I ASSENT Criminal Procedure and Evidence VICTIMS OF HUMAN TRAFFICKING REGULATIONS 2013
© Government of Gibraltar (www.gibraltarlaws.gov.gi)
2011-24 Subsidiary 2013/055
Subsidiary Legislation made under s. 697 of the Criminal Procedure and
Evidence Act 2011 and on the Government under section 23(g)(i) of the
Interpretation and General Clauses Act.
VICTIMS OF HUMAN TRAFFICKING REGULATIONS
2013
(LN. 2013/055)
Commencement 4.4.2013
Amending
enactments
Relevant current
provisions
Commencement
date
Transposing:
Directive 2011/36/EU
EU Legislation/International Agreements involved:
Decision 2002/629/JHA
_______________________
ARRANGEMENT OF REGULATIONS.
Regulation
1. Title and commencement.
2. Interpretation.
3. Assistance and support for victims of human trafficking.
4. Legal counselling.
5. Protection of victims in criminal investigation.
6. General provisions on assistance, support and protection measures
for child victims of trafficking in human beings.
7. Assistance and support to child victims.
8. Access to education.
9. Appointment of guardian.
11. Application of regulations 7 to 10.
12. Protection of child victims in criminal investigations.
Criminal Procedure and Evidence VICTIMS OF HUMAN TRAFFICKING REGULATIONS 2013
© Government of Gibraltar (www.gibraltarlaws.gov.gi)
2011-24 Subsidiary 2013/055 13. Assistance, support and protection for unaccompanied child victim.
14. Compensation to victims.
15. Prevention.
16. National rapporteurs or equivalent mechanisms.
Criminal Procedure and Evidence VICTIMS OF HUMAN TRAFFICKING REGULATIONS 2013
© Government of Gibraltar (www.gibraltarlaws.gov.gi)
2011-24 Subsidiary 2013/055
In exercise of the powers conferred on the Minister under section 697 of the
Criminal Procedure and Evidence Act 2011 and on the Government under
section 23(g)(i) of the Interpretation and General Clauses Act, and for the
purpose of transposing, in part, 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, the Minister has made the
following Regulations−
Title and commencement.
1. These Regulations may be cited as the Victims of Human Trafficking
Regulations 2013 and come into operation on the day of publication.
Interpretation.
2. In these Regulations−
“child” means a person under 18 years of age;
“Directive” means 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, as the same
may be amended from time to time;
“Directive 2004/81/EC” means Council Directive 2004/81/EC of 29
April 2004 on the residence permit issued to third-country nationals
who are victims of trafficking in human beings or who have been
the subject of an action to facilitate illegal immigration, who
cooperate with the competent authorities, as the same may be
amended from time to time;
“Framework Decision 2001/220/JHA” means Framework Decision
2001/220/JHA of 15 March 2001 on the standing of victims in
criminal proceedings, as the same may be amended from time to
time;
“human trafficking offence” means an offence committed under section
191A or within the meaning of section 280 of the Crimes Act 2011;
“legal counselling” means assistance given to enable victims to be
informed and receive advice about the various possibilities open to
them and should be provided by a person having received
appropriate legal training (without necessarily being a barrister or
solicitor);
Criminal Procedure and Evidence VICTIMS OF HUMAN TRAFFICKING REGULATIONS 2013
© Government of Gibraltar (www.gibraltarlaws.gov.gi)
2011-24 Subsidiary 2013/055
“parental responsibility” shall have meaning assigned to it by section 12
of the Children Act 2009;
“victim” means a person who has suffered harm, including physical or
mental injury, emotional suffering or economic loss, directly
caused by conduct amounting to a human trafficking offence.
Assistance and support for victims of human trafficking.
3.(1) It shall be the duty of the Government to provide such resources as
may be required to ensure that as soon as there are reasonable grounds for
believing that a person might have been subjected to conduct which
constitutes a human trafficking offence, that such a person is provided with
assistance and support.
(2) The support referred to in subregulation (1) shall be provided to
victims before, during and for an appropriate period of time after the
conclusion of criminal proceedings, in order to enable them to exercise the
rights set out in Framework Decision 2001/220/JHA, and in these
Regulations.
