VZCZCXRO0156
PP RUEHCN RUEHGH
DE RUEHIN #0399/01 0800930
ZNR UUUUU ZZH
P 200930Z MAR 08
FM AIT TAIPEI
TO RUEHC/SECSTATE WASHDC PRIORITY 8433
INFO RUEHBK/AMEMBASSY BANGKOK PRIORITY 4103
RUEHBJ/AMEMBASSY BEIJING PRIORITY 7988
RUEHBY/AMEMBASSY CANBERRA PRIORITY 4820
RUEHHI/AMEMBASSY HANOI PRIORITY 3545
RUEHJA/AMEMBASSY JAKARTA PRIORITY 4283
RUEHLO/AMEMBASSY LONDON PRIORITY 0216
RUEHML/AMEMBASSY MANILA PRIORITY 0380
RUEHOT/AMEMBASSY OTTAWA PRIORITY 0739
RUEHPF/AMEMBASSY PHNOM PENH PRIORITY 0649
RUEHKO/AMEMBASSY TOKYO PRIORITY 9710
RUEHCN/AMCONSUL CHENGDU PRIORITY 2493
RUEHGZ/AMCONSUL GUANGZHOU PRIORITY 1053
RUEHHK/AMCONSUL HONG KONG PRIORITY 9242
RUEHGH/AMCONSUL SHANGHAI PRIORITY 1868
RUEHSH/AMCONSUL SHENYANG PRIORITY 6463
RHMFIUU/DEPT OF HOMELAND SECURITY WASHINGTON DC PRIORITY
RHMFIUU/DEPT OF JUSTICE WASHINGTON DC PRIORITY
RUEHC/DEPT OF LABOR WASHDC PRIORITY
RUEATRS/DEPT OF TREASURY WASHDC PRIORITY
UNCLAS SECTION 01 OF 22 TAIPEI 000399
SIPDIS
SENSITIVE
SIPDIS
G/TIP, G, INL, DRL, PRM, EAP/RSP
E.O. 12958: N/A
TAGS: KCRM PHUM KWMN SMIG KFRD ASEC PREF ELAB TW
SUBJECT: PART TWO - 2008 TIP REPORT - TAIWAN
REF: STATE 2731
1. (SBU) This is part two of AIT/T's three-part 2007-8
Trafficking in Persons (TIP) report. The report is presented
according to reftel sections, beginning with paragraph 27 A.
Part one contains Paragraphs 27 A-B. Paragraphs 27 A through
29 D are contained in part two. Paragraphs 29 E through 30 I
are contained in part three.
Overview, cont'd
----------------
27 C. Government Agencies Involved in Anti-TIP
The following government agencies are involved in the fight
against trafficking: the Ministry of Foreign Affairs (MOFA),
Ministry of Justice (MOJ), Ministry of Education (MOE),
Ministry of Transportation and Communication (MOTC),
Department of Health, the Mainland Affairs Council (MAC), the
Council for Labor Affairs (CLA), the Government Information
Office (GIO), the Council of Cultural Affairs, the Council of
Indigenous Peoples, the Council of Agriculture, the Financial
Supervisory Commission, the Coast Guard Administration, and
the Ministry of Interior (MOI), which includes the National
Immigration Agency (NIA) and the National Police
Administration (NPA). A Cabinet-level Minister without
Portfolio, appointed by and responsible to the Executive
Yuan, is charged with supervising the interagency
implementation of an island-wide Action Plan to combat
trafficking.
27 D. Limitations on Taiwan's Ability to Address TIP
Taiwan generally faces few budget or personnel shortages that
would hinder its ability to combat labor and sex trafficking
from Southeast Asian source countries. Taiwan also has
sufficient resources to provide adequate protections and
services for trafficking victims. There have been some
reports of rivalries between law enforcement agencies charged
with combating trafficking. Senior NIA officials alleged in
early 2007 that the NPA was "conspiring" with local-level law
enforcement to sabotage NIA efforts to rein in trafficking
rings. Senior NIA officials also complained publicly and
privately that the existing NIA budget is insufficient to
adequately perform its principal operational objectives,
including immigration enforcement, the operation of detention
facilities, and the provision of shelter and other services
to victims of trafficking. Press reports suggest legislators
are unwilling to increase NIA's budget because of the
agency's controversial role in limiting the number of PRC
spouses permitted to enter Taiwan each year.
A central NGO complaint is that although the central
government has mandated that certain protections and services
for trafficking victims be available island-wide, the
treatment afforded to trafficking victims varies considerably
from place to place. NGOs told AIT that central government
police and labor authorities often establish beneficial new
policies or procedures that are only partially implemented or
simply ignored by local labor and law enforcement officials.
This problem is especially marked in the more rural areas of
southern Taiwan. Central and local government officials
acknowledge this situation, and emphasize government plans to
counteract it through increased training and education on
TIP-related issues.
Foreign labor brokerage companies operate across national
borders, and Taiwan's ability to restrain abusive practices
in source countries is limited. Brokers in Taiwan are in
direct communication with their counterparts in Indonesia,
TAIPEI 00000399 002 OF 022
the Philippines, Thailand, Vietnam and other source
countries. Source country governments often do not closely
monitor the fees and other conditions imposed on workers by
labor brokers in their territory. This gives foreign labor
brokers in Taiwan and in the various source countries ample
opportunity to exploit the workers through inflated fees, and
to coerce them by threatening family or property left behind
in the worker's home country. The Taiwan government is
working to improve cross-border cooperation with source
country governments, but progress has been slow.
Corruption may be impeding reform of the exploitative labor
brokerage system. Following the 2005 Kaohsiung labor riots,
Taiwan politicians and media outlets investigated whether
legislators and high-level government officials had received
kickbacks from the brokerage companies involved in the
scandal. According to press reports from November 2005,
elected officials at the central and local government levels
had lobbied on behalf of 70 different foreign labor brokerage
companies to obtain a portion of the foreign labor "quotas"
needed by the Kaohsiung Rapid Transit project. There was
speculation that legislators, especially members of the
legislature's Sanitation, Environment and Social Welfare
Committee, were personally involved in and profiting from the
importation of foreign labor to Taiwan. Sources have told
AIT that, even though in their view it would be desirable to
eliminate the foreign labor brokerage system, they believed
this could not be done because several legislators would
oppose it for personal financial reasons.
Taiwan's existing incentive system for police may need to be
changed. Officers receive large incentive payments for
arrests involving drugs or firearms, and these kinds of cases
weigh heavily in deciding promotions. Trafficking cases take
more time to investigate than drug or gun crimes, but
trafficking arrests garner less incentive money and do little
to boost an officer's chances for promotion. Police contacts
have informed AIT that changes to the incentive system to
give higher priority to the investigation of trafficking
cases and the rescue of trafficking victims were under
consideration.
According to NGOs, Taiwan's effort to combat trafficking may
be adversely affected by the defeat of several key
legislators following the January 2007 legislative elections.
NGOs allege that many newly elected legislators know little
about human trafficking, and because it is not an important
issue with voters, few legislators are willing to spend
political capital to bring about needed anti-trafficking
legislation.
Elder-care organizations, representing the interests of those
families caring for elderly or infirm family members at home,
remain a powerful force in opposition to extending Labor
Standards Law protections to Taiwan's estimated 163,000
foreign domestic helpers and caregivers. CLA officials and
legislators appear to lack the political will to extend LSL
coverage to presently uncovered workers for fear of angering
these organizations and the voters they represent.
27 E. Taiwan Monitoring of Anti-TIP Efforts
Taiwan now systematically monitors its anti-trafficking
efforts on all three fronts -- prevention, protection, and
prosecution. The Action Plan requires the multi-agency task
force to convene every two months to report to the presiding
Minister without Portfolio, who is required to monitor and
evaluate progress toward anti-TIP goals. From March 2007 to
February 2008, the multi-agency task force charged with
overseeing anti-TIP efforts has convened six times.
