Wybrane zagadnienia odpowiedzialności za handel ludźmi w prawie karnym Ukrainy i Polski

Abstract

The purpose of the study is to analyze certain issues of responsibility for human trafficking under the criminal law of Ukraine and Poland, as well as to develop proposals aimed at improving the criminal legislation in the relevant part. The methodological basis of the research is the comparativist method. The article proves that human freedom and dignity should be recognized as the object of human trafficking. The omission of the Polish legislator is that in the title of Chapter XXIII of the Special Part of the Criminal Code of Poland, unlike the title of Chapter III of the Special Part of the Criminal Code of Ukraine, human dignity is not mentioned. The article argues that it does not make sense to single out an independent article in the Criminal Code of Ukraine on responsibility for child trafficking, because the relevant actions may well be qualified under the current Article 149, which among the forms of human trafficking singles out human trafficking as such committed without the purpose of human’s exploitation. The problem of criminal legal countermeasures against child trafficking committed without the purpose of exploitation remains relevant for Poland. Possible options for its solution may include amendments to Art. 115 § 22 of the Polish Criminal Code or the inclusion to the criminal law of an independent article on responsibility for the specified offense. The opinion expressed in the legal literature about the expediency of completely refusing to indicate the methods of committing human trafficking should be recognized as unfounded. It is in view of deception, blackmail, being in a vulnerable state, etc., that a person gives his/her consent to the work offered to him/her, to engagement in prostitution, etc., and it is in view of this, and also in view of the purpose of further exploitation, that even his/her voluntary consent does not exclude criminal liability of the perpetrator. The article argues that indicating the purpose of exploitation allows to distinguish a criminal act from actions that are not criminally punishable. Persons who recruit, move, hide or transfer a person are, of course, primarily interested in the material benefit they wish to receive as a result of their actions. At the same time, they act in this way, realizing that the person recruited (moved, etc.) by them will be exploited by others in the future. The realization of the goal of exploitation lies outside the scope of human trafficking, and therefore human exploitation must be additionally qualified under other articles of the law on criminal liability. The article establishes that despite some differences in the wording of the criminal law prohibition of human trafficking the legislators of Ukraine and Poland have by now approximated their understanding of the essence of this act with its definition formulated in the Palermo Protocol and the Council of Europe Convention on Action against Trafficking in Human Beings. The analysis of scientific works devoted to the issue of human trafficking proved that many questions raised by Ukrainian and Polish researchers are identical. The solutions they offer are often similar too.