Some aspects of criminal law and forensic science regarding human trafficking

Author:Adrian Cristian Moise
Pages:32-47
SUMMARY

Trafficking in human beings constitutes a complex criminal offence which comprises the following stages: recruitment, transportation, transfer, harbouring or receipt of human beings for the purpose to exploit them. The essential element of the human beings trafficking process is the exploitation of persons in conditions which seriously affect the fundamental human rights and freedoms. To comply with the requirements referring to the offence of trafficking in persons, it is not important if the purpose pursued by the traffickers of persons, the exploitation of the victim, was carried out or not. The crimes of trafficking in human beings present a cross-border character, which imposes that the evidence be obtained from the territorial jurisdiction of several states, by using the special techniques of criminal investigation, international cooperation and requests for mutual assistance. The investigation process of the trafficking in human beings must be centred on the respect of the rights and needs of victims. Investigators in the field of trafficking in human beings must continuously adapt to the new challenges related to the combat against trafficking in persons by elaborating new methods, techniques and proceedings of investigation.

 
CONTENT
32 ADRIAN CRISTIAN MOISE
INTERNATIONAL CRIMINAL LAW
SOME ASPECTS OF CRIMINAL LAW AND FORENSIC
SCIENCE REGARDING HUMAN TRAFFICKING
Adrian Cristian MOISE1
Abstract
Trafficking in human beings constitutes a complex criminal offence which comprises the
following stages: recruitment, transportation, transfer, harbouring or receipt of human beings for the
purpose to exploit them. The essential element of the human beings trafficking process is the
exploitation of persons in conditions which seriously affect the fundamental human rights and
freedoms. To comply with the requirements referring to the offence of trafficking in persons, it is not
important if the purpose pursued by the traffickers of persons, the exploitation of the victim, was
carried out or not.
The crimes of trafficking in human beings present a cross-border character, which imposes that
the evidence be obtained from the territorial jurisdiction of several states, by using the special
techniques of criminal investigation, international cooperation and requests for mutual assistance.
The investigation process of the trafficking in human beings must be centred on the respect of the
rights and needs of victims. Investigators in the field of trafficking in human beings must
continuously adapt to the new challenges related to the combat against trafficking in persons by
elaborating new methods, techniques and proceedings of investigation.
Keywords: human beings; trafficking in persons; trafficking in minors; crime scene
investigation; investigation process; exploitation of persons.
§1. Preliminary considerations
Trafficking in human beings means the „recruitment, 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
1 University Lecturer, PhD, Spiru Haret University of Bucharest, Faculty of Juridical, Economic
and Administrative Sciences, Craiova, Romania; Attorney-at-law, Dolj Bar Association, Romania.
Law Review vol. VII, issue 1, Januar
y
-June 2017, pp. 32-47
Some aspects of criminal law and foresic sceience regarding human trafficking 33
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 slavery, servitude or the removal of organs”2.
In essence, trafficking in human beings constitutes a complex criminal offence
which comprises three distinct stages which refer mostly in recruitment,
transportation and exploitation of persons. Moreover, trafficking in persons is a
process which involves a series of correlated actions, to which participate more
persons. The victims of the trafficking in persons must be recruited and
transported to the place where will be exploited by one of the indicated means by
the above mentioned definition. After recruitment, the victims of the trafficking in
persons may be transported both in the country and outside its borders in order to
be exploited.
The essential element of the human beings trafficking process is the
exploitation of persons in conditions which seriously affect the fundamental
human rights and freedoms.
The main objective for most of human traffickers is to achieve profit following
the exploitation of victims once they reached their final destination. Thus, human
traffickers make profits most of the time through the following forms of
exploitation: forcing to execute a labour or to provide services in a forced manner;
keeping in slavery or other similar proceedings of lack of freedom or servitude;
obligation to practice prostitution, pornographic manifestations in order to
produce and disseminate pornographic materials or other forms of sexual
exploitation; obligation to practice begging; illegal removal of human organs,
tissues and cells.
We noticed that, sometimes, along with the notion of trafficking in human
beings in the literature is also used the notion of smuggling of migrants, these two
notions being used most of the time alternatively, and taking into consideration
this aspect, we should point out that in reality these two notions are different.
According to the provisions of article 3 (a) of the Protocol3 against the
smuggling of migrants by land, sea and air, supplementing the United Nations
Convention Against Transnational Organized Crime, the smuggling of migrants
means „the procurement, in order to obtain, directly or indirectly, a financial or
other material benefit, of the illegal entry of a person into a State Party of which the
person is not a national or a permanent resident”.
