Legal regulation of human trafficking: in the context of international and national law

On an international scale, the transnational organized crime of human trafficking has become a serious social problem that worries humanity.The current situation has made necessary to combine the efforts of states aimed at combating crime in the field of human trafficking.

It is for this purpose that in the XX century the UN, the Council of Europe and other international organizations adopted conventions, treaties and other normative legal acts aimed at implementing the full protection of individual freedom.Since then, human rights have become the subject of not only national, but also international legal regulation. The Republic of Azerbaijan, which attaches special importance to the fight against human trafficking, has ratified most of these international documents. The programs and concepts that provide for the fight against trafficking in human beings in international and national legal acts include three main areas of activity: prevention of trafficking in human beings, assistance to victims of trafficking in human beings, detection of criminal acts related to trafficking in human beings and punishment of criminals.

In order to fulfill the obligations arising from the international treaties to which the Republic of Azerbaijan has acceded in the field of combating human trafficking, including the Council of Europe Convention “on Combating Human Trafficking”, taking into account international experience in this field, the relevant legislative acts were also improved.

Key words: human beings, international law, Council Of Europe, global threat, international commitment, international documents, national legislation, ratification, convention, normative legal acts, human rights, International Legal Regulation.

Севиндж Усуб кызы Гусейнова - доктор философии по праву, старший научный сотрудник отдела «Уголовного права и уголовного процесса» Института Права и Прав Человека Национальной Академии Наук Азербайджана

ПРАВОВОЕ РЕГУЛИРОВАНИЕ ТОРГОВЛИ ЛЮДЬМИ: В КОНТЕКСТЕ МЕЖДУНАРОДНОГО И НАЦИОНАЛЬНОГО ПРАВА

В международном масштабе транснациональная организованная преступность, связанная с торговлей людьми, превратилась в серъёзную социальную проблему, волнующую человечество. Сложившаяся ситуация обусловила необходимость объединения усилий государств, направленных на борьбу с преступностью в сфере торговли людьми.

Именно с этой целью в ХХ веке ООН, Совет Европы и другие международные организации приняли конвенции, договора и другие нормативно-правовые акты, направленные на осуществление всесторонней защиты свободы личности. С тех пор права человека стали предметом не только национального, но и международного правового регулирования. Азербайджанская Республика, придающая особое значение борьбе с торговлей людьми, ратифицировала большинство этих международных документов. Программы и концепции, предусматривающие борьбу с торговлей людьми в международных и национальных правовых актах, включают три основных направления деятельности: предотвращение торговли людьми, оказание помощи жертвам торговли людьми, выявление преступных деяний, связанных с торговлей людьми и наказании преступников. fight crime trade

В целях выполнения обязательств, вытекающих из международных договоров, к которым присоединилась Азербайджанская Республика в области борьбы с торговлей людьми, в том числе Конвенции Совета Европы «О борьбе с торговлей людьми», а также с учетом международного опыта в этой области, были усовершенствованы соответствующие законодательные акты.

Ключевые слова: торговля людьми, международное право, Совет Европы, глобальная угроза, международные обязательства, международные документы, национальное законодательство, ратификация, конвенция, нормативные правовые акты, права человека, международно-правовое регулирование.

The fight against human trafficking is one of the most actual issues facing the world community. It is noteworthy that the manifestations and methods of human trafficking, which go down in history as the “slave trade” - a modern form of slavery - have become a phenomenon. This rapidly expanding and evolving phenomenon is at the forefront of criminal business in terms of revenue, transnationally organized and globalized. The analysis of human trafficking crimes shows that such acts are growing rapidly and are closely integrated with other dangerous crimes. Therefore, the international community has adopted a number of necessary national, international and regional legal acts in the field of legal regulation of the fight against human trafficking. The Republic of Azerbaijan has also joined all these international agreements and has assumed obligations. In accordance with these commitments, the country has adopted normative legal acts to combat human trafficking.

The US State Department, which deals with the fightagainst human trafficking as one of the modern global challenges, publishes annual reports on the work done by states to combat this crime. It believes that in recent years, most states have enacted laws criminalizing all forms of human trafficking and imposing severe penalties, and have taken protective measures against victims, as well as other preventive measures [21].

