Routledge Handbook of Human Trafficking
Page 47
Conclusion
The common law system, which creates precedents that are either binding or persuasive on courts when deciding subsequent cases, is helpful in ensuring consistency and continuity in the principles applied in all cases of human trafficking. Developing case law is also adaptable to the changing profile and methodology used in trafficking cases, without the necessity for changes to statute.
Notes
1 Rantsev v. Cyprus and Russia, Application No. 25965/04, 7 January 2010; Osman v. UK, Application No. 23452/94 [1998] ECHR 101 (28 October 1998); OOO & Others v. The Commissioner of Police for the Metropolis [2011] EWHC 1246 (QB); RM v. Commissioner of Police and London Borough of Hackney (2013).
2 Sections 17 and 18 of the Regulation of Investigatory Powers Act 2000 (RIPA) cover restrictions on the use of intercept material.
3 Section 76A, RIPA deals with foreign surveillance operations in cases where foreign law enforcement is carrying out surveillance outside the UK which is lawful under the law of that country.
4 www.gov.uk/government/publications/attorney-generals-guidelines-on-disclosure-2013.
5 R. v. Khan, Khan and Khan [2010] EWCA Crim 2880.
6 See Piotrowicz and Sorrentino, Chapter 14, for a detailed discussion of the non-punishment principle.
7 [1934] I.R. 518.
8 [2005] 2 W.L.R. 709.
18
Prosecution of trafficking in human beings in civil law systems
The example of Belgium
Frédéric Kurz
Belgian criminal procedure1
Historically, the systems of criminal procedure are either inquisitorial or adversarial. If adversarial, the procedure is launched by someone (usually the victim) accusing another person, and is continued through argument between them before the judge. This procedure is traditionally understood as being public, oral, and adversarial; it is considered to respect the rights of the defence.
Under the inquisitorial system, the procedure starts with a preliminary inquiry (inquisitio) aiming to gather all relevant information needed to secure the conviction of the accused, so as to enable the court to decide whether sufficient evidence of guilt exists. In Belgium, the case is brought to court only if the public prosecutor considers that there is a reasonable prospect of conviction (under the principle of opportunity), while in other countries, e.g., Germany, there is an obligation to do so. The inquisitorial procedure is secret, written, and solely in the hands of the prosecutor. For historical reasons, Belgian criminal procedure is a mix of both kinds of procedure: inquisitorial during the pre-trial stage, and adversarial during the trial.
The Belgian Code of Criminal Procedure maintains a clear distinction between three phases of the procedure: (a) pre-trial investigation,2 (b) judicial instruction,3 and (c) the hearing:4
(a) The pre-trial investigation, which overlaps with the preliminary enquiry, is the main task of the public prosecutor in the field of penal law. As soon as he/she receives – through police reports or complaints by individuals – information regarding a crime, the prosecutor launches an investigation, which means identifying the offences committed, finding the perpetrators, and collecting evidence. This entails proactive as well as reactive investigation. In carrying out this mission, the prosecutor may ask the judge to take specific measures (for example, autopsy, notice to a witness to appear, closing of an industrial establishment). This procedure is called the ‘mini instruction’. It cannot be used in cases where an arrest warrant is required, an anonymous testimony is sought, or a private telephone tap, or police surveillance of private homes, or for secret surveillance of these places.5
At the end of the pre-trial investigation, the prosecutor may refer the accused to the court with a subpoena, or may drop the charges.6
(b) The judicial instruction is led by an investigation judge. It is launched by either the prosecutor or the action of a private person seeking damages, and regarding only crimes or misdemeanours. Unlike the pre-trial investigation, the judicial instruction is not concerned with investigation of offences, but with all actions undertaken to find perpetrators of an offence already committed and known, to collect evidence, and to take all measures so that a dismissal of charges or a conviction can occur. The judicial instruction involves consideration of both inculpatory and exculpatory circumstances. The investigation judge does not take the initiative, except in case of catching someone in the act, or in case of a mini instruction for which he/she may decide to handle the case.
The investigation judge is provided with significant and exclusive means of action towards persons and goods (for example, issuing a warrant of arrest or search warrant, or house search). He/she is empowered to take extensive measures which may violate individual rights granted to the citizen by the Belgian Constitution.7
At the end of the judicial instruction, the case is sent back to the prosecutor, who may ask the investigation judge to carry out additional actions. If not, the prosecutor brings the case to the Indictment Court. During the period of 15 days which the court has to examine the case, the accused and the civil party may ask the investigation judge for further investigation. At the end of these possibly complementary investigations, the case is sent back to the Indictment Court, which decides whether the charges are sufficiently serious to refer it to the criminal court or not.8 The Indictment Court may ask for further investigation.
