Belgium - 2. INSTITUTIONAL AND LEGAL FRAMEWORK
The findings of a parliamentary committee of inquiry entrusted with investigating trafficking in human beings as a result of a number of tragic facts gave rise to the law of 13 April 1995 containing provisions to combat trafficking in human beings and child pornography. The same law also provided a legal ground for the prosecution of “smuggling in human beings”.
On 10 August 2005 a new law on trafficking in human beings was enacted (law of 10 August 2005 amending various provisions with a view to reinforcing the fight against human trafficking and against the practices of slumlords).
In doing so, Belgium adapted its national legislation to the new international and European instruments that have been adopted in recent years.
The new law makes a clear distinction between trafficking in human beings, on the one hand, and smuggling in human beings, on the other hand, and defines the crimes respectively in the Criminal Code (new article 433quinquies et seq.) and in the law of 15 December 1980 concerning access to the territory, stay, residence and the removal of foreigners (article 77bis et seq.).
This law also amended article 10ter of the introductory part of the Code of Criminal Procedure. In virtue of article 10ter anyone, either a Belgian national or a foreigner involved abroad in trafficking and, in addition also in smuggling in human beings under aggravating circumstances, can be prosecuted in Belgium.
In 2013, two legal provisions were established in order to clarify and extend the definition of trafficking in human beings and the penalisation of the exploitation of begging and prostitution, trafficking in human beings and smuggling in human beings compared to the number of victims . This was accomplished within the context of the transposition into Belgian law of Directive 2011/36/EU of the European Parliament and of the Council of Europe of 5 April 2011 on preventing and combating trafficking in human beings and protecting the victims thereof.
Trafficking and smuggling in human beings are punishable with a prison sentence of 1 to 5 years and a fine of 500 to 50,000 Euro.
The fines are applied in function of the number of victims. The high fines are proportional to the huge profits traffickers and smugglers in human beings make.
The law does not provide an exact definition of “trafficking in children” or “smuggling in children”. However, the minority of the victim of trafficking or smuggling in human beings constitutes an aggravating circumstance and therefore appeals for a harsher sentence. A minor of age is every person under the age of 18.
For unaccompanied minor foreigners who fall victim to trafficking in human beings, specific and appropriate provisions apply which duly take into account their particular situation and vulnerability. Furthermore, the competent authorities must consider the best interests of the minor as long as the procedure runs. The minor will also be placed under guardianship. Accommodation is offered by a specific reception centre for unaccompanied minors.
The legislator also punishes offences such as sexual abuse, corruption or prostitution of minors as well as child pornography in situations other than sexual exploitation against the background of trafficking in human beings (433 quinquies, 1° CC).
Law related to victims
- National Referral mechanism
As early as in 1993, a specific scheme for providing aid and assistance to victims of trafficking in human beings was introduced in Belgium. The integral scheme was embedded in a ministerial circular of 1994 and in two ministerial directives of respectively 1997 and 2003. It then was a set of all sorts of provisions concerning a.o. the issue of temporary (in some cases, permanent) residence papers.
The legal basis of the scheme has been provided by the Law of 15 September 2006 amending the Aliens Law of 15 December 1980 (art. 61/2 to 61/15). It is the result of the implementation of a number of European directives into Belgian law, among which the Directive of 29 April 2004 concerning the issue of temporary residence permits to victims of trafficking in human beings, who cooperate with the competent authorities.
At the end of 2008, the integral victim protection scheme was integrated into a new ministerial circular of 26 September 2008 concerning the introduction of a multi-disciplinary cooperation as regards the victims of trafficking in human beings and/or of certain more serious kinds of smuggling in human beings.
The main goal of this circular is defining the procedures for the identification, referral, reception and assistance of potential victims of trafficking in human beings and/or of certain more serious kinds of smuggling in human beings. The circular also stipulates the conditions that must be met in view of obtaining the victim status.
