for
indemnification may be revised only in civil proceedings on the request of the convicted person or his heirs, pro-
vided that grounds exist for reopening of the proceedings under rules on civil procedures.

Article 216

(1) Provisional measures securing a claim for indemnification arising out of the perpetration of a criminal offense
may be ordered upon the motion of authorized persons (Article 208) and according to the rules of enforcement pro-
ceedings.

(2) In the course of the investigation, the ruling from paragraph 1of this Article shall be rendered by the investi-
gating judge. After the indictment is preferred, the ruling shall be rendered outside the trial by the president of the
panel, and at the trial by the panel.

(3) A ruling rendered by the panel on provisional measures securing the claim is not subject to appellate review.
In other cases, the panel referred to in Article 24 paragraph 6 shall decide on an appeal. An appeal shall not stay
the execution of the ruling.

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Article 217
(1) If the objects involved undoubtedly belong to the injured person and they do not serve as evidence in criminal
proceedings, these objects shall be handed over to the injured person even prior to the termination of proceedings.
(2) If several injured persons claim ownership of an object, they shall be directed to institute a civil action and the
court shall in criminal proceedings order only sequestration of the objects as a provisional measure securing the
claim.
(3) Objects serving as evidence shall be seized temporarily from the owner and returned to him after the termina-
tion of proceedings. If such an object is indispensable to the owner it may be returned to him even before the ter-
mination of proceedings but he shall be obliged to bring it upon request.

Article 218
(1) If the injured person has a claim against a third party because he is in possession of objects acquired by the
commission of a criminal offense, or because a third party acquired pecuniary benefit in consequence of the com-
mission of a criminal offense, the court may in criminal proceedings upon the motion of authorized persons (Article
208) order, according to the rules on enforcement proceedings, a provisional measure securing the claim against
that third party as well. In this case, the provisions of Article 216 paragraphs 2 and 3 of this Act shall also apply.
(2) In a judgement of conviction the court shall either vacate the measures referred to in paragraph 1 of this Article
if these have not already been vacated, or instruct the injured person to institute civil proceedings, with the pro-
viso that these measures shall be vacated if the civil proceedings are not instituted within a term set by the court.

Article 227
(1) All state authorities, local government authorities, public companies and institutions are bound to report crim-
inal offenses subject to public prosecution about which they have learned themselves or have learned in a differ-
ent way.
(2) Authorities, public companies and institutions referred to in paragraph 1 of this Article shall indicate evidence
known to them and undertake measures to preserve traces of the criminal offense, the objects upon which or by
means of which the criminal offense was committed as well as other evidence.

Article 237
(1) If it is not possible to collect evidence in any other manner or if the collection thereof entails disproportional
risk and endangering of the lives of people, the investigating judge may, upon the written motion containing a
statement of reasons submitted by the State Attorney, order against persons for whom there are grounds for sus-
picion that they have committed or have along with other persons taken part in committing criminal offences
referred to in Articles 238 of this Code :
a) surveillance and technical recording of telephone conversations, or means for distance technical communica-
tion;
b) entry into premises for the purpose of conducting surveillance and technical recording of the premises;
c) optical recording of persons and objects;
d) fictitious purchase of objects and fictitious giving and taking of bribe;
e) supervision over the transportation and delivery of objects of crime offence;
f) access to the computer system of banking, financial or other organization.
(2) The measures referred to in paragraph 1, subparagraph 1 of this Article may be ordered against persons for
whom there are grounds for suspicion that they have been conveying to the perpetrator or from the perpetrator of
the criminal offences referred to in Article 238 of this Code messages in connection to the criminal offence, or that
the perpetrator has been using their telephone lines or other telecommunication device.
(3) Enforcement of measures referred to in subparagraph 4 of paragraph 1 of this Article shall not amount to incite-
ment to commission of a criminal offence.