2 The definition of trafficking in human beings is found in the following legal instruments at
international and European level: article 3 (a) from the Protocol to prevent, suppress and punish
trafficking in persons, especially women and children, supplementing the United Nations Convention
against Transnational Organized Crime; article 4 (a) from the Council of Europe Convention on
Action against Trafficking in Human Beings; article 2 (1) from the Directive 2011/36/EU of the
European Parliament and of the Council of 5 April 2011 on preventing and combating trafficking in
human beings and protecting its victims, and replacing Council Framework Decision 2002/629/JHA.
3 The Romanian Official Gazette no. 813 from the 8th of November 2002.
34 ADRIAN CRISTIAN MOISE
Smuggling of migrants is an offence with cross-border nature which involves
an organized transport of persons outside the borders in the exchange of an
amount of money received by the person who organized the transportation. The
relation between the smuggler and the migrant ends after the border has been
crossed and migrant has paid the smuggler the requested amount of money before
arriving in the foreign country or when arriving at destination4. The migrant must
be a person who has not the citizenship of the state on the territory of which
requests the illegal entry or to be a person who does not have the domicile on the
territory of that state. In contrast, in case of human trafficking, the relation between
the trafficker and the victim does not end upon arrival at destination, but it
continues for a certain period, as the victim can be subjected to a form of coercion,
such as to provide a forced labour in order to pay off a debt. Human beings
trafficking occurs both across international borders and within the national
boundaries5.
The main difference between smuggling of migrants and trafficking in human
beings arises from the freedom to choose of the trafficked person. Thus, the
migrant gives his/her consent all the time in respect of the transportation outside
the borders of his/her country of origin, while the victim of human trafficking,
even if, initially, he/she gives the consent, then he/she is aware of the danger only
when they arrive at the destination. The danger to which is exposed the victim of
human trafficking consists in losing the freedom to choose, as he/she is forced to
be in a situation to be exploited.
As the smuggling of migrants is carried out for the purpose to illegally cross
the borders of the Romanian State, the smuggler of migrants receives amounts of
money for the illegal entry or exit from the country of the persons who have not
the legal right to entry or exit the country. In contrast, the trafficking in human
beings is committed only for the purpose of the exploitation of the person,
regardless if the activity of exploitation is carried in the same country where the
activity of trafficking took place or not6.
§2. The legal regulation of trafficking in human beings at international and
national level
The Protocol to prevent, suppress and punish trafficking in persons, especially
women and children7, supplementing the United Nations Convention against
4 International Association of Chiefs of Police (2006). The crime of human trafficking: A law
enforcement Guide to identification and investigation, Alexandria, Virginia, pp. 3.
5 The Organization for Security and Co-operation in Europe (OSCE) (2013). OSCE Resource Police
Training Guide: Trafficking in Human Beings, Publication Series Volume 12, Vienna, July 2013, pp. 44.
6 Dobrinoiu, Vasile; Pascu, Ilie; Hotca, Mihai Adrian; Chiş, Ioan; Gorunescu, Mirela; Neagu,
Norel; Dobrinoiu, Maxim; Sinescu, Mircea Constantin (2014). Noul Cod penal comentat. Partea special,
Second Edition, Bucharest: Universul Juridic Publishing House, pp.128 and the following.
7 The Romanian Official Gazette no. 813 from the 8th of November 2002.
Some aspects of criminal law and foresic sceience regarding human trafficking 35
Transnational Organized Crime has as purposes to prevent and combat trafficking
in persons, paying particular attention to women and children, to protect and
assist the victims of such trafficking, with full respect for their human rights, as
well as to promote cooperation among States Parties in order to meet those
objectives. The States Parties assumed the obligation to incriminate the acts
mentioned at article 38 of thus protocol, when they were committed intentionally
(article 5).
The Council of Europe Convention on Action against Trafficking in Human
Beings9, adopted on the 3rd of May 2005, opened for signing and signed by
Romania on the 16th of May 2005, has as purposes: to prevent and combat
trafficking in human beings, while guaranteeing gender equality; to protect the
human rights of the victims of trafficking, design a comprehensive framework for
the protection and assistance of victims and witnesses, while guaranteeing gender
equality, as well as to ensure effective investigation and prosecution; to promote
international cooperation on action against trafficking in human beings (article 1).
At the article 410 are defined several notions among which is the notion of
trafficking in human beings.
8 Article 3 from the Protocol to prevent, suppress and punish trafficking in persons, especially
women and children, supplementing the United Nations Convention against Transnational
Organized Crime provides: ”a) Trafficking in persons shall mean the recruitment, 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. 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 slavery, servitude or the removal of organs;
b) The consent of a victim of trafficking in persons to the intended exploitation set forth in
subparagraph (a) of this article shall be irrelevant where any of the means set forth in subparagraph
(a) have been used; c) The recruitment, transportation, transfer, harbouring or receipt of a child for the
purpose of exploitation shall be considered “trafficking in persons” even if this does not involve any
of the means set forth in subparagraph (a) of this article; d) Child shall mean any person under
eighteen years of age”.
