Observation (CEACR) - adoptée 2009, publiée 99ème session CIT (2010)

Articles 1 (paragraph 1), 2 (paragraph 1), and 25 of the Convention. In its previous observation, the Committee took detailed note of the comments on the application of the Convention made by the General Confederation of Labour of the Republic of Argentina (CGT) and the International Trade Union Confederation (ITUC) relating to the trafficking of persons for labour and sexual exploitation, the direct involvement of public officials in trafficking, the slowness and ineffectiveness of the judicial system and the absence of specific legislation on trafficking. The Committee observed that trafficking in persons constitutes a serious violation of the Convention and requested the Government, while awaiting the rapid adoption of measures specifically classifying trafficking as a crime in respect of which penal sanctions may be imposed, in accordance with the provisions of Article 25 of the Convention, to provide information on current prosecutions under existing penal provisions. In this respect, the Committee recalls the Government’s obligation to ensure that the penalties imposed by law are really adequate and are strictly enforced.

Domestic and transnational trafficking of women and girls for sexual exploitation. In its previous observation, the Committee noted the comments of the ITUC on the issue of transnational trafficking, according to which Argentina is a destination for the trafficking of women and girls for sexual exploitation from the Dominican Republic, Paraguay and Brazil. The ITUC referred to a report published by the International Organization for Migration (IOM) documenting the trafficking of 259 Paraguayan women to Argentina for prostitution, of whom 90 were under the age of majority, as well as the information provided by the Paraguayan Vice-Consul concerning over 100 reports from parents of daughters who were believed to have disappeared in cases of trafficking. According to the ITUC, Argentinian women and girls are also trafficked for sexual exploitation abroad, most of whom are from Misiones, Tucumán, La Rioja, Chaco and Buenos Aires. Spain and Brazil are the principal destinations. Intimidation and deception are the means normally used, although an unusually high number of kidnappings have been carried out by gangs involved in the trafficking of persons. In such cases, overt violence and physical confinement of the women are used to prevent them from escaping. An example is the case of a young women kidnapped in 2002 in San Miguel de Tucumán. The investigation carried out by her mother uncovered evidence of trafficking networks operating in the provinces of La Rioja, Tucumán, Buenos Aires, Córdoba and Santa Cruz, and it was possible to rescue 17 Argentinean women from prostitution in Bilbao, Burgos and Vigo in Spain. The Committee also noted that around 70 cases had been filed in Tucumán over the past five years relating to women and girls who have disappeared and are presumed trafficked.

The Committee noted that the Government’s reply to the allegations made by the trade union organizations did not address these specific and serious allegations of the trafficking of women and girls from the Dominican Republic, Paraguay and Brazil, nor the allegations concerning the trafficking networks of Argentinian women and girls abroad. The Committee requested the Government to indicate the investigations carried out and the measures taken against the perpetrators.

Trafficking in persons for labour exploitation. In its previous observation, the Committee noted the comments made by the National Apparel and Allied Workers’ Federation (FONIVA) and the Apparel and Allied Workers’ Union (SOIVA), which are member organizations of the CGT, as well as the comments of the ITUC, concerning the existence of practices in the apparel sector consisting of subjecting workers, mainly of Bolivian nationality, to forced labour conditions. These include the retention of their identity documents, locking in workers and in some cases their families in illegal workshops, excessive working hours of up to 17 hours a day and a lack of food. The Committee noted that, as a result of the fire which broke out in Buenos Aires on 30 March 2006 in an apparel factory where 60 Bolivian nationals were working under forced labour conditions, six persons were killed, including four children. A series of inspections were ordered which resulted in the closure within a week of 30 of the 54 workshops inspected because of the appalling working conditions. According to the Minister for Human and Social Rights of the city of Buenos Aires, there are around 1,600 clandestine sweatshops in the city, some 200 of which employ persons under conditions of slavery. The Committee noted the Government’s indications concerning the inspections that had been carried out and the charges brought in one case for the offence of reduction to a condition of slavery. The Committee requested the Government to provide information on the measures adopted or envisaged in this respect, particularly with a view to reinforcing the inspection system.

Legislative measures. The Committee notes with interest the adoption of Act No. 26364 of 9 April 2008 on the prevention and punishment of trafficking in persons and assistance to victims. The Committee notes that the Act makes a distinction between trafficking in adults and in persons under 18 years of age. Under the terms of section 2 of the Act, trafficking in adults over 18 years of age means the capture, transport and/or transfer, either within the country or abroad, the taking in or receipt of persons over 18 years of age for the purposes of exploitation. For persons of 18 years of age and over, the means used have to include deception, fraud, violence, threats or any means of intimidation or coercion, abuse of authority or of a situation of vulnerability, the offering or receipt of payment or benefits to obtain the consent the person. In the case of persons under 18 years of age, under the terms of section 3 of the Act, trafficking exists even without the use of any of the means referred to above and the consent of the victim shall be null and void. Section 4 enumerates the constituent elements of exploitation, namely: (a) where a person is reduced to or maintained in conditions of slavery or servitude or is subject to analogous practices; (b) where a person is compelled to engage in forced work or services; or (c) where any form of advantage is sought, facilitated, developed or obtained from the sex trade.

The Committee also notes that the Penal Code has been amended to include provisions establishing penalties for the offence of trafficking in persons. The penalties envisaged are terms of imprisonment of from three to six years for trafficking in adults who are 18 years of age or over and between four and ten years for trafficking in young persons, which is increased from six to 15 years where the victims are under 13 years of age.