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Article 238
(1) The measures referred to in Article 237 of this Code may be ordered for the criminal offences:
(2) Against the constitutional order or security of Montenegro and Serbia and Montenegro;
(3) Against humanity and other values protected by international law;
(4) Homicide, robbery, robbery-like theft, counterfeiting of money, money laundering, illicit production and traf-
ficking in narcotic drugs, rape, giving and taking bribe, extortion and abduction.
(5) Punishable by imprisonment when there is a reasonable doubt that such offences are being prepared or have
been committed by a group of people or criminal organisation.

Article 239
(1) Measures referred to in Article 237 of this Code shall be ordered by the investigating judge in a written order
containing a statement of reasons. The order shall contain all the available data on the person against whom the
measure is to be applied, circumstances necessitating the application of the measures, duration of the measure
which must be in coherence with the aim to be achieved by the measure, as well as the reference to the method,
the extent and the place its implementation. The measures undertaken may last up to three months, and on account
of particularly important reasons the duration of such measures may be prolonged for additional three months.
(2) Operative and technical center for supervision of telecommunications in the competent organisation perform-
ing technical coordination with telecommunication operators in the Republic, when executing the order of police
authorities, shall extend necessary technical assistance to the investigating judge and to the public prosecutor.
Officials and responsible persons involved in the process of passing the order and execution of the measures
referred to in Article 237 of this Code shall keep as a professional secret all the information the have learned about
during this process.
(3) If, during the course of surveillance and secret recording, information and data referring to some other crimi-
nal offence are recorded, that part of the recording shall be copied and forwarded to the public prosecutor, provid-
ed that the criminal offence in question is one of those referred to in Article 238 of this Code.
(4) The public prosecutor or the investigating judge shall, in an appropriate way (by coping records or official notes
without personal data, removal of an official note from the files etc.) prevent unauthorized persons, the suspect or
his defense counsel to learn about the identities of the persons who have executed the measures referred to in
Article 237 of this Code. If such persons are to be questioned as witnesses, the court shall act in such a way as pre-
scribed by the provisions of Article 101 of this Code.

Article 240
(1) The measures referred to in Article 237 if this Code shall be executed by the police authorities.
(2) After the execution of the measures, the police authorities shall submit to the investigating judge the report and
the recordings.
(3) The investigating judge may order the recordings obtained by technical means be completely or partially copied
or described. The investigating judge shall invite the State Attorney to make himself familiar with the material
obtained by the application of the measures referred to in Article 237 of this Act.
(4) If the data obtained by the application of the measures referred to in Article 237 of this Act are not necessary
for the proceedings or if the State Attorney declares that he shall not request a criminal proceedings to be institut-
ed against the suspect, the complete collected material shall be destroyed under the supervision of the investigat-
ing judge. The investigating judge shall draw up a record thereof.
(5) If the measures referred to in Article 237 of this Act are undertaken contrary to the provisions of this Act or
order of the investigating judge, the courts decision shall not be founded on the collected data. Regarding the
obtained data and information the provisions of Article 98 of this Act shall be applied mutatis mutandis. The pro-
visions of Article 184 paragraph 1, Article 281 paragraph 4, Article 345 paragraph 3 and Article 382 paragraph 4
of this Act shall be applied mutatis mutandis in regard with the recordings made contrary to the provisions of this
Article and Article 237 of this Act.

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(6) In case referred to in paragraphs 4 and 5 of this Act, the data shall be deemed as a professional secret.

Article 300
From the opening of the session to the conclusion of the trial the panel may at any time, by virtue of the office or
on the motion of the parties but always after hearing their statements, exclude the public from the whole or part
of the trial, if this is necessary for keeping the confidentiality of information, keeping public order, for moral con-
siderations, for the protection of the interests of a minor or for the protection of the personal or family life of the
defendant or the injured person.

Article 306
(1) The court is bound to protect its honor, the honor of the parties and other participants in the proceedings from
an insult, threat and any other assault.
(2) It shall be the duty of the president of the panel to take care about the maintenance of order in the courtroom.
He may order a search of persons attending the trial, and immediately after the opening of the session he may
remind the present persons to behave properly and not to disturb the functioning of the court.
(3) The panel may order that all those attending trial as an audience be removed from the courtroom if the meas-
ures for maintaining order prescribed in this Act cannot provide for the trial to be held unimpeded.

