IHF-HR: "A Form of Slavery: Trafficking in Women in OSCE Member States"
  Country Reports

BOSNIA

SPECIAL ISSUES

INTERNATIONAL HELSINKI FEDERATION FOR HUMAN RIGHTS

''A FORM OF SLAVERY: TRAFFICKING IN WOMEN IN OSCE MEMBER STATES'' COUNTRY REPORTS:

BOSNIA

July 2000

The state is obliged to protect the rights of all persons, including undocumented immigrants who live or are found within its jurisdiction, in accordance not only with domestic law, but consistent with international human rights standards. Despite this – or in some cases because of this – every state is an actual or potential violator of human rights (no matter how well intentioned the state may be).

Bosnia and Herzegovina has a number of national mechanisms and procedures through which human rights can and should be enforced by the government. The BiH Constitution is a far–reaching template which commits to “the highest level of internationally recognized human rights and fundamental freedoms”.1 The Constitution establishes that the European Convention for the Protection of Human Rights and Fundamental Freedoms and its Protocols (ECHR) “shall apply directly in BiH” and “shall have priority over all other law,”2 and enumerates the basic human rights in a separate paragraph.3 Moreover, Annex 1 lists Additional Human Rights Agreements to be applied in BiH, including (inter alia):

• The Convention on the Elimination of All Forms of Discrimination Against Women (Women’s Convention);

• The International Covenant on Economic, Social and Cultural Rights (ICESCR);

• The Convention on the Rights of the Child

• The Convention against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment; and

• The International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families.

Accordingly, there is an ample basis for requesting the State to comply with international human rights standards set forth in these documents, and to secure rights and provide protection to everyone within its territory.

It is worth noting that Bosnia and Herzegovina is also a State Party to several ILO Conventions, including Convention No. 29 on Forced and Compulsory Labor.

All these documents apply throughout the BiH territory, which means that their provisions are binding for both the Federation (FBiH) and the Republika Srpska (RS).

The European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) is the primary mode of redress for human rights violations in Bosnia and Herzegovina. It protects individuals against violations of their rights by the State but cannot be used to redress violations by a private individual or “non – state actor”. However, under the ECHR, the state is bound not only by negative obligations (not to interfere), but also by positive obligations, one of which is to take steps to secure human rights set forth in this instrument. The full extent to which the state has positive obligations to protect individuals from human rights violations by other private actors has yet to be established. However, the Court has reiterated in a number of cases that the ECHR protects effective rather than theoretical rights.

Positive obligations include:

(i)                  taking steps to ensure that the enjoyment of rights and freedoms is effective;

(ii)                 taking steps to ensure that the enjoyment of rights and freedoms is not interfered with by private actors; and

(iii)               taking steps to ensure that private actors similarly respect the effective enjoyment of rights and freedoms by other individuals.4

The ECHR, in Article 1, establishes the State obligation to respect the human rights of “everyone”, providing they fall “within (the) jurisdiction” of the Contracting State. It follows from the text of this Article that the State must ensure that rights and freedoms of the ECHR are enjoyed by every person, citizen, legal resident, documented and undocumented migrant in its jurisdiction, without any restriction whatsoever. Article 1 defines the link that must exist between a person and a member state in order for the Convention to apply – the jurisdiction of the relevant member state. In the Loizidou v. Turkey judgment5 the European Court of Human Rights (“Court”) gave a summary of the broad concept of “jurisdiction”:

The enjoyment of rights and freedoms set forth in the ECHR, according to Article 14, “shall be secured” without discrimination. Similarly to the guarantee in Article 1, this implies that states may have positive obligations under this article. First, the state may have the duty to ensure the effective enjoyment of non–discrimination protection. Second, there is an obligation on the state to take action to protect against private acts of discrimination that affect the enjoyment of the Convention rights and freedoms.

The Federation of BiH constitution incorporates, through its Annex, all of the documents listed in the beginning of previous section and the Universal Declaration of Human Rights and the European Social Charter. All the incorporated instruments have the same legal force as all other Constitutional provisions. According to Article 2 (Chapter 2: Human Rights and Fundamental Freedoms) the Federation must ensure “the highest level of internationally recognized rights and freedoms provided in the instruments listed in the Annex”. This Article further lists particular rights that are protected, including:

(a) the right to life

(b) the right to liberty, with arrest and detention authorized only by the law;

(c) the right to equality before the law;

(d) prohibition of discrimination;

(e) the right to fair criminal proceedings;

(f) freedom from torture and cruel or inhuman treatment or punishment;

(g) the right to privacy;

(h) freedom of movement;

(i) the right to social protection, health, nutrition and shelter; and

(j) the right to protection of vulnerable groups.

All of these rights must be enjoyed by “all persons”, which is particularly significant for trafficked persons.

In addition to incorporating international human rights instruments into the Constitution, thus making them the highest domestic law in the FBiH, the Constitution goes further and establishes:

“The international treaties and other agreements which are in effect concerning BiH and the Federation, and the general rules of the international law are the consisting part of the Federation legislation. In case of disagreement of an international treaty or agreement with the Federation legislation, the treaty or agreement shall prevail.”6

This provision clearly obliges the Federation authorities to apply the rights guaranteed in those instruments directly, whenever domestic law is inconsistent with the international instrument. This provision covers not only documents listed in the Annex of the Constitution, but also all other international treaties to which BiH is a party.

