PROJECTS

Prostitution
And
Human
Trafficking
An Għaqda Studenti tal-Liġi
Legislative Proposal

1
President's Note
A s President of the Malta Law Students’
Society, it’s my pleasure to present to you
this legislative proposal on prostitution and
human trafficking.

Throughout the years, GħSL has consistently

worked on similar undertakings, from academic
papers to policy documents, with the aim of
contributing a legal perspective towards the
most pressing issues of the day.

Following the launch of similar policy

documents in previous years, GħSL decided
to embark on this new initiative by focusing on
the apparent symbiotic relationship between
human trafficking and prostitution. In turn,
our ultimate aim was to present a number of
legislative proposals related directly to the
subject matter, and therefore ensuring, as
always, a more substantial contribution.

I would like to congratulate the Projects

Committee, which was established for the first
time earlier this year, for working tirelessly in
ensuring the completion of this document,
while thanking all the contributors and peer-
reviewers for leaving their mark.

Yours truly,

CELINE CUSCHIERI DEBONO

President 2
Foreword
I’m proud to be able to present this paper, as
GħSL’s contribution to the Public Consultation
launched by the Parliamentary Secretariat
for Reforms, Citizenship and Simplification of
Administrative Processes within the Office of
the Prim Minister.

This document is the cumulative effort

of a number of committed law students, As
an organisation on the forefront of student
activism, we believe that the future legislators,
advocates and adjudicators of our country
should be able to exploit any opportunity in
shaping any future regulatory regimes. With
this in mind, GħSL has once again seized the
opportunity in leaving a mark.

We believe that with the proposals put

forward by our contributors, our academic
research, our comparative legal analysis and
our survey, law students have once again
managed to leave an indellible mark on the
legislative process in this country.

Our only hope is that in the future, this paper

will help inspire similar projects in other areas
as well.

Sincerely,

MARIAH MICALLEF
Projects Officer 3
Opening Remarks
It is indeed an honour for me to usher in this
report, researched and compiled by a number
of Law Students, on behalf of the Għaqda
Studenti tal-Liġi (GħSL).

The organisation itself goes back to 1943,

and the Founding Fathers would be extremely
proud to see what their successors are up to
these days, how well organised they are, and
also how active they are.

This initiative involving human trafficking

is theirs, and theirs alone, from start to finish;
GħSL got to know about the Parliamentary
Secretariat’s consultation document,
researched it, and compiled the following
response.

This was all done on a voluntary basis, by

students giving up their free time (free time
being very scarce in the Law Course with all
the lectures, reading, etc.); the ideas are theirs,
and indeed it would take somebody young and
motivated to suggest for example, harnessing
modern technology to combat human
trafficking.

For the initiative, for their motivation and

energy, I congratulate the GħSL and its
members, and encourage them to keep up
their good work.
4
 To the Authorities I suggest that they
encourage such initiatives and harness the
energy and will power of the young: only good
can come out of it.

DR. IVAN MIFSUD

Dean, Faculty of Laws 5
Introduction

7
M odern slavery, including human trafficking
for sexual exploitation, is a very prevalent
issue which encompasses human trafficking by
coercing, deceiving, and use of force and threats.1
It is mostly thought of as global crime since
victims are often trafficked across borders, and
offenders move from one country to another.2
However, this may not always be the case. One
may fall victim to human trafficking and sexual
exploitation in his own home country.3
Offenders may form part of criminal networks
who recruit vulnerable persons through
deceitful and violent means. 4 This is an offence
that is also legislated for in Malta. However,
looking at Maltese law which regulates cases
of human trafficking and of prostitution, one
major problem can be noted: Maltese law is not
victim-oriented at all. On the other hand, looking
at case law, there is often a lack of proof against
the true perpetrator of the crime. Furthermore,
proceedings may last for years, which may be
very traumatizing and emotionally exhausting to
the victim.
In reaction to the Reform on Human Trafficking
and Prostitution public consultation document,5
Għaqda Studenti tal-Liġi (hereafter referred to
1 HM Government, ‘Modern Slavery Strategy’
(2014) <https://assets.publishing.service.gov.uk/gov-
ernment/uploads/system/uploads/attachment_data/
file/383764/Modern_Slavery_Strategy_FINAL_
DEC2015.pdf> accessed on 18th September 2019.
2 Ibid.
3 Ibid.
4 Ibid.
5 Parliamentary Secretariat for Reforms, Citizen-
ship and Simplification of Administrative Processes (Sep-
tember 2019).
8
as ‘GħSL’) or the Maltese Law Student Society,
has looked into and analysed the topic of human
trafficking and prostitution. Our intention is to
propose ideas on how to combat this issue and
perhaps suggest a way forward, enabling the
Maltese legal sphere to develop and progress
with regards to human rights pertaining to such
issues. The central aim is an attempt to bring
the law closer to the most vulnerable persons
by making it more victim-oriented. Maltese law
should be amended so as to truly bring justice
by prosecuting those at the top of the food
chain, as well as to provide a support system to
the victims.
This is no easy task, and thus a lot of thought
should be given to the process in its entirety.
GħSL will first look at present Maltese legislation
and case law to identify the main issues and will
then discuss a survey it conducted to gather
information from a sample of the population.
The paper will be concluded by proposals from
GħSL on how to make the law more victim-
oriented and on how to effectively gather proof.