Article 325
(1) After the identity of the accused is established, the president of the panel shall direct the witnesses and the
expert witnesses to designated places where they shall wait until called upon to testify. If necessary, the president
of the panel may allow the expert witnesses to remain in the courtroom to follow the course of the trial.
(2) If the injured person is present and has not yet submitted his claim for indemnification, the president of the
panel shall direct him that he may submit a motion for the realization of such a claim in the criminal proceedings
and shall instruct him of the rights stated in Article 60 of this Act.
(3) If the subsidiary prosecutor or private prosecutor has to testify as a witness they shall not be removed from the
courtroom.
(4) The president of the panel may undertake measures necessary to prevent collusion between the witnesses, expert
witnesses, defendant, subsidiary prosecutor or private prosecutor..

Article 332
The panel may exceptionally decide that the accused be temporarily removed from the courtroom if the co-accused
or witness refuses to give a statement in his presence or if the circumstances indicate that they would not tell the
truth in the presence of the accused. Upon the return of the accused to the session, the statement of the co-accused
or witness shall be read to him. The accused has the right to ask the questions to the co-accused or witness and
the president of the panel shall ask him whether he has any remark regarding these statements.

Article 336
(1) With regard to the examination of witnesses and expert witnesses at the trial, the general provisions dealing
with their examination shall apply mutatis mutandis.
(2) A witness, who has not yet testified, shall not, as a rule, be present when evidence is examined.
(3) If a witness who is to testify is a person under fourteen years of age, the panel may decide to close the hearing
to the public during his examination.
(4) If a minor is present at the trial as a witness or injured person, he shall be removed from the courtroom as soon
as his presence is no longer needed.

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CHAPTER XXX
SPECIAL REGULATIONS ON PROCEDURE FOR CRIMINAL OFFENCES OF ORGANIZED CRIME
Article 507
(1) Regulations of this chapter comprise special rules for criminal proceeding of committers of organized crime
offences, for procedure of taking away subjects and benefits and procedure of international co-operation in reveal-
ing and prosecution of committers of organized crime offences.
(2) If in the provisions of this Chapter regarding cases from paragraph 1 of this Article something is not specially
regulated, other provisions of this Code shall be implemented mutatis mutandis.
(3) Provisions of this Chapter are implemented in cases of reasonable doubt that committed offence was the result
of organized acting of more than two persons whose aim was committing serious criminal offences in order to gain
benefit or power.
(4) At least three of the following conditions have to be fulfilled for the existence of an organized crime offence,
apart from the conditions from Paragraph 3 of this Article: that every member of criminal organization had an
assignment or a role given in advance; that acting of criminal organization had been planned for a longer period
or unlimited period; that acting of organization was based on implementation of certain rules of internal control
and discipline of members; that acting of organization was planned and performed in international proportions;
that in performing the activity there was violence or threatening or readiness for their implementation; that eco-
nomic or business structures were used in performing the activity; that laundry of money or illegally gained ben-
efits was performed; that there was an influence of organization or its part on political authorities, media, execu-
tive or judicial authorities or another social or economic factors.

Article 508
Officials engaged in criminal proceedings regarding offences of organized crime are obliged to act urgently.

Article 509
(1) The data on pre-trial criminal and investigation proceedings for organized crime offences represent official
secret. Besides official authorities, these data may not be revealed either by other participants in those proceedings
to whom they become available. Official authority that handles the proceedings is obliged to inform participant in
the proceedings about the obligation of keeping secret.
(2) The data on preliminary criminal proceedings regarding organized crime offences may be revealed only on basis
of a written approval of the State Attorney in charge.
(3) The data on investigating proceedings may be revealed only on basis of a written approval of the investigating
judge with previously obtained approval of the State Attorney.

Article 510
In proceedings for organized crime offences in first instance a panel consisting of three judges is engaged, and in
second instance a panel consisting of five judges.