In order to efficiently organise the actions, a multi-disciplinary cooperation between the services involved, has been set up. The cooperation involves police and inspection services, the Immigration Office, the recognized and specialised reception centres for victims of trafficking in human beings and the reference magistrates for trafficking in human beings on the level of the public prosecutor and on the level of the auditor.
In view of achieving the abovementioned goals, each of the aforementioned services involved is instructed on its role in the various stages of the process and the frontline actors are made aware of the actions they are expected to take.
The current system is designed to meet two different requirements: on the one hand, offer the victims a series of aid and assistance measures; on the other hand, combat persons and networks involved in trafficking in human beings. In order to achieve the latter, it is essential for the victim to cooperate.
It must be emphasized that the victim protection scheme covers all forms of exploitation of trafficking in human beings as described before.
The victim protection scheme can also apply to victims of certain serious kinds of smuggling in human beings.
The status of victim of trafficking in human beings can be granted either to third-country nationals or to nationals of the Member States of the European Union. The status of victim of smuggling in human beings under aggravating circumstances can exclusively be granted to third-country nationals.
A number of additional provisions concern specific categories of victims such as private domestic staff of members of diplomatic missions and foreign unaccompanied minors. Children who are victims of trafficking are granted a three month residence permit, during which time they have to decide whether to testify against their traffickers. If they do not qualify for victim status, they may still qualify for protection under the government’s rules for unaccompanied minors.
Foreign child victims are received in special centres for unaccompanied minors, which cooperate with the other three specialised reception centres for victims of trafficking.
The Belgian government identifies child sex tourism a significant problem and has an extraterritorial law that allows for the prosecution of its nationals for child abuse crimes committed abroad
In most cases, police and social inspection services identify victims of trafficking in human beings. As frontline services, the latter play a key role in the correct implementation of the procedure.
They use indicators of trafficking and smuggling in human beings. They allow ascertaining whether a certain case is related to trafficking in human beings or not.
The said services must inform the victims on the existence of the victim protection scheme, e.g. by means of a multilingual information leaflet . Each presumed victim must be referred into one of the three recognised and specialised reception centres for victims of trafficking in human beings.
These three recognised and specialized reception centres provide accommodation, assistance, psychological and medical assistance as well as legal assistance. These centres are exclusively competent for applying for residence permits or the renewal thereof with the Immigration Office.
When the police or inspection service identifies a person as a victim of trafficking in human beings, it simultaneously takes the following steps:
o Inform the magistrate to the public prosecutor’s office;
o Contact one of the specialised reception centres;
o Inform the Immigration Office.
In the circular it is mentioned that the circular has to be the subject of an assessment by the Interdepartmental Coordination Platform for the Fight against Trafficking and Smuggling in human beings (ICP) beings two years after the start of his application.
A first part of the evaluation of the circular, namely of the general application of the circular was ended in 2011. A second part, the evaluation of the application of the circular towards the unaccompanied minors has been finished in 2012.
One of the main challenges will be the improvement of the communication between the different actors for example concerning the decision of the ending of the procedure for the victim.
Other recommendations that were mentioned are the importance of further training of the actors concerned and to sensitise certain sectors like the hospitals, schools, etc.
Also the insecure position of a victim, exploited in another member state then Belgium should be examined. It has to be examined in which country the victim should be looked after.
The federal police has introduced in all police stations the instrument “Victim-Translation-Assistance – VITA” of the United Nations Office on Drugs and Crime for the identification of victims. It concerns a questionnaire on CD-ROM. The questionnaire is composed of closed questions and is translated to different languages. This tool has as purpose to communicate with the victims just after the intervention and to find out which language the victim speaks. By this way the police can also inform what the “elementary” needs of the victim are. There is also subtitling foreseen so that the police services can follow what the victim says.
Potential victims of trafficking are granted a reflection period of 45 days during which they can decide either to file a complaint or make a statement of return to his/her country of origin. During that period, the victim has access to social assistance. After that period of time, any victim who decides to file a complaint or make a statement is granted the special status of 'victims of human trafficking', and thus has access to the various forms of aid provided for within this framework. This assistance includes accommodation, psycho-social help and legal aid. It is worth noting that, under the Belgian system, testimony in court proceedings is not a condition for a victim to be granted the status of “victim of trafficking in human beings”.
