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DECREE NO. 5,017, OF March 12, 2004.
Promuling the Additional Protocol to the United Nations Convention against Transnational Organized Crime on Prevention, Repression and Punishment of Trafficking in Persons, in Special Women and Children.
THE PRESIDENT OF THE REPUBLIC, in the use of the assignment that confers you the art. 84, inciso IV, of the Constitution, and
Considering that the National Congress has approved, by means of the Decree Legislative No 231 of May 29, 2003, the text of the Additional Protocol to the United Nations Convention against Transnational Organized Crime Concerning the Prevention, Repression and Punishment of Trafficking of Persons, in Special Women and Children, adopted in New York on November 15, 2000;
Considering that the Brazilian Government deposited the instrument of ratification to the UN General Secretariat on January 29, 2004;
Considering that the Protocol has entered in international force on September 29, 2003, and entered into force for Brazil on February 28, 2004;
DECRETA:
Art. 1º The Additional Protocol to the United Nations Convention against Transnational Organized Crime Pertaining to the Prevention, Repression and Punishment of Trafficking of Persons, in Special Women and Children, adopted in New York on November 15, 2000, apensed by copy to the present Decree, will be executed and fulfilled as entirely as it contains.
Art. 2º Are subject to the approval of the National Congress any acts that may result in revision of the said Protocol or which carries charges or engraved commitments to the national heritage, pursuant to art. 49, inciso I, of the Constitution.
Art. 3º This Decree comes into force on the date of its publication.
Brasilia, March 12, 2004; 183º of the Independence and 116º of the Republic.
LUIZ INÁCIO LULA DA SILVA
Samuel Pinheiro Guimarães Neto
PREÂMBS
The States Parties to this Protocol,
Declaring that effective action to prevent and combat trafficking of persons, in particular women and children, requires from the countries of origin, transit and destination a global approach and international, which includes measures to prevent such trafficking, punish traffickers and protect the victims of such trafficking, specifically by protecting their fundamental, internationally recognized rights,
Taking into account that, despite the existence of a variety of international instruments that contain standards and practical measures to combat the exploitation of persons, especially women and children, there is no universal instrument that deals with all aspects concerning human trafficking,
Preoccupied with the fact that in the absence of this instrument, people vulnerable to trafficking are not sufficiently protected,
Recalling General Assembly Resolution 53/111 of December 9, 1998, in which the Assembly decided to set up a committee special intergovernmental, open-composition intergovernmental convention to draw up a global international convention against transnational organized crime and examine the possibility of elaborating, specifically, an international instrument for combating trafficking in women and children.
Convinced that to prevent and combat this type of crime will be useful complete the United Nations Convention against Transnational Organized Crime with an international instrument aimed at preventing, repressing and punishing the trafficking of persons, in particular women and children,
Acorns the following:
I. General Provisions
Article 1
Relation to the United Nations Convention
against Transnational Organized Crime
1. This Protocol shall complete the United Nations Convention against Transnational Organized Crime and shall be interpreted in conjunction with the Convention.
2. The provisions of the Convention shall apply mutatis mutandis to this Protocol, unless it is the case otherwise.
3. The infractions established in accordance with Article 5º of this Protocol shall be deemed to be infractions established in accordance with the Convention.
Article 2
Objective
The objectives of this Protocol are as follows:
a) Preventing and combating trafficking in persons, paying particular attention to women and children;
( b) Protect and assist the victims of such trafficking while fully respecting their human rights; and
c) Promoting cooperation between the States Parties in order to achieve these goals.
Article 3
Definitions
For the purposes of this Protocol:
a) The expression' trafficking in persons ' means the recruitment, transport, transfer, accommodation or reception of persons, using the threat or use of force or other forms of coating, abduction, fraud, deception, abuse of authority or the situation of vulnerability or the delivery or acceptance of payments or benefits to obtain consent from a person who has authority over another for purposes of exploitation. The holding shall include, at the very least, the exploitation of the prostitution of others or other forms of sexual exploitation, the labour or forced services, slavery or practices similar to slavery, servitude or removal of organs;
b) The consent given by the trafficking victim of persons with a view to any type of exploitation described in (a) of this Article shall be deemed irrelevant if any of the means referred to in point (a) has been used;
c) The recruitment, transportation, transfer, accommodation or reception of a child for the purpose of exploitation will be considered "human trafficking" even if they involve none of the means referred to in paragraph (a) of this Article;
d) The term "child" means any person under the age of less than eighteen years.
Article 4
Scope
The present Protocol shall apply, unless provision in contrary, to the prevention, investigation and prosecution of the infractions established in accordance with Article 5º of this Protocol, when such infractions are of a transnational nature and involve organized criminal group, as well as the protection of the victims of these infractions.