Article 511
(1) State prosecutor may suggest to court to examine a member of criminal organization as a witness (further in
the text: witness collaborator) against whom criminal charges have been filed or criminal proceedings are in
progress for organized crime offence, on condition that such extenuating circumstances exist that according to the
Criminal Code he may be released from penalty or his penalty might be reduced and if the importance of his state-
ment for discovering and proving the subject criminal offense, or discovering, proving or preventing other offences
of criminal organization is prevalent regarding the harmful consequences of the offence that he had committed.
(2) State prosecutor may submit the proposal from Paragraph 1 of this Article by the end of the trial.

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Article 512
(1) Before submitting a proposal, state prosecutor shall give warning to witness collaborator regarding the duties
from Article 101 Paragraph 2 and Article 105 of this Code. Witness collaborator may not call to the convenience
of being released from the obligation to testify from article 97 of this Code and the obligation to answer to certain
questions from article 99 of this Code.
(2) State prosecutor shall record in the minutes, signed also by witness collaborator, the warning from Paragraph
1 of this Article, answers of witness collaborator and his statement that he shall say everything that he knows and
that he shall not suppress anything. Minutes are enclosed with the proposal to the court from Article 511 of this
Code.
(3) If the accused is detained, and the State Attorney finds that there are grounds to propose the accused as a wit-
ness collaborator, the court will enable the State Attorney to establish contact with the accused, in order to per-
form the actions from Paragraphs 1 and 2 of this Article.
(4) Witness collaborator may not be a person for whom there is a reasonable doubt that he is the organizer of a
criminal group.

Article 513
(1) A council from Article 24 Paragraph 6 of this Code decides on suggestion of the State Attorney from article 511
of this Code during investigation and until the beginning of the trial, and at the trial the panel before which the
trial is held.
(2) State Attorney, person suggested to be witness collaborator and his defense counsel shall be invited to attend
the session of the panel. Session is held without attendance of the public.
(3) State Attorney may file a complaint against the decision of the panel from Paragraph 1 of this Article by which
the proposal of the State Attorney has been rejected, within 48 hours from the receipt of the decision. Court at sec-
ond instance renders a decision on complaint within three days from receipt of the complaint and documents from
the court at first instance.
(4) In case of accepting the suggestion of the State Attorney, the panel shall order to abstract from the documents
the minutes and official notes about previous statements of the witness collaborator given as a suspect or a defen-
dant, and these may not be used as evidence in criminal proceedings, unless in case from article 516 of this Code.
(5) If the accused is detained, and the panel adopts the decision from Paragraph 4 of this Article, the decision to
cessation of detention shall be adopted by the panel.

Article 514
(1) Public is excluded during the hearing of the witness collaborator, unless the council make another decision on
suggestion of the state prosecutor and with a consent of the witness collaborator.
(2) Before making decision from item 1 of this article, the chairman of the council shall inform the witness collab-
orator in presence of his defender about his right for a hearing without presence of the public. Statement of the
witness collaborator to be heard with the presence of the public shall enter the minutes.

Article 515
(1) Witness collaborator who has given a statement to the court according to the obligations from Article 512
Paragraphs 1 and 2 of this Code may not be prosecuted for organized crime offence for which the proceeding is in
progress.
(2) In the case from Paragraph 1 of this Article, the State Attorney shall waive the criminal report, that is, waive
the criminal proceedings against the witness collaborator latest till the main proceedings held against other mem-
bers of criminal organization, and the court will make decision by which charge against the witness collaborator
is rejected.
(3) In case from Paragraph 2 of this Article regulations from article 59 of this Code shall not apply.

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Article 516
(1) If the witness collaborator does not act according to obligations from Article 512 Paragraphs 1 and 2 of this
Code, or if he commits a new organized crime offence before the final termination of the proceedings, the State
Attorney shall continue criminal prosecution, i.e. already started criminal proceedings for the subject and the new
criminal offense.
(2) If during the proceedings an offence of the witness collaborator committed earlier is revealed the State Attorney
will act according to the provisions of Article 511 of this Code.

Article 517
Statements and announcements collected by state prosecutor in preliminary proceedings may be used as evidence
in criminal proceedings, but decision may not be based only on them.