For 20 years, the Human Trafficking Report has demonstrated that the United States believes that human trafficking is a global threat that requires a global response, according to the U.S. Department of State's 2020 report. Traffickers deny basic human rights to about 25 million people, forcing them to live in slavery and to work for their exploitative earnings. The report provides governments with the information they need to increase the prosecution of traffickers, provide victim- centered and trauma-protected protection for victims of trafficking, and prevent this crime. Although the fight against human trafficking has always been relevant, the consequences of the COVID-19 pandemic have increased the need for all stakeholders to work together more than ever. We know that human traffickers target the most vulnerable people and look for opportunities to exploit them. The instability caused by the pandemic and the lack of critical services indicate a rapid increase in the number of people exploited by human traffickers [22].

International and regional legislation defines international standards that must be legally observed in the territory of the Republic of Azerbaijan. It is advisable to use these standards in the development of national legislation and policy. Human trafficking is a transnational crime and therefore requires action at the international level. International legal acts have had a significant impact on the establishment of criminal elements related to human trafficking in national legislation. All this creates a need for a comparative legal analysis of foreign criminal law in terms of regulating liability for crimes related to human trafficking and the real use of its positive experience. It is also important to periodically develop and adopt international legal instruments aimed at combating human trafficking at the regional level.

After regaining its independence, the Republic of Azerbaijan became a member of the United Nations and other international organizations and undertook the relevant obligations. The second part of Article 148 of the Constitution of the Republic of Azerbaijan, which acts as a guarantor of international law, states that international agreements to which the Republic of Azerbaijan is a party are an integral part of the legislative system of the Republic of Azerbaijan. Article 151 of the Constitution states that if there is a conflict between normative legal acts included in the legislative system of the Republic of Azerbaijan (except for the Constitution of the Republic of Azerbaijan and acts adopted by referendum) and interstate agreements to which the Republic of Azerbaijan is a party, those international agreements shall apply [1].

First of all, the final document of the congress held in London in 1889 with the participation of public figures from the United States and Europe recommended that the governments of the nation-states sign an international agreement reflecting the importance of combating such socially dangerous acts. As a result, national committees have been established in a number of countries (Italy, Spain, etc.), including Russia, to regulate relations with the central office in London. In 1902, at the initiative of the French government, an international conference was convened to draft an agreement on concrete measures to be taken by nation-states to combat trafficking in women, which resulted in the adoption of the 1904 and 1910 Paris Agreements [5, p.152].

On May 25, 2000, the UN General Assembly, by Resolution 54/263, adopted the Optional Protocol to the UN Convention on the Rights of the Child about Child Trafficking, Child Prostitution and Child Pornography. Law No. 285-IIQ of 2 April 2002 of the Republic of Azerbaijan on accession to the Optional Protocol to the UN Convention on “the Rights of the Child”about Child Trafficking, Child Prostitution and Child Pornography was approved.

States Parties shall prohibit child trafficking, child prostitution and child pornography as provided for in this Protocol [25].

The UN Convention against Transnational Organized Crime, signed on behalf of the Republic of Azerbaijan on December 12, 2000 in Palermo, concludes with the Convention on “the Prevention, Elimination and Punishment of Trafficking in Human Beings, especially Women and Children, and Protocols against Illegal Crossing of the Border by Sea and Air” were approved by Law No. 435-IIQ of 13 May 2003 with relevant notifications and statements. Thus, the United Nations Convention against “Transnational Organized Crime” was adopted by the Supreme Assembly Resolution No. 55/25 of 15 November 2000. Unless otherwise provided in this Protocol and if these crimes are transnational in nature and committed with the participation of an organized criminal group, the prevention, investigation and prosecution of crimes recognized as a crime under Article 5 of this Protocol, as well as victims of such crimes. applied to the protection of the rights of individuals [14].

It should be noted that today a complex legal framework in the fight against human trafficking has been created within the Commonwealth of Independent States. International agreements include:

Law of the Republic of Azerbaijan No. 6I8- IIQ of April 6, 2004 on the ratification of the Agreement on Cooperation of the Member States of the Commonwealth of Independent States in the Fight against Crime, signed in Moscow on November 25, 1998 Agreement on Cooperation was approved.