(3) Without prejudice to Directive 2004/81/EC or any other enactment,
any assistance and support for a victim, which may be provided for pursuant
to this Regulation, shall not be conditional on the victim’s willingness to
cooperate in the criminal investigation, prosecution or trial.
(4) The assistance and support measures referred to in subregulations (1)
and (2) shall be provided on a consensual and informed basis, and shall
include at least standards of living capable of ensuring victims’ subsistence
through measures such as the provision of appropriate and safe
accommodation and material assistance, as well as necessary medical
treatment including psychological assistance, counselling and information,
and translation and interpretation services where appropriate.
(5) The information referred to in subregulation (4) shall cover, where
relevant, information−
(a) on a reflection and recovery period pursuant to Directive
2004/81/EC;
(b) on the possibility of granting international protection pursuant
to Council Directive 2004/83/EC of 29 April 2004 on
minimum standards for the qualification and status of third
country nationals or stateless persons as refugees or as persons
who otherwise need international protection and the content of
the protection granted and Council Directive 2005/85/EC of 1
Criminal Procedure and Evidence VICTIMS OF HUMAN TRAFFICKING REGULATIONS 2013
© Government of Gibraltar (www.gibraltarlaws.gov.gi)
2011-24 Subsidiary 2013/055 December 2005 on minimum standards on procedures in
Member States for granting and withdrawing refugee status; or
(c) pursuant to other international instruments, other applicable
provisions.
(6) The Government shall take the necessary measures to−
(a) establish appropriate mechanisms aimed at the early
identification of, assistance to and support for victims, in
cooperation with relevant support organisations; and
(b) attend to victims with special needs where those needs derive,
in particular, from whether they are pregnant, their state of
health, a disability, a mental or psychological disorder they
have, or a serious form of psychological, physical or sexual
violence which they have suffered.
Legal counselling.
4. The Government shall ensure that victims of a human trafficking
offence, including child victims where Article 15 of the Directive applies,
have access without delay to legal counselling which shall be free of charge
where the victim does not have sufficient financial resources.
Protection of victims in criminal investigation.
5.(1) The Government shall ensure that victims of a human trafficking
offence receive appropriate protection on the basis of an individual risk
assessment, in particular, by having access to witness protection
programmes or other similar measures, if appropriate and in accordance
with the grounds defined in law or other procedures.
(2) A person conducting an investigation into a human trafficking offence
shall, having regard to the individual assessment by the relevant competent
authority of the personal circumstances of the victim, and without prejudice
to the rights of a defendant, and for the purpose of preventing the secondary
victimisation, avoid as far as possible the following−
(a) unnecessary repetition of interviews during investigation;
(b) visual contact between victims and defendants by appropriate
means including the use of appropriate communication
technologies;
(c) unnecessary questioning concerning the victim’s private life.
Criminal Procedure and Evidence VICTIMS OF HUMAN TRAFFICKING REGULATIONS 2013
© Government of Gibraltar (www.gibraltarlaws.gov.gi)
2011-24 Subsidiary 2013/055 (3) The protection measures referred to in this regulation are in addition to
the rights set out in Framework Decision 2001/220/JHA.
General provisions on assistance, support and protection measures for
child victims of trafficking in human beings.
6.(1) In the implementation of these Regulations the Government shall
ensure that child victims of a human trafficking offence are provided with
assistance, support and protection and that in the application of the Directive
and these Regulations, the child’s best interests are the primary
consideration.
(2) Where the age of a person who is the victim of a human trafficking
offence is uncertain and there are reasons to believe that the person is a
child, that person is presumed to be a child for the purposes of regulations 4
and 7 to 12.
Assistance and support to child victims.
7.(1) Following an assessment of the special circumstances of a child
victim, and after taking due account of the child’s views, needs and
concerns and with a view to finding a durable solution for the child, the
Government shall take the necessary measures to ensure that the specific
actions to assist and support child victims of trafficking in human beings, in
the short and long term, in their physical and psycho-social recovery, are
undertaken.
Access to education.
8. Child victims and the children of victims who are given assistance and
support in accordance with regulation 3 must, within a reasonable time, be
given access to education, in accordance with any enactment relating to the
provision of education to children.
Appointment of guardian.