9
The Maltese
Background

11
U nder our law, human trafficking and
prostitution are regulated under the Criminal
Code6, the White Slave Traffic Ordinance7,
and the Permission to Reside for Victims of
Trafficking or Illegal Immigration who co-operate
with the Maltese Authorities Regulations.8 It is to
be noted that, despite such legal mechanisms,
the law only prohibits manipulating and forcing
another into prostitution.
In our Criminal Code, there are three main
articles which deal with the subject at hand;
Article 197 on prostitution of persons under-age
by an ascendant, Article 204 on the prohibition
of prostitution of persons under-age, and Article
205 on prostitution of persons of age. These
shall be discussed in the coming paragraphs.
Article 197
(1) Any ascendant by consanguinity
or affinity who, by the use of violence
or by threats, compels, or, by deceit,
induces any descendant under age
to prostitution, shall, on conviction, be
liable to imprisonment for a term from
six to twelve years.9

6 The Criminal Code, Chapter 9 of the Laws of

Malta.
7 The White Slave Traffic (Suppression) Ordinance,
Chapter 63 of the Laws of Malta.
8 Legal Notice 157 of 2007, Subsidiary Legislation
217.07, PERMISSION TO RESIDE FOR VICTIMS OF TRAF-
FICKING OR ILLEGAL IMMIGRATION WHO CO-OPERATE
WITH THE MALTESE AUTHORITIES.
9 Ibid, Article 197.
12
Article 204
(1) Whosoever in order to
gratify the lust of any other person
induces a person under age to
practice prostitution, or instigates
the defilement of such person,
or encourages or facilitates the
prostitution or defilement of such
person, shall, on conviction, be liable
to imprisonment for a term from three
to six years,
(…)
Article 204A
(1) Whosoever,
(a) with violence, threats, coercion
or force compels a person under age
into prostitution or into participating in
a pornographic performance, or
(b) knowingly makes any gain or
derives any benefit from the conduct
referred to in paragraph (a) (...)
shall, on conviction, be liable to
imprisonment for a term from six to
twelve years.
(...)

13
 Article 204B
(1) Whosoever in order to gratify
the lust of any other person engages,
recruits or causes a person under age
to practice prostitution, or to participate
in pornographic performances, or
profits from or otherwise exploits a
person under age for such purposes,
shall, on conviction, be liable to
imprisonment for a term from five to
ten years.
(...)
Article 204C
(1) Whosoever takes part in sexual
activities with a person who has
not completed the age of sixteen
years shall, on conviction, be liable to
imprisonment for a term from five to
ten years.10
Article 205
Whosoever in order to gratify the
lust of any other person, by the use
of violence, compels or, by deceit,
induces a person of age, to practice
prostitution, shall, where the act
committed does not constitute a
more serious offence, be liable, on
conviction, to imprisonment for a term
from three to seven years: Provided
that the offence shall be punishable
with imprisonment for a term of four
to nine years, if it is committed -
10 Ibid, Article 204.
14
 (a) with abuse of authority, of trust
or of domestic relations; or
(b) habitually or for gain.11
Article 197 is distinct from Article 204. The
former provides for a harsher punishment since
the ascendant would have made use of violence,
threats, coercion or deceit; otherwise, such
actions would be charged under Article 204. The
proviso of this article gives us four aggravations:
these are when the offence is committed on
minors under the age of twelve and is carried
out by deceit, by an ascendant, adoptive parents
or persons charged with the care of the minor,
or when the offence is committed habitually or
for gain.
In order to be charged under Article 204,
one must have coerced an under-age person
to practice prostitution, or have instigated the
defilement of such minors, or else encouraged
or facilitate the prostitution or defilement of such
persons. The offence may be committed by a
person of any age and sex and the prostitution
must have been carried out to gratify the lust of
any other person. The satisfaction of the lust of a
third person distinguishes this offence from that
of defilement of minors.
Under Article 205, the victim in question is
to be over the age of 18, with the criminalising
agents being the gratification of the lust of a third
party, the use of violence, coercion, or deceit by
the agent, the inducement of a person of age,
and the act of prostitution by the victim. This
article is also a residual offence, meaning that
one is found guilty of 205 if the circumstances of
11 Ibid, Article 205.
15
the case do not satisfy another graver offence.
These offences are;
(i) the trafficking of persons of age for
exploitation under Article 248A;
248A. (1) Whosoever, by any
means mentioned in sub-article
(2), traffics a person of age for the
purpose of exploiting that person
in: (a) the production of goods or
provision of services; or (b) slavery
or practices similar to slavery;
or (c) servitude or forced labour;
or (d) activities associated with
begging; or (e) any other unlawful
activities not specifically provided
or elsewhere under this sub-title,
shall, on conviction, be liable to the
punishment of imprisonment from six
to twelve years.12
(ii) the trafficking of persons of age for the
purpose of prostitution under Article 248B;
248B. Whosoever, by any means
mentioned in article 248A(2), trafficks
a person of age for the purpose of
exploiting that person in prostitution
or in pornographic performances or
in the production of pornographic
material or other forms of sexual
exploitation shall ,on conviction, be
liable to the punishment laid down in
Article 248A(1).13
(iii) the inducement of persons under or over
12 Ibid, Article 248A.
13 Ibid, Article 248B.
16
21 years of age to leave or come to Malta for
purposes of prostitution under Article 2 or 3 of
the White Slave Traffic Ordinance14;
2(1) Whoever, in order to gratify
the lust of any other person,
compels by means of violence
or threats, or induces by deceit, a
person who has attained the age of
twenty-one years to leave Malta for
purposes of prostitution elsewhere or
to come to Malta from elsewhere for
the purposes of prostitution in these
islands, shall be liable, on conviction,
to imprisonment for a term not
exceeding two years, with or without
solitary confinement.15
(…)
3.(1) Whoever, in order to gratify
the lust of any other person, induces
a person under the age of twenty-
one years to leave Malta or to come
to Malta for purposes of prostitution
elsewhere, or encourages or facilitates
his departure from Malta or arrival in
Malta for the same purpose, shall be
liable, on conviction, to imprisonment
for a term from two to five years, with
or without solitary confinement.16
Article 2 of the White Slave Traffic Ordinance17
states that whoever makes use of violence,
threats, or deceit to induce a person over the age
14 Subsidiary Legislation 217.07, Laws of Malta.
15 The White Slave Traffic Ordinance, Article 2.
16 Ibid, Article 3.
17 Ibid.
17
of 21 to leave or come to Malta for prostitution
is liable for imprisonment not exceeding two
years. The punishment is increased to a term
between two and ten years with or without
solitary confinement if it was committed by an
ascendant, a spouse, or a sibling; by abuse of
one’s position, habitually, or for gain. Sub-article
2 continues to state that, if one is found guilty,
that person loses any rights previously held over
the victim or the victim’s property.
Article 3 then focuses on victims under the age
of twenty-one and holds that the punishment is
of two to five years of imprisonment, or three to
ten with or without solitary confinement, if the
crime was committed on a person under the
age of twelve, by violence, deceit, or threats,
by an ascendant or tutor or any other person
in charge of the care of the minor. Again, sub-
article 2 takes away any authority previously
held over the minor by the agent.
Article 248A prohibits the trafficking of
persons of age, whether for production of goods
or service, slavery, forced labour, begging, or any
other unlawful activities by means of violence,
threats, deceit, fraud, misuse of authority,
influence or pressure, giving or receiving of
payments or benefits, or abuse of power.
Vulnerable persons are defined are those who
have no choice but to submit to such abuse, and
that any consent is invalid when such means
have been used. 248D states that if the victim is
a minor, the same punishment applies. However,
if the means mentioned in 248A were used to
facilitate the crime, the punishment is increased
by one degree. 248B continues that if the person
of age is trafficked, as mentioned in Article 18
248A, for the purposes of sexual exploitation, s/
he also punished under 248A(1).
Article 248E18 defines trafficking as
‘recruitment, transportation, sale or transfer’. This
may also include the ‘harbouring and exchange
or transfer of control’ of a person or minor as
well as a ‘behaviour which facilitates the entry
into, transit through’, and residence in a territory.
Sub-article (2) states that when the offences
mentioned in Articles 248A to 248D were
‘accompanied by violence or results in physical
or psychological harm’, or in financial gain of
more than €11,646.87, a criminal organisation was
involved, or was committed by abuse of one’s
duties or on vulnerable persons or endangers the
life of the victim, or was committed by a family
member or by someone who abused the trust
in his relationship to a minor, the punishment is
increased by one degree.
Thus, in Malta, voluntary prostitution is not
illegal, but it is the manipulative and deceptive
nature that could be tied to the act which is,
involving inducing or compelling another to
prostitution. In addition, even loitering and
lenocinium – living off profits of prostitution of
an underage person – of minors is illegal.
The Civil Code19 allows for the lessor to recover
possession of his tenement if it is rented out and
used for immoral purposes (such as prostitution)
under Article 1618. Furthermore, under Article
623, an ascendant may disinherit a descendant
who is a prostitute without the connivance of the
testator.

