A transposição e implementação em Portugal das medidas europeias de combate ao tráfico de seres humanos

Portugal is both a country of origin, transit and destination of trafficking of human beings. Currently, it is primarily considered as a destination for labor exploitation, although there are still phenomena of trafficking of women for sexual exploitation and of children for the practice of robberies. As a country of origin, there are mainly cases of trafficking of men for labor exploitation in Spain. This study aims to analyze how the Portuguese legal system had to adapt to the changes required by the Council of Europe and the European Union in relation to the repression and prevention on the phenomenon of trafficking in human beings and the protection of victims. We will consider not only the legislative texts, comparing them with the European normative texts to verify their conformity, but also the existing plans and action programs, which demonstrate the combat activity in progress and the aknowledgement of the phenomenon in Portugal. Finally, we will take into account several studies that focus on the practical effectiveness of the legal regime, among which the recommendations of the Group of Experts on Action against Trafficking in Human Beings will assume partiular relevance. The current legislative framework for the repression of the phenomenon is the result of a long evolution. In the middle of the year 2000, there were only rules on the criminal repression of trafficking for the purpose of sexual exploitation, this being considered a crime against sexual freedom. With the signature of several Conventions and the transposition of some acts of the EU, there was a revolution on how the trafficking phenomenon should be treated. The crime of trafficking was thereafter considered a crime against personal freedom in general, covering a greater number of behaviors, in which Human Beings are treated as commercial objects for the purpose of various exploitation activities: sexual, labor, begging, slavery, removal of organs or other criminal activities and the trafficking of children for adoption. The enumeration of the exploitation types became merely illustrative. For its part, the criminal sanction was deeply modified, today being more burdensome than those required by European law. Also, an effort has been made to make the criminal investigation more effective, providing the competent police forces with adequate means, particularly those foreseen in the law on fighting against organized crime. European law has also demanded that the protection and rehabilitation of victims should be regulated in detail, both inside and outside the context of criminal proceedings. Thus, in Portugal, the victim's protection system is applicable, including measures such as the protection of identity, the use of recorded statements, as well as the access to a series of specific security measures and special programs of protection. Several social rights are also granted, such as equitable access to health care, legal advice and psychosocial assistance. There are already reception centers specifically designed to welcome victims of trafficking, managed by non-governmental organizations. In order to give proper treatment to the victims, Portugal has created a national victim reference mechanism in 2008, which defines the procedures for identifying probable victims and carrying out their identification and assistance, through the different institutions involved. A signage card for the victims has even been conceived, in which their rights appear in several languages. Portuguese legislation provides for the granting of residence permits to victims of trafficking, with a provision more favorable than that required by the European Union law, establishing that due to «the personal circumstances of the victim» this authorization may be granted even if the victim does not cooperate with the authorities. In 2008, the Observatory for Trafficking in Human Beings was created, and the various professionals involved received special training on human trafficking, Also, several guides and manuals for the professions involved have been conceived. On the other hand, three-year plans were developed, in which several objectives have been identified, such as the development of awareness campaigns, and the strengthening of cooperation between public entities and organizations and their adaptation to new forms of trafficking and recruitment. However, despite the fact that these developments are notable, in practice, both effective criminal repression and effective protection of victims face several challenges that claim for an urgent and comprehensive response. The complex legislative framework and the overlapping of legal types of crime and concurrent competences of the police forces are pointed out as ineffectiveness factors. On the other hand, there are few requests for compensation from victims, which shows deficiencies in the information on their rights. Regarding prevention, the Group of Experts and the Committee on the rights of the child continue to underline the existence of particularly vulnerable groups in Portugal, such as street children, who are easy preys for the trafficking for the purpose of labor exploitation. Concerning the protection of victims, there should be created a body of binding and articulated norms, designed to effectively guarantee multidisciplinary assistance and support measures. Many of the existing norms in this context are derived from general laws and have not been specifically designed for victims of the crime of human trafficking. The protection of children is especially urgent, since they are only entitled to the same protection system granted for other children in danger, which may not always be appropriate for the specific case of victims of trafficking. Plus, it is not always possible to guarantee effective access to social rights, such as education or leisure programmes. Moreover, despite the successive recommendations of the Group of experts, there are no legal provisions that guarantee the appointment of a tutor. Finally, there are some deficiencies in Portugal at the institutional level, since there is no independent national rapporteur to impartially evaluate the evolution of the measures in the country and make the pertinent recommendations.