9 The Council of Europe Convention on Action against Trafficking in Human Beings was ratified
by Romania through the Law no.300/2006, published in the Romanian Official Gazette no. 622 from
the 19th of July 2006.
10 Article 4 from the Council of Europe Convention on Action against Trafficking in Human
Beings defines the following terms: ”(a) Trafficking in human beings shall mean the recruitment,
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. 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 slavery, servitude or the removal of organs;
(b) The consent of a victim of “trafficking in human beings” to the intended exploitation set forth
in subparagraph (a) of this article shall be irrelevant where any of the means set forth i n subparagraph
(a) have been used; (c) The recruitment, transportation, transfer, harbouring or receipt of a child for
36 ADRIAN CRISTIAN MOISE
The Directive 2011/36/EU11 of the European Parliament and of the Council of
5 April 2011 on preventing and combating trafficking in human beings and
protecting its victims, and replacing Council Framework Decision 2002/629/JHA
represents the most important legal instrument in the field of fight against
trafficking in human beings at the level of the European Union.
The Directive 2011/36/EU establishes minimum norms to define the offences
and criminal sanctions in matters of human trafficking. The Directive also
introduces common provisions, taking into account the gender perspective, to
strengthen the prevention of this crime and the protection of the victims thereof. It
comprises provisions of material criminal law in respect of the incrimination and
the sanctioning of human trafficking, provisions regarding the liability of legal
persons, as well as the seizing and confiscation of the means and products
obtained after the criminal offence was committed regarding the human
trafficking, stipulated at article 212.
The offences referring to human trafficking and the offences related to human
trafficking are stipulated by the Romanian Criminal Code, Title I Offences against
the person, Chapter VII Trafficking and exploitation of vulnerable persons, articles
209-217.
The Article 210 paragraph 1 of the Romanian Criminal Code referring to
trafficking in persons punishes the offences of recruitment, transportation, transfer,
harbouring or receipt of a person in order to exploit it, committed by: coercion,
abduction, fraud, deception or abuse of power; taking advantage of the
impossibility to defend himself/herself or to express is/her will or the particularly
the purpose of exploitation shall be considered "trafficking in human beings" even if this does not
involve any of the means set forth in subparagraph (a) of this article;
(d) Child shall mean any person under eighteen years of age;
(e) Victim shall mean any natural person who is subject to trafficking in human beings as defined
in this article”.
11 Published in the Official Journal of the European Union from the 15th of April 2011, L 101/1.
12 Article 2 from the Directive 2011/36/EU provides the following:
”1. Member States shall take the necessary measures to ensure that the following intentional acts
are punishable:
The recruitment, transportation, transfer, harbouring or reception of persons, including the
exchange or transfer of control over those 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. 2. A position of vulnerability
means a situation in which the person concerned has no real or acceptable alternative but to submit to
the abuse involved. 3. Exploitation shall include, as a minimum, the exploitation of the prostitution of
others or other forms of sexual exploitation, forced labour or services, including begging, slavery or
practices similar to slavery, servitude, or the exploitation of criminal activities, or the removal of
organs. 4. The consent of a victim of trafficking in human beings to the exploitation, whether i ntended
or actual, shall be irrelevant where any of the means set forth in paragraph 1 has been used. 5. When
the conduct referred to in paragraph 1 involves a child, it shall be a punishable offence of trafficking
in human beings even if none of the means set forth in paragraph 1 has been used. 6. For the purpose
of this Directive, ‘child’ shall mean any person below 18 years of age”.
Some aspects of criminal law and foresic sceience regarding human trafficking 37
vulnerability of that person; by offering, giving, accepting or receiving money or
other advantages in return for the consent of the person who has authority over
that person. Also, the article 210 paragraph 2 of the Romanian Criminal Code
punishes the trafficking in persons committed by a civil servant in the exercise of
the duties. The consent victim of the trafficking does not constitute a supporting
cause (article 210 paragraph 3 of the Romanian Criminal Code).
The article 211 paragraph 1 of the Romanian Criminal Code referring to
trafficking in minors punishes the offences of recruitment, transportation, transfer,
harbouring or receipt of a minor for the purpose to exploit him/her. According to
the provisions of article 211 paragraph 2 of the Romanian Criminal Code, the
minimum and maximum limits of the punishment increase when: the crime was
committed under the conditions of article 210 paragraph 1; the crime was
committed by a civil servant in the exercise of his/her duties; it endangered the life
of the minor; the crime was committed by a member of the family of the minor; the
crime was committed by a person in whose care, protection, education, guard or
treatment is the minor or by a person who abused by his position recognised by
trust or authority over the minor. The consent of the trafficking victim does not
constitute a supporting cause (article 211 paragraph 3 of the Romanian Criminal
Code).