The Parties shall cooperate in the fight against crime, in particular its organized forms, through their competent authorities in accordance with the provisions of this Agreement, in compliance with national legislation and international obligations [19].

Law of the Republic of Azerbaijan No. 584-IIQ of January 13, 2004 on the Approval of the Agreement on “Cooperation of the Member States of the Commonwealth of Independent States in Returning Minors to Their Permanent Residences The Agreement on Cooperation between the Member States of the Commonwealth of Independent States” on the return of minors to their countries of permanent residence, signed by the Councils of Heads of State and Government of the Commonwealth of Independent States, was approved.

The Governments of the member states of the Commonwealth of Independent States, hereinafter referred to as the Parties, emphasize the need to unite efforts to protect the rights and legitimate interests of minors, guided by the principles of special protection of children enshrined in the Convention on the Rights of the Child adopted by the UN General Assembly on 20 November 1989 agreed on the provisions of the Agreement, noting that co-operation in the care of their well-being and the return of homeless minors to their States of residence would help to prevent offenses committed by both minors and against them [20].

“Agreement on Cooperation in Combating Trafficking in Human Beings, Illegal Trade in Human Organs and Tissues between the Member States of the Commonwealth of Independent States”, signed in Moscow on November 25, 2005 it has been conditionally approved [19].

In accordance with the general provisions of this Agreement, the Parties shall, in compliance with their legislation and international treaties to which they are parties, prevent, detect, eliminate and detect crimes related to trafficking in human beings, especially women and children, as well as the protection of victims of trafficking cooperate in the field of rehabilitation through their competent authorities.

At the next stage, the legal and theoretical basis for the prevention of human trafficking is reflected in the Warsaw Convention on Combating Trafficking in Human Beings of the Council of Europe of 16 May 2005 (approved by Law No. 1002-IIIQ of 11 May 2010 in the Republic of Azerbaijan). we see that [13].

The Parliamentary Assembly of the Council of Europe has also adopted a number of important documents in this area: Recommendation 1325 (1995) on trafficking in women and forced prostitution in the member states of the Council of Europe; Recommendation No. 1450 (2000) on violence against women in Europe; Recommendation No. 1523 (2001) on Domestic Slavery; Recommendation No. 1526 (2001) on the campaign against trafficking in minors, based on the example of Moldova, in order to put an end to the Eastern European route; Recommendation No. 1545 (2002) on the campaign against trafficking in women; Recommendation No. 1610 (2003) on migration related to trafficking in women and prostitution; Domestic slavery: Recommendation No. 1663 (2004) concerning slavery, domestic workers and women who have married a foreigner for the purpose of migration, etc.

The European Conference on the Elimination and Combating of Trafficking in Human Beings, a major problem of the 21st century (Brussels Declaration on the Elimination and Combating of Trafficking in Human Beings), on September 18-20, 2002, brought together more than 1,000 delegates from a number of states and organizations. gathered together. The main purpose of the conference was to provide an opportunity to exchange information on European policy in addressing this fundamental problem, which threatens to destroy existing trends in human trafficking and our fundamental values and achievements in the fields of freedom, security and justice [15].

Under the Council of Europe Convention for the Protection of Children from Sexual Exploitation and Sexual Abuse of 25 October 2007, each Party shall take the necessary legislative or other measures to prevent and protect all forms of sexual exploitation and sexual abuse of children [20].

Decision “On the Program of Cooperation of the Member States of the Commonwealth of Independent States in Combating Trafficking in Human Beings for 2007-2010” signed in Minsk on November 28, 2006 No. 749-IIIQ of December 30, 2008 approved by a special opinion on it.

The adoption of the program stems from the need to increase the effectiveness of cooperation between the CIS member states in counteracting security threats and challenges in modern times [18].

Further, the Law of the Republic of Azerbaijan “On Cooperation of the Ministries of Internal Affairs (Police) of the Commonwealth of Independent States in Combating Human Trafficking” signed on September 17, 2010 in St. Petersburg, Law No. 507-IVQ of December 21,2012 and the Republic of Azerbaijan.

