MANDATORY ELEMENTS OF THE CRIME OF HUMAN TRAFFICKING ACCORDING TO THE CRIMINAL CODE OF GEORGIA
DOI:
https://doi.org/10.18372/2307-9061.63.16733Keywords:
legislation of the Republic of Georgia, trafficking in human beings, criminal liability, corpus delicti, punishmentAbstract
Purpose: the aim of this paper is to analyze mandatory elements of the crime of human trafficking according to the criminal code of Georgia. Methods: mandatory elements of human trafficking shall be analyzed in accordance with the structure of corpus delicti. According to dominating legal theory in Georgia the corpus delicti (first element of the crime) is composed of objective and subjective elements: while the conduct, result and means of the commission of the crime are included in objective elements, the purpose and intent of the crime are part of the subjective elements. Results: it appears that the crime of human trafficking is made of 5 basic elements: Sale and purchase (or other illegal transaction); Recruitment; Coercion (or deception); Limitation of freedom/control of the victim; Exploitation. However, none of these elements are mandatory for the crime of human trafficking. They are optional in nature. Also, it appears that the Georgian law on human trafficking is too wide and requires modification, because on the one hand it may not entirely fit with international legal definition of human trafficking and on the other hand may overlap with other crimes already covered by Georgian criminal code. Discussion: the Georgian criminal code adopted in 1999 did not contain the crime of human trafficking. In 2003, the crime of human trafficking was included in the chapter of crimes directed against human rights and freedoms (Chapter 23). This chapter contains three articles related to the crime of human trafficking: Article 1431 (Human Trafficking) Article 1432 (trafficking of minors) and Article 1431 (benefiting from the services of the victims of human trafficking); For proposer qualification of the crime of human trafficking, it is important to identify its elements and find out whether these elements are mandatory or optional. While the crime of human trafficking has a complex composition, many terms applied by the law cause divergent interpretations in legal theory. However, its important that the terms are interpreted in accordance with the international agreements on human trafficking to which Georgia is a party.
References
Such as United Nations Convention against Transnational Organized crime and its protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children (2000-2003), Council of Europe Convention on Action against Trafficking in Human Beings (2005).
Dvalidze I., Kharanauli L., Tumanishvili G., Tsikarishvili K. Crimes directed against human rights and freedoms according to the criminal code of Georgia, Tbilisi, 2019, 87. Lekveishvili M., Todua N., Mamulashvili G. Special part of the criminal law, 2019, book 1, Meridiani, 287.
See: Explanatory Report to the Council of Europe Convention on Action against Trafficking in Human Beings, par. 76.
See e.g. Lekveishvili M., Todua N., Mamulashvili G. Special part of the criminal law, 2019, book 1, Meridiani, 288.
Lekveishvili M., Todua N., Mamulashvili G. Special part of the criminal law, 2019, book 1, Meridiani, 289.
However, some authors believe that recruitment can be committed by coercion and without coercion, Dvalidze I., Kharanauli L., Tumanishvili G., Tsikarishvili K. Crimes directed against human rights and freedoms according to the criminal code of Georgia, Tbilisi, 2019, 92.
Lekveishvili M., Todua N., Mamulashvili G. Special part of the criminal law, 2019, book 1, Meridiani, 288.
Lekveishvili M., Todua N., Mamulashvili G. Special part of the criminal law, 2019, book 1, Meridiani, 291.
By abuse of a position of vulnerability is meant abuse of any situation in which the person involved has no real and acceptable alternative to submitting to the abuse. The vulnerability may be of any kind, whether physical, psychological, emotional, family-related, social or economic. The situation might, for example, involve insecurity or illegality of the victim’s administrative status, economic dependence or fragile health. In short, the situation can be any state of hardship in which a human being is impelled to accept being exploited. Persons abusing such a situation flagrantly infringe human rights and violate human dignity and integrity, which no one can validly renounce. See Explanatory Report to the Council of Europe Convention on Action against Trafficking in Human Beings * par. 83 https://rm.coe.int/ 16800d3812 (last seen: 31.05.2022).
Lekveishvili M., Todua N., Mamulashvili G. Special part of the criminal law, 2019, book 1, Meridiani, 291.
Explanatory Report to the Council of Europe Convention on Action against Trafficking in Human Beings. Warsaw, 16.05.2005. URL: https://rm.coe.int/ 16800d3812 (last seen: 31.05.2022).
Dvalidze I., Kharanauli L., Tumanishvili G., Tsikarishvili K. Crimes directed against human rights and freedoms according to the criminal code of Georgia, Tbilisi, 2019, 102.
Lekveishvili M., Todua N., Mamulashvili G. Special part of the criminal law, 2019, book 1, Meridiani, 296 Meskhi M. Legal aspects of trafficking, methods of prevention, experience and perspectives, Tbilisi, 2014, 70.
Explanatory Report to the Council of Europe Convention on Action against Trafficking in Human Beings. Warsaw, 16.05.2005. Par. 74. URL: https://rm.coe.int/ 16800d3812 (last seen: 31.05.2022).