The article 182 of the Romanian Criminal Code defines the notion of
exploitation of a person, which refers to: submission to the execution of a labour or
provision of services in a forced manner; keeping in slavery or other similar
processes of deprivation of liberty or servitude; obligation to practice prostitution,
pornographic manifestations in order to produce and disseminate pornographic
materials or other forms of sexual exploitation; obligation to practice begging;
illegal removal of human organs, tissues or cells.
Within Chapter VII Trafficking and exploitation of vulnerable persons of Criminal
Code are also found the offences related to trafficking in persons or minors: slavery
(article 209); forced or compulsory labour (article 212); pimping (article 213);
exploitation of begging (article 214); use of a minor for the purpose of begging
(article 215); use of the services of an exploited person (article 216); use of infantile
prostitution (art.216¹). Other offences related to trafficking in persons or minors are
the offences of illegal deprivation of liberty, which is stipulated by article 205 of the
Romanian Criminal Code and the offence of infantile pornography stipulated by
article 374 paragraph 1¹ of the Romanian Criminal Code.
§3. The legal analysis of the offences of trafficking in persons and
trafficking in minors stipulated by the Romanian Criminal Code
3.1. The analysis of the offence of trafficking in persons stipulated by article
210 of the Romanian Criminal Code
The special legal object is represented by the social relations related to the
respect of freedom, dignity, body integrity or health of the person or other rights,
38 ADRIAN CRISTIAN MOISE
against the offences of exploitation and transformation of the person in a source of
an unlawful gain.
The material object is constituted by the body of the trafficked person for
the purpose of exploitation.
The active subject of the offence of trafficking in persons can be any person
who complies with the general conditions stipulated by law in order to be held
criminally liable. In relation to the aggravated variant of this crime, the active
subject is qualified, having the quality of civil servant.
The criminal participation is possible under all its forms: co-author, instigation
and complicity.
The passive subject of the offence of trafficking in persons is constituted by
the person trafficked for the purpose to be exploited, who can be any adult person,
woman or man. In the case the passive subject is under 18 years old, the crime that
will be investigated will be the trafficking in minors.
Objective side
The material element of the objective side is formed of a series of actions
which represent an alternative character being as follows: recruitment,
transportation, transfer, harbouring or receipt of persons for the purpose to exploit
them. To comply with the requirements referring to the offence of trafficking in
persons, it is not important if the purpose pursued by the traffickers of persons, the
exploitation of the victim, was carried out or not.
Recruitment of a person for the purpose to be exploited refers to the
identification of a person susceptible to be exploited and the determination thereof
to become victim of the exploitation in order to obtain a gain13. The simple
identification of the victim is not enough to be in the presence of the offence of
trafficking in persons, being necessary that the traffickers have a continuous bound
with the victim in order to gain control14.
The Internet network has an important role in this stage of recruitment of the
victims of trafficking in persons. A person can become victim of the trafficking in
persons by voluntarily and unaware involvement in the activities on the Internet.
Human traffickers use the Internet network as an instrument in order to carry out
the criminal activity.
Human beings traffickers, in order to recruit the victims with the help of
Internet network, use fraudulent methods, such as the promise made to the victim
to have a better life in a foreign country, or the perspective to become well known
to the general public. Moreover, human traffickers, through the use of the Internet
network, easily success in recruiting the victims and manipulating them
13 Dobrinoiu, Vasile; Pascu, Ilie; Hotca, Mihai Adrian; Chiş, Ioan; Gorunescu, Mirela; Neagu,
Norel; Dobrinoiu, Maxim; Sinescu, Mircea Constantin (2014). Noul Cod penal comentat. Partea special,
Second Edition, Bucharest: Universul Juridic Publishing House, pp. 126.
14 Zaharia, George-Cristinel (2012). Traficul de persoane, Bucharest: C.H. Beck Publishing House,
pp. 52.
Some aspects of criminal law and foresic sceience regarding human trafficking 39
subsequently in order to be exploited. Persons become victims of trafficking in
persons in cyberspace more easily than in the offline space, especially those who
frequently pursue different opportunities on the Internet. Thus, the possible
victims of trafficking in persons in order to gain big amounts of money, in order to
become famous and to get a feeling of personal achievement, visit a multitude of
web sites which allow them to interact with other persons through social
networking (such as Facebook, Twitter), groups of discussions and forums15.