The Parties undertake to cooperate in the prevention, detection and detection of crimes related to human trafficking, acting in accordance with the provisions of this Agreement, in accordance with the laws and international obligations of their States [18].

Memorandum of Understanding on Cooperation in Combating Human Trafficking between the Ministry of Internal Affairs of the Republic of Azerbaijan and the National Committee of the United Arab Emirates on Combating Trafficking in Human Beings, signed on March 21, 2011 in Abu Dhabi, No. 445 of June 7, 2011 Approved by decree.

Recognize that the Memorandum of Understanding poses a global threat to international and national security and economic stability; to understand the importance of protecting victims of trafficking and helping them return to their homes, etc. contains [18].

It should be noted that the Law of the Republic of Azerbaijan No. 769-IIQ of October 12, 2004 on the ratification of the Final Protocol to the Convention for the Suppression of Trafficking in Human Beings and the Exploitation of Prostitution by Third Parties The Final Protocol to the Convention on the Elimination of All Forms of Discrimination against Women was adopted on March 21, 1950.

Nothing in this Convention shall preclude any legislation which establishes more stringent conditions than the conditions provided for in the Convention for the implementation of provisions to combat trafficking in human beings and the exploitation of prostitution by third parties. The provisions of Articles 23-26 of the Convention shall apply to this Protocol [16].

It should be noted that the international and national legal aspects of the criminal legal regulation of human trafficking are a requirement of the time.

The historically established provisions of US law on human trafficking are accepted as a model for many states. Historically, the countries of the American continent, where the slave trade is most prevalent, have managed to change their legislative policies in this area and make the act criminal in nature, and have developed special practices to combat this crime. Trafficking in human beings in the United States was first criminalized by the Mann Act. This document, known as the White Slave Trade Act, was named after Congressman James Robert Mann, was submitted to Congress in June 1909, and was immediately adopted and signed by the President, and entered into force in 1910. With the adoption of this law, for the first time, the transportation of women for prostitution or immorality or any other immoral purposes was considered a crime. The long-standing Mann Act was amended in the late twentieth century. Congress reintroduced the concept of “transportation” in 1978 to protect minors against commercial sexual exploitation, and in 1986 to criminalize “any sexual activity” for “immorality” or “any other immoral purpose” to be held accountable” [23].

Currently, the US government's efforts to prevent human trafficking are regulated by the 2000 Law on the Protection of Victims of Trafficking. The law defines three aspects of the federal government's efforts to combat human trafficking: victim protection, prosecution, and crime prevention. Most law enforcement agencies in the United States are setting up anti-trafficking working groups with local territorial jurisdiction to better coordinate operations [24].

Thus, taking into account the historical and modern nuances of the United States in terms of both legislation and practice of human trafficking, the following conclusions are drawn: Second, it is commendable that the country has continued its efforts to combat human trafficking, not only nationally but also internationally, by preparing reports on human trafficking.

Beginning in the 1990s, the process of criminalizing human trafficking as an independent crime began in the legislative acts of nation-states. Thus, a special law adopted in 1992 included a norm (§180b) providing for liability for human trafficking in the German CM of 1871. Amendments to the Criminal Code of 1907, made in 1995, criminalized human trafficking (Article 226). In 1997, Articles 240-242 of the Criminal Code of the People's Republic of China provided for liability for trafficking in women and children [4, p. 11].

The European region is the region where human trafficking is more politically and legally relevant, where international standards are clearly applied and the fight against this crime is carried out more effectively. Both the treaties and directives of the European Union (EU) and the case law of the European Court of Human Rights play an important role in the development of legal norms in this direction.

The main normative document of the EU on human trafficking is the Directive on the Prevention, Combating and Protection of Victims of Trafficking (2011/36 / EU) [18]. This Directive establishes the definition of the crime of trafficking in human beings, the general rules on the responsibility of perpetrators, the prevention of trafficking in human beings and the protection of victims.

Turkey is one of the most important countries in Eurasia in the fight against human trafficking. Turkey has excellent legislation and practice in the fight against human trafficking, compared to many European countries and many countries in the Middle East. For the first time in the country, human trafficking was punishable by law in 2002 [17].

On March 18, 2003, Turkey ratified the UN Palermo Convention against Transnational Organized Crime and two Additional Protocols on Trafficking in Human Beings and Migrant Smuggling.

