Human trafficking cannot be tackled with current legislation
Each year it is estimated that thousands of people fall victim to human trafficking in the Netherlands. Many of these victims are minors. Assistant Professor of Criminal Law Luuk Esser conducted research on the current legislation to combat human trafficking. His PhD defence is on 25 September.
'Trafficking in human beings is a serious offence', says Esser, who worked as a lawyer for the National Rapporteur on Trafficking in Human Beings and Sexual Violence against Children from 2012 to 2017. 'People are forced to do work they don't want to do, be it in the sex industry or elsewhere. Victims can be both Dutch nationals and foreigners.' The Netherlands is required to effectively combat trafficking in human beings, but the provision in the Dutch Criminal Code that is intended to deal with trafficking is so complex that it has little chance of being effective. 'The police force, the Public Prosecution Office and the courts are all wrestling with this complex statutory provision. In practice, it is not always clear which cases can be dealt with under the penal provision and which can’t, and the law is applied in different ways. As a result, there is a risk that victims will not receive the protection they are entitled to.'
Objectives of criminalisation
Drawn to this issue, Esser focussed his dissertation on the scope of the criminalisation of trafficking in human beings. This was done by taking account of the theoretical concept of legal interests. 'This concept prescribes that the government can only criminalise behaviour if by doing so a legal interest is protected. A legal interest can be 'life' or 'personal freedom'. By applying the concept to the criminalisation of trafficking in human beings, it becomes clear which objectives the legislature had in mind and whether the acts that have been criminalised as human trafficking actually serve that objective.'
Esser's research demonstrates that many acts that are criminalised as human trafficking are not related to the legal interest of personal freedom which the legislature aimed to protect. So the objective the legislature had in mind is not being served by the legislation in place. Besides the practical disadvantages of this, the researcher also identified a problem more on the level of legal theory. 'After all, how legitimate can legislation be that claims to have been produced for a certain purpose, but which is inadequate in achieving this?'
The researcher claims that this 'mismatch' between human trafficking acts that the legislature has criminalised and the objectives it had in mind, exposes a serious problem when it comes to legitimacy. 'The legislature should therefore reflect again on the criminalisation of human trafficking. One possible solution could be decriminalising certain acts so that they are no longer a punishable offence. It would also be helpful if certain acts were moved to a different section of the Penal Code so that it becomes clearer that by criminalising these acts, other objectives are served besides the protection of personal freedom.'
In the past Esser has worked as a legislative draftsman at the Legal Department of the Ministry of Justice and Security and in the months following the award of his doctorate he intends to actively promote his findings. 'On the basis of my research, I am convinced that the legislature needs to act fast. Therefore I will also inform the House of Representatives of the outcome of my research. I have already been invited by the Ministry of Justice and Security to present my findings to both its Legal Department and Policy Department.'
Supervisor prof. C.P.M. Cleiren on Luuk Esser's research:
'Corinne Dettmeijer, who has been National Rapporteur between 2006 and 2018, approached me in 2013 because she wanted students to come into contact with the issue of human trafficking through education. But you can't just conjure a profession from thin air. Ultimately, we succeeded in offering human trafficking as an elective course and we also started providing post-academic education on this theme in collaboration with her and her staff. Luuk Esser, Dettmeijer's right hand at the time, also came to teach. It soon became clear that he can do that very well. Over time, he announced that he wanted to get his PhD. Luuk then started, supervised by Jeroen ten Voorde and me, as an external PhD candidate which means that he was not employed by the university but carried out his PhD research in his own time. That's pretty tough. Fortunately, he received full cooperation from the National Rapporteur. He was allowed to work on the research at our university one day a week. Luuk works fast, has strong communication skills and has done his PhD research at record speed. Apart from the fact that his research is very important and interesting, it was therefore also a special process. It is about a law article that is impossible to read. He unravels it in such a way that even judges now see for the first time how it actually works.'
Supervisor prof. J.M. ten Voorde on Luuk Esser's research:
'Criminalization of human trafficking is one of the most complex themes of our criminal law. Luuk Esser, with his PhD thesis written in a relatively short period of time, made an important contribution to unraveling this criminalization. His dissertation is of great value for legal practice because he creates clarity about how the criminalization should be understood. It is also of great importance for legal science, because it highlights the rather unexplored field of legal principles in the Netherlands. I am looking forward to further exploiting that terrain with him in the coming years.'
Text: Floris van den Driesche