Observación (CEACR) - Adopción: 2011, Publicación: 101ª reunión CIT (2012)

Convenio sobre el trabajo forzoso, 1930 (núm. 29) - Argentina (Ratificación : 1950)
Protocolo de 2014 relativo al Convenio sobre el trabajo forzoso, 1930 - Argentina (Ratificación : 2016)

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2022

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Articles 1(1), 2(1) and 25 of the Convention. Trafficking in persons for sexual and labour exploitation. In its previous comments the Committee emphasized that the trafficking in persons for labour and sexual exploitation calls for robust and effective action in proportion to the gravity and extent of this practice, and asked the Government to take the necessary measures to eliminate this practice, which constitutes a serious violation of the Convention. It referred to the observations received from a number of national trade union organizations and from the International Trade Union Confederation (ITUC), and also to a report published by the International Organization for Migration (IOM), documenting specific situations of trafficking from which it emerges that Argentina is a country of destination, transit and departure of trafficked persons; women and girls originating from the Dominican Republic, Paraguay and Brazil are victims of trafficking for sexual exploitation; Argentinian women and girls, mostly originating from the provinces of Misiones, Tucumán, La Rioja, Chaco et Buenos Aires, are also subjected to sexual exploitation abroad, mainly in Spain and Brazil, including through abductions perpetrated by gangs; and, finally, migrant workers mostly originating from the Plurinational State of Bolivia are victims of trafficking in the textiles and clothing sector.

The Committee notes the information supplied by the Government in its last report and its appendices, the observations made by the General Confederation of Workers (CGT-RA) on the application of the Convention, received in November 2010, and also the report of May 2011 of the United Nations Special Rapporteur on trafficking in persons, particularly women and children, further to her visit to Argentina in September 2010 (A/HRC/17/35/Add.4). The Committee proposes to analyse all this information by examining the legal and institutional framework, the penalties imposed and the protection given to victims.

(a) Legal and institutional framework. The Committee recalls that Act No. 26.364 of 9 April 2008 concerning the prevention and suppression of trafficking in persons and the provision of assistance for victims defines in detail the elements that constitute trafficking in persons, for labour and sexual exploitation, and establishes the penalty of imprisonment for offenders ranging from three to six years (with more severe penalties in cases where the victims are minors). The Committee is aware that a bill to amend the Act of 2008 is under discussion. The objectives of the bill include increasing penalties, making the consent of the victim irrelevant as regards defining the crime of trafficking, expanding protection for victims and improving cooperation between the various parties involved in taking action against trafficking. The Committee hopes that the bill amending the Act concerning the prevention and suppression of trafficking in persons will be adopted shortly and requests the Government to provide information on the manner in which it will contribute towards strengthening action against trafficking in persons.

Action of the General Prosecution Service. The Committee observes that, inasmuch as the crime of trafficking in persons comes within the competence of the federal courts, the General Prosecution Service of the Nation plays a crucial role in the prosecution of perpetrators. It notes the information provided by the Government on the action taken by the General Prosecution Service of the Nation, including the issuing of a publication in collaboration with the IOM containing a toolkit to help prosecuting perpetrators and protecting victims and, in particular, documents indicating the legal interpretation given to the concept of “trafficking in persons and related offences”. The Committee also notes the action taken by the unit within the General Prosecution Service of the Nation responsible for providing assistance for the victims of abduction for the purposes of ransom and human trafficking (UFASE), whose role is to assist the various prosecution services in the country. Such assistance is provided at the request of the prosecutors concerned and covers the stages of examination of the evidence and preparation of the case, as well as the relevant hearings. UFASE also coordinates training activities and is in charge of establishing a database relating to abductions and trafficking in persons. The Committee notes that this unit publishes an annual report which serves as a basis for the Attorney-General of the Nation to adopt resolutions aimed at tackling the problems faced by the prosecution authorities. Resolutions adopted include Resolution No. PGN-39-10, which contains recommendations for the prosecution services with regard to conducting thorough investigations in cases involving procuring in order to ensure that no trafficking of persons is involved, and Resolution No. PGN-46-11, which lays down guidelines for procedures and criteria to identify and investigate cases involving trafficking for labour exploitation purposes. The Committee requests the Government to provide information on the measures taken to tackle the problems emphasized by UFASE in its annual reports with regard to the identification of situations involving trafficking in persons, for both sexual and labour exploitation, and the launching of prosecution proceedings at federal level.

Action by the police forces and allegations of corruption. In its previous comments the Committee asked the Government to provide information on the investigations conducted and the measures taken further to allegations of corruption within the police forces and of direct participation of police officials in criminal activities connected with trafficking in persons. The Government referred to the establishment of specific units within the four national security forces, whose task is to prevent and investigate the crime of trafficking in persons, and to develop an intelligence service for that purpose (Resolution No. 1679/2008). The Committee asked the Government to indicate to what extent the establishment of the specific units had contributed towards combating corruption in the police forces and the participation of officials in activities linked to the trafficking in persons.