In general, it should be noted that the analysis of Turkey's legislation and experience in combating human trafficking allows us to focus on several important points. First, anti-trafficking legislation in Turkey, which is currently in the process of preparation for EU integration, is aimed at improving it. The implementation of national action programs as a widespread tool in the practice of combating terrorism can be considered commendable.

It should be noted that bilateral cooperation also plays an important role in combating human trafficking and illegal migration. This is especially evident in the mutual cooperation between the law enforcement agencies of the states. This activity is regulated by mutual legal assistance and legal relations, including bilateral and multilateral international acts on criminal matters.

Trafficking in human beings and illegal migration are international crimes that have become more widespread in recent years and that closer international legal cooperation has been established in the fight against them. Trafficking in human beings and illegal migration are now factors affecting countries and families around the world. According to the International Labor Organization (ILO), 2.5 million people are currently victims of human trafficking and are subject to sexual exploitation and labor exploitation [17].

The national legislation and practice of the Republic of Azerbaijan in the fight against human trafficking is based on international law, the experience of leading foreign countries and the organizational measures taken in this area since independence.

By the Decree of the President of the Republic of Azerbaijan dated May 6, 2004, the “National Action Plan to Combat Human Trafficking in the Republic of Azerbaijan” was approved. This document pays special attention to the creation of a system that combines and effectively coordinates all aspects of the fight against human trafficking, appoints a National Coordinator in the Ministry of Internal Affairs of the Republic of Azerbaijan, and establishes an Office for Combating Trafficking in Human Beings. The National Coordinator shall submit annual information on the fight against human trafficking in the Republic of Azerbaijan to the relevant executive authority of the Republic of Azerbaijan, the Milli Majlis of the Republic of Azerbaijan and the Commissioner for Human Rights (Ombudsman) of the Republic of Azerbaijan [6].

Since 2004, in accordance with the measures of the National Action Plan, consistent measures have been taken to establish and improve the national legal framework in this area, taking into account international agreements to which the Republic of Azerbaijan has acceded in the fight against human trafficking.

In accordance with the National Action Plan to Combat Trafficking in Human Beings in the Republic of Azerbaijan, a special law in this area was adopted on 28 June 2005 - the Law of the Republic of Azerbaijan on Combating Trafficking in Human Beings. The law defines the prevention of human trafficking in the Republic, the legal status of the fight against human trafficking, regulates the protection and assistance to victims of human trafficking. During the adoption of the law, the UN Convention against Transnational Organized Crime and its Protocol on the Prevention, Elimination and Punishment of Trafficking in Human Beings, in particular Women and Children, as well as the September 20, 2002 The provisions of the Brussels

Declaration on the Prevention and Combating of Trafficking in Human Beings have been taken into account. At the same time, the Law of the Republic of Azerbaijan No. 1020-IIQD of September 30, 2005 - the Criminal Code of the Republic of Azerbaijan in force from September 1, 2000, the new Criminal Code of September 30, 2005 - provides for liability for human trafficking Article 144-1 is included. Articles 144-2 on Forced Labor and 316-1 on Dissemination of Confidential Information on Victims of Human Trafficking have also been added.

As a necessary sign of the objective nature of the crime, the methods of its commission are indicated in the disposition. These methods include: the threat of violence; use of force; intimidation; other means of coercion; theft; fraud; deception; abuse of opportunities or vulnerabilities; giving or receiving material and other benefits, privileges or concessions to obtain the consent of the person controlling the other person [3, p. 496-497].

By the Decision of the Cabinet of Ministers of the Republic of Azerbaijan “Rules for the establishment, financing, operation of special institutions for victims of human trafficking, as well as control over their activities” (November 9, 2005); “Regulations on the Fund for Assistance to Victims of Human Trafficking” (January 12, 2006); “On determining the amount of benefits paid to victims of human trafficking during reintegration” (June 17, 2006); “Rules for Social Rehabilitation of Victims of Trafficking” (March 6, 2006); “Rules for Sending Victims of Trafficking to a Special Anti-Trafficking Police Unit” (February 1,

2008) ; “Rules of the National Referral Mechanism for Victims of Trafficking” (August 11,

2009) ; “Rules (indicators) for identification of victims of human trafficking” (September 3, 2009); “Rules for placement and detention of children victims of human trafficking in shelters” (November 19, 2009); Program to eliminate social problems that create conditions for human trafficking (May 20, 2011); “Rules for Repatriation of Victims of Trafficking” (September 10, 2013); The Program for Social Rehabilitation and Reintegration of Children Victims of Human Trafficking (February 6, 2014) was approved.