18 Ibid.
19 Chapter 16 of the Laws of Malta.
19
 623. Saving the provisions of
Article 630, the grounds on which a
descendant may be disinherited are
the following only:
(…)
f) if the descendant is a prostitute
without the connivance of the
testator...20
Malta has ratified the European Convention on
Human Rights, the Convention on Action Against
Trafficking in Human Beings and the International
Labour Organisation Convention No. 182 on the
Worst Forms of Child Labour and signed the
Optional Protocol on the Sale of Children, Child
Prostitution and Child Pornography.

20 Ibid. article 623.

20
The European
Union
And Human
Trafficking
G ħSL has also looked at The Charter of
Fundamental Rights of the European Union.
This is of particular importance, as since the birth
of the Lisbon Treaty, the Charter became directly
enforceable for EU institutions and all Member
States when applying EU law. Indeed, Article 5
of the Charter prohibits human trafficking:21
Article 5
Prohibition of slavery and forced
labour;
1. No one shall be held in slavery or
servitude.
2. No one shall be required to
perform forced or compulsory labour.
3. Trafficking in human beings is
prohibited.
Furthermore, articles 79 and 83 of the Treaty
on the Functioning of the European Union state
that that Member States must have specific
legislation against the offence of human
trafficking22.
Article 79
1. The Union shall develop a
common immigration policy aimed
at ensuring, at all stages, the efficient
management of migration flows, fair
treatment of third-country nationals
residing legally in Member States,
and the prevention of, and enhanced
21 The Charter of Fundamental Rights of Europe.
22 Treaty on the Functioning of the European
Union OJ C 326, 26.10.2012, p. 47–390
22
 measures to combat, illegal
immigration and trafficking in human
beings.
2. For the purposes of paragraph
1, the European Parliament and the
Council, acting in accordance with
the ordinary legislative procedure,
shall adopt measures in the following
areas:
(…)
(d) combating trafficking in persons,
in particular women and children.
Article 83
1. The European Parliament
and the Council may, by means of
directives adopted in accordance with
the ordinary legislative procedure,
establish minimum rules concerning
the definition of criminal offences and
sanctions in the areas of particularly
serious crime with a cross-border
dimension resulting from the nature
or impact of such offences or from
a special need to combat them on a
common basis.
These areas of crime are the
following: … trafficking in human
beings and sexual exploitation of
women and children (...)
The Anti-Trafficking Directive23, in Article 2.1,
23 Directive 2011/36/EU of the European Parlia-
ment and of the Council of 5 April 2011 on preventing
and combating trafficking in human beings and protect-
23
lists three essential elements to the crime which
are the act, the means, and the purpose. The act
is the recruitment and control over the victim,
the means is the manner in which the victim was
recruited, such as by force and deceit, and the
purpose is for exploitation of the victim.