Without realizing it, most of the Internet users easily disclose their personal
information, which can be used afterward by human traffickers in order to
subsequently manipulate the possible victims by intimidation, allurement or other
practices of social engineering.
Transportation refers to the action of a person, called carrier, to move from a
place to another the person who is going to be trafficked, with a help of any means
of transportation, within the borders of a state or outside the borders of that state.
The border crossing towards the state of destination is performed legally, such as
the situation where the trafficked persons present the necessary documents to
cross the border of the state, as tourists, artists, future spouses, political asylum
seekers, or the border crossing towards the state of destination can be performed
illegally, in the case where the victims of trafficking in persons do not meet the
requests provided by law to cross the border, such as the case referring to the
persons who do not have residence permit valid in the country of destination.
Transfer consists in the action of passing the victims of trafficking in persons
from a trafficker to another trafficker by sale-purchase, exchange, donations,
assignments in exchange of other debts so that the victims of the trafficking in
persons be exploited. In all the situations, the action of transfer consists also in the
change of the place where the victim is hidden or exploited, in some case the
victim remaining under the control of the same trafficker16.
Harbouring refers to the action of placing a person in a certain place in order
not to be found by the judicial bodies, for the purpose to exploit that person.
Receipt consists in the action to take possession of the victim of the trafficking
in persons from a trafficker to another trafficker, as result of a transaction made
between them, in order to exploit the victim. We notice that the action of receipt
refers to taking into custody the victim by a trafficker from another, while the
action of transfer represents the exit of a victim from the authority of a human
trafficker in order to pass under the authority of another human trafficker17.
15 Yu, Szde (2015). Human Trafficking and the Internet, in Michael J. Palmiotto (ed.), Combating
Human Trafficking. A multidisciplinary aproach, Boca Raton, Florida: CRC Press, Taylor & Francis Group
LLC, pp. 64-65.
16 Zaharia, George-Cristinel (2012). Traficul de persoane, Bucharest: C.H. Beck Publishing House,
pp. 53-54.
17 Idem, p.55; Vidaicu, Mihaela; Dolea, Igor (2009). National Institute of Justice, Combaterea
traficului de fiine umane-drept material şi drept procesual-, Chişinu: Nova Imprim SRL, pp. 30.
40 ADRIAN CRISTIAN MOISE
The immediate consequence consists in the creation of a condition of danger,
of threat against the social relations regarding the respect of freedom, dignity,
physical or psychic integrity of the person or other rights.
Between the activity of the offender and the immediate consequence there
must be a causal link, resulting from the materiality of the crime.
Subjective side
The crime of trafficking in persons is committed only under the form of guilt of
the direct intention. For all the actions forming the material element of the objective
side in the case of the crime of trafficking in persons, the law requires, as an
essential condition, the existence of a certain purpose of the crime, this being the
exploitation of the victim, in the meaning of article 182 of the Romanian Criminal
Code.
Forms of the crime
Preparation is possible, but it is not incriminated and therefore is not
punished.
Attempt of the crime of trafficking in people is possible and is punished
according to article 217 of the Romanian Criminal Code.
Consumption of the crime of trafficking in persons takes place at the moment
when the material element of the objective aspect was achieved, which is
composed of a series of actions and the immediate consequence happened.
Exhaustion of the crime of trafficking in persons takes place at the moment
when the last act incriminated by law was committed. The crime of trafficking in
persons can be committed under continuous or continued form. Thus, some of the
actions incriminated by article 210 paragraph 1 of the Romanian Criminal Code,
such as transportation, transfer, harbouring, involve the carrying out of some
activities having a certain duration, a prolongation in time, which shows that the
crime of trafficking in persons, committed in these variants, is continuous crime18.
Modalities
The crime of trafficking in persons presents five normative modalities:
recruitment, transportation, transfer, harbouring or receipt of persons for the
purpose of their exploitation. These normative modalities can have as
correspondence various fact modalities.
Sanctions
The offences covered by article 210 paragraph 1 of the Romanian Criminal
Code are punishable by 3 to 10 years of imprisonment and the interdiction to
exercise some rights. The article 210 paragraph 2 of the Romanian Criminal Code
punishes also the trafficking in persons committed by a civil servant in the exercise
of his/her duties, by imprisonment from 5 to 12 years.
18 Dobrinoiu, Vasile; Pascu, Ilie; Hotca, Mihai Adrian; Chiş, Ioan; Gorunescu, Mirela; Neagu,
Norel; Dobrinoiu, Maxim; Sinescu, Mircea Constantin (2014). Noul Cod penal comentat. Partea special,
Second Edition, Bucharest: Universul Juridic Publishing House, pp. 129.