Article 518
(1) State Attorney may request from authorized state authority, banking or other financial organization to make
control of business of certain persons and to deliver to him documentation and data that might serve as evidence
on offence or on property obtained by offence, as well as information regarding suspicious money transactions in
the sense of the Convention on laundry, searching, seizure and confiscation of incomes obtained by criminal acts.
(2) On conditions from item 1 of this article state prosecutor may order to authorized organ or organization to tem-
porarily suspend paying, i.e. issuing of suspected money, securities or objects.
(3) In the order from items 1 and 2 of this article the state prosecutor shall explain more explicitly the content of
a requested measure or act.

Article 519
(1) If police authorities in preliminary proceedings undertake a measure for organized crime offence, they will
immediately inform authorized state prosecutor on that.
(2) State prosecutor may request from police organs to undertake certain measures or acts within given term and
inform him on that.
(3) Police organ is obliged to explain in particular not fulfilling of certain measure and overdue of a term.

Article 520
(1) Investigating judge, on the proposal of the State Attorney, may allow also the following measures to a person
for whom there is a reasonable doubt that he alone or together with other persons prepares organized crime offence,
apart of measures from article 237 and 241 of this code: giving simulated business services, concluding simulated
legal deals and engaging covert investigators, if organized crime offence could not be revealed, proved or prevent-
ed in another manner, or if that might be connected with significant difficulties.
(2) Written and explained order of investigating judge by which measures from item 1 of this article are determined
comprise data on person to whom measure is implemented, description of offence, manner, scope, place and last-
ing of the measure.
(3) Measures from item 1 of this article may last for six months. After explained suggestion of state prosecutor
investigating judge may extend certain measure not more then two times for three months each. While determin-
ing and extending a measure, investigating judge shall specially estimate if implementation of the measure is nec-
essary and if the same result might be obtained in a manner by which the rights of citizens are less restricted.

Article 521
(1) Police authorities implement measures from Article 520 of this Code. Police authorities make daily reports on
implementation of measure that together with collected documentation they deliver to investigating judge and
State Attorney on their request.

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(2) After implementation of a measure from Article 520 of this Code police authorities deliver to investigating judge
and State Attorney a special report comprising: time of starting and finishing of a measure, data on the officer who
implemented the measure, description of technical means used, number and identity of persons involved in the
measure and evaluation of usefulness and results of the implemented measure.
(3) Police authority delivers to State Attorney together with the report from item 2 of this article a complete doc-
umentation of photographic, video, audio or electronic recordings and all other evidences collected by implemen-
tation of the measure.

Article 522
(1) Implementation of the measure from article 520 of this code stops when the period determined expires or when
reasons for which it was determined stop.
(2) If State Attorney does not institute criminal proceedings within six months from cessation of a measure from
article 520 of this code, all collected data held by the State Attorney, i.e., the investigating judge must be destroyed
in the presence of the State Attorney, i.e., the investigating judge, and the official minutes shall be written about
it.
(3) Data collected by implementation of a measure from article 520 of this code that are related to an offence which
does not represent an act of organized crime may not be used in criminal proceedings for that offence.

Article 523
(1) Covert investigator is appointed by the minister of internal affairs or a person authorized by him.
(2) Covert investigator may be a person employed in state authorities.
(3) It is forbidden and punishable that covert investigator impels crime acts.
(4) Covert investigator may be interrogated as a witness in criminal proceedings. Interrogation will be made in such
a manner that identity of the witness is not revealed. The data on identity of the covert investigator interrogated
as a witness represent official secret.
(5) If it is predicted by order of investigating judge, covert investigator may use technical means for recording of
talks and enter into extraneous flat and other premises.

Article 524
(1) Measure of controlled delivery, by which it is allowed that illegal or suspicious shipments exit, cross or enter
territory of one or more countries with knowledge and under surveillance of their authorities in order to conduct
investigation and identify persons involved in offence, is approved by state prosecutor and conducted by police
organs. State prosecutor for each shipment separately issues a written approval.
(2) Controlled delivery is conducted according to the rules from the article 11 of United Nations Convention against
illegal traffic of drugs and psychotic substances, with consent of interested states and on the basis of the principle
of reciprocity.