Article 2

Offences concerning trafficking

in human beings

1. Member States shall take the

necessary measures to ensure that
the following intentional acts are
punishable:

The recruitment, transportation,

transfer, harbouring or reception of
persons, including the exchange or
transfer of control over those persons,
by means of the threat or use of
force or other forms of coercion, of
abduction, of fraud, of deception, of
the abuse of power or of a position
of vulnerability or of the giving or
receiving of payments or benefits
to achieve the consent of a person
having control over another person,
for the purpose of exploitation.24
In the Directive, one may also find a non-
exhaustive list of modes of exploitation, including
sexual exploitation.
ing its victims, and replacing Council Framework Deci-
sion 2002/629/JHA OJ L 101, 15.4.2011, p. 1–11.
24 Ibid 24, article 2.1.
24
 In 2013 amendments were made to the Criminal
Code of Malta in order to transpose the Directive
to combat Human Trafficking into Maltese law.25
To align Maltese law with requirements of the
European Union, the amendments increased
the punishment for crimes of human trafficking
and included a section penalizing persons who
make use of a service with the knowledge that
the person offering that service had fallen victim
to human trafficking.26
Furthermore, Malta has implemented its fourth
action plan against human trafficking.27 The aim
was to complete tasks from the third action
plan within January 2017 and December 2019,
mainly adhering to international commitments
on combatting sex trafficking.28 The main focus
had been on raising awareness.29
EU Member States are obliged to raise
awareness on human trafficking and provide
for adequate training to those working closely
with potential victims. Prevention of human
trafficking is a requisite within the scope of the
EU. The Communication of 201730 states that
25 <https://ec.europa.eu/anti-trafficking/mem-
ber-states/Malta_en> accessed on 19th August 2019.
26 Ibid.
27 Ibid.
28 Ibid.
29 <https://homeaffairs.gov.mt/en/MHAS-Infor-
mation/Documents/Trafficking%20in%20Human%20
Beings/National%20Action%20Plan%202017-2019.pdf>
accessed on 19th August 2019.
30 European Commission, ‘Working Together To
Address Trafficking In Human Beings: Key Concepts In A
Nutshell.’ (2018) <https://ec.europa.eu/anti-trafficking/
sites/antitrafficking/files/key_concepts_in_a_nutshell.
pdf> accessed on 19th August 2019.
25
prevention should be the main objective since
the harm caused to the victims is major. Thus,
the EU requires that all Member States work to
diminishing instances which increase the risk
of human exploitation, remembering that most
motivation stems from an economic factor.
It has been suggested that one should also
punish who knowingly makes use of any service
provided by a victim of human trafficking.31

31 ibid.
26
The Different
Approaches
taken towards
Prostitution
and Malta’s
Position

27
M alta takes a prohibitionist approach which
can be seen through domestic laws. There
is no specific statute stating this. Meanwhile,
other countries such as Sweden, take on a
neo-prohibitionist approach where clients are
penalised for paying for such services rather
than the prostitute.
Abolitionism seeks to prohibit the economic
exploitation of the prostituted by penalising
the act itself, such that of renting the room
rather than the prostitute. This approach looks
at prostitutes as human beings who deserve
civil rights and, in the long term, is believed to
encourage them to find another trade.

28
The Students’
Opinion

29
G ħSL has taken the opportunity to prepare a
survey in order to gather information on how
aware the students are on the topic and their
opinion. There was a good mix of female and
male students, most of whom are between the
ages of 16 and 24 and are currently enrolled in
an under-graduate course.
AGE

2.9%

8.3%
16-24
25-34

17.3% 35-44
45-54
55-60
2.9%
72.75%
61+

43.5% of the students were not aware that

there is a task force which works against human
trafficking in Malta. Moreover, 27.2% were not
aware that there is an ongoing consultation
process on human trafficking and prostitution
law reform.
That being said, 69.45% think that Maltese law
in regard to prostitution should be amended,
however, 45.1% do not believe that legalising
prostitution would have a positive effect in
reducing human trafficking cases.
30
 LEVEL OF EDUCATION

1.2%

11.95
Post-Secondary

Post-Graduate

Undergraduate

Primary
26.4%
Secondary
58.5%

DO YOU THINK THERE IS A

HUMAN TRAFFICKING
TASK FORCE IN MALTA?

Yes

No

43.05%
56.95%

31
 ARE YOU AWARE OF THE ON-GOING CONSULTATION
PROCESS ON HUMAN TRAFFICKING AND PROSTITUTION
REFORM IN MALTA?

Yes

27.25% No

72.75%

DO YOU THINK THAT MALTESE LAW SHOULD CHANGE

IN REGULATING PROSTITUTION?