Some aspects of criminal law and foresic sceience regarding human trafficking 41
3.2. The analysis of the offence of trafficking in minors stipulated by article
211 of the Romanian Criminal Code
The special legal object is represented by the social relations regarding the
respect of freedom, dignity, body integrity or health of a minor or other rights,
against the crimes of exploitation and transformation of the minor in a source of an
unlawful gain.
The material object is constituted by the body of the trafficked minor for
the purpose of exploitation.
The active subject of the offence of trafficking in minors can be any person
who complies with the general conditions stipulated by law in order to be held
criminally liable. In relation to the aggravated variant of this crime, the active
subject must have the quality of civil servant in the exercise of his/her duties or of
member of the minor’s family or can be a person in whose care, protection,
education, guard or treatment is the minor or be a person who abused by his
position recognised by trust or authority over the minor.
The criminal participation is possible under all its forms: co-author, instigation
and complicity.
The passive subject is qualified, this one being only the exploited minor.
Objective side
The material element of the objective side is formed of a series of alternative
actions: recruitment, transportation, transfer, harbouring or receipt of a minor for
the purpose to exploit him. The analysis of these alternative actions was already
carried out at the crime of trafficking in persons, analysis to which we refer. We
notice that, unlike the crime of trafficking in persons, the crime of trafficking in
minors is not conditioned by the fulfilment of any essential condition for the
carrying out of the material element in the type variant. Thus, the crime of
trafficking in minors is committed through any methods of recruitment,
transportation, transfer, harbouring or receipt.
The immediate consequence consists in the creation of a condition of danger,
of threat against the social relations regarding the respect of freedom, dignity,
physical or psychic integrity of the minor or other rights, the action of the active
subject being carried out by committing the incriminated activity.
Between the activity of the offender and the immediate consequence there
must be a causal link, which is carried out by committing the action described by
the incriminating norm.
Subjective side
The crime of trafficking in minors is committed only under the form of guilt of
the direct intention, qualified through the purpose. For all the modalities of
existence of the material element of the objective side in case of the crime of
trafficking in minors, the law requires as an essential condition the existence of a
certain purpose of the crime, this being the exploitation of the victim, according to
article 182 of the Romanian Criminal Code.
42 ADRIAN CRISTIAN MOISE
We consider that the exploitation of minor constitutes the purpose of the
activity of the crime of trafficking in minors and not a condition of the objective
side, therefore it is not necessary the achievement of the purpose for meeting the
constitutive elements of the crime of trafficking in minors, but only their follow-up.
In respect of the forms of the crime of trafficking in minors, we refer to the
explanations given in the crime of trafficking in persons, which are valid for the
crime of trafficking in minors, too.
Modalities
The crime of trafficking in minors presents five normative modalities:
recruitment, transportation, transfer, harbouring or receipt of persons for the
purpose of their exploitation. These normative modalities can have as
correspondence various fact modalities.
Sanctions
The offences covered by article 211 paragraph 1 of the Romanian Criminal
Code are punishable by 3 to 10 years of imprisonment and the interdiction to
exercise some rights. The offences covered by article 211 paragraph 2 of the
Romanian Criminal Code are punishable by 5 to 12 years of imprisonment and the
interdiction to exercise some rights.
§4. Forensic aspects on human beings trafficking
4.1. Particular elements to the investigation process of human beings
trafficking
One of the most important challenges for the enforcement bodies within the
process of investigation is represented by the hidden nature of the trafficking in
human beings, which contributes to the poor identification of the victims of human
trafficking. Often, the victims of trafficking in persons cannot or do not want to
cooperate with the investigators, hesitating in most of the case to seize the
competent legal bodies the commission of potential crimes.
The crimes of trafficking in human beings present a cross-border character,
which imposes that the evidence be obtained from the territorial jurisdiction of
several states, by using the special techniques of criminal investigation,
international cooperation and requests for mutual assistance19.
Investigators in the field of trafficking in human beings must continuously
adapt to the new challenges related to the combat against trafficking in persons by
elaborating new methods, techniques and proceedings of investigation.
The investigation process of the trafficking in human beings must be centred
on the respect of the rights and needs of victims. The enforcement bodies have the
obligation to ensure that the measures adopted for the purpose to prevent and
19 Herz, Annette (2012). Human Trafficking and Police Investigations, in Winterdyk, John; Perrin,
Benjamin; Reichel, Philip (eds.), Human Trafficking. Exploring the International Nature, Concerns, and
Complexities, Boca Raton, Florida: CRC Press, Taylor & Francis Group, pp. 134.
Some aspects of criminal law and foresic sceience regarding human trafficking 43
combat trafficking in persons will not have a negative impact over the respect both
of the dignity of victims and other rights they have during the criminal
proceedings.