Article 525
State Attorney may order providing special protection to a certain witness, witness collaborator and members of
their close family.

Article 526
(1) If basics of suspicion or a reasonable doubt exist that an organized crime offence has been committed, the court
may order a measure of temporary confiscation of subjects and properties regardless the conditions defined in stip-
ulations of articles 81 to 87 and articles 541 to 548 of this code.

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(2) If not otherwise defined by stipulations of this chapter, in the procedure of temporary confiscation of subjects
and property from item 1 of this article stipulations of the Law on executive procedure and suitable stipulations of
this code are implemented.

Article 527
(1) Investigating judge decides on the measures of temporary confiscation of subjects and property, i.e. the panel
before which the trial is held. The council from the article 24 paragraph 6 decides on complaints against the deci-
sion, i.e. higher court.
(2) State prosecutor brings the procedure for pronouncing measures from item 1 of this article.
(3) State prosecutors request from item 2 of this article comprises: a short description of offence and its legal name,
a description of subjects or properties gained by organized crime offence, data about the person who possesses
those subjects or properties, reasons for suspicion that the subjects, i.e. properties originate from offence and rea-
sons for probability that by the end of criminal proceedings it would be considerably more difficult or impossible
to confiscate subjects or properties gained by organized crime offence committed.

Article 528
(1) Court shall state the value and type of subjects, i.e. properties in the decision on issuing measure on temporary
confiscation of subjects or properties, as well as the period of confiscation.
(2) In the decision from item 1 of this article the court may decide that the measure does not imply on subjects and
properties which should be excluded by implementation of rules on gainers in good faith.
(3) Complaint against the decision from item 1 of this article of the court does not postpone fulfilment.
(4) Court shall deliver an explained decision from item 1 of this article to the person to whom the measure is
implied, to the bank or other organization authorized for payment operations, and to other persons and state organs
if required.

Article 529
(1) In case of submitted complaint against the decision on issuing measure on temporary confiscation of subjects
or properties, the council from article 26 item 4, i.e. the council of court shall schedule an appearance in court
where the person to whom the measure is implied will be invited, his defender and state prosecutor.
(2) Appearance in court from item 1 of this article shall be held within 30 days from the date of submitting the
complaint. Persons asked to come shall be heard at that appearance. Their absence shall not prevent appearance at
the court to take place.
(3) Council shall revoke the measure from item 1 of this article if legitimate origin of subjects or properties is proved
by credible documents and if it seems probable that subjects or properties do not originate from organized crime
offence, nor these are obtained by covering origin and basics of gaining.

Article 530
(1) Measure of temporary confiscation of subjects and properties may last only till the end of criminal proceedings
in front of the court of original jurisdiction.
(2) If the measure from paragraph 1 of this article is pronounced prior to the institution of criminal proceedings, it
shall be revoked in case that criminal proceedings for organized crime offence is not started within three months
from the date of issuing the decision by which the measure is pronounced.
(3) Before expiring of the terms from items 1 and 2 of this article, the measure may be revoked on official duty of
the court or on request of state prosecutor or interested person, if it comes out that it is not necessary or justified
considering the seriousness of the offence, financial standing of the person implied or standings of persons that he
is legally obliged to support and circumstances of the case that show that confiscation of subjects or properties
shall not be impossible or significantly made difficult by the end of criminal proceedings.

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Article 531
(1) Measure of temporary confiscation of subjects or pecuniary benefit is effected by court authorized for imple-
mentation of execution according to the Law on executive procedure.
(2) Court from item 1 of this article has jurisdiction over disputes arisen from execution.
(3) The right for submitting excluding complaint is obtained on the day of starting bankruptcy of the person in
possession of subjects and properties temporary confiscated regarding those subjects and properties as due
amounts.
Article 532
Authorized state authority in the Republic manages the assets and properties temporarily confiscated while the
measure is in force.

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Directorate General of Legal Affairs
Directorate General of Human Rights
Council of Europe
F-67075 Strasbourg Cedex