Pursuant to Council Framework Decision on combating trafficking in human beings (2002/629/JHA), the Penal Code of the Republic of Slovenia was amended in April 2004 with two provisions for the prevention and punishment of trafficking. The Penal Code thus prohibits the unlawful transfer of foreigners who have no permission to reside on the territory of Slovenia, and prohibits transporting and/or helping them to hide (Article 311). Furthermore, the penal code prohibits acts associated with the illegal transfer of persons, such as deriving financial profit for the illegal transport of persons, providing a labour force deprived of its rights, endangering the life or health of transferred persons, supporting terrorist activities, or committing the crime of human trafficking as a member of a criminal enterprise (Article 311).

A direct prohibition of trafficking in human beings is also included in the Penal Code. The provision states that a person who, for the purposes of prostitution or other forms of sexual abuse, forced labour, slavery, servitude or trafficking of human organs, tissues, or blood, purchases, takes over, accommodates, transfers, sells, delivers, or in any other way handles another person or acts as a middleperson in the course of such actions, shall be punished with imprisonment in duration from one to ten years. If a crime in any of these forms is committed against a minor or against an adult by force, threat, deceit, kidnap or by abuse of a subordinate or dependent position, or with the intention of forced pregnancy or artificial insemination, the perpetrator shall be punished with imprisonment of three years minimum. The same punishment shall be given to a person who commits such crimes as a member of a joint criminal enterprise established for committing such crimes or, if pursuant to such crimes, large financial profits have been obtained (Article 387.a).

By including the stated articles in the Penal Code, the loophole that prevented the authorities from taking into serious consideration the crime of human trafficking was eliminated. However, the Slovene legislation has failed to clearly define the circumstances that would enable officials to recognise victims of trafficking and to establish guidelines for the treatment that should be undertaken when it is determined that a person is a victim of trafficking.

The Aliens Act (Article 38a) enables a victim of human trafficking to obtain a temporary residence permit if she cooperates as a witness in a criminal procedure on crimes of human trafficking. If she is granted such temporary residence, she will have the same rights as a person who is granted permission to stay in Slovenia. She also has the right to an interpreter free of charge during the procedure. However, the victim does not have the right to obtain a residence permit if she “represents a danger to the public security or international relations of the Republic of Slovenia” or if her stay in Slovenia is suspected to be linked to terrorist or other violent activities, to illegal intelligence activities, drug trafficking, or to other crimes. Furthermore, she will also be denied a residence permit if she comes from territories with infectious disease and has no proof of vaccination or if she is infected with such a disease. (In actuality, it is not clear what these diseases are). She will also be refused a residence permit if she voluntarily maintains contact with a suspect, or someone accused of the crime of human trafficking. If the amendment is adopted in its current form, the residence permit will be granted to the victim for a period of 6 months to one year. Upon the request of the victim, it can be prolonged year by year until the criminal procedure is finished. If the victim has no resources, she enjoys free health care to the same degree as foreigners with permission to remain in Slovenia for emergency healthcare. After the conclusion of the criminal proceeding, the victim can apply for a temporary residence permit if she fulfils the general conditions for obtaining residence permits, stipulated by the Aliens Act. (For example, if she enrols in education programs, obtains employment, or marries a Slovene citizen). Despite the possibility of gaining the work permit, victims of trafficking in human beings are often lured into illegal work illegally, and they sometimes even go back to their former employer (the abuser). There are several factors that can influence this situation, most notably the lack of social networks to help with the integration process, but also the reluctance of employers to legally hire their staff. Employers are reportedly very resourceful in bypassing the regulation for employment contracts. For instance, instead of full-time employment, the employers offer student work contracts or other alternative forms of work contracts so as to avoid paying taxes and social contributions in full.

The main difficulty of this proposal, which will most likely retain the same content when adopted, is that it conditions the assistance and the right to remain in Slovenia for a victim of trafficking to whether she decides to participate in a criminal proceeding. Instead, as our key informant from Society Ključ claims, the assistance and residence permit should be available for victims even if they do not decide to cooperate. The decision to participate depends on various things that the victim must take into consideration. Of foremost importance is her own safety and welfare, including that of her loved ones. And if she is not assured of these she will most likely decide not to participate. Even though Slovenia has a Law on the Protection of Witnesses, the procedure for obtaining the status of protected witness is complicated, and even if it is approved, Slovenia is a country that is too small to assure total protection (For example, it is almost impossible to ensure the concealment of the protected witness’s identity). Owing to such insufficient conditions, it is highly probable that few victims of trafficking will decide to participate, and thus the amendments to the Aliens Act will not achieve their intended purpose. It has been recommended that Slovenia adopt more favourable measures towards victims of trafficking, without conditions, by offering instead a higher level of protection. The State has a responsibility towards the victim because the torment and crimes to which she has been subjected (rape, abuse, beating, and trafficking itself) took place on the territory of this State.

So far there is no case law and there are no procedures before the Slovenian courts for crimes against victims of trafficking. Such cases would be extremely important because they would enable the trafficked persons to initiate liability procedures for compensation of damages, i.e., the money of which she was unlawfully deprived by her employer, who was abusing her and was committing criminal acts (rape, beating, blackmail, threats, etc.) against her.