TAIPEI 00000399 003 OF 022
Taiwan does not have a comprehensive anti-trafficking law.
According to MOJ, the concept of "human trafficking" is also
poorly defined by Taiwan law. For this reason, prosecutors
use existing sections of Taiwan's Criminal Code, labor and
immigration laws, the Taiwan-PRC Relations Act, and the
CYSTPA to punish labor- and sex-trafficking offenses. Before
2007, the Ministry of Justice tracked investigations,
prosecutions and convictions via the principal Criminal Code
section or other law used to charge or convict the defendant.
This made it difficult to distinguish trafficking cases from
"trafficking-related offenses" like smuggling and
prostitution. MOJ reports that, since July 2007, human
trafficking cases have been separated into "sexual
exploitation" and "labor trafficking." In October 2007, MOJ
officials took further steps to standardize the case data
collection process in order to obtain more precise statistics
on the number of defendants, nature of charges, number of
convictions, and ultimate sentencing results in cases
involving sex or labor trafficking.
The Council for Labor Affairs (CLA) maintains and reports
statistics on the number of requests for assistance received
by the 24 Foreign Worker Service Stations located around
Taiwan, and those received by the Foreign Worker Assistance
Center located at Taiwan Taoyuan International Airport. CLA
tracks and reports the number of calls received by the
various foreign worker telephone hotlines. CLA and the MOI
also track the number of foreign workers assisted by
government-subsidized NGO shelters. CLA tracks and reports
the number of employers and brokers fined for violating
foreign worker labor regulations. CLA also tracks and
reports the number of foreign workers in "illegal status,"
according to their country of origin.
The National Immigration Agency (NIA), the Ministry of
Foreign Affairs (MOFA), the National Police Administration
(NPA), and the Coast Guard monitor and report statistics on
the number of illegal foreign immigrants to Taiwan, including
those from the PRC, Vietnam, Thailand, and other Southeast
Asian countries. MOFA and NIA also maintain and report
statistics on foreign spouse visa interviews, refusal and
issuance rates, and the number of spouses found to be in
fraudulent marriages.
The government began monitoring trafficking of children and
minors in 1995. The 1995 Child and Youth Sexual Transaction
Prevention Act (CYSTPA) created an interagency taskforce
composed of the ministries of Interior, Justice, Defense,
Economic Affairs, Transportation, Education, the Department
of Health, the Mainland Affairs Council, and the Council of
Labor Affairs. Together with key NGOs, this task force
continues to monitor implementation of the CYSTPA and
provides guidance to member agencies through semi-annual
written reports.
Investigation and Prosecution of Traffickers
--------------------------------------------
28 A. Laws Prohibiting Trafficking in Persons
Taiwan does not have a comprehensive TIP law, but trafficking
in persons is specifically prohibited by the 1995 Child and
Youth Sexual Transaction Prevention Act (CYSTPA) and Articles
296 and 296-1 of the Criminal Code.
On November 30, 2007, the Legislative Yuan Home and Nations
Sub-Committee amended the Immigration Act to include a new
chapter titled "Transnational Trafficking in Persons
Prevention and Victim Protection." According to the MOI, the
TAIPEI 00000399 004 OF 022
amended Immigration Act was approved by the Executive Yuan on
December 26, 2007. NIA told AIT that before the amendments
can go into effect, 37 other laws and regulations must also
be amended. The EY is scheduled to complete this work by
June 2008, and will decide at that time the date the amended
Immigration Act will go into effect.
The new chapter requires prosecutors, law enforcement, and
other government officials involved in the investigation and
prosecution of trafficking offenses to protect trafficking
victims' privacy and personal security. The government will
be required to provide medical assistance, psychological
counseling, shelter, translation, and legal services to
victims of trafficking, and to secure their personal
belongings. If the victims are children or minors, a social
worker must be appointed to accompany the child or minor
through all stages of police questioning, and if necessary,
investigation and trial of the alleged traffickers.
The chapter further provides that if trafficking victims
agree to cooperate with prosecutors, who deem their
cooperation necessary and useful to the prosecution, victims
will be afforded all protections available under Taiwan's
"Witness Protection Act." Prosecutors are instructed to
waive prosecution for any crimes occasioned by the
trafficking, and to punish leniently other misconduct by the
trafficking victim. If a victim's testimony is required by
prosecutors, the victim should be issued a temporary
residence permit of six months or less, which should be
extended if necessary. The victim is to be returned to his
or her home country safely upon conclusion of the trial. The
chapter encourages agencies involved in anti-trafficking
efforts to cooperate with NGOs and source country governments
to promote anti-trafficking efforts.
The Home and Nations Sub-Committee also approved a revision
to Article 31 of the Immigration Act, to allow foreign
workers (and foreign spouses) to legally remain in Taiwan
until pending claims against their employer are fully
resolved.
In 2004, Taiwan amended the Act Governing Relations Between
Peoples of the Taiwan Area and the Mainland Area (the "Act")
to increase punishments for cross-Strait smugglers. Article
79 of the Act stipulates that any person convicted of
smuggling Mainland Chinese into Taiwan for profit in
violation of Article 15 of the Act shall be sentenced to at
least three and not more than ten years in jail, and fined up
to US $150,000. Under Articles 79 and 80, boat owners and
crewmembers involved in smuggling are subject to a prison
term of up to 3 years and/or a US $30,000-$200,000 fine and
confiscation of the boat used in the smuggling operation.
28 B. Penalties for Sexual Exploitation-Related Trafficking
Article 23 of the CYSTPA states:
-- One who seduces, permits, facilitates, helps, or by other
means causes a person under the age of eighteen to engage in
a sexual transaction shall be sentenced to more than one year
but fewer than seven years in prison, and fined not more than
NT $3,000,000.
-- One who intends to profit by committing this crime shall
be sentenced to more than three years but less than ten years
in prison, and fined not more than NT $5,000,000.
Article 24 of the CYSTPA states:
-- One who uses coercion, threats, drugs, fraud, hypnotism or
TAIPEI 00000399 005 OF 022
other means to make a person under the age of eighteen engage
in a sexual transaction shall be sentenced to more than seven
years in prison, and fined not more than NT $2 million (US
$57,100).
-- One who intends to profit by committing this crime shall
be punished with imprisonment of more than ten years, and
fined not more than NT $7 million (US $200,000).
-- One who habitually commits this crime shall be punished
with life imprisonment or imprisonment of not less than 10
years, and fined not more than NT $10 million (US $285,700).
Article 25 of the CYSTPA states:
-- One who intends to make a profit by involving a person
under the age of eighteen in sexual transactions through
trafficking, pawning or other means of the same nature shall
be punished with imprisonment of more than seven years, and
fined not more than NT $7 million (US 200,000).
Chapter 26 of the Criminal Code, "Offenses Against Personal
Liberty" provides an all-encompassing statute against
trafficking. Chapter 26, Article 296, "Forcing a Person into
Slavery," states that:
-- A person who enslaves another or places another in a
position without freedom similar to slavery shall be punished
with imprisonment of not less than one and not more than
seven years.
In 1999, the Criminal Code was revised to include Article
296-1, "Trafficking in Persons," which states that:
a) A person who buys, sells, or holds another person in
custody shall be punished with imprisonment of not less than
five years, and fined not more than NT $500,000 (US $16,000).
b) A person who commits the aforementioned offense to
cause a female or male person to have sexual relations with
another person shall be punished with imprisonment of not
less than seven years, and fined not more than NT $500,000
(US $16,000).
c) A person who forces, intimidates, extorts, controls,
uses drugs or other illegal means to commit the offenses
described in (a) or (b) shall receive the punishment
prescribed by (a) or (b), with prison time and fines
increased up to one half.
d) A person who introduces, accommodates, or conceals a
victim of the crimes specified in (a)-(c) shall be punished
with imprisonment of not less than one year and not more than
seven years, and fined not more than NT $300,000 (US $9,600).
e) A person who habitually commits any of the crimes
specified in (a)-(d) shall be punished with a minimum of ten
years and a maximum of life in prison and fined not more than
NT $700,000 (US $22,500).
f) A public official who conceals a person who has
committed any of the crimes specified by (a)-(e) shall
receive the punishment prescribed by (a)-(e), with prison
time and fines increased up to one half.
The 1999 revision to the Criminal Code also added Article
231-1, which stipulates:
1) A person who for profit coerces, threatens, intimidates,
controls, drugs, hypnotizes or uses other methods to overcome
TAIPEI 00000399 006 OF 022
the will of a female or male person in order to have that
person engage in sexual relations or obscene conduct with a
third person shall be punished with imprisonment of not less
than seven years, and fined not more than NT $300,000 (US
$9,600).
2) A person who introduces, accommodates, or conceals a
person who has committed the crime specified by (1) shall be
punished with imprisonment of not less than one year and not
more than seven years.
3) A person who habitually commits the crimes specified in
(1) or (2) shall be punished with imprisonment of not less
than ten years, coupled with a fine of not more than NT
$500,000 (US $16,000).
4) A public official who conceals a person who has committed
any of the crimes specified by (1)-(3) shall receive the
punishment prescribed by (1)-(3), with prison time and fines
increased up to one half.
According to MOI, during 2007 the authorities filed charges
against 423 individuals in 197 cases of suspected
trafficking, including 144 cases of suspected labor
trafficking and 53 cases of suspected sexual exploitation.
Of the sixteen individuals convicted of sexual exploitation
of a minor, three were sentenced to 7-10 years in prison,
four were sentenced to 3-5 years, and nine to less than one
year. Of the 53 convicted of sexual exploitation, two were
sentenced to 7-10 years, seven sentenced to 1-3 years, and 44
to less than one year.
28 C. Penalties for Labor Trafficking Offenses
In Taiwan, labor trafficking offenses can be punished by
administrative fines, jail time, or both. Administrative
punishments for labor trafficking are governed by Articles
44, 45, 57, 63 and 64 of the Employment Service Act, and by
Articles 5 and 75 of the Labor Standards Law.
Employment Service Act
Article 44: No one may let a foreign worker stay and work
illegally.
Article 45: No one may refer a foreign worker to work for an
unauthorized employer.
Article 54: Specifies the terms and circumstances under which
an employer's permit to employ foreign workers can be
reduced, suspended, or terminated: workplace strike;
unjustified refusal to employ workers referred by the
Employment Service Agency; number of untraceable workers
exceeds proscribed percentage of employer's total foreign
worker staff; illegal employment of foreign workers; illegal
termination of national (Taiwanese) workers; violation of
national workers' contract terms; employer's foreign workers
disturbed the public order; employer withheld foreign
workers' passports or other documents; employer embezzled
foreign workers' belongings; employer's failure to pay
detention and repatriation expenses of absconded foreign
worker; employer demanded, agreed to accept or accepted
unlawful payments from labor brokerage; employer submitted
false information in applying for foreign worker employment
permit; false recruitment advertisements.
Article 57: An employer of a foreign worker shall not:
(1) Employ a foreign worker without obtaining an Employment
Permit, or employ a foreign worker after the employer's
TAIPEI 00000399 007 OF 022
Employment Permit has expired, or employ a foreign worker
that has been authorized to work for another employer;
(2) Cause an authorized foreign worker to work for an
unauthorized employer;
(3) Cause a foreign worker to engage in work not within the
scope of the employer's Employment Permit;
(4) Cause a foreign worker employed as a fisherman, household
assistant to change his or her workplace without obtaining
prior government approval;
(5) Fail to arrange for the employed foreign worker to
undergo health examinations, or fail to timely submit health
examination reports to the Competent Health Authority;
(6) Dismiss or lay off a national worker as a result of
having employed a foreign worker;
(7) Coerce, threaten, or by the use of any illegal means
force a foreign worker to engage in work contrary to the
worker's free will;
(8) Illegally withhold the passport or residence certificate
of a foreign worker, or embezzle belongings of a foreign
worker.
(9) Violate any other provisions of the Employment Standards
Act or regulations promulgated pursuant to the Employment
Standards Act.
Article 63: Anyone that violates Article 44 or Subparagraph
(1) or (2) of Article 57 shall be fined at least NT $150,000
and at most NT $750,000; anyone who repeats a violation of
the same provisions within five years shall be imprisoned for
a term not to exceed three years, or be detained for hard
labor, and/or fined an amount not to exceed NT $1,200,000.
Article 63 of the ESA prohibits employers from illegally
harboring foreign workers, from hiring foreign workers
without government permission, or allowing others, under the
employer's permit, to employ foreign workers for unauthorized
purposes. In April 2006, CLA enhanced punishments for those
who hire illegal foreign workers, or allow legal workers to
work for illegal employers. Under Articles 54 and 63,
employers found in violation of these provisions can have
their quota of foreign workers reduced by five for every
single foreign worker found to be working in illegal status.
The employer's permit to hire foreign workers may also be
suspended or terminated. If the employer is found to have
violated these provisions twice within five years, the
employer shall be sentenced to a maximum of three years in
prison and a fine not to exceed NT$1.2 million (US$39,000).
Additionally, if an employer restricts a foreign worker's
freedom of movement, or forces the foreign worker to engage
in prostitution, CLA is required to refer the employer to the
public prosecutor's office for criminal investigation.
Article 64: Anyone who violates the provisions of Article 45
shall be fined an amount of at least NT $100,000 and at most
NT $500,000; anyone who repeats a violation within five years
shall be imprisoned for a term not to exceed one year, or be
detained for hard labor, and/or fined an amount not to exceed
NT $600,000.
Anyone who violates the provisions of Article 45 in order to
profit therefrom shall be imprisoned for a term not to exceed
three years, or be detained for hard labor, and/or fined an
amount not to exceed NT $1,200,000.
TAIPEI 00000399 008 OF 022
Anyone who violates as a usual practice the provisions of
Article 45 shall be imprisoned for a term not to exceed five
years, and in addition, may also be fined an amount not to
exceed NT $1,500,000.
Article 72, subparagraph (3) operates to give an employer a
limited time to correct illegal work situations prohibited by
Article 57, subparagraphs (3) and (4). Article 72 reads in
relevant part:
Where any of the following circumstances has arisen or
existed, the Employer's Recruitment Permit and Employment
Permit shall be annulled in whole or in part:
(1) Any of the circumstances as referred to in Article 54,
paragraph (1) has arisen or existed;
(2) Any of the circumstances as referred to in Article 57,
subparagraphs (1), (2), (6)-(9) have arisen or existed;
(3) The employer has failed to rectify within the specified
period any of the circumstances referred to in Article 57,
subparagraphs (3) and (4).
CLA asserts that foreign workers who file a complaint against
their employer for violating Article 57 (requiring the worker
to perform extra-contractual work or work at an unapproved
location) are protected under law, and will be permitted to
change employers. It is not clear whether the worker must
first prove employer misconduct before being permitted to
change employers. It is also unclear how the employee's
right to change employers would be limited, if at all, by the
employer's "right to cure" under Article 72(3).
Labor Standards Law
Article 5: No employer may, by force, coercion, detention, or
other illegal practice, compel a worker to do work.
Article 75: An employer who violates the provisions of
Article 5 shall be imprisoned for a term not exceeding five
years, detained for hard labor, and/or fined NT $50,000.
In April 2006, CLA announced guidelines for heavier fines for
those who employ or arrange employment for illegal foreign
workers. Administrative fines for labor violations are
imposed and collected by local city and county governments.