4.2. Planning the investigation of trafficking in human beings
Planning represents an essential condition of the process of investigation of
trafficking in persons, and it must establish the aspects related to the criminal
jurisdiction, meaning the region or the state where the proceedings will begin. At
the same time, planning will pursue to establish all the legal procedures which
have to be followed during the investigation proceedings. Still from the beginning
of the investigation process, legal bodies, before making a decision, must analyse
all the options they have and clearly identify the risk factors to which are exposed
the victims of the trafficking in persons.
The planning of the investigation process of trafficking in persons has to clear
other aspects referring to:20 establishing the team for the investigation of the
trafficking in persons and the financial resources necessary for the carrying out of
the investigation process; protection of the vulnerable and threatened witnesses
and protection of the investigation team; management of witness hearings, injured
persons and offenders; presence of interpreters in the state where takes place the
process for the investigation of trafficking in persons; establishing by the
investigators of the special investigation techniques depending on the forms of
exploitation of the victims of trafficking in persons subject to analysis; evaluation
of the potential risks to which are exposed the victims of the trafficking in persons
during the investigation proceedings, in case the investigators identify a risk which
threatens the security of the victims of the trafficking in persons, then they have the
legal obligation to take all the measures necessary to reduce this risk by
identification and initiation of adequate proceedings.
4.3. Means of trafficking in human beings
Enforcement bodies must know what the means of human trafficking are,
what means the traffickers use frequently to commit the trafficking in persons
offences, what impact have these means on the human beings trafficking
investigation process and which are the possible legal matters which can occur
during this investigation process.
The main means of human trafficking are as follows:21
The threat or use of force on the victim and their family;
Coercion;
20 The Organization for Security and Co-operation in Europe (OSCE) (2013). OSCE Resource Police
Training Guide: Trafficking in Human Beings, Publication Series Volume 12, Vienna, July 2013,
pp. 134-135.
21 The Organization for Security and Co-operation in Europe (OSCE) (2013). OSCE Resource Police
Training Guide: Trafficking in Human Beings, Publication Series Volume 12, Vienna, July 2013, pp. 39-40.
44 ADRIAN CRISTIAN MOISE
Psychological, which refers to the relations of the victims with other
persons;
Economic, which refers to the obligation of the victim to pay huge amounts
of money or provision of a forced labour by the victim in order to pay off a debt;
Abduction of victims, especially of female gender, by using violence or
seduction;
Fraud, which involves five distinct elements: a false statement of a material
act; knowledge of the part of the perpetrator that the statement is untrue; the intent
of the human trafficker to deceive the alleged victim; the justifiable reliance by the
alleged victim on the statement; the existence of a prejudice, produced to the
alleged victim;
Deception, which refers to giving false or inaccurate or misleading
information to the victim from the trafficker, such as, when recruiting workers for
labour exploitation or offering a false job for sexual exploitation;
Abuse of power or position of vulnerability, which refers to any situation in
which the victim has not real acceptable alternative but to submit to the abuse
committed by the trafficker;
Offering or accepting payments or advantages to get the consent of a
person having the authority over another person, for the purpose of exploitation.
4.4. The investigation of trafficking in human beings
Offences referred to in article 210 of the Romanian Criminal Code and article
211 of the Romanian Criminal Code are investigated in the procedural stage of the
prosecution by the Service for the fight against organized crime within the
Directorate for Investigating Organized Crime and Terrorism Offences (DIOCTO),
which, based on article 11 paragraph1 point 2 of the Government Emergency
Ordinance no.78/201622 of the 16th of November 2016 for the organization and the
functioning of the Directorate for Investigating Organized Crime and Terrorism
Offences, as well as the amendment and the completion of some normative acts
and based on article 32 paragraph 1 letter b of the Order no. 4682/C/201623 of the
21st of December 2016 for the approval of the Regulation on the organization and
functioning of DIOCTO, carried out the entire prosecution in the situation of
committing the offences of trafficking in persons or trafficking in minors,
regardless they have been committed or not under the conditions of the organised
crime group stipulated by article 367 paragraph 6 of the Romanian Criminal Code,
for the purpose of identifying the offenders and their arraignment. For the offences
stipulated at article 210 of the Romanian Criminal Code and article 211 of the
Romanian Criminal Code committed on minors, the prosecution is carried out by
the prosecutors within DIOCTO, specifically assigned by the general prosecutor
22 The Romanian Official Gazette no. 938 from the 22nd of November 2016.
23 The Romanian Official Gazette no. 1060 from the 29th of December 2016.
Some aspects of criminal law and foresic sceience regarding human trafficking 45
within the Prosecutor’s Office attached to the High Court of Cassation and Justice,
according to the provisions of article 11 paragraph 2 of the Government
Emergency Ordinance no. 78/2016.
