Irene Simatoni
Council of the European Union
DG H / unit B
Rue de la Loi 175
B.1048 Brussels

REPORT FROM THE COMMISSION BASED ON ARTICLE 10 OF THE COUNCIL
THE FRAMEWORK DECISION ON COMBATING TRAFFICKING IN HUMAN BEINGS

COMMENTS BY THE GOVERNMENT OF FINLAND

On July 2004 the Finnish Government transmitted to the General Secretariat of the Council and to the Commission the text of the provisions transposing into its national law the obligations imposed on it under the Framework Decision of 19 July 2002 on combating trafficking in human beings (2002/629/JHA). 

Pursuant to Article 10(2) of the Framework Decision the Commission provided a written report on 2 May 2006 on the measures taken by Member States to comply with the Framework Decision (COM(2006) 187 final). In the Commission staff working document (SEC(2006) 525) the adequacy of the Member States’ national measures are evaluated in light of the provisions of the Framework Decision. 

With regard to certain provisions it is suggested in the staff working document that there is insufficient information on the measures taken by Finland. Therefore, with the intention of clarifying the measures Finland has taken, the Finnish Government respectfully submits the following comments on the Commission’s report.

1. Victim’s consent (Article 1(2) of the Framework Decision)

According to the text on page 4 of the Commission staff working document, Finland is not mentioned among the Member States which have transposed into its national law the provisions in Article 1(2) of the Framework Decision.

The relevance of the victim’s consent

Article 1(2) of the Framework Decision imposes an obligation not to give any relevance to the victim’s consent to the exploitation where any of the means set forth in Article 1(1) have been used. This rule is not explicitly mentioned in Chapter 25 Sections 3 and 3a of the Penal Code (trafficking in human beings and aggravated trafficking in human beings) which transpose the provisions of Article 1(1) into Finnish law. Rules of this type are, in fact, not mentioned anywhere in the Penal Code. According to the General Principles of criminal law, with regard to certain offences the victim’s consent may cancel out criminal liability of the offender when the consent is voluntary, given in advance, and specific enough. The provisions in Chapter 25 Sections 3 and 3a of the Penal Code, however, are formulated in a way that the fact that a victim has consented to the exploitation carries no relevance to the punishability of the offence. Thus, the provisions in Article 1(2) are in force in Finnish law. This is affirmed in the travaux préparatoires of the law transposing the Framework Decision.

2. Punishability and sanctions for instigation, participation and attempt (Articles 2 and 3 of the Framework Decision)

According to the text on page 8 of the Commission staff working document, the Commission has not received information from Finland on the sanctions provided for attempted offences nor on instigation or participation to the offences referred to Article 1 of the Framework Decision.

Sanctions for attempted offences

Chapter 25 Sections 3 and 3a of the Penal Code state that an attempt of trafficking in human beings and an attempt of aggravated trafficking in human beings are punishable.

According to Chapter 6 Section 8 Paragraph 1 of the same code the sentence is determined in accordance with a mitigated penal latitude if the offence has remained an attempt. The mitigated latitude is, according to Paragraph 2, at most three fourths of the maximum sentence of imprisonment.

The sentence for trafficking in human beings is imprisonment for a maximum of six years and for aggravated trafficking in human beings imprisonment for a maximum of ten years respectively. 

In consequence, pursuant to the provisions in Chapter 6 Section 8, the sentence for an attempt of trafficking in human beings is imprisonment for a maximum of four years six months and for an attempt of aggravated trafficking in human beings imprisonment for a maximum of seven years six months respectively.

Sanctions for instigation or participation

According to Chapter 5  Section 5 of the Penal Code a person who intentionally persuades another person to commit an intentional offence or to make a punishable attempt at such an act is punishable for incitement to the offence as if he/she was the offender. 

According to Section 3 of the same chapter, if two or more persons have committed an intentional offence together, each is punishable as an offender.

These provisions are general and thus applied also to the offences concerning trafficking in human beings.

3. Extradition measures (Article 3(1) of the Framework Decision)

According to the text on page 11 of the Commission staff working document, the document provided to the Commission by the Finnish Government does not contain information regarding extradition measures.

Provisions regarding extradition

The preconditions for extradition are regulated in Sections 2-10 of the Act on Extradition On the Basis of an Offence Between Finland and Other Member States of the European Union (1286/2003), in Sections 2-7 of the Act on Extradition On the Basis of an Offence Between Finland and Other Nordic States (270/1960) and in Sections 2-12 of the Extradition Act (456/1970).  

The offences concerning trafficking in human beings are punishable with maximum penalties of over one year of imprisonment and, consequently, may entail extradition.

4. Sanctions on legal persons (Article 5 of the Framework Decision)

According to the text on page 13 of the Commission staff working document, the documents forwarded to the Commission by the Finnish Government are not clear regarding the sanctioning of legal persons.

Sanctions on legal persons

The general provisions on criminal liability of legal persons are in Chapter 9 of the Penal Code. The sanction for legal persons is corporate fine. A corporate fine is imposed as a lump sum. The corporate fine is at least EUR 850 and at most EUR 850,000. On top of criminal liability a legal person is liable for damages caused in its operations.

Deputy Head of Department,	
Director of Legislation		Jan Törnqvist

Enclosure	Unofficial extracts from Penal Code, Act on Extradition On the Basis of an Offence Between Finland and Other Member States of the European Union, Act on Extradition On the Basis of an Offence Between Finland and Other Nordic States (in Swedish) and Extradition Act (in Swedish)