CLA urged local governments to heavily punish those who
employ illegal workers. Under the new guidelines, an
individual who knowingly hires an illegal foreign worker for
over 30 days or employs two or more illegal foreign workers
for more than 15 days should pay the maximum fine of US
$25,000 (NT $750,000). If an employer commits two offenses
within a five year period, he should face up to three years
in jail and the maximum fine of up to US $40,000 (NT $1.2
million). One who knowingly arranges work for an illegal
foreign worker, or unknowingly arranges work for two or more
illegal foreign workers, should be fined the maximum US
$16,000 (NT $500,000).
Stiffer penalties were also announced for illegal foreign
workers themselves. Any foreign worker who has stayed in
Taiwan illegally for more than six months now faces a maximum
fine of US $5,000, in addition to repatriation and permanent
exclusion from Taiwan. The CLA emphasized that trafficking
victims forced into illegal status by mistreatment or
exploitation would not be repatriated, and their right to
work in Taiwan would be preserved.
TAIPEI 00000399 009 OF 022
Despite the CLA's April 2006 new penalty guidelines, most
city and county governments in 2007 continued to assess
minimum instead of maximum fines. According to CLA, an
employers found to have illegally changed the place or nature
of a foreign worker's employment were typically fined US
$1,000, not the $5,000 maximum. Employers found to have
hired illegal foreign workers or to have transferred a legal
foreign worker to an unauthorized employer were fined $5,000,
one-fifth of the $25,000 maximum. CLA officials told AIT the
new penalty guidelines were non-binding recommendations, and
that local governments retained discretion over assessing and
collecting labor violation fines.
In May 2007, CLA announced a three-part draft plan to reduce
the number of "runaway" workers from 3.75 percent to 3.5
percent within one year. The plan was the result of March
2007 consultations between CLA, NIA, NPA, and central and
local government officials. The plan contemplates employer
education and other measures designed to prevent foreign
workers from fleeing their legal employers, increased law
enforcement efforts to crack down on illegal foreign labor,
and closer supervision of foreign labor brokerage companies.
Local governments were encouraged to severely punish those
who employ or provide brokerages services for foreign workers
in illegal status, with fines of up to NT$750,000. Under the
draft plan, foreign labors found to be working illegally
would be repatriated immediately, and could face fines of
between NT$30,000-$150,000. CLA also contemplated raising
the reward for those reporting illegal workers from NT$5,000
to NT$10,000.
In 2007, CLA fined 162 employers for illegally harboring
foreign workers; 889 employers were fined for hiring foreign
workers lacking appropriate work permits or those legally
assigned to work for another employer; and 457 employers were
fined for requiring workers to perform work not specified by
the worker's permit or requiring the worker to work at a
location not specified by the permit. According to CLA, in
seven of the aforementioned cases, the maximum fine of NT$1.5
million (US$48,000) was assessed. In 336 of the foregoing
cases, CLA revoked the employer's right to employ foreign
workers.
During 2007, CLA fined 38 brokers for illegally withholding
foreign workers' property or demanding improper fees; 20
brokers were fined for providing false or misleading
information relating to foreign workers' physical health; and
14 brokers were fined for providing brokerage services to
foreign workers in illegal status.
CLA terminated operations of 21 brokerage companies in 2007
for repeated violations of the Employment Services Act. CLA
also suspended business operations of 24 brokerage companies:
4 were found to have illegally withheld workers' property or
to have demanded improper fees; 11 were suspended for
providing false medical information; and 9 brokerage
companies were suspended for providing brokerage services to
illegal workers. CLA revoked the license of one broker for
an unspecified violation of the Employment Services Act.
According to CLA, local labor officials reported to local
prosecutors 38 cases of illegal hiring of foreign workers.
Charges were filed against 84 individuals. CLA did not
provide information on convictions or sentencing in these
cases. CLA also reported 15 cases of suspected human
trafficking to local prosecutors for further handling.
According to CLA, ten of these cases were investigated. CLA
did not provide information regarding convictions or
sentencing for these cases.
TAIPEI 00000399 010 OF 022
28 D. Penalties for Rape or Forcible Sexual Assault
Taiwan's Criminal Code prescribes the following penalties for
those found guilty of the offenses of rape, forcible sex, and
obscene conduct:
Article 221 (normal punishment): Any person who has forced,
intimidated, or threatened any man or woman into having
carnal relations, or has done so by inducing hypnosis or
other means against his or her freewill, shall be punished
with a prison term of not less than three years and not more
than 10 years. An attempt to commit the above offense is
punishable.
Article 222 (enhanced punishment): A person who has committed
the above offense under one of the following circumstances
shall be punished with life prison or a prison term of more
than seven years:
Committing the offense together with one or more persons;
Committing the offense against anyone under the age of 14;
Committing the offense by administering drugs; Committing
the offense and torturing the victim; Committing the offense
while employed on a means of public transportation;
Committing the offense after breaking into an inhabited
building or vessel; Committing the offense with the help of
weapon(s).
Article 224 (normal punishment): A person who has forced,
intimidated, or threatened any man or woman into committing
an indecent act, or has done so by inducing hypnosis or other
means against his or her freewill, shall be punished with a
prison term of not less than six months and not more than
five years.
Article 224 (Section 1) (offenses subject to enhanced
punishment): Any person who has done so under one of the
circumstances prescribed in Article 222 shall be punished
with a prison term of not less than three years and no more
than 10 years.
Article 225 (committing the offense by taking advantage of
the victim's mental or physical disabilities or incapacity):
Any person who has committed the offense of rape against any
man or woman by taking advantage of his or her mental or
physical disabilities or incapacity shall be punished with a
prison term of more than three years and less than 10 years.
Any person who has committed an indecent act against any man
or woman by taking advantage of his or her mental
disabilities or incapacity shall be punished with a prison
term of more than six months but less than five years. Any
attempt to commit the above offense is punishable.
Article 226 (enhanced punishment): Any person who has
committed rape or has committed an indecent act, which has
resulted in the death or his or her victim, shall be punished
with life in prison or a prison term of more than 10 years.
A person who injures his or her victim while committing the
offense shall be punished with a prison term of more than 10
years. The defendant shall be sentenced to a prison term of
more than 10 years if a victim commits suicide or injures
himself due to her sense of shame.
Article 226 (Section 1) (multiple offenses): Any person who
has committed one of the offenses specified in Article
221-225 and has intentionally killed his or her victim shall
be punished with death or life in prison. Any person who has
committed rape or has committed an indecent-act, and has
purposely injured his or her victim shall be punished with
TAIPEI 00000399 011 OF 022
life in prison or a prison term of more than 10 years.
Article 227: Any person who has carnal relations with any
male or female person under the age of 14 shall be punished
with a prison term of not less than three years and not more
than 10 years. Any person who commits an indecent act against
a male or female person under the age of 14 shall be punished
with a prison term of not less than six months and not more
than five years. Any person who has carnal relations with
any male or female person aged 14-16 shall be punished with a
prison term of less than seven years. Any person who commits
an indecent act against a male or female person aged 14-16
shall be punished with a prison term of not more than three
years. Any attempt to commit any of the above offenses is
punishable.
Article 227 (Section 1) (lighter punishment for the offender
under the age of 18): An offender who is under the age of 18
may have his punishment reduced or commuted.
Article 228: Any person who has committed rape against anyone
under his jurisdiction at an institution or facility shall be
punished with a prison term of not less than six months and
not more than five years. Any person who has committed an
indecent act against anyone under his jurisdiction shall be
punished with a prison term of not more than three years.
Article 229 (committing the offense by cheating): Any person
who by fraudulent means induces a person to mistake him or
her for a spouse and then has carnal relations with him or
her shall be punished with a prison term of not less than
three years and not more than 10 years. An attempt to commit
the above offense is punishable.
Article 229 (Section 1) (indictment upon request): Any person
who has committed rape against his or her spouse, or any
person who has committed the offense before reaching the age
of 18, shall be indicted by the prosecutor upon receiving a
request from the victim. The penalties for trafficking are at
least as heavy if not heavier than the penalties for rape and
forcible sexual assault.