The seizing of the prosecution authorities, regarding the commission of the
offences of trafficking in human beings is carried out in compliance with the
provisions of article 288 paragraph 1 of the Romanian Criminal Procedure Code,
by complaint or denunciation, by the acts concluded by other finding bodies
stipulated by law or ex officio.
As for the jurisdiction of the offences of trafficking in persons or trafficking in
minors, this pertains to the Court of Law, as first instance.
4.4.1. The crime scene investigation in the case of trafficking in human
beings
The crime scene investigation in the case of trafficking in human beings
presents a series of specific features:24
The main difference between crime scene investigation in the case of
trafficking in human beings and the crime scene investigation in case of other
offences consists in the existence at the crime scene in case of trafficking in human
beings of a higher number of elements which must be taken, seized and examined.
In the case of investigation of trafficking in human beings several
participants are involved (human traffickers, victims, witnesses) than in the case of
the investigation of other crimes.
The offences of trafficking in human beings are committed during a long
period, as the duration of the forms of exploitation of the victims of the trafficking
in human beings can vary from weeks, months to years.
As the trafficking in human beings has a commercial feature, the crime
scene investigation in the case of trafficking in human beings is carried out closely
related to the following defining elements of the trafficking in human beings:
publicity, locations or places where are carried out the activities of exploitation of
victims, transportation, communications and finance.
In the case of the investigation of trafficking in human beings there is the
probability that the offence of trafficking in human beings to be committed in
several places. The place of the offence of trafficking in human beings can be found
in the recruitment area or the origin area of the victim, in the areas transited by the
victim towards the destination location and in the destination area. For example, in
case a person, after being recruited by the human traffickers, was transported with
the help of a vehicle to three different locations to be exploited, the place of the
offence of trafficking in human beings refers both to the three locations and to the
vehicle and the transited areas.
24 United Nations. United Nations Office on Drugs and Crime. Global Initiative to Fight Human
Trafficking (2009). Anti-human trafficking manual for criminal justice practitioners. Module 7: Crime scene
and physical evidence examinations in trafficking in persons investigations, Vienna, pp. 11-13.
46 ADRIAN CRISTIAN MOISE
The scene of the offence of trafficking in human beings refers to any location
which contains physical traces of some activities carried out in the past. The place
of the offence of trafficking in human beings comprises both a closed or open area,
vehicles, being the place where the criminal activity took place, totally or partially,
or the place where its consequences occurred. There is a series of objectives which
the investigators pursue to achieve by carrying out the crime scene investigation in
case of trafficking in human beings: identification of human beings traffickers;
identification of victims; establishment of the age of victims; identification of the
connexions between traffickers, victims, locations, vehicles, documents, etc.;
establishment of the authenticity of the identity or travel documents.
Physical evidence that can be picked up from the crime scene of the trafficking
in human beings refer to: biological traces (blood, urine, saliva), traces of hands
and traces of other parts of the human body, micro-traces, writings, information
systems and other electronic equipments.
An effective management of the crime scene investigation in the case of human
beings trafficking refers to the following activities: a good international legal
cooperation in the field of the fight against trafficking in human beings between
the law enforcement bodies; planning and organization of the activities that will be
carried out on the crime of trafficking in human beings scene; preservation of the
integrity of the scene of the offence of trafficking in human beings; record of the
scene of the offence of trafficking in human beings; examination of the entire crime
field; recovery and preservation of physical evidence.
The crime scene investigation in the case of trafficking in human beings ends
by drafting a report which represents the main procedural means to determine the
results of this initial act of prosecution. The crime scene investigation report in the
case of trafficking in human beings can have attached photographs, draughts,
drawings, video recordings and other similar evidence. At the same time, this
report must be signed on each page, and at the end by the person who draws it
and by the persons who participated in the crime scene investigation in the case of
trafficking in human beings.
§5. Conclusions
The main objective of the investigation of trafficking in human beings is to
save the potential victims of human beings trafficking and to get evidence to lead
to the identification, preventive apprehension and arraignment of the human
beings traffickers.
The criminal investigation in the field human beings trafficking is carried out
based on the procedural criminal law rules, as they are regulated by the Romanian
Criminal Procedure Code. The criminal investigation techniques in the field of
human beings trafficking are comprised in the Romanian Criminal Procedure
Code, both in Chapter IV, named Supervision or research special methods, and within
classic criminal proceedings, which are carried out for the administration of evidence.
Some aspects of criminal law and foresic sceience regarding human trafficking 47
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