The victim may obtain permanent residency after their traffickers have been sentenced. The victim can also obtain an unlimited residence permit without the conviction of the trafficker(s), provided that the Public Prosecutor or the Labour Auditor has established in his/her charges the offence of trafficking in human beings. Nevertheless, if the trafficker is not convicted, the victim may in some cases have to return to his/her country of origin, after review by the immigration authorities.
Specialised reception centres for victims of trafficking and smuggling in human beings
Since 1995, three specialised centres have been given recognition as reception centres for providing shelter and assistance to victims of trafficking and smuggling in human beings. These three reception centres are: Pag-Asa (located in Brussels), Sürya (located in Liège, in the Walloon Region) and Payoke (located in Antwerp, in the Flemish Region).
On 1 June 2013, a legal basis was created via the Royal Decree of 18 April 2013 with regard to the recognition of the centres specialised in the reception of and assistance to victims of trafficking in human beings and of certain aggravated forms of trafficking in human beings and with regard to the authorisation to start legal actions.
These three recognized specialised reception centres for victims of trafficking in human beings provide shelter, care, psychological and medical assistance as well as legal assistance. These centres are the only centres competent for requesting residence permits or their renewal with the Immigration Office. They also can start legal actions on behalf of victims of trafficking and smuggling in human beings.
These centres work with pluridisciplinary teams made up of educators, social workers, criminologists…). In consultation, they draw up the assistance scheme for the victim.
This assistance scheme is threefold: it covers psychosocial and medical assistance, administrative assistance and legal assistance. The centres also have a shelter at a secret location.
For unaccompanied minor victims of trafficking in human beings, a series of special measures have been developed. They are provided care and assistance in specific centres.
The three recognised specialised reception centres provide administrative and legal assistance.
The Federal Migration Centre follows up the cooperation between the three centres.
The number of new requests for the granting of the first residence permits in the framework of the application of the protection scheme for victims of THB amounted to : 129 in 2013, 157 in 2012 and 149 in 2011 (see the graph here-below).
The section hereafter presents an overview of the 2013 convictions data regarding THB from the conviction database of the Ministry of Justice.
The conviction databank uses codes which enable us to distinguish the number of THB convictions, the types of exploitation, the aggravating circumstances and the sentences.
Bear also in mind that the criminal record databank only contains final decisions (decisions against which no more appeals are possible).
The information set forth here-below results from a data-extraction made by end January 2014.
It has to be mentioned that there is a general delay in the encoding of the data. To sum up, and as an example, some judicial decisions taken during the previous years will still be recorded in the database by 2014 and for a slight number of them it also may be later.
Therefore, it is important to keep in mind that this data gives an overview of the convictions already recorded at the moment the database has been queried for the last time. It explains for instance that an increase of the convictions may occur whether we proceed to a later data-extraction. However, we should mention that the existing delay mainly concerns data related to the “tribunal de police” (court in charge with the lightest offences or traffic offences). So we assume THB data should not suffer from too broad an underestimation. In addition, the conviction rate recorded for previous years averages 70/80 so that we can consider that the convictions should remain close to this number or evolve from this number.
We also have previously observed that some decisions related to “smuggling” cases could sometimes be recorded as “trafficking” cases. By 2012 for instance, on the basis of the conviction reports available in soft format the rate of “false positives” has been estimated at 15%.
Currently, 70 THB convictions appear in the databank for the year 2013 (on the basis of 2014 January’s data-extraction).
An outline of the aggravating circumstances determined by the courts is possible.
We should specify that a conviction can include one or more aggravating circumstances. This is why the figures for aggravating circumstances are higher than the number of convictions. For instance, a person can be convicted for THB both for having perpetrated the offence against a minor and for having threatened him. In this situation two aggravating circumstances will be upheld by the court.