14.65% Yes

No
Maybe
15.95%
69.45%

32
 GENDER

1.2%

Women

Men
Other
47.75%
50.75%

NATIONALITY

2.8%
Maltese

Other

97.2%

33
 The results to this question highlight that a
large majority of the sample population believe
that sex trafficking is indeed prevalent in Malta.
This, in turn, shows a certain level of awareness
on the part of the sample population.
Although 56.95% have responded that they
know there is a taskforce working against human
trafficking, 43.05% is still a significant number
of persons not aware that this taskforce exists.
This could mean that the task force should be
developed further.
This shows that a significant perncentage of
the persons who responded believe that not
only is human trafficking an issue in Malta, but
that it also leads to cases of prostitution.
The result of this question shows that the
sample population is aware that not only is
human trafficking a prelevant issue in Malta,
but also that Maltese nationals can fall victims
themselves. Maltese nationals should therefore
feel more protected by the law. The majority
of the sample population is aware of the
consultation process that is going on.
Furthermore, this shows that the vast majority
of the population thinks that the law should
change with regards to prostitution. While
69.45% have answered yes, another 15.95%
answered maybe.
However, these results show that this sample
population do not believe that prostitution
should be legalised, but rather to search for
other manners to regulate the issue at hand on
human trafficking and prostitution.
34
 DO YOU THINK THAT HUMAN TRAFFICKING IS LINKED
TO PROSTITUTION IN MALTA?

4.55%

Yes

No
26.15% Other

65%

DO YOU THINK THAT MALTESE NATIONALS CAN ALSO BE

VICTIMS OF HUMAN TRAFFICKING?

14.65% Yes

No
Other
15.95%

69.45%

35
 DO YOU THINK THAT LEGALISING PROSTITUTION
IS A WAY TO REDUCE HUMAN TRAFFICKING CASES?

8.2%

Yes

No
21.8%
Other

70%

HOW COMMON DO YOU THINK THAT SEX TRAFFICKING

IS IN MALTA?

8.7%
10.2%
Very Rare

Rare
20.3%
Normal
28.75% Common
Very
Common

31.95%

36
Proposals -
the Way
Forward

37
Proposal 1

AFFORDING SPECIALISED
WHISTLEBLOWER
PROTECTION TO VICTIMS OF
PROSTITUTION AND HUMAN
TRAFFICKING

G ħSL strongly suggests that victim-oriented

and specialised protection and immunity
is provided for victims of human trafficking,
especially in the prostitution sector. Whilst
understanding that creating law is much more
complex than merely amending existing Acts, the
scenario is so sensitive that it requires particular
attention. Nonetheless, the content of such Act
dealing with prostitution and human trafficking
specifically, would be read in conjunction with
the existing Whistleblower Act.
At present, the Whistleblower Act of 2013
provides, in Article 5, that no immunity to the
whistleblower will be given if he/she was the
perpetrator or an accomplice. How can this
provision be reconciled with our proposal to
afford protection to victims of prostitution and/
or human trafficking if the victim himself/herself 38
can indeed be considered an accomplice?
The method in which GħSL proposes to cater
for this discrepancy between the provisions of
the current Act and our proposal, is by means
of a proviso catering for such specific scenarios.
This would mitigate the risk of abuse since, as an
organisation, we are aware of the forma mentis
of having such a provision in the first place. This
proviso would serve as an exception to the rule
without changing the rule itself, as per the Latin
principle of lex specialis derogat generalis.
Due to the fact that the focus of the law
should be victim-oriented, being an accomplice
in this crime would entail being employed as a
prostitute or sex-worker within an illegal industry
or under illegal conditions. The proviso proposed
by GħSL would exempt prostitutes who are
unjustly placed at the bottom of the illegal food
chain. This proviso is essential to encourage
victims to speak up confidently through the
immunity provided.

39
Proposal 2

AMENDING ARTICLE 45 OF THE

POLICE ACT DEALING WITH
WITNESS PROTECTION

W hile the basis for witness protection can

be duly found in the Police Act, GħSL
proposes that in order for such protection
to truly and effectively be victim-oriented,
certain amendments need to be implemented.
Particularly, Article 45 of the Act holds that first, it
is up to the Commissioner of Police to ascertain
whether a person qualifies for admission to
the programme, upon which application to the
Attorney General is made in writing. In addition,
the Attorney General is afforded a great level
of discretion (‘individual judgment’) and his
decision may not be questioned by any court or
tribunal.32
Two questions arise here: is this cumbersome
bureaucratic procedure victim-oriented? Is it
just for this level of discretion to be given to one
32 Police Act, Chapter 164 of the Laws of Malta
40
person with no possibility of appeal just?
In light of this, we propose that while the
decision of the Commissioner, followed by
that of the Attorney General are pending, a
temporary protection order similar to what is
provided in Article 540A of the Criminal Code,33
which provides for such protection in domestic
violence cases, is given to witnesses in cases
of prostitution and/or domestic violence. It
must be noted that such witnesses may as
well be prostitutes themselves, and therefore
this proposal works hand-in-hand with the
one previously discussed dealing with the
Whistleblower Act.