Article 25. Application of effective penalties. The Committee notes the information provided by the Crime Office for the investigation of offences against sexual integrity, trafficking in persons and prostitution of the General Prosecution Service of the Nation, concerning the investigations initiated in 2007 and 2008. The Committee notes the indication that charges were brought in nine cases, including charges of reduction to slavery, the facilitation or promotion of the prostitution of adults or young persons; 18 cases are undergoing preliminary investigation, nine of which relate to labour exploitation and reduction to slavery, and five concern the prostitution of young persons. The Committee observes that, according to the information received, prosecutions are being carried out in only two cases, one of which was initiated in March 2007 when charges were brought by the Office of the Attorney-General of the Republic of Bolivia for the exploitation of the labour of a young person and the other was initiated in February 2008 on grounds of reduction to slavery and prostitution. In both cases, the magistrates declared that they were not competent and the cases were referred to other instances. The Committee observes that in none of the cases has information been provided on the penalties imposed. The Committee further notes that the investigations were carried out under penal provisions which allowed for judicial action prior to the adoption of Act No. 26364 of 9 April 2008. The Committee takes due note of the Government’s indication in its last report that it was difficult to obtain convictions and impose penalties prior to the adoption of Act No. 26364.

The Committee hopes that the Government will provide information in its next report on the effect given to Act No. 26364 and the provisions of the Penal Code establishing penalties for the offence of trafficking in persons for purposes of labour or sexual exploitation, including information on the charges brought, the prosecutions initiated and the penalties imposed on those found guilty. The Committee hopes that the Government will provide copies of the relevant rulings.

Corruption of the police forces. Involvement of public officials in trafficking. The ITUC made allegations concerning corruption in the police forces and the direct involvement of police officers in criminal activities related to trafficking in persons. It provided the example of the case in Mar del Plata, in the province of Buenos Aires, of 13 deaths and disappearances of women which were attributed to an organization of police officers involved in prostitution; the case of the police station in the Cuartel Quinto in Moreno, where the complaint made by three women who had managed to escape was not filed and the owner of the brothel was informed of what was happening; and the case of two minors who were rescued from a brothel in the port of Quequén run by a municipal employee and a police officer from the province of Buenos Aires.

In the case of the 17 Bolivian workers who were victims of trafficking for labour exploitation, referred to above, witnesses stated that the police came to the factory to take a percentage of the profits and that four of the workers were threatened before the judge (identified in the comments) set the owner of the factory free on the grounds that there was insufficient proof to show that the workers had been subjected to servitude. According to the ITUC, the involvement of the police is one of the pivotal factors in explaining the rise in domestic and transnational trafficking in recent years and the lack of effective prosecutions of those accused of trafficking.

The Committee noted the gravity of the allegations made and emphasized the key role of the police in enforcing the law and the Convention, which is undermined in the event of the corruption of the police forces. The Committee urged the Government to provide information on the measures adopted or envisaged to conduct full investigations into all allegations of complicity or the direct involvement of public officials in the trafficking of persons and on the penalties imposed, if the allegations were found to be true.

In its report, the Government indicates that, under the terms of Act No. 26364, the offence of trafficking in persons lies within the competence of the federal authorities and that Resolution No. 1679/2008 provides for the establishment of specific units in the four national security forces to engage in action to prevent and investigate the offence of trafficking in persons, as well as the intelligence work required for this purpose.

The Committee observes that the Government’s report does not contain information on the cases reported in the ITUC’s allegations and, consequently, reiterates its previous request that the Government provide information on measures adopted or envisaged to conduct full investigations of all allegations of complicity or the direct involvement of public officials in the trafficking in persons. It hopes that the Government will indicate in its next report whether the establishment of specific units in the federal security forces has made it possible to combat the phenomenon of police corruption and the involvement of public officials in the crime of trafficking in persons, and the manner in which this has been done.

Other measures. Human Rights Observatory. The Committee notes the information provided by the Government concerning the Human Rights Observatory established by Resolution No. 019/06 of the Secretariat for Human Rights of the Ministry of Justice with a view to promoting the rights of migrants of Bolivian origin and preparing reports with recommendations on their situation. Among the activities carried out by the Observatory, the Committee notes the training course on human rights and migration, for which support was provided by UNDP, which lasted four months, and the preparation of an information brochure for migrant families containing information on trafficking in persons for labour and sexual exploitation. The Committee hopes that the Government will provide information on the activities that the Observatory is continuing to undertake with a view to protecting migrant Bolivian workers against the imposition of forced labour.

International cooperation. The Committee requested the Government in its previous observation to provide information on the measures adopted or envisaged for the coordination of the action taken with all the countries that in one way or another are involved in the trafficking in persons within or outside the country.

The Committee notes the information provided concerning the measures adopted in the context of cooperation between the Member States of MERCOSUR related exclusively to the protection of boys, girls and young persons who are victims of crimes related to trafficking. The Committee will note this information in the context of the application of the Worst Forms of Child Labour Convention, 1999 (No. 182). The Committee observes that the report does not contain information on the measures adopted with a view to international cooperation in relation to trafficking in adults. The Committee hopes that the Government will take the necessary measures for the indispensable international cooperation in combating the trafficking in persons, including adults, taking into account the comments of the trade union organizations which referred specifically to countries of origin and of destination of the victims and to the existence of organized networks for trafficking in persons.

Assistance to victims. The Committee notes with interest the National Programme for the Prevention and Eradication of Trafficking in Persons and Assistance to Victims. It hopes that the Government will provide information on the activities undertaken in the context of the Programme, as well as data on the number of victims who have received the comprehensive assistance envisaged in the Programme.

The Committee observes that trafficking in persons for labour and sexual exploitation constitutes a serious violation of the Convention and requires action that is energetic, effective and proportional to the gravity and magnitude of the phenomenon. The Committee urges the Government to take all the necessary measures for the eradication of this practice, and that the Government will provide information on the progress achieved in this respect.