The Committee observes that this problem was also emphasized by the United Nations Special Rapporteur, who, in the report referred to above, raises the sensitive issue of corruption of certain members of the police and other security forces directly involved in the implementation of measures to combat trafficking adopted by the Government, especially at the provincial level. According to the report, these officers receive bribes and act in complicity with the traffickers, who are thus able to evade arrest and prosecution. The Special Rapporteur recommends that the Government should adopt a zero-tolerance policy with regard to corruption and should ensure that the officials involved in the crime of trafficking are prosecuted and severely punished.

The Committee recalls that the victims of trafficking are in a vulnerable situation in which it is particularly difficult for them to assert their rights. It is therefore essential that police officers are appropriately trained in the subject of trafficking in persons in order to be able to identify victims, and it is also essential that the victims feel they can trust the police and prosecution authorities when they have recourse to them. The Committee therefore requests the Government to ensure that investigations are duly expedited in cases of corruption and complicity on the part of law enforcement officials, and that adequate penalties are imposed on them. The Government is also requested to continue to supply information on the measures taken to strengthen the capacities of these authorities with respect to identification of the perpetrators of trafficking in persons and their victims.

Action by the labour inspectorate. As regards forced labour imposed on Bolivian migrant workers who are the victims of trafficking in the textiles and clothing sector, the Committee highlighted the large number of unauthorized workshops and asked the Government to provide information on the measures taken in this respect, particularly with regard to strengthening the labour inspectorate. In its last report, the Government supplies data from the labour inspectorate concerning the number of inspections conducted in unauthorized garment manufacturing workshops for 2005–10, indicating the percentage of undeclared workers (ranging from 17.6 to 37.27 per cent). The labour inspectorate explains that, further to these inspections, a number of workshops and establishments were closed and legal action was initiated. The Committee duly notes this information. Recalling that the labour inspectorate performs an essential role in combating trafficking in persons for labour exploitation, the Committee requests the Government to continue to supply information on the action taken by the labour inspectorate, and also on the measures taken to ensure that the labour inspectorate has sufficient human and material capacity to carry out its work effectively throughout the territory. The Committee also requests the Government to indicate the manner in which cases of forced labour involving migrant workers are handled by the labour inspectorate and how the inspectorate cooperates with the General Prosecution Service of the Nation so that reported violations give rise to prosecution proceedings.

(b) Article 25. Application of effective criminal penalties. In its last report the Government indicates that, between April 2008 (date of entry into force of the Act) and the end of July 2010, a total of 590 searches were conducted, 583 persons were arrested and 921 victims were assisted. Ten court cases were thus concluded with the conviction and sentencing of 15 persons to imprisonment ranging from four to 15 years for the trafficking in persons for sexual exploitation. The Committee notes two court decisions communicated by the Government and notes with interest the elements taken into account by the judges in defining what constitutes a “situation of vulnerability” to which the victims were exposed, and thereby invalidating the consent given. Furthermore, the Committee observes that, between 2008 and 2010, no case of trafficking in persons for labour exploitation was brought before the courts. According the UFASE website, the first conviction for trafficking in persons for labour exploitation was handed down in August 2011 by the Federal Criminal Court of San Martín. It therefore appears that gathering enough evidence to bring offenders before the courts is even more difficult where trafficking in persons involves labour exploitation. Moreover, according to Government statistics, the total number of convictions for trafficking in persons remains low if compared with the number of victims assisted and persons arrested. The Committee draws the Government’s attention to the importance of imposing terms of imprisonment that constitute an effective deterrent on persons who exploit other persons’ labour, and hopes that the Government will be in a position in its next report to provide information on new prosecutions resulting in an adequate number of convictions.

(c) Assistance for victims. The Committee notes that the Bureau for Assistance and Support for Trafficking Victims was established in 2008. The Government indicates that this Bureau centralizes activities for the prevention and elimination of trafficking and the provision of psychological, medical and legal support and assistance for victims, and that a branch office has been established in the province of Salta. The Committee requests the Government to provide further information on the activities of this Bureau as regards the identification and protection of victims (number of centres for the reception, support and rehabilitation of victims) and on the measures taken to continue to extend the capacity for intervention of this Bureau to the whole of the national territory. The Government is also requested to indicate the measures taken to provide legal assistance to victims in such a way that they can assert their rights and be compensated for the material and general damage suffered.

The developments described above show that the numerous measures taken by the Government to strengthen its legal and institutional framework with a view to combating the trafficking in persons for labour and sexual exploitation, bear witness to its commitment in this sphere. The Committee encourages the Government to pursue its efforts and requests it to indicate the measures taken to strengthen coordination between the various actors involved in combating trafficking in persons – especially the labour inspectorate and the General Prosecution Service of the Nation – as well as coordination between the state, provinces and municipalities, especially in view of the fact that the crime of trafficking lies within the competence of the federal courts.