The non-punishment principle as an essential element of a human rights-based approach to action against trafficking in human beings
Council of Europe-OSCE workshop
Strasbourg, 9-10 October 2014
Patricia Le Cocq
Federal Migration Centre, Anti-trafficking unit

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Federal Migration Centre
Why a human rights-based approach?
Challenges relating to implementation: examples from a civil law country
(Belgium)
Recommandations

• Since 1st of september 2014: appointed as independent rapporteur on trafficking
– Coordination unit= state rapporteur
• Autonomous public service
– Analysis of migration flows, protection of fundamental rights of foreign people and fight against human trafficking
• Independent evaluation report
• Initiate legal proceedings in trafficking cases
• Ensure for good collaboration between specialised shelters
• Secretariat of Interdepartmental coordination platform

• International and European instruments
• Criminalisation of victim: State fails to recognize victim as such
• For the victim:
→ re-victimisation
→ increase trauma, vulnerability
→ no assistance and protection
• For the State:
→ not confront real offender (operates with impunity)
→ dissuades victim to collaborate with law enforcement (importance of declarations)

– Not only prosecution
– Other ways victim is punished:
• Breach immigration law, work in violation of labour laws : → detention centre and deportation

• Belgium, “civil law country”
• Definition of THB (art 433 quinquies penal code)
– Action (recruitment, transport, harbouring,…) and purpose only
– Purposes : consent of victim not relevant
• sexual exploitation
• labour exploitation,
• exploitation of begging
• removal of organs coercion essential
• “to force the person to commit a crime or an offence against his/her will” :
= forced criminality (drugs/theft cases)
- Means= aggravating circumstances

6. for non punishment
• Non-punishment provision not explicitely mentioned in legislation
• Prosecutorial discretion
– principle of opportunity of prosecution in criminal procedure code (art. 28 quater, 1)
– Based on guidelines to prosecutors on THB (COL 1/2007) :
• Victims first seen as victims of crime even if offences to immigration or work-provisions, irregularity = pressure/coercion means
• Objective: prosecute persons organising THB or take profit of THB
– New draft of guidelines non-punishment
• General provision in penal code on non liability causes
(like coercion, art. 71 penal code)

• Offences committed as a direct consequence/directly linked to THB
– Not all acts should be exempt
– Compell to do so: interpretation?
→Identification of the victim “as soon as possible”
– forced criminality: victim behind apparent offender
• Most difficult situations:
– Victim becomes perpetrator (thin line)

1. Offence directly linked to THB : ex: using false passports/ID documents

passports
Good implementation of non-punishment principle
(prosecutor):
Cf. Criminal court of Liège, 26 September 2012, confirmed by Court of Appeal of Liège, 23 april 2013:
• Bulgarian women recruited in Bulgaria and forced into prostitution in Belgium
• ID documents confiscated
• Threathened
• Have to work under false identities (minor): avoid control by police
• Exploiters convicted for human trafficking, exploitation of prostitution and forging of documents
• Victims not prosecuted

passports
Good implementation of non-punishment principle
(judges):
- If prosecution: use of non liability provision
Cf. Criminal Court of Antwerp, 2 April 2008 :
- young Nigerian woman exploited in prostitution
- forced to use false British passport in order to receive residence permit
- identified as victim of trafficking where she was exploited (criminal court of Brussels)
- Later: prosecuted en convicted in defendant’s absence for use of false document where she was living (Antwerp)
- new trial: victim+ prosecutor justification exists: judge: non liability
(constrained by a force she could not fight)
→ human rights approach: no prosecution if better communication

2. Forced criminality and victim’s identification

6.
• Victims of forced criminality vs. holding false documents: more difficult to identify
– Fear of declarations
– Mostly later identification when more elements of proofs (based on phone tappings ,…)
– Not the same prosecutor/police services dealing with THB cases and drugs/theft cases → importance of communication
• Need to identify the victim behind apparent offender
– Recognizing victim as such (protection, victim’s status)
– Punish the real perpetrator (easier to make use of other persons and remaining in the background)