9.(1) Where as a result of the operation of any law or rule, the holders of
parental responsibility of a child victim-
(a) have a conflict of interest between them and the child; or
(b) would be precluded from ensuring the child’s best interests and
from representing the child, or both,
the Government shall ensure that a guardian or a representative is appointed
as soon as the child is identified by the relevant authority.
Criminal Procedure and Evidence VICTIMS OF HUMAN TRAFFICKING REGULATIONS 2013
© Government of Gibraltar (www.gibraltarlaws.gov.gi)
2011-24 Subsidiary 2013/055 (2) A representative appointed under subregulation (1) may be appointed
for the purposes of Article 15(1) and (2) of the Directive.
Assistance and support for the family of child victim.
10. Where appropriate and possible, the Government shall take measures to
provide assistance and support to the family of a child victim of a human
trafficking offence when the family is in Gibraltar, and in particular and
where appropriate and possible, it shall apply Article 4 of Framework
Decision 2001/220/JHA to the family.
Application of regulations 7 to 10.
11. Regulations 7 to 10 shall apply without prejudice to regulation 3.
Protection of child victims in criminal investigations.
12. Without prejudice to regulation 5, a person who conducts a criminal
investigation in respect of a human trafficking offence shall have regard to
the following−
(a) interviews with the child victim shall take place without
unjustified delay after the facts have been reported to the
police;
(b) interviews with the child victim take place, where necessary, in
premises designed or adapted for that purpose;
(c) interviews with the child victim are carried out, where
necessary, by or through professionals trained for that purpose;
(d) the same persons, if possible and where appropriate, conduct
all the interviews with the child victim;
(e) the number of interviews is as limited as possible and
interviews are carried out only where strictly necessary for the
purposes of criminal investigations and proceedings;
(f) the child victim may be accompanied by a representative or,
where appropriate, an adult of the child’s choice, unless a
reasoned decision has been made to the contrary in respect of
that person.
Assistance, support and protection for unaccompanied child victim.
13.(1) The Government shall−
Criminal Procedure and Evidence VICTIMS OF HUMAN TRAFFICKING REGULATIONS 2013
© Government of Gibraltar (www.gibraltarlaws.gov.gi)
2011-24 Subsidiary 2013/055 (a) ensure that the specific actions to assist and support child
victims of a human trafficking offence referred to in
regulations 7 and 8 take due account of the personal and
special circumstances of the unaccompanied child victim;
(b) take the necessary measures with a view to finding a durable
solution based on an individual assessment of the best interests
of the child;
(c) take the necessary measures to ensure that, where appropriate,
a guardian is appointed;
(d) ensure that, in criminal investigations and in subsequent
proceedings a representative is appointed where the child is
unaccompanied or separated from its family.
(2) This regulation shall apply without prejudice to regulations 7 to 12.
Compensation to victims.
14. For the purposes of the Criminal Injuries Compensation Scheme
Regulations 2013, a person who is a victim of human trafficking shall be
deemed to satisfy the requirements in regulation 5 thereof if the victim has
been trafficked to, from or within Gibraltar.
Prevention.
15. The Government shall−
(a) take appropriate measures, such as education and training, to
discourage and reduce the demand that fosters all forms of
exploitation related to trafficking in human beings;
(b) take appropriate action, including through the internet, such as
information and awareness-raising campaigns, research and
education programmes, where appropriate in cooperation with
relevant civil society organisations and other stakeholders,
aimed at raising awareness and reducing the risk of people,
especially children, becoming victims of trafficking in human
beings;
(c) promote regular training for officials likely to come into
contact with victims or potential victims of trafficking in
human beings, including front-line police officers, aimed at
enabling them to identify and deal with victims and potential
victims of trafficking in human beings.
Criminal Procedure and Evidence VICTIMS OF HUMAN TRAFFICKING REGULATIONS 2013
© Government of Gibraltar (www.gibraltarlaws.gov.gi)
2011-24 Subsidiary 2013/055 National rapporteurs or equivalent mechanisms.
16. The Government shall establish rapporteurs or equivalent mechanisms
for the purposes of, inter alia, the carrying out of assessments of trends in
trafficking in human beings, the measuring of results of anti-trafficking
actions, including the gathering of statistics in close cooperation with
relevant civil society organisations active in this field, and reporting.