The Indictment Court has another important purpose, which is to ensure the legality of pre-trial detention.
An appeal by the prosecutor or the accused can be lodged before the Court Indictment Division. The right of appeal of the accused is limited to procedural issues. The Court Indictment Division has, moreover, the general function of ensuring due process during the procedure.9
(c) The procedure before the criminal court is oral and adversarial. This means, firstly, that the court will hear the public prosecutor’s submissions, the claims of the victim, acting as a civil party, and the arguments of the accused; and, secondly, that each litigant operates on the basis of the same file which has been put at their disposal (with the right to copy it).
Being charged by the prosecutor, or referred by the Indictment Court, the accused appears before the court with his/her lawyer; he may be provided with legal assistance. The lawyer cannot appear instead of the accused.
The person seeking damages is asked to attend the hearing and to introduce the demand for compensation; he/she may be legally represented, so that the victim may avoid any contact with the accused. Justification of the causal link between the offence and the damages, and of the amount of the compensation sought, must be provided.
The prosecutor bears the burden of proof; the accused may stay silent.
In this system, the judge plays an active role in order to find out the truth of the matter. He/she may order further investigation (for instance, a forensic investigation or the hearing of a witness); he/she may also refuse a request for a particular witness to give evidence, or ask for a judicial examination of the scene, and he/she has to evaluate any reasons given for justification, and if necessary can request further information. In all cases, the procedure remains adversarial.
An appeal against the decision of the criminal court is lodged before the criminal division of the Court of Appeal, and against the decision of the Court of Appeal before the Supreme Court (only on points of law or procedural irregularity).
Since 1 March 2016, the public prosecutor may, ex officio or at the request of the suspected person or the accused, or of his/her lawyer, offer a plea bargain if the sentence would be less than five years’ imprisonment. Once the deal is agreed, it must be approved by the court.10 Plea bargaining cannot be used for offences related, amongst others, to sexual exploitation, but THB, due to lawmaking process, is not covered by this exclusion. Compensation of the victim is not a prerequisite.11
Prosecuting and investigating trafficking in human beings
Which authority is competent to prosecute?
The King’s P
rosecutor and the Labour Law Auditor
The King’s Prosecutor is competent to prosecute any offence in the Criminal Code, including THB for the purposes of sexual exploitation, forced begging, economic exploitation, removal of organs, and forced delinquency.
Regarding economic exploitation, Belgian law does not treat it as a specific criminal offence related to forced labour. However, there are in place a range of laws aiming to protect the rights of workers and their working conditions. The main ones are the Law on the Protection of Wages,12 the Law on Work, which regulates, inter alia, the hours of work, and prohibits child labour,13 and the Law on the Well-Being of Workers,14 which imposes obligations on employers in case of hazardous work. The Social Penal Code, which entered into force on 1 July 2011, established as offences any infringement of the provisions of these laws, and stipulates penalties for such violations.15
Since 1970, a specialised public prosecutor, the Labour Law Auditor, is competent to charge defaulting employers before the criminal court, with penalties for offences against labour laws and laws on social security.16 This specialised prosecuting office exists also at the second level of jurisdiction under the authority of the General Prosecutor, and is known as the General Labour Law Auditor.
The offence of THB for the purpose of economic exploitation in the Belgian Criminal Code refers to, “work or services under conditions contrary to human dignity.”17 Considering that most cases of trafficking for the purpose of economic exploitation are linked to breaches of labour laws, it seemed appropriate to give the Labour Law Auditor jurisdiction over this offence. For this reason, the Directive of the Board of General Prosecutors regarding THB (see below) stipulates that THB falls under the jurisdiction of the King’s Prosecutor unless it is linked to other offences under the Labour Law Auditor’s jurisdiction (such as illegal working or informal work, hiring of foreign illegal workers, or violation of the Law on the Well-Being of Workers), in which case the Labour Law A uditor is competent to prosecute the offence of THB.
The King’s Prosecutor and the Labour Law Auditor are both public prosecutors and have the same powers.
Concurrent jurisdiction between the King’s Prosecutor and the Labour Law Auditor
Situations of concurrent jurisdiction between the King’s Prosecutor and the Labour Law Auditor can occur, for instance, in the context of domestic servitude for which the alleged perpetrator is prosecuted for trafficking and for other offences such as rape, indecent assault, assault, and battery, which are under the King’s Prosecutor’s jurisdiction, as well as for illegal or informal work or non-payment of wages under the Labour Law Auditor’s jurisdiction. This situation is regulated by Art. 155.2 of the Belgian Judicial Code, which provides that in this instance the General Prosecutor decides which public prosecutor will handle the case.