33 Criminal Code, Chapter 9 of the Laws of Malta

41
Proposal 3

THE SETTING UP OF AN
INDEPENDENT TRIBUNAL TO
REVIEW CASES AND ALLOW
FOR WITNESS PROTECTION,
INSTEAD OF THE AG

A s mentioned above when criticizing Article

45 (1) of the Police Act, there is an issue with
allowing the AG to allow or dismiss applications
for witness protection. Having an independent
tribunal would not only avert the issue of having
to process applications with multiple parties
(which would ensure that such vulnerable cases
are not lengthened more than they should be,)
but will also ensure that there is a specific entity
available to provide its entire and undivided
attention to such cases, thus providing a secure
and thorough evaluation.
This would not mean de-criminalising
prostitution. On the contrary, it would merely
mean accommodating and eventually de-
criminalising those persons who seek aid from
the criminal food chain, and who desire to
change their lives for the better. Otherwise, it is a 42
system which can provide a way out for women
caught in precarious situations. With psychiatric,
medical, legal and educative assistance on
premises, not only would one be decreasing
the number of criminals within our country,
but also the other downfalls to prostitution,
mainly abuse, the spread of sexual diseases,
as well as the amount of pimps lying around
in the streets. The main idea is not legalisation,
but the encouragement of decriminalisation of
prostitutes who are determined to live a legal
life and criminalize those who do not.
In fact, the court procedural system is slow
partially due to lack of coordination between the
authorities in an efficient manner. A clear exhibit
of this is the following case of Il- Pulizija (Spettur
Louise Calleja) vs Alfred Attard34, which lasted
from 2012 to 2019;
‘Sfortunatament għalkemm
il-legiżlatur fassal l-għodda
kollha neċessarja sabiex jassisti
kemm investigazzjoni kif ukoll
prosekuzzjonijiet, ta’ spiss
l-awtoritajiet konċernati jiskartaw
tali għodda … kien bl-Att III tal-2002
li l-legiżlatur ipprovda għal ordnijiet
ta’ investigazzjoni, ta’ sekwestru w ta’
ffrizar sabiex l-awtoritajiet jingħataw
għodda effettiva sabiex kwalunkwe
reat li jġorr piena ta’ priġunerija jew ta’
detenzjoni għal żmien iktar minn sena
jigi investigat b’aktar reqqa’

34 Il- Pulizija (Spettur Louise Calleja) vs Alfred

Attard, 1st March, 2018, Compilation No. 1350/2012
43
Proposal 4

THE INTRODUCTION OF A
GOVERNMENTAL FOUNDATION
WHICH CAN HARBOUR
VICTIMS AND PROVIDE OTHER
SERVICES

M any victimised prostitutes also find

themselves having to care for both
themselves, and their children, in charitable
places which welcome them during the day,
due to insufficient funds preventing them
from owning a place of their own. One might
thus propose the setting up of a government
foundation which welcomes persons of this
sort, not merely for accommodation purposes,
but also with the intention of using the valuable
daytime to educate such persons on different
ways through which they can use their abilities
to move away from a life of prostitution. Such
a place should also be a place of support and
education for their children, if any. Furthermore,
victims should also have easy access to medical
treatments, whether physical or mental. Indeed,
one such option could be that doctors will be
present at all times on the premises. 44
 The Malta legal aid may also be interconnected
with such premises, in order to provide legal
remedies for those who have been abused and
are unable to pay for good legal representation.
Legal experts working in such premises
should also receive specific training to work
hand in hand with psychologists and related
professions to help victims of sexual abuse. The
main intention behind setting up such a place
is that it is specifically targeted for victims of
human trafficking, and an all-encompassing
environment to help them reintegrate with
society.
This place could be used to encourage the
victims to enrol in the programs such that the
termination of such programs, if terminated
successfully, would result in aid for finding a job,
as well as their criminal exemption. This would
be extremely important as not having a stain
on their criminal record would be of great aid
for reintegration into the working society. This
would mean harbouring prostitutes involved in
illegal scandals, or prostitutes who fell into the
profession because of being unable to have
other means of work, in the facility for a certain
period as a means of both deterring them from
returning to the job, as well as reintroduction
into society without the fear of being attacked
by their perpetrators, pimps, financial issues and
social stigmas.

45
Proposal 5
THE USE OF AN APP THROUGH
WHICH VICTIMS OR PASSERS-
BY MAY BE EDUCATED ON AND
REPORT CASES OF ABUSE OF
PERSONS OR OF THE LAW
WHILST PRESERVING THEIR
IDENTITY

V ictims forced into prostitution, and possibly

being trafficked, are scared to show
themselves up as they are not reassured of
protection; therefore the use of technology, as
shall be discussed below, or the introduction
of a witness protection act, reviewed by an
independent tribunal, would definitely help
people who feel such way, as in the case of The
Police (Inspector Joseph Busuttil) vs Alexandru
Onofrei;
‘If you would be in my place … none
of you would actually leave because
you don’t know how he can threaten
you and offend you. He is a very very
dangerous person. And he does not
joke…………; Even in this moment I am
still afraid that he will come out one
day and he will do something to me in 46
 the future…….; (vide folio 208). You don’t
know the terror that I was feeling;
(vide folio 209).’35
In today’s digital age, in which everyone is
extremely well-connected, there can exist a
preventive mechanism which can be used by all
simply with the click of a button - an app which
anyone can freely download on their smart-
phones. Passers-by who witness any type of
sexual offence, or even victims of abuse, may
use this app anonymously and contact the
relevant authority giving a detailed description
of what they are seeing. This is an easy and
effective way which will surely incentivize more
people to report such crimes and, perhaps,
encourage victims of abuse to get out of a
dangerous situation due to the app’s anonymity
feature. Furthermore, this app would also have
an educational section providing information on
sexual offences and giving informative tips on
how to look out for any victims or perpetrators
and how best to offer help.