28 E. Legalization/Decriminalization of Prostitution
Taiwan criminalized prostitution in 1997, but it remained
legal in Taipei City on a small scale until 2001. Sex
workers' rights advocacy groups allege that hundreds of
former licensed prostitutes in Taipei were forced to become
illegal prostitutes following the criminalization of
prostitution in 1997, and that there are more than 50,000
prostitutes working illegally island-wide. Advocacy groups
further allege that criminalizing prostitution has increased
sex workers' vulnerability to police abuse, coercion by
criminal gangs, sexually transmitted diseases, drug and
alcohol abuse, and poverty. They also argue that USG
pressure to criminalize solicitation would worsen matters for
prostitutes in Taiwan, including those forced into the sex
trade. Advocacy groups continue to press the government to
decriminalize prostitution. No formal action has been taken
by the central or local governments.
According to Article 80 of the Social Order Maintenance Law
(passed in 1991), anyone found to have traded sex for a
reward, financial or otherwise, shall be punished with three
days in jail, or a fine of no more than NT $30,000 (US $910).
Article 80 is the statute most commonly used to punish men
and women working as prostitutes. According to the
Collective of Sex Workers and Supporters (COSWAS), a local
TAIPEI 00000399 012 OF 022
sex workers' rights advocacy group, Taiwan law enforcement
officers view the clients of prostitutes as witnesses, not
participants, to the crime of prostitution. Therefore, if
the client provides a witness statement to be used against
the prostitute, police will typically let the client go
without a citation or fine. A client will sometimes resist
providing testimony against the prostitute, usually because
the client is a "regular customer" of the prostitute and does
not want to harm her, or because the client is afraid of
retribution from the prostitute's pimp or other criminal
associates. According to COSWAS, police will threaten to
inform the client's family or business associates if the
client refuses to cooperate. Occasionally, in exchange for a
small bribe, the police will agree to ignore the incident
entirely. COSWAS reported that police frequently threaten
prostitutes with arrest and detention in order to obtain free
sexual services.
Brothel owners, pimps, and enforcers are also subject to the
punishments prescribed in Articles 231, 231-1, and 232 of the
Criminal Code:
Article 231: A person who induces, retains, or introduces a
female or male person to have sexual relations with a third
person, or any person who retains her or him for that
purpose, shall be imprisoned for no more than five years, and
fined not more than NT $100,000 (US $3,200).
Article 231-1: A person who, for the purpose of gain, forces,
intimidates, extorts, controls, uses drugs or other means
against the will of a female or male person to have sexual
relations with a third person shall be punished with
imprisonment for more than seven years, and shall be pay a
fine of less than NT$300,000. A person who introduces,
accommodates or conceals a person who commits an offense
specified in the preceding paragraph shall be punished with
imprisonment of more than one year but less than seven years.
Article 232: A person who commits an offense specified in
paragraph (1) of Article 231, or paragraphs (1) or (2) of
Article 231-1 against a person subject to his supervision,
assistance, or care as specified in Article 228, or a husband
who commits such an offense against his wife, shall receive
the punishment prescribed by those Articles, with prison time
and fines increased up to one half.
According to MOI, 834 female foreign nationals were arrested
for prostitution or illegal work during 2007. MOI did not
maintain statistics on the nationality of those arrested.
28 F. Trafficking Investigations, Prosecutions, Convictions
and Sentencing
From press reports, AIT is aware of at least 20 high-profile
investigations which culminated in the arrest of at least 177
suspected traffickers and the discovery of at least 160
foreign men and women engaged in forced labor or forced
prostitution. Information on ongoing investigations and
those investigations that did not result in an arrest are not
readily available.
According to MOI, during 2007 the authorities filed charges
against 423 individuals in 197 cases of suspected
trafficking, including 144 cases of suspected labor
trafficking and 53 cases of sexual exploitation. Thus far,
74 individuals have been convicted. Of the sixteen convicted
of sexual exploitation of a minor, three were sentenced to
7-10 years in prison, four were sentenced to 3-5 years, and
nine to less than one year. Of the 53 convicted of sexual
exploitation, two were sentenced to 7-10 years, seven
TAIPEI 00000399 013 OF 022
sentenced to 1-3 years, and 44 to less than one year. The
five persons convicted of labor exploitation were all
sentenced to less than one year in prison.
It should be noted that Taiwan's criminal justice system
follows a complicated three-trial process, under which a
defendant cannot be deemed "convicted" until after the third
and final trial. A substantial portion of the 197
trafficking cases initiated in 2007, involving 350
defendants, have not yet been completed. In addition, due to
the shortcomings of Taiwan's current case statistics
collection process, convictions obtained in trafficking cases
commenced before 2007 are not included in the 2007 statistics.
According to CLA, local labor officials reported to local
prosecutors 38 cases of illegal hiring of foreign workers.
Charges were filed against 84 individuals. CLA did not
provide separate information on conviction or sentencing.
CLA also referred 15 cases of suspected human trafficking to
local prosecutors for further handling. According to CLA,
ten of these cases were investigated. CLA did not provide
information regarding convictions or sentencing for these
cases.
28 G. Investigative and Prosecutorial Training for Government
Officials
Over the last year, the authorities sponsored several
large-scale conferences to promote anti-trafficking efforts:
the "International Seminar on Prevention of Human
Trafficking" on April 12, the "Discussion on Human
Trafficking Cases" on September 19, and the "Conference on
Strengthening Identification of Human Trafficking Victims" on
November 26.
The Taiwan authorities hosted USDOJ Deputy Assistant Attorney
General Grace Chung Becker, Senior TIP Counsel March Bell,
and ICE and FBI officials at the April 2007 conference. Mr.
Bell returned to Taiwan in September 2007 to conduct TIP case
exercises for police, prosecutors, and immigration officials
in Taipei and Kaohsiung. AIT human rights officers in Taipei
and Kaohsiung delivered TIP-related briefings to several
hundred immigration, law enforcement, and NGO representatives
during 2007.
28 H. International Cooperation in TIP Enforcement
The United States and Taiwan signed an "Agreement on Mutual
Legal Assistance in Criminal Matters" on March 26, 2002.
With U.S. assistance, Taiwan prosecutors indicted an
individual for smuggling PRC nationals into the United States.
In early 2007 the fraud prevention unit of AIT's consular
section identified more than 100 Taiwanese women who had
traveled to the U.S. in 2006 to work as prostitutes. After
initial investigations by local U.S. law enforcement, AIT
informed the International Criminal Affairs division of
Taiwan's Criminal Investigation Bureau (CIB) of the likely
existence of a Taiwan-based criminal operation smuggling
Taiwan women to the U.S. for prostitution. Evidence obtained
by U.S. local law enforcement suggested that many of the
women had agreed to work as prostitutes and had agreed to
travel to the U.S. for that purpose. However, evidence
further suggested that many of the women were subjected to
exploitative working conditions to which they did not
consent, including forced confinement or relocation,
confiscation of travel documents, debt bondage, and
withholding of pay. Others were lured to the U.S. by
promises of legitimate work, only to be confined to brothels
and forced to perform sexual services. Acting on AIT's
information, CIB conducted its own investigation and
ultimately arrested the suspected ringleader, collecting
TAIPEI 00000399 014 OF 022
additional evidence which will be used to further disrupt the
syndicate's operations in the U.S., and to identify and
prosecute syndicate members.
In 2004, the CIB Police Liaison department opened offices in
the Philippines, Thailand, and Vietnam. In 2007, three more
offices were opened in Japan, Indonesia, and Malaysia. CIB
plans to open a Washington, D.C. office in late 2008. In
2007, CIB requested the Japanese authorities to take criminal
action against 39 individuals suspected of trafficking women
from China and Taiwan to Japan. CIB also helped Japanese law
enforcement investigate three separate cases of suspected
trafficking. CIB aided Japanese immigration officials in
verifying the legitimacy of some 800 marriages between
citizens of Taiwan and Japan, and arranged the safe return to
Taiwan of 17 women who had been forced into prostitution.
CIB also assisted Japanese National Police in translating
into Chinese a handbook for victims of human trafficking.
In Indonesia, CIB officers work closely with Taiwan visa and
immigration officials to investigate suspected "fake"
marriages. According to CIB, 7,894 Taiwan citizens applied
to marry Indonesian women in 2007. Fifty-four prospective
marriages were deemed to be fraudulent. CIB acknowledges
that a significant percentage of the 120,000 Indonesian
foreign laborers legally in Taiwan may have been subject to
forced labor or sex trafficking. CIB claims its efforts to
detect and interdict Indonesian trafficking rings in Taiwan
has been hampered by the lack of an Indonesian law
enforcement presence in Taiwan, Indonesia's inadequate laws
and record-keeping systems, and widespread law enforcement
corruption in Indonesia.
CIB officers in Malaysia report seeing little evidence of
Malaysian men or women being trafficked to Taiwan for
purposes of sex or labor trafficking. Malaysia's economy has
developed such that Malaysia is now a net importer of foreign
labor. CIB reported that, according to statistics from the
Malaysian government, there are only 7,368 Malaysian citizens
living and working in Taiwan, and there have been no reports
of forced prostitution or fake marriage.
In Vietnam, CIB officers and Taiwan consular officials often
jointly interview spousal visa applicants suspected of
involvement in fraudulent marriages. Of the 542 applicants
jointly interviewed by CIB and Taiwan consular personnel, CIB
reported 229 (42 percent) were refused. Taiwan consular
officers in Vietnam handled 5,321 spousal visa cases during
2007, approving only 3,345 (63 percent). Visa issuance rates
have dropped significantly since 2004, following CIB's
participation in the interview and investigation process.
The CIB Liaison Office refers all cases of suspected
trafficking to Vietnamese law enforcement for further
investigation.
CIB officers in Thailand reported that, after CIB trained
Taiwan consular officials to apply rigorous interview
techniques and strict documentary standards, the number of
spousal visa applications dropped sharply, and refusal rates
have remained high. In 2005, Thai applicants filed 2,100
requests for spousal visas, and the refusal rate averaged 23
percent. In 2006, only 218 requests were received the entire
year, and the refusal rate rose to 35 percent. In 2007,
applications for spouse visas fell to 122, and the refusal
rate reached 31 percent.
28 I. Taiwan Extradition of Traffickers
Taiwan has an informal repatriation agreement with the
People's Republic of China. Under the Kinmen Accord of 1990,
TAIPEI 00000399 015 OF 022
Taiwan and Mainland China repatriate convicted and suspected
criminals, as well as illegal immigrants, to each other's
jurisdiction.
Taiwan has extradition agreements with Costa Rica, the
Dominican Republic, Dominique, Malawi, Paraguay, South
Africa, and Swaziland. Taiwan and the United States have
agreed to a legal assistance framework.
If the extradition candidate is a Taiwan citizen, Taiwan law
requires the government to refuse the request, and refer the
candidate to Taiwan's legal system for prosecution.
According to the MOI and NIA, the lack of formal diplomatic
relations with other countries from which persons are
trafficked hinders Taiwan's ability to extradite persons who
are charged with trafficking.
28 J. Taiwan Government Officials' Tolerance of or
Involvement in TIP
There is no evidence of widespread government involvement in
or tolerance of trafficking in persons. However, NGOs report
that the level of government competency and awareness of TIP
at the local level is uneven. NGOs also allege that many
local officials are corrupt and work with brokers to turn a
blind eye to trafficking.
Incidents of Taiwan authorities supporting trafficking
directly or indirectly were rare, but they did occur. Taiwan
law enforcement authorities actively pursued public officials
suspected of protecting or participating in trafficking
schemes.
In February 2007, a former clerk at the Bureau of Immigration
(now the NIA) was indicted for smuggling more than 80 Chinese
prostitutes into Taiwan. Police ruled out the participation
of legislators or legislative aides in the scheme.
On March 30, the NIA revealed that 200 blank, alien
multiple-entry permits had been stolen from the NIA's Taipei
County immigration service center. The permits were
immediately canceled, the NIA official suspected of taking
the permits was suspended, and his supervisor was demoted.
Several senior NIA officials were also officially reprimanded.
On April 3, prosecutors in Taoyuan disrupted a forced
prostitution ring which used fake marriages to lure
Indonesian and Vietnamese women to Taiwan. Prosecutors
alleged local police in Taoyuan and Tainan had accepted
bribes and sexual services to conceal the operation.
On April 15, a senior NIA official publicly alleged that the
NPA had "unloaded" onto the NIA more than twenty officers
suspected of colluding with traffickers. The allegation came
following the indictment of two Taoyuan County NIA officers
(formerly of the NPA), for accepting bribes to ignore illegal
labor violations, warning employers of impending labor and
immigration inspections, and diverting law enforcement
attention away from active labor-trafficking rings.
On June 2, a police officer in Yunlin was detained for
accepting bribes and sexual services in exchange for helping
traffickers to conceal a forced prostitution ring involving
Vietnamese and Indonesian women.
On October 4, prosecutors in Chiayi indicted an NIA task
force leader and another immigration officer for helping
labor brokers and employers conceal illegal foreign workers
under their control. The suspects also helped employers by
arresting and deporting those illegal workers whose services
TAIPEI 00000399 016 OF 022
were no longer required, while claiming the incentive
payments offered to law enforcement for each such arrest.
NIA officials promised to cooperate fully with the
investigation and prosecution.
On December 21, three police officers in Kaohsiung were
arrested in connection with the operation of a forced
prostitution ring. The officers were suspected of using
threats and drugs to control the Vietnamese women forced into
prostitution.
28 K. Measures to End Government Officials' Involvement in TIP
Aside from the cases mentioned in paragraph 28 J, there have
been no reported cases of government officials directly
involved in trafficking. The law provides enhanced penalties
for government officials convicted of trafficking offenses.
28 L. Punishment of Peacekeepers Implicated in Trafficking or
Exploitation
Taiwan does not contribute troops to international
peacekeeping efforts.
28 M. Taiwan as a Child Sex Tourism Destination
Taiwan does not have an identified child sex tourism problem.
The CYSTPA imposes criminal penalties on Taiwan citizens
arrested abroad for having or attempting to have sexual
relations with minors.
Protection and Assistance to Victims
------------------------------------
29 A. Taiwan Assistance to TIP Victims
In July 2007, the Executive Yuan approved the "Human
Trafficking Prevention Implementation Plan,8 setting aside
NT$390 million (US$12.6 million) for the 2008-2010 period for
the construction and improvement of shelter facilities,
education and training for government officials, and the
expansion of international cooperation to combat trafficking.
From March 2007 to February 2008, the multi-agency task
force charged with overseeing anti-TIP efforts has convened
six times. In late 2007, the task force recommended
increasing funding for the Implementation Plan to NT$690
million (US$22.3 million) to meet anticipated budgetary needs.
Local governments are legally required to provide economic
and other assistance to identified victims of trafficking.
Assistance includes but is not limited to: emergency housing
subsidies, education subsidies for children, job placement
assistance, legal aid subsidies, and medical and
psychological treatment. CLA also contributes funds to
defray legal costs for foreign workers involved in litigation
against their employers.
According to MOI, local governments and NGOs have been
enlisted to provide counseling services, educational
opportunities, and other counseling services to identified
victims of trafficking. According to MOI, subsidies in 2007
for such services totaled NT1,035,732 (US$33,000).
MOI and CLA are working together to establish a database of
local government interpreters to be made available to foreign
workers in need of translation services related to employment
disputes or other legal matters. CLA is also working with
local governments to standardize procedures to allow NGO
representatives to accompany and assist identified victims
involved in labor disputes and other legal matters.