The overall trends already observed are confirmed: the abuse of vulnerability, the fact that the THB activity was habitual and the use of means like force or threat remain the most upheld aggravating circumstances. It is actually not a surprise as two of these circumstances constitute the core of the THB offence. In addition, we can note a slight increase over the last years of convictions determined for cases involving minor victims.
The encoding of the information in the database is based on the « conviction reports ». One “conviction report” can mention one or more principal decisions. These decisions (sentences) concern one or a group of offences (THB + rape for instance). So, the sentences we present below are the sentences related to (an offence or) a group of offences in which the THB offence appears at least once.
This first graph illustrates the types and number of sentences determined by the courts. It is important to keep in mind that for one conviction more than one decision can be taken (prison + fine + confiscation for instance). Accordingly, one category doesn’t exclude another (with some exceptions such as the pronouncement of guilt for instance).
Generally speaking, the figures remain similar to what we have observed during the recent years. The suspended jail sentences rate the half of the jail sentences (suspension can be partial or not. The database does not make the distinction).
National Strategy / National Action Plan
On 11 January 2008 a first National Action Plan 2008-2012 was adopted by the Federal Council of Ministers. This National Action Plan specifically paid attention to prevention and awareness raising, an aspect previously lacking in the Belgian system combating trafficking and smuggling in human beings. Until then very few initiatives had been taken to raise awareness of the fight against trafficking and smuggling in human beings in the private and public sector.
In 2012, a new National Action Plan with regard to the fight against trafficking in human beings (2012-2014) was submitted to the Ministerial Council. The plan follows the first action plan and is the basis for a concrete approach in the course of the next two years. The new action plan is more pragmatic and concrete than the previous versions and the subjects treated correlate to the governmental agreement. Prevention, protection of victims, investigation, prosecution and conviction of traffickers in human beings form the guideline of the plan.
Moreover, particular attention is paid to the situation of persons of foreign origin who are in a vulnerable position. 19 propositions insist on the need for realistic measures that are workable in the short term. Stricter prosecution policies for accomplices in and perpetrators of trafficking in human beings, awareness-raising campaigns, recognition of the specialised reception centres for victims are only a few examples in the vast variety of new initiatives.
The preliminary work for a new Action Plan have been started in 2014.
Coordination of anti-trafficking actions at national level
In order to coordinate the various initiatives taken within the framework of the fight against trafficking and smuggling in human beings, an Interdepartmental
Interdepartmental Coordination Platform for the Fight against Trafficking and Smuggling in human beings (ICP) has been set up. This Platform exists since 1995 but it has been given a new boost by the Royal Decree of 16 May 2004 concerning the fight against trafficking and smuggling in human beings.
The chairmanship of the Interdepartmental Coordination Platform is held by the Minister of Justice.
The Interdepartmental Coordination Platform is made up of all the federal players, both operational and political, actively involved in the fight against the aforementioned phenomena. It includes representatives of the Prime Minister, the Ministers of Justice, the Interior, Employment, Social Security etc. and their administrations, next to representatives of the Board of Prosecutors General, the Federal Public Prosecutor’s Office and Child Focus.
The 1st of September 2014 a Royal Decree of 21th of July 2014 amending the Royal Decree of 16th of May concerning the fight against smuggling and trafficking in human begins entered into force. This Decree led to different changes in regard to the composition of the ICP and its Bureau.
The specialised reception centres attended regularly certain meetings of the Bureau however they were until now no “official” member of the ICP. Since the new Royal Decree they are formally included in the mechanism.
Moreover, In order to emphasise the focus on the financial aspect of THB it seemed relevant to appoint a representative of the Financial Intelligence Processing Unit in the coordination mechanism.
In addition, a representative of the regions and the communities was added to the ICP. The regional social inspection services are not competent for trafficking in human beings but they can act as an intermediary. The communities are responsible for the formation and assistance to persons, which includes the youth assistance, the reception and integration of persons.