The approval of such normative legal acts is a clear example of the special attention paid to the fight against human trafficking in the country.

It should be noted that by the order of the Ministry of Internal Affairs No. 590 dated October 12, 2007, the “Hotline” telephone service was launched to serve victims of human trafficking, alleged victims and potential victims of human trafficking. A safe shelter for victims of crime was opened, and medical, psychological, legal and other assistance was provided to victims of human trafficking within the shelter. The next “National Action Plan on Combating Human Trafficking of the Republic of Azerbaijan (2009-2013)” approved by the Decree of the President of the Republic of Azerbaijan No. 133 dated February 6, 2009 strengthens the prevention and suppression of human trafficking, improvement of persecution, protection and social rehabilitation of victims of human trafficking, etc. envisages a system of important measures [8].

Implementation of the obligations arising from the Council of Europe Convention on Combating Trafficking in Human Beings in the third “National Action Plan to Combat Trafficking in Human Beings in the Republic of Azerbaijan for 2014-2018” approved by the Decree of the President of the Republic of Azerbaijan No. 667 dated July 24, 2014, Ratification of the Council of Europe Convention for “the Protection of Children from Sexual Exploitation and Sexual Violence”, to which the Republic of Azerbaijan acceded on 17 November 2008, “the Rules of the National Guidance Mechanism for Victims of Trafficking”,“Rules for the establishment, financing and control of special institutions for victims of human trafficking”, “Regulations on the Fund for Assistance to Victims of Human Trafficking”, “Program to eliminate social problems that create conditions for human trafficking”and other regulations legal acts Relevant work is planned to improve the legal and social protection of vulnerable women and children in order to improve their health and reduce the risk of becoming victims of human trafficking [9].

Organizational and legal framework for combating human trafficking is defined in the “National Action Plan to Combat Human Trafficking in the Republic of Azerbaijan for 20202024” approved by the Decree of the President of the Republic of Azerbaijan dated July 22, 2020. This document is a continuation of the measures envisaged in the “National Action Plan to Combat Trafficking in Human Beings in the Republic of Azerbaijan for 20142018” has been developed to ensure an effective system that allows for the interaction of relevant agencies in the fight against human trafficking.

At the next meeting of the Milli Majlis of the Republic of Azerbaijan on May 5, 2022, the annual report of the National Coordinator for Combating Trafficking in Human Beings stated that in 2021, international cooperation in the fight against trafficking in human beings. Representatives of the United States Department of State and Justice and a number of international organizations were consulted and responded to last year [11].

It should be noted that despite the problems caused by the Patriotic War and the pandemic in the country, the Republic of Azerbaijan continued to comprehensively combat human trafficking in 2020-2021.

A necessary condition for combating human trafficking is a comprehensive approach to the issue as a problem. In this regard, it is necessary to adopt a special comprehensive program to combat human trafficking.

Thus, the human trafficking prevention system requires a conceptual approach to the problem based on scientific understanding. The concept should include general social, criminological and criminal sanctions for crimes related to human trafficking. The conceptual approach envisages the identification of the most effective measures to prevent the crimes in question and the main directions of combating this category of crimes, taking into account the situation, structure, dynamics, legality and development trends, the danger of negative consequences.

Pursuant to the Law of the Republic of Azerbaijan “On Combating Human Trafficking” dated 28.06.2005, No. 958-IIQ, in accordance with international agreements to which the Republic of Azerbaijan is a party, the fight against human trafficking with other states, their law enforcement agencies and the fight against human trafficking cooperates with international organizations. Legal assistance in criminal cases related to human trafficking shall be provided in accordance with international agreements to which the Republic of Azerbaijan is a party and the legislation of the Republic of Azerbaijan on legal assistance in criminal cases.

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