TAIPEI 00000399 017 OF 022
A free, multilingual telephone hotline for foreign workers
handled 13,355 calls in 2007. All city and county
governments are required to operate foreign worker consulting
service centers, to provide dispute resolution and legal
consulting services, and to provide referrals to law
enforcement in cases of suspected human trafficking.
According to MOI, these centers processed 136,199 inquiries
in 2007.
Taiwan's recently amended Immigration Law provides additional
protections for trafficking victims. Law enforcement
agencies must protect trafficking victims' identities and
personal information from public disclosure. National and
local government agencies must also ensure trafficking
victims' personal safety, and provide them with appropriate
housing, medical and psychiatric care, counseling services,
translation assistance and legal counseling services. If the
victim is a minor, a social worker must be assigned to his or
her case, and must be present during police questioning, all
legal proceedings, and trial.
If a trafficking victim cooperates with prosecutors by
providing testimony or other assistance, the victim shall be
entitled to the protections afforded by Taiwan's Witness
Protection Law. Additionally, such cooperation shall be
considered by prosecutors and judges to reduce or eliminate
the victim's liability for any criminal or administrative
violations. Victims who cooperate with prosecutors are
entitled to receive temporary visas to remain in Taiwan up to
six months, and can request extensions. However, once the
prosecutor closes the case, the trafficking victim will be
repatriated to his or her home country. In late January
2008, Taiwan issued new guidelines intended to ensure the
safe repatriation of trafficking victims to their home
countries.
The Taiwan authorities acknowledge that trafficking victims
residing in Taiwan long-term should be permitted to work.
Article 44 of the amended Immigration Law includes provisions
which authorize the CLA to issue temporary work permits to
trafficking victims for periods of up to six months,
depending upon the length of the investigation or trial in
which the testimony of the trafficking victim is required.
CLA has not yet issued regulations to this effect.
29 B. Care Facilities Accessible to TIP Victims
Under Taiwan's National Action Plan to combat trafficking,
the CLA is responsible for providing shelter services to
those trafficking victims who entered Taiwan as legal foreign
workers. The NIA is responsible for providing shelter
services to those trafficking victims who entered Taiwan via
all other legal or illegal means, including but not limited
to: foreign spouses, tourist and business visa overstays, and
illegal immigrants smuggled into Taiwan.
In December 2007, the NIA solicited NGO bids to operate a
shelter for trafficking victims. NIA's solicitation
attracted no bids, NGOs contend, because the budget allocated
by NIA (less than NT$470 per person per day) was insufficient
to cover expected operating expenses. Because the NIA did
not find an acceptable bidder, the Legislative Yuan cut
shelter funding from the NIA's 2008 budget during the final
legislative session of 2007. NGOs have further criticized
the NIA for proposing to locate the NGO-operated shelter in a
refurbished detention facility. Under the NIA plan, NGOs
allege, trafficking victims at the shelter would be under
constant NIA supervision, and denied privacy or freedom of
movement, making the shelter environment virtually
TAIPEI 00000399 018 OF 022
indistinguishable from that of a detention center.
29 C. Taiwan Government Support to NGOs Providing
Services to Victims
CLA provides a subsidy of NT$500 (US$15) per person per day
to 11 NGO-operated shelters for trafficking victims. CLA's
2007 annual budget for temporary shelters was NT $9.6 million
(US $310,000). The Taipei and Kaohsiung City governments
fully fund one shelter each, operated by NGOs in their
respective districts. According to CLA, 493 individuals were
placed in these shelters during 2007, in addition to the
shelters' existing number of long-term residents.
CLA also supports 24 Foreign Labor Consultant Service Centers
located around Taiwan. The Centers, operated by local
governments with CLA funding, provide counseling, legal aid,
and labor dispute resolution services to foreign workers,
including those identified as victims of trafficking.
Information on Taiwan funding for NGO activities, including
shelter subsidies, will be provided in a subsequent cable.
29 D. System to Identify TIP Victims and Refer Them to
Shelters
In early 2007, the MOJ drafted the "Human Trafficking Victim
Identification Principles" as required by the Action Plan.
According to MOI, the multi-agency task force approved the
guideline in early March 2007. The guideline was then
disseminated to Taiwan law enforcement, immigration, and
labor officials for implementation.
Begin Guideline:
Trafficking victims are identified as those:
1. Scouted, recruited, transported, sheltered, or introduced
to or removed from Taiwan through the use of coercion,
threat, intimidation, spying, or through restraint by the use
of drugs, hypnotism, fraud, debt or any other form of
restraint for the purposes of sexual exploitation, forced
labor, or removal of organs;
2. Those under the age of 18 found conducting sexual
transactions should be treated as trafficking victims
regardless of the minor's consent or voluntary participation;
3. During the investigation or disruption of suspected human
trafficking rings, police, prosecutors, and other law
enforcement officials are required to pay special attention
to the following types of individuals to determine if they
are victims of trafficking:
(a) Children under the age of 18;
(b) Those subjected to involuntary transportation or
transfer to a different place or employer;
(c) Those subjected to abuse during their transportation to
Taiwan or transfer to another location within Taiwan. Abuse
includes but is not limited to forced confinement or
restricted communication with others, physical violence,
coercion, threat or intimidation, and sexual assault.
(d) Those subjected to abuse at their residence or work
location. Abuse includes but is not limited to forced
confinement or restricted communication with others, physical
violence, coercion, threat or intimidation, and sexual
assault.
TAIPEI 00000399 019 OF 022
(e) Those whose travel or identity documents have been
confiscated by another;
(f) Those who have had excessive amounts withheld from their
earnings, or who have not received fair pay for their work;
(g) Those who have been forced to perform work different
from that which they were agreed to do, or those who have
been forced to transfer to a different employer;
(h) Any other person who can demonstrate he or she is a
victim of trafficking.
4. Law enforcement officers are required to conduct
questioning of potential trafficking victims with
interpreters and social workers, if necessary. If the
investigating officer is uncertain of whether an individual
is a trafficking victim, he or she is required to contact the
prosecutor's office for further guidance.
5. Trafficking victims must be clearly identified as such
during the booking and detention process, and must be
separated from other involved suspects for their protection.
Once individuals are identified as trafficking victims, law
enforcement officials must contact the appropriate social
welfare and labor services entities to arrange for
appropriate accommodations. Law enforcement officials must
inform trafficking victims of measures available for their
assistance and protection, and request their cooperation in
identifying and prosecuting the traffickers involved.
6. If prosecutors determine during further investigation
that an individual is not a victim of trafficking, the
prosecutor shall notify law enforcement for placement of the
individual in an appropriate detention facility.
End of Guideline
Taiwan continued efforts to improve law enforcement's ability
to investigate trafficking cases, and to identify victims of
human trafficking during the course of investigation. In
mid-2007, MOJ drafted standard operating procedures (SOP) for
the investigation of human trafficking cases, and also
developed a guideline to help police and prosecutors identify
the different types of trafficking cases, and the statutes
under which such cases should be charged. The investigation
SOP and charging guidelines were approved by the multi-agency
anti-TIP task force on November 20, 2007, and are now in use
by police and prosecutors island-wide.
Taiwan government agencies at the local and national level do
not have a reliable process in place to identify or refer
trafficking victims from law enforcement custody to shelter
facilities. In practice, local police are usually the first
to encounter and arrest foreign nationals living and working
in Taiwan illegally. According to the current victim
identification guidelines detailed above, the arresting
officer should make the initial determination as to whether
the foreign national is a trafficking victim or not.
Existing victim identification guidelines require the
arresting officer to consider how the foreign national came
to be in Taiwan (legal foreign worker, foreign spouse,
illegal immigrant) and the circumstances leading to his or
her arrest (working illegally after fleeing an abusive
employer or husband, work in the sex industry) for
indications that the foreign national may have been a victim
of trafficking. Once the officer makes his or her
determination, the officer is required to report his or her
findings to the local prosecutor's office. NGOs report that
TAIPEI 00000399 020 OF 022
many, if not most local police officers are unwilling to
inquire into the circumstances which caused the foreign
national to violate immigration or labor laws, or to ask
whether the foreign national volunteered or was forced into
prostitution. NGOs contend that most police officers end
their inquiry upon finding one of the foregoing infractions,
inadvertently classifying many trafficking victims as
"criminals."