Article 5
Criminalization
1. Each State Party shall adopt the legislative and other measures it deems necessary in such a way as to establish as criminal infractions the acts described in Article 3 of this Protocol, when they have been practiced intentionally.
2. Each State Party shall also adopt the legislative and other measures it considers necessary to establish as criminal infractions:
a) Without prejudice to the fundamental concepts of its legal system, the attempt to commit an infringement established in accordance with paragraph 1 of this Article;
b) The participation as an accomplice in an infraction established in accordance with paragraph 1 of this Article; and
c) Organize the practice of an infraction established in accordance with paragraph 1 of this Article or give instructions to other people to practise it.
II. Protection of victims of trafficking of persons
Article 6
Assistance and protection for victims of human trafficking
1. In cases where it is deemed appropriate and to the extent permitted by its domestic law, each State Party shall protect the privacy and identity of victims of trafficking in persons, including, among others (or inter alia), the confidentiality of the judicial procedures relating to such trafficking.
2. Each State Party shall ensure that its legal or administrative system contains measures that provide victims of human trafficking, when necessary:
a) Information about applicable judicial and administrative procedures;
( b) Assistance to enable their opinions and concerns to be presented and taken into account in appropriate stages of the criminal proceedings brought against the perpetrators of the infractions, without prejudice of the rights of the defense.
3. Each State Party shall take into consideration the implementation of measures enabling the physical, psychological and social recovery of victims of human trafficking, including, where appropriate, in cooperation with nongovernmental organizations, other competent organizations and other elements of civil society and, in particular, the provision of:
a) Accommodation appropriate;
b) Advice and information, especially as to the rights that the law recognizes to them, in a language that they understand;
c) Medical, psychological and material assistance; and
d) Opportunities for employment, education, and training.
4. Each State Party shall take into account, by applying the provisions of the present Article, the age, sex and specific needs of victims of trafficking in persons, specifically the specific needs of children, including accommodation, education and proper care.
5. Each State Party shall make efforts to ensure the physical safety of victims of human trafficking while they are found to be in their territory.
6. Each State Party shall ensure that its legal system contains measures that offer victims of trafficking in persons the possibility to obtain compensation for the damage suffered.
Article 7
Status of victims of trafficking in people in the host states
1. In addition to adopting the measures in accordance with Article 6 of this Protocol, each State Party shall consider the possibility of adopting legislative measures or other appropriate measures enabling victims of trafficking of persons to remain in their territory on a temporary or permanent basis, if any.
2. In carrying out the provisions of paragraph 1 of this Article, each State Party shall duly take into account humanitarian and personal factors.
Article 8
Repatriation of the victims of trafficking of persons
1. The State Party of which the victim of trafficking in persons is a national or in which the person was entitled to permanent residence, at the time of entry into the territory of the State Party, shall facilitate and accept, without undue delay or unwarranted, the return of that person, having duly taken into account the security of it.
2. Where a State Party returns a victim of trafficking in persons to a State Party from which that person is a national or in which he had a permanent right of residence at the time of entry into the territory of the State Party, such a return it will duly take into account the security of the person as well as the situation of any judicial process related to the fact that such a person is a victim of trafficking, preferably voluntarily.
3. At the request of the State Party of reception, a State Party required to check, without undue or unwarranted delay, whether a victim of trafficking in persons is his national or whether he was entitled to permanent residence in his / her territory at the time of entry into the territory of the State Part of reception.
4. In such a way as to facilitate the return of a trafficking victim of persons who do not possess the due documents, the State Party of which that person is a national or in which he had a permanent right of residence at the time of entry into the territory of the State Part of reception will accept to issue, at the request of the State Part of reception, travel documents or other type of permit required to allow the person to travel and be readmitted to their territory.
5. This Article shall be without prejudice to the rights accorded to victims of trafficking by persons by virtue of any provision of the domestic law of the State Party.
6. This Article shall be without prejudice to any applicable bilateral or multilateral agreement or commitment that shall govern, in whole or in part, the return of victims of trafficking in persons.
III. Prevention, cooperation and other measures
Article 9
Prevention of human trafficking
1. The States Parties shall establish comprehensive policies, programmes and other measures to:
a) Prevent and combat the trafficking of persons; and
b) Protecting the victims of trafficking of persons, especially women and children, of new vitimation.
2. The States Parties shall make efforts to take measures such as research, information and dissemination campaigns through the communication bodies, as well as social and economic initiatives to prevent and combat human trafficking.