35 The Police (Inspector Joseph Busuttil) Vs Alex-

andru Onofrei, 15th July 2016, Comp. No. 841/2014.
47
Proposal 6

SAFEGUARDING VICTIMS,
ESPECIALLY THOSE UNDER-
AGE

A nother initiative being proposed by GħSL is

that of a mechanism which can safeguard
persons based on the presumption of age.
When age is unsure, but the victim is believed
to be a child, such child should get immediate
protection and care without having to pass
them through lengthy and stressful procedures
which serve as a detriment to persons of such a
vulnerable age.
Another initiative should be strengthening
agencies who work against child abuse and
sexual exploitation. It is important to hold
campaigns which educate the general public
on safeguarding children against abuse and on
signs that such abuse may be going on. 36 This
36 HM Government, ‘Modern Slavery Strategy’
(2014) <https://assets.publishing.service.gov.uk/gov-
ernment/uploads/system/uploads/attachment_data/
48
is fundamental since we can never know who
may fall victim or who may be an agent in such
crimes.
However, it is also important to note that
all members of society may find themselves
in a vulnerable situation. Thus, we believe
that campaigns should also be held to help
individuals understand the true meaning of
consent in a relationship and on the signs of an
abusive relationship, whilst also offering easy
access services to those who feel that they may
have found themselves in a dangerous situation.
37

file/383764/Modern_Slavery_Strategy_FINAL_DEC2015.
pdf> accessed on the 22nd of September 2019.
37 HM Government, ‘Modern Slavery Strategy’
(2014) <https://assets.publishing.service.gov.uk/gov-
ernment/uploads/system/uploads/attachment_data/
file/383764/Modern_Slavery_Strategy_FINAL_DEC2015.
pdf> accessed on the 22nd of September 2019.
49
Proposal 7

MORE CONTROL OVER

MASSAGE PARLOURS

M assage parlours are notorious for the

employment of foreigners who, to earn
more loving, offer sexual services, some of
whom also do this against their will. A big issue is
that such parlours are operating under licenses
providing for particular services, which actual
services vary greatly from their original and
legally approved purpose. The main problem is,
however, that when it comes to condemning the
owners of such outlets, more often than not two
arguments follow, most of which have provided
valid excuses leading to exemption;
1) The owner allegedly did not know that
such sexual services were being conducted
in his own shop, as happened in the case of
Il- Pulizija (Spettur Louise Calleja) vs Alfred
Attard, as mentioned previously; ‘
50
 Illi fuq dan l-insenjament u
kkunsidrati r-riżultanzi proċesswali
ma hemmx dubbju li dak li kien qed
issir ġewwa l-massage parlours kien
jammonta mhux biss għall-skopijiet
immorali iżda għal prostituzzjoni.
Illi pero` dan mhux biżżejjed għas-
sejbien ta’ ħtija tieghu peress li
limputazzjonijiet kontestati lill-akkużat
jirrikjedu l-konsapevolezza, ix-xjenza
u l-għarfien tiegħu tal-attivita` ta’
prostituzzjoni li kienet qed isseħħ fil-
ħwienet liċenzjati f’ismu.’
2) There isn’t sufficient proof to validate
arguments claiming that such outlets are
being used for sexual services.
Thus, stronger monitoring should be
employed, through means such as mystery
shoppers and more funding and training, to
tackle the argument differently. A taskforce
trained specifically to make frequent raids and
investigations could also be set-up or funded
more generously, to ensure that such outlets,
which are known by all public to contain illicit
activities, are monitored well. This would be
done so as to discern whether the use of the
outlet has varied from that permitted by the
license, which would also seem less invasive on
innocent outlet owners. Refer to the The Police
(Inspector Louise Calleja) vs Guohong Rekkers38
for example;

‘It has already been established

that Beijing Bella was being used for
purposes of prostitution. Prostitution
38 The Police (Inspector Louise Calleja) vs Guo-
51
hong Rekkers, 17 th September 2018.
 was not, and could not have been,
listed as one of the purposes for
which the trading licence was issued
in respect of that premises. The
business carried out therein was
therefore clearly in contravention of
the license.’
Secondly, there should be more enforcement
when it comes to the investigation and
gathering of evidence, so as to ensure efficient
proceedings with fresh proof.
Indeed, ‘It [was] the Court’s view that these
messages can leave hardly any doubt that
the whoever was using that mobile phone not
only knew exactly what was going on in the
salon, but was also very active in the business
and in the procuring of clients for purposes
of prostitution … However these sms’s and all
information retrieved form that mobile phone
are inadmissible as evidence’39 being as there
was no sufficient proof tying the accused to
such proof.

39 ibid.
52
Proposal 8

THE CREATION OF AN
INDEPENDENT
ANTI-SLAVERY
COMMISSIONER

A n option to regulate closer human trafficking

would be to create and Independent
Anti-Slavery Commissioner who would work
closely with law enforcement agencies and
any organisations who work in the sector as
well as with the Foreign and European Affairs
Committee. Furthermore, it should be ensured
that the national police and others working at
ports and borders receive adequate training
in identifying cases of human trafficking. It is
important to have information on all foreigners
who come to live in Malta. Written contracts
before admitting foreigners with terms and
conditions of what workers should expect, their
rights, where they will be working, in their own
language and in clear terms. 40
40 HM Government, ‘Modern Slavery Strategy’
(2014). <https://assets.publishing.service.gov.uk/gov-
ernment/uploads/system/uploads/attachment_data/
53
 This would mean that there would be a
record of where these people are supposed to
be working when they first arrive and that they
are aware of their rights and options they have
in case things take a wrong turn.

file/383764/Modern_Slavery_Strategy_FINAL_
DEC2015.pdf> accessed on 16th September 2019.
Conclusion

55
It is of fundamental importance that the State
seeks to reduce the threat by ensuring proper
prosecution of the offenders, and by installing
efficient mechanisms to try as much as possible,
to disrupt these criminal networks. 41
Our suggestions have been the setting up of
an Independent tribunal to offer legal services at
lower costs and to review applications efficiently
for witness protection. Furthermore, of particular
cruiciality is the assurance that the victims who
are most vulnerable, and those witnesses that
had observed such acts of violence or abuse,
are protected all throughout the investigation
and the proceedings. Given this, we have gone
on to suggest a Proviso to the Whistleblower
Act that offers immunity. Moreover, it is to be
noted that this would go on to aid the police
force in gathering evidence, since lack of proof
due to the large criminal rings in this sector and
the tremendous fear witnesses experience, is a
huge issue.
Furthermore, one must employ a system
to reduce the vulnerability of persons, by
educating the general public through working
with community groups and hence raising
awareness on the subject, allowing for proper
support systems. 42
Another idea was the smartphone application,
which would serve as an educative source for
41 HM Government, ‘Modern Slavery Strategy’
(2014) <https://assets.publishing.service.gov.uk/gov-
ernment/uploads/system/uploads/attachment_data/
file/383764/Modern_Slavery_Strategy_FINAL_
DEC2015.pdf>, accessed on 22nd September 2019

42 Ibid.
56
the general public since it will contain a section
of information on how to identify signs of human
trafficking, and also as a means of reporting
anonymously any tips or hints an individual from
the general public has that another person may
be in a dangerous and vulnerable situation.
It is also of fundamental importance that the
Government continuously holds campaigns
to further educate the public on cases of sex
trafficking, on the desperate situation that the
victims are in and on the issue of sex trafficking
characterized by deceitfulness, helplessness,
and fear.
The Government should also ensure that
the most vulnerable will also find a welcoming
place which offers services of medical help both
mentally and physically, educational courses,
and legal aid as an alternative to sending victims
to prison, but rather encourage these victims
to gain the necessary social skills and tools to
reintegrate with the rest of the society.

57
Bibliography

59
Laws of Malta

Chapter 9 of the Laws of Malta, The Criminal

Code.
Chapter 527 of the Laws of Malta, The
Protection of the Whistleblower Act, 2013.
Chapter 16 of the Laws of Malta, The Civil
Code.
Legal Notice 157 of 2007, Subsidiary
Legislation 217.07, PERMISSION TO RESIDE
FOR VICTIMS OF TRAFFICKING OR ILLEGAL
IMMIGRATION WHO CO-OPERATE WITH THE
MALTESE AUTHORITIES.
Chapter 63 of the Laws of Malta, The White
Slave Traffic (Suppression Ordinance).

European Union Legal Instruments

The Charter of Fundamental Rights of the

European Union

Treaty on the Functioning of the European

Union
Directive 2011/36/EU of the European
Parliament and of the Council of 5 April 2011 on
preventing and combating trafficking in human
beings and protecting its victims, and replacing
Council Framework Decision 2002/629/JHA OJ
L 101, 15.4.2011, p. 1–11

60
Papers
European Commission, ‘Working Together
To Address Trafficking In Human Beings: Key
Concepts In A Nutshell.’ (2018) <https://ec.europa.
eu/anti-trafficking/sites/antitrafficking/files/
key_concepts_in_a_nutshell.pdf>.
HM Government, ‘Modern Slavery Strategy’
(2014).

Case Law

The Police (Inspector Joseph Busuttil) Vs

Alexandru Onofrei, 15th July 2016, Comp. No.
841/2014.
Il- Pulizija (Spettur Louise Calleja) vs Alfred
Attard, 1st March, 2018, Compilation No.
1350/2012.
The Police (Inspector Louise Calleja) vs
Guohong Rekkers, 17 th September 2018.

61
GĦAQDA STUDENTI TAL-LIĠI
EXECUTIVE BOARD
2019/2020

PRESIDENT VICE-PRESIDENT
CELINE CUSCHIERI EMMA-MARIE
DEBONO SAMMUT

SECRETARY FINANCIAL
GENERAL OFFICER
MARC DIMECH SEAN PORTELLI

PUBLIC RELATIONS ACADEMIC

OFFICER OFFICER
MATTHEW CHARLES GRAZIELLA SCHEMBRI
ZAMMIT
INTERNATIONAL
EXTERNAL RELATIONS OFFICER
OFFICER YLENIA BUSUTTIL
MICHELA GALEA
SEYCHELL MARKETING
OFFICER
LEISURE MARTINA DARMANIN
OFFICER
CLIVE AQUILINA PROJECTS
OFFICER
POLICY MARIAH MICALLEF
OFFICER
MICHELA PACE RESOURCES
OFFICER
PUBLICATIONS VALENTINA CASSAR
OFFICER
JUSTINE XUEREB 62
POLICY COMMITTEE
CONTRIBUTORS
2019/2020

PROJECTS OFFICER
MARIAH MICALLEF
CONTRIBUTORS
SHELBY AQUILINA
SARAH MIFSUD
JOY ATTARD
DESIGNER
MATTHEW CHARLES
ZAMMIT

63