Case theft (Criminal Court of Turnhout, 17
6.
Antwerp, 24 januari 2013)
Good implemention of non-punishment principle
– Start of the case: police makes links between thefts in shops around the country
• Facts between 2010 and 2012 in Belgium and the Netherlands
• Itinerant criminal group from Romania
• Investigation for criminal organised group
– Investigation reveals :
• same modus operandi
• prepared declarations of thieves
• Structure/hierarchy
– Information completed by international information+ phone tapping: identification members organisation and role

october 2012)
– Further investigation:
• People recruited in Romania, with promise of work in Belgium
• Travel and administrative costs supported by organisation
• Brought to and housed in Belgium
• Pushed to steal clothes in order to reimburse costs
• ID documents confiscated
• Stolen goods transported and sold in Romania
• One girl compelled to work in prostitution
– Conviction: criminal organisation, thefts + THB (prostitution)
• 15 persons
• Perpetrators identified as victims not prosecuted (coercion/deception)
• Only possible because of good contacts between different sections of police

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Case drugs (Criminal Court of Charleroi)
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Facts:
• Maroccan people recruited in the same region of Morocco in order to deal drugs (425 drugsdealers reported between mid-
2006 and mid-2008)
• Some of them: promise of work in contruction sector
• Forced to work as drugs dealers to reimburse debts
• ID documents confiscated and sometimes “training” previously organised
– Convictions:
• One case (02/06/08 ):
– 15 persons convicted for offences to law on drugs
– 2 of them for THB forced criminality
– victims not prosecuted for drugdealing, assisted by specialised shelter

Case drugs
(Criminal Court of Charleroi)
Other case (02/10/08):
– Prosecution and conviction for law on drugs, not THB for forced criminality
– Victim: no residence permit
– Solution: good collaboration between prosecutor, immigration office and specialised centre: victim recognised as such
• Threatened and denounced criminal group

3. Victim becomes perpetrator: a difficult human rights choice

Role of « dames de compagnie »:which line to draw?
• Cf. Criminal court of Liège, 26 september 2012
(confirmed by Court of Appeal of Liège, 23 April 2013)
– several defendants exploiting prostitution of young
Bulgarian girls
– One of them (women) in love with other defendant and exploited by him ( loverboy ):
• prosecuted for: THB, incitement and exploitation of prostitution, criminal organisation, illegal stay
• Had possibility to enter victim’status but refused and arrogant behaviour

Role of « dames de compagnie »:which line to draw?
Court: distinction between responsibility and role played by each defendant:
– Phone tapping: control exercised (no day of rest, threatened if no enough money)
– At the same time: responsible for collecting money from another prostitute
– Not convicted for THB:
• no enough amount of power over the girls to encourage their engagement in prostitution
• herself entered the prostitution market through her boyfriend
(submissive and completely dependent)

Role of « dames de compagnie »:which line to draw?
– Convicted for incitement to prostitution:
• responsible for receiving the young women when they arrived on the street,
• supervising work of another prostitute and reporting on her activities to the young woman's pimp
– Convicted for illegal stay
Issue of the hybrid status granted to certain prostitutes:
–Prostitution under coercion;
–In charge of initiating new prostitutes + collecting earnings
→ other decision if other behaviour?

Role of « dames de compagnie »:which line to draw?
Compare with case mentioned by Dutch national rapporteur : prostitute suspected of being involved in the exploitation of other people:
→ no prosecution because:
• Victim works as prostitute, gives money to pimp
• Supervised the other young women, but did not force them
• Other women see her as a victim, not a suspect,
• Was in love and was afraid of pimp
• Supervised other women to prevent them from being abused or threatened by the suspect

6.
• Clear directives to prosecutors:
– Cf. Belgium: new directive: non-punishment more explicit
• When offence by victim linked with THB: priority to situation of victim
→ close cooperation between different sections of prosecutor office
• Offender and victim: analyse degree freedom of choice
→ allow victim to receive assistance
• Efficient national referral mechanism
• Detection: front lines services : knowing indicators THB (not only specialised services)
• Communication and cooperation between different services