Response: Criminal Responsibility of Trafficked Persons, including issues concerning how such persons are protected from prosecution and punishment

AuthorM. Nicolas Maziau
PositionConseiller in the Criminal Chamber of the Cour de Cassation
Pages57-65
IRISH JUDICIAL STUDIES JOURNAL
[2019] Irish Judicial Studies Journal Vol 3(2)
57
RESPONSE: CRIMINAL RESPONSIBILITY OF
TRAFFICKED PERSONS, INCLUDING ISSUES
CONCERNING HOW SUCH PERSONS ARE
PROTECTED FROM PROSECUTION AND
PUNISHMENT
Author: M. Nicolas Maziau, conseiller in the Criminal Chamber of the Cour de Cassation
1
, chargé de
mission du premier Président.
Response to the paper by M. Andrew Stewart, Lord Ericht, Senator of the College of Justice and Lord of
Session of the Court of Session (Outer House), Scotland
Introduction
The topic under consideration may seem paradoxical. Victims of human trafficking are
victims. It is those who exploit them who should be prosecuted and convicted. French
criminal law, which at first considered this problem only through offences of abuse of
vulnerability and dependency of a person to obtain from them unpaid or insufficiently
remunerated services,
2
or subjection to conditions of work or accommodation which are
incompatible with human dignity,
3
has now created, in the law of 18 March 2003,
4
specific
offences which punish human trafficking,
5
plus, under the law of 5 August 2013 (which
also enlarged the definition of trafficking offences),
6
the crimes of enslavement or of
exploitation of an enslaved person.
7
It is necessary to emphasise that such victims are not safe, or do not believe themselves to
be safe from criminal prosecution, and that the perpetrators of the offences, which I have
just enumerated, use that to tighten their grip. For this reason, the law has organised
protection for victims against these risks. Finally, in certain specific situations, the
exploitation that amounts to trafficking consists of making the victim commit criminal
offences.
The definition of human trafficking
Under the United Nations Protocol of 15 November 2000 (The Palermo Protocol),
8
1
This paper was drafted mainly by M. Nicolas Bonnal, conseiller in the Criminal Chamber of the Cour de Cassation; the
credit for this presentation belongs, essentially, to him.
2
Code Pénal [C. Pén] [Penal Code] art. 225-13 (Fr.).
3
ibid, art. 225-14 (Fr.).
4
Loi 2003-239 du 18 mars 2003 pour la sécurité intérieure [Law 2003-239 of March 18, 2003 on Internal Security] Journal
Officiel de la République Française [J.O.] [Official Gazette of France], Mar. 19 2003.
5
Code Pénal [C. Pén] [Penal Code] art. 225-4-1 to 225-4-8 (Fr.).
6
Loi 2013-711 du 05 Août 2013 portant diverses dispositions d'adaptation dans le domaine de la justice en application du
droit de l'Union européenne et des engagements inter nationaux de la France [Law 2013-711 of 5 August 2013 laying
down various adaptation provisions in the field of justice in application of European Union law and France's
international commitments] Journal Officiel de la République Française [J.O.] [Official Gazette of France], Aug. 06 2013.
7
Code Pénal [C. Pén] [Penal Code] art. 224-1 A, B, C (Fr.).
8
Protocol to Prevent, Suppress and Punish Trafficking in Persons Especially Women and Children, supplementing the
United Nations Convention against Transnational Organized Crime (adopted 15 November 2000, entered into force 25

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