If a foreign worker reports illegal work, exploitative
working conditions, or other abuse to the police, the police
are required to refer the worker to the local Bureau of Labor
Affairs (BLA), which should then assume responsibility for
the case. In the event of a police referral, or if the
worker complains directly to BLA, BLA is required to arrange
for a labor inspector and police officer to visit the
worksite and investigate the alleged illegal work or abuse.
BLA will also refer the worker to an appropriate NGO-run
shelter. NGOs complain that the investigation can take
longer than six months, during which time the foreign worker
is forbidden from working.
The victim identification guidelines require the local
prosecutor to review the arresting officer's report, and if
necessary, conduct further investigation to determine
whether the individual is a trafficking victim or an illegal
immigrant. However, NGOs reported that prosecutors usually
accept the conclusions reached in the arresting officer's
initial report and rarely undertake their own independent
investigation. NGOs and immigration officials agreed that if
the arresting officer is unsympathetic or does not understand
the definition of a trafficking victim, the officer might
improperly classify someone as an immigration violator, or
other form of criminal, instead of a trafficking victim.
Moreover, if the prosecutor is overworked, as is often the
case, it is increasingly probable that trafficking victims
will go undetected, and be treated as "criminals" rather than
"victims."
Those deemed to be illegal immigrants (including foreign
workers in "illegal" status) are usually sent to one of the
NIA's four "formal" detention centers for holding, until the
prosecutor decides to file charges or to repatriate the
foreign national to his or her home country. In some cases,
where NIA officials determine that the foreign national can
be repatriated quickly, he or she will be held at a
"temporary" detention facility at a local NIA office to await
deportation.
NIA detention center officials contend that their chief
responsibility is to provide humane treatment to detainees
while they await the prosecutor's decision to charge or
repatriate them. NIA detention center officials insist that
it is not the role of detention center personnel to
second-guess the police officer or the prosecutor on whether
a detainee is or is not a victim of trafficking.
Nonetheless, regulations require NIA detention facility
officers to interview all incoming detainees. On rare
occasions, NIA detention center officials will contact the
NIA central office to report potential trafficking victims.
The NIA central office will then contact the relevant
prosecutor's office to suggest reconsideration of a
particular individual's case. There is no procedure in place
for NIA detention center officials to directly contact the
prosecutor in charge of the detainee's case, causing weeks or
months to go by before victims are relocated to shelters.
If detainees are not identified as trafficking victims, they
will remain in detention until the prosecutor decides to
charge them for immigration, labor, or other violations. If
TAIPEI 00000399 021 OF 022
the prosecutor decides to file charges against a detainee,
the detainee will remain in the detention facility until a
verdict and sentence are issued. If the detainee is
convicted and sentenced to prison, the detainee will be
transferred to a jail to serve out the assigned sentence.
Time served in the detention facility will not be deducted
from the prison sentence. If the detainee is convicted of
lesser offenses, usually minor immigration and labor
violations, he or she will typically be fined
NT$5,000-$10,000, and assessed the cost of the return airfare
to his or her home country. If the detainee is unable to pay
the required fines or airfare, the period of detention will
usually be extended, unless an NGO is willing to pay on
behalf of the detainee.
According to MOJ, from March 1, 2007 to February 20, 2008,
the Taiwan authorities identified 213 individuals as victims
of human trafficking. Of them, 126 were willing to cooperate
with prosecutors. Prosecutors filed charges in 35 separate
cases, involving a total of 75 victims. Of those 75, 49 had
all charges against them dropped, including immigration and
labor violations, and minor criminal charges. An additional
26 victims had all charges against them suspended. The
remaining 138 trafficking victims were involved in cases
where the prosecutors decided not to file charges. Despite
having been identified as trafficking victims, those 138
individuals were held in immigration detention facilities and
prosecuted for immigration, labor, and criminal law
violations. According to NIA, most were fined and some sent
to prison before being repatriated. The majority of those
recognized as "trafficking victims" by the Taiwan government
were not granted immunity from prosecution for offenses
occasioned by their having been trafficked -- only those who
cooperated with prosecutors in cases where charges were
actually filed against the trafficker or other defendants
were excused from punishment.
According to MOI, local government agencies placed 47
trafficking victims with government-subsidized NGO shelters
during 2007. None were in possession of a working visa.
Twenty-four had been victims of sexual exploitation, and 23
had suffered labor exploitation. According to CLA, 18
individuals holding working visas were placed with CLA-funded
NGO shelters during 2007. All were identified as victims of
labor exploitation. These numbers indicate that of the 213
individuals recognized as "trafficking victims," only 65 were
removed from detention and placed in NGO-operated shelter
facilities. Thus, ten of the 75 trafficking victims who
cooperated with prosecutors in cases where charges were
actually filed were never transferred from detention to
shelter accommodations.
NGOs contend that the vast majority of trafficking victims
are never detected, ending up in NIA detention centers or
local NIA or police holding cells, only to face prosecution
for crimes they committed as a result of having been
trafficked, followed by deportation. NGOs further allege
that investigations by police and prosecutors into whether
someone is or is not a trafficking victim often take months
instead of weeks to complete. During that time, trafficking
victims are held in detention centers without sufficient
access to medical care, counseling services, or legal
assistance. As the above statistics from MOI and CLA
demonstrate, even after someone is recognized as a
trafficking victim, it does not ensure that they will be
removed from detention or excused from punishment.
NGOs report that they are permitted regular access to
detainees at the NIA detention facilities in Taipei Sanhsia
Hsinchu, and Yilan. (The Matsu facility, located on Matsu
TAIPEI 00000399 022 OF 022
Island near mainland China, is used only to hold PRC citizens
immediately before they are repatriated to the PRC). Two
NGOs are engaged in a project to systematically interview all
of the detainees held at the Sanhsia and Hsinchu facilities.
From September 2007 to February 2008, NGO representatives had
completed some 600 interview questionnaires. According to
one NGO representative, at least half of those interviewed
were forced to perform work outside the scope of their
contract, or had not been paid full or fair wages. Because
many laborers cannot identify their employers, or prove the
kind of work they were doing or the hours they actually
worked, most of these labor trafficking cases cannot be
established. During the interview process, however, NGO
staff encountered twelve foreign women lured to Taiwan by
promises of marriage. The women were ultimately forced to
work upon their arrival in Taiwan. These cases are
well-documented, and on March 10, 2008 the NGO referred the
best six cases to NIA for further investigation.
NGOs report that many of the trafficking victims currently at
NGO shelters are walk-ins, or were referred by friends or
family. Certain local police departments have referred
suspected trafficking victims to NGO shelters on a number of
occasions, but, according to the NGOs, this is done on a
largely ad-hoc basis. Some of the trafficking victims
presently in NGO-operated shelters were referred by local
Bureau of Labor Affairs (BLA) officials. The local BLA
office in Taoyuan has established an informal policy that all
victims of trafficking are to be sent directly to NGO
shelters, are not to be incarcerated, and are not to be
returned to the custody of their brokers or employers. NGOs
continue to lobby the CLA and local BLA offices to institute
this practice island-wide.
If a trafficking victim is referred to an NGO-operated
shelter by a Taiwan central or local government agency, the
receiving NGO will automatically receive the daily per-person
subsidy of NT$500. NGOs must apply to the government to
receive the subsidy for trafficking victims coming to the
shelter through other channels. This category would include
walk-ins, referrals from churches or other social
organizations, and the "ad-hoc" referrals from local police
departments.
Paragraphs 27 A through 29 D are contained in Part One.
Paragraphs 29 E through 30 I are contained in Part Three.
YOUNG