3. Policies, programs and other measures established in accordance with this Article shall, if necessary, include cooperation with nongovernmental organizations, other relevant organizations and other elements of civil society.
4. The States Parties shall take or strengthen the measures, including by bilateral or multilateral cooperation, to reduce the factors such as poverty, underdevelopment and inequality of opportunity that make people, especially the women and children, vulnerable to trafficking.
5. States Parties shall adopt or strengthen legislative or other measures, such as educational, social or cultural measures, including by means of bilateral or multilateral cooperation, in order to discourage demand that fosters all manner of exploitation of people, especially women and children, conducive to trafficking.
Article 10
Interchange of information and formation
1. The competent authorities for the application of the law, the immigration services or other competent departments of the States Parties shall cooperate with each other, as far as possible, upon exchange of information in accordance with their respective domestic law, with views to be determined:
a) If the people who cross or try to cross an international border with travel documents belonging to third parties or without travel documents are perpetrators or victims of human trafficking;
b) The types of travel documents that people have been using or tried to use to cross an international border with the goal of human trafficking; and
c) The means and methods used by criminal groups organized with the goal of trafficking people, including recruitment and the transport of victims, the itineraries and the connections between the persons and groups involved in the said trafficking, as well as the appropriate measures to their detection.
2. The States Parties shall ensure or strengthen the training of the agents of the relevant departments for the implementation of the law, immigration services or other competent services in the prevention of trafficking in persons. The training should focus on the methods used in preventing the said trafficking, in the criminal action against traffickers and the protection of victims, including by protecting them from the traffickers. The training should also take into account the need to consider human rights and the specific problems of women and children as well as encourage cooperation with nongovernmental organizations, other relevant organizations and others elements of civil society.
3. A State Party that receives information will respect any request from the State Party that conveyed this information, in the sense of restricting its use.
Article 11
Measures at the borders
1. Without prejudice to the international commitments on the free movement of persons, States Parties shall, as far as possible, strengthen the border controls necessary to prevent and detect trafficking in persons.
2. Each State Party shall adopt legislative measures or other appropriate measures to prevent, as far as possible, the use of means of transport operated by commercial carriers in the practice of infractions established in accordance with o Article 5 of this Protocol.
3. When it is deemed appropriate, and without prejudice to the applicable international conventions, such measures shall include the establishment of the obligation for commercial carriers, including any transport company, owner or operator of any means of transport, to make sure that all passengers are carriers of the travel documents required for entry into the host state.
4. Each State Party shall take the necessary measures, in accordance with its domestic law, to apply sanctions in the event of a failure to comply with the constant obligation set out in paragraph 3 of this Article.
5. Each State Party shall consider the possibility of taking measures to allow, in accordance with domestic law, to refuse entry to or annul the visas of persons involved in the practice of infractions established in accordance with the present Protocol.
6. Without prejudice to the provisions of Article 27 of the Convention, the States Parties shall seek to intensify cooperation between border control services by, among others, the establishment and maintenance of direct communication channels.
Article 12
Security and control of the documents
Each State Party will adopt the necessary measures, from agreement with the means available to:
a) Ensuring the quality of travel or identity documents that to issue, so that they are not unduly used or easily falsified or modified, reproduced or issued in an illicit manner; and
b) Ensuring the integrity and security of travel or identity documents by themselves or in their name issued and prevent their creation, issuance and illicit use.
Article 13
Legitimacy and validity of the documents
At the request of another State Party, a State Party shall verify, in accordance with its internal law and within a reasonable time, the legitimacy and validity of travel or identity documents issued or allegedly issued on their behalf and that they are suspected to have been used for trafficking in persons.
IV. Final provisions
Article 14
Safeguard clause
1. No provision of this Protocol shall prejudice the rights, obligations and responsibilities of States and persons by virtue of international law, including international humanitarian law and international law relating to the human rights and, specifically, to the extent that they are applicable, the 1951 Convention and the 1967 Protocol on the Status of Refugees and the principle of non-refoulement in them enunciated.
2. The measures set out in this Protocol shall be interpreted and applied in such a way that the persons who have been victims of trafficking are not discriminated against. The interpretation and application of the said measures will be in line with the internationally recognized non-discrimination principles.
Article 15
Solution of controversies
1. The States Parties shall make efforts to resolve the controversies concerning the interpretation or application of this Protocol by direct negotiation.
2. The controversies between two or more States Parties with respect to the application or interpretation of this Protocol which cannot be resolved by negotiation, within a reasonable period of time, shall be submitted, at the request of one of those States Parties, to arbitration. If, within six months after the date of the request for arbitration, such States Parties fail to agree on the organization of the arbitration, any of those States Parties may submit the dispute to the International Court of Justice upon application, in accordance with the Statute of the Court.