The Republica Srpska Constitution has a traditional approach: human rights provisions are among other Constitutional provisions. The Constitution protects:

a.        the right to life

b.       the right to liberty and security of person;

c.        the right to human dignity, physical and moral integrity, privacy, private and family life;

d.       freedom from torture, inhuman or degrading treatment or punishment;

e.        equal protection of rights;

f.         the right to a fair trial in criminal proceedings;

g.       freedom of movement;

h.       the right to confidentiality of personal data

i.         protection of health;

j.         prohibition of discrimination;

k.        prohibition of forced labor.

A very significant guarantee of the RS Constitution lies in Article 44 (1):

Aliens shall have the human rights and freedoms set forth in the Constitution and other rights specified by law and international agreements.

Also, Article 48 of the Constitution establishes:

·   The rights and freedoms guaranteed by this Constitution may not be denied or restricted.

·   The judicial protection of the rights and freedoms guaranteed by this Constitution shall be ensured.

·   Anyone violating human rights and fundamental freedoms guaranteed by this Constitution shall be held personally responsible and may not be justified by having obeyed somebody’s order to that effect.

In this way, the RS Constitution erases the line between private and public action, and obliges states to provide that private persons respect and do not interfere with the human rights of other persons.

There is no special anti–trafficking legislation in BiH. The Criminal Code of the FBiH has some provisions that may be used in fighting trafficking such as: slavery and transportation of enslaved persons (Article 167), forced abortion (Article 176), kidnapping (Article 184), duress ( Article 185), unlawful detention ( Article 187), rape (Article 221), forced sexual intercourse ( Article 222), sexual intercourse with a juvenile ( Article 224), sexual intercourse by abuse of position (Article 225), acts of debauchery (Article 226), procurement (Article 228), and recruitment into prostitution (Article 229). Similar provisions can be found in the Criminal Law of Republika Srpska.

Sanctions for most of these crimes do not serve as truly preventive measures because judges have the discretion to impose a lighter penalty.

It is also of concern that Article 229 relates only to women and girls and does not protect men or boys at all, although they may also be trafficked into the sex industry in the same way.

There are no provisions or sanctions on torture, cruel, inhuman or degrading treatment, debt bondage or forced labour and no provisions on witness protection either.

Although prostitution is not criminalized, it is prohibited in the Law on Public Order7 (Article 2 para. 19), and punished by imprisonment of up to 60 days.8 The law does not exclude those who are trafficked and forced into the sex industry, and does not recognize that such persons are victims rather than “offenders”. Also, there is nothing in the law to give such a person an opportunity to raise a defense of duress or coercion, or to provide that such evidence would be a migrating factor if convicted. 9 If the convicted person is an alien, the Court can issue a “security measure” in addition to the sanction imposed. This security measure is the “removal of an alien from the territory of the Canton” from 6 months to 3 years, and it can be imposed if the presence of that alien, due to the offence, is no longer “desirable”.

Article 2 para. 20 of this law establishes that anyone “who induces a person into prostitution” shall be punished by imprisonment of up to 60 days. Practically, this would mean that traffickers and trafficked persons would be punished equally.

However, it is not clear who decides whether those who are accused of “inducing” somebody into prostitution should be charged with a criminal offence or with a minor offence. It seems that it is up to the police to decide whether they would send a case to the prosecutor or to the Court for Minor Offenses, which is not a helpful solution especially since actions to combat trafficking must be targeted at the offenders and not at those who are victims of such practices. This kind of discretion gives rise to corruption among police officers with the power to make this decision.

Additionally, when filing charges against traffickers, prosecutors should include a request for confiscation of the assets obtained through the criminal activities – through the forced labour and slavery of the trafficked persons. The legal basis for this request is found in the Criminal Code. These assets were obtained by the traffickers through a system of slavery in which all profits were kept by the traffickers and only a minimum amount was spent on the maintenance of the victims. The assets rightly belong to the victims and not to the state. The request for confiscation should include a request that the confiscated assets be distributed to the victims and not to the state.

Another problem concerns the “removal of an alien” from the Cantonal territory, which is actually deportation. However, here deportation does not mean returning to the country of origin, and certainly does not mean an escape from the “vicious circle” of trafficking. The status of the current BiH law on immigration is unclear. However, under Article 40 of the Decree with Legal Force on the movement and residency of aliens (the old RBiH law which may continue to be enforced in BiH), a person can be deported or lose their right of residence for five different reasons. However, it should be noted that this and similar immigration laws assume voluntariness on the part of the non–resident. Trafficked persons have no power to consent; their presence in BiH and their participation in unlawful forms of labour, such as prostitution, are not voluntary. Furthermore, they have no ability to apply for lawful residence status because traffickers hold them in conditions of slavery. For these reasons, the government should recognize the anomalous position of trafficked persons and not treat them simply as criminals or undocumented migrants subject to deportation.