Finally it was decided that a representative of the Board of Prosecutors-General should be added as an observant member of the Bureau. There were already regular contacts between the main coordinator of the Network of smuggling and trafficking in human beings and the president of the Bureau but representation of the Board of Prosecutors General, however, will facilitate the direct interaction between all partners in the Bureau.
At an operational level, the fight against trafficking in human beings is a priority for the Federal Office of the Public Prosecutor. It is responsible for public legal action at the national level, as well as for facilitating the flow and exchange of information between the different Public Prosecution Authorities, investigation magistrates and police services.
The Board of the General Prosecutors also has an important role to play in the fight against trafficking in Belgium. It has established an expertise network to promote the flow of information between “specialised” prosecutors and assist the Board of General Prosecutors.
The Trafficking in Human Beings network gathers all prosecutors and experts, including the Federal Police, the Immigration Office and the Criminal Policy Service, dealing specifically with investigation and prosecution of trafficking in human beings.
The Board of Prosecutors General also publishes relevant case law on the intranet of the Public Prosecution for the benefit of specialised prosecutors.
National Rapporteur or equivalent mechanism
The Directive of the European Parliament and of the Council of 5 April 2011 on preventing and combating trafficking in human beings and protecting its victims determines in its article 19 that each member state has to establish a national rapporteur or an equivalent mechanisms. The tasks of such mechanisms shall include the carrying out of assessments of trends in trafficking in human beings, the measuring of results of anti-trafficking actions, including the gathering of statistics in close cooperation with relevant civil society organisations active in this field, and reporting.
In Belgium existing texts already organise different mechanisms which are in conformity with the requirements of the Directive.
Firstly, there is the Federal centre for the analysis of migration flows, the protection of the fundamental rights of foreign people and the fight against trafficking in human beings, which is the successor of the Centre for Equal Opportunities and the Opposition to Racism, an autonomous public service. It must legally fulfil his duties in all independence. Since 1996 they publish yearly an independent evaluation report about the evolutions and the results of the fight against trafficking in human beings in Belgium. This assignment is described in the Royal Decree of 16th May of 2004 and is one of the most important tool of monitoring.
In addition, the ICP also has the legal mission to carry out critical evaluations and recommendations pursuant to article 8 of the same Royal Decree. It executes this duty especially in the framework of the elaboration of an Action Plan or specific evaluations (f.ex. evaluation of the multidisciplinary circular). Moreover, in accordance with the Law of April 13 1995, the government must submit to the parliament a biennial report on the enforcement of measures to combat trafficking in human beings in Belgium. This report is drafted by the federal public service (FPS) of Justice.
Although the requirements of the directive could be considered as already fulfilled, it became formally the case with the Royal Decree of 21th of July 2014 amending the Royal Decree of 16th of May concerning the fight against smuggling and trafficking in human beings. This Royal Decree came into force on the 1st of September 2014.
Therefore the National Rapporteur or equivalent mechanism has been organised by the Royal Decree in the form of a mechanism. This mechanism consist of:
1° The Interdepartmental Coordination Platform for the fight against trafficking and smuggling in human beings as coordination body and the rapporteur of the State under it’s legal mandate to implement article 12 of the law of 13 April 1995 containing provisions to combat trafficking and smuggling in human beings and according to Chapter II of the Royal Decree of 16th May 2004. Within the ICP the FPS Justice, president of the Bureau, is responsible for the draft of the biannual report of the government.
2°The federal centre for the analysis of migration flows, the protection of the fundamental rights of foreign people and the fight against trafficking in human beings as independent rapporteur under it’s legal mandate of Article 3 of the Law of 17th of August 2013 amending the Law of 15 February 1993 establishing a Centre for Equal opportunities and Opposition to Racism with a view to its transformation into a federal centre for the analysis of migration flows, the protection of the fundamental rights of foreigners and the fight against human trafficking and under Chapter I of the Royal Decree of 16 May 2004.
However, the main task of the ICP remains of course coordinating, presenting and introducing a policy.
The most important challenges you face at national level
Collection of comparable and standardised data to be shared among different actors.