3. Each State Party may, at the time of signature, ratification, acceptance or approval of this Protocol or accession to the same, declare that it does not consider itself to be bound by paragraph 2 of this Article. The remaining States Parties shall not be bound by paragraph 2 of this Article in respect of any other State Party that has made such a reservation.
4. Any State Party which has made a reservation in accordance with paragraph 3 of this Article may at any time withdraw such reservation by giving notice to the Secretary-General of the United Nations.
Article 16
Signature, ratification, acceptance, approval and accession
1. This Protocol shall be open for signature of all States from 12 a to December 15, 2000 in Palermo, Italy, and then at the headquarters of the United Nations Office in New York until December 12, 2002.
2. This Protocol shall also be open to the signing of regional economic integration organizations on the condition that at least one member state of that organization has signed this Protocol in accordance with paragraph 1 of the present Article.
3. This Protocol shall be subject to ratification, acceptance or approval. Instruments of ratification, acceptance or approval shall be deposited with the Secretary General of the United Nations. A regional economic integration organization may deposit its instrument of ratification, acceptance or approval if at least one of its member states has done so. In that instrument of ratification, acceptance and approval such an organization shall declare the scope of its competence with respect to the matters governed by this Protocol. It shall also inform the depositary of any relevant modification of the scope of its competence.
4. This Protocol shall be open to the accession of any State or of any regional economic integration organization of which at least one member state is a Party to this Protocol. The instruments of accession shall be deposited with the Secretary-General of the United Nations. At the time of its accession, a regional economic integration organization shall declare the scope of its competence with respect to the matters governed by this Protocol. It shall also inform the depositary of any relevant modification of the scope of its competence.
Article 17
Entry into force
1. This Protocol shall enter into force on the nineteenth day following the date of the deposit of the quadragentieth instrument of ratification, acceptance, approval or accession but not before the entry into force of the Convention. For the purposes of this paragraph, no instrument deposited by a regional economic integration organization shall be summed up to the instruments deposited by member states of that organization.
2. For each State or regional economic integration organization that ratifies, accepts, approves or accede to this Protocol after the deposit of the quadrageth relevant instrument, the present Protocol shall enter into force on the thirtieth day following the date of deposit of that instrument by the State or organization or on the date of entry into force of this Protocol, in accordance with paragraph 1 of this Article, if this is later.
Article 18
Emendas
1. Five years after the entry into force of this Protocol, a State Party to the Protocol may propose amendment and deposit the text with the Secretary-General of the United Nations, which shall then communicate the proposed amendment to the States Parties and to the Conference of the Parties to the Convention to consider the proposal and to make a decision. The States Parties to this Protocol brought together in the Conference of the Parties shall make every effort to reach a consensus on any amendment. If all efforts to reach a consensus are exhausted and no agreement is reached, then it will be necessary, in a final case, for the amendment to be approved, a two-thirds majority of the States Parties to this Protocol, to be present and express their vote at the Conference of the Parties.
2. The regional economic integration organizations, in matters of their competence, shall exercise their right to vote pursuant to this Article with a number of votes equal to the number of their member States that are Parties to this Protocol. These organizations will not exercise their right to vote if their member states exercise their own and vice versa.
3. An amendment adopted in accordance with paragraph 1 of this Article shall be subject to ratification, acceptance or approval of the States Parties.
4. An amendment adopted in accordance with paragraph 1 of this Protocol shall enter into force for a State Party ninety days after the date of the deposit of the instrument of ratification, acceptance or approval of the said amendment together with the Secretary-General of the United Nations.
5. The entry into force of an amendment binds the Parties which have expressed their consent to force themselves for such amendment. The other States Parties shall remain bound by the provisions of this Protocol, as well as by any previous amendment that they have ratified, accepted or approved.
Article 19
Denpronunciation
1. A State Party may denounce this Protocol by written notification addressed to the Secretary-General of the United Nations. The denunciation shall become effective one year after the date of receipt of the notification by the Secretary-General.
2. A regional economic integration organization will cease to be a Party to this Protocol when all its member states have denounced it.
Article 20
Depository and languages
1. The Secretary-General of the United Nations shall be the depositary of this Protocol.
2. The original of this Protocol, whose texts in Arabic, Chinese, Spanish, French, English, and Russian are equally authentic, shall be deposited with the Secretary-General of the United Nations.
IN FÉ DO WHAT, the undersigned plenipotentiaries, duly authorized by their respective Governments, have signed the present Protocol.