In practice, the first prosecutor to enter into proceedings will, as a rule, have jurisdiction. The General Prosecutor will intervene only if difficulties arise. In such a situation, the closest co-operation is required between the King’s Prosecutor and the Labour Law Auditor.
The Federal Prosecutor
The Belgian Federal Prosecutor has jurisdiction over criminal offences which primarily have an international dimension. In such cases, the King’s Prosecutor, as well as the Labour Law Auditor, informs the Federal Prosecutor about its possible jurisdiction, and the Federal Prosecutor decides whether to retain it.18 This means that the Federal Prosecutor, according to the needs of the time, may prioritise some criminal fields over others.
The Federal Prosecutor is endowed with the same powers and means of action as the King’s Prosecutor, but over the whole territory of Belgium.19 The Federal Prosecutor is the contact point for Eurojust.
Regarding THB, the Federal Prosecutor has concluded agreements on international co-operation with Romania, Bulgaria, Albania, Serbia, Moldova, and Russia.
Which authorities are competent to investigate?
The police
The Belgian police are organised in a two-level integrated structure: federal police and local police.20
The local police are tasked with administrative (maintaining public order) and judicial missions (investigating violations of the criminal law) at the local level, while the federal police assume administrative and judicial missions throughout the country, and act as a support service to the local police.21 Regarding THB, the federal police have established units in each judicial district, co-ordinated by a Central Service which contributes to elaborating the criminal policy against THB (allocation of resources and determination of priorities). The Central Service is the link with Europol.
To achieve its investigative mission, the police (either local or federal) act under the authority of the public prosecutor during the pre-trial phase, and under the authority of the investigation judge during the judicial instruction.
The police may act either reactively or proactively. The proactive investigation requires specific authorisation from the public prosecutor, and is initiated only for a prosecution.22 The police may initiate an investigation, but must inform the public prosecutor in accordance with general guidelines adopted by the prosecutor. The police have authority to investigate all forms of trafficking.
While the investigative function of the police seems to be the most important one in combating THB, its administrative function should not be overlooked; for instance, as part of that function, the local police control the operating conditions of facilities such as bars and clubs in such a way that investigators may monitor who is working there, the movements of prostitutes from one place to another, and their working conditions. In this way, the investigators can scrutinise the current situation of prostitution in the local area.23 This is an essential source of information about THB for sexual exploitation.
Social inspections
Social inspections are carried out in order to monitor adherence to labour laws. They play an important role in detecting situations of economic exploitation. Social inspectors are provided with significant powers, which apply to other crimes as well as THB, including:
Free access without notice, at any time of the day or night, to every work place and, under authorisation of an investigation magistrate, to private accommodation;
The right to collect information and check the identity of those in work places;
The power to question any relevant person;
The right to take possession of information in any format, including paper and digital, and proceeding to a seizure or a sealing;
The right to take any measure to prevent threats to the health or security of workers, such as the closure of facilities, or the order to stop work.24
Art. 81 of the Law on Aliens of 15 December 1980 authorises social inspections to investigate cases of human trafficking.25 Art. 81.2 provides that this must be done according to the Code of Criminal Procedure. It means that social inspectors must proceed regarding human trafficking differently than for breaches to labour laws regulated by the Social Penal Code. This has been shown to be problematic regarding visits to private accommodation.26
Other investigating offices
The Aliens’ Office and the customs administration are empowered to identify and investigate situations of THB.27 They are particularly important in detecting victims of trafficking at the borders.
Organising efficient prosecutions
Guidelines
Since 2004, the Board of General Prosecutors has released successive guidelines for prosecutors on the policy of investigation and prosecution regarding THB. The most recent guidelines, called COL 1/2015, entered into force on 15 May 2015. These guidelines include patterns of investigation and questionnaires to be used by the police. They are not published. Nonetheless, it may be said here that the guidelines:
Address the differences between THB and smuggling, as well as forced marriage and illegal adoption, infringements of labour laws, and slum housing, which could be, but not necessarily, linked to trafficking through the common feature that
they involve the abuse of vulnerability of victims;
Provide that the victim’s best interests should be taken into consideration; in cases of offences committed by a victim related to his/her exploitation, the prosecutors are strongly invited to prioritise it as a case of trafficking;28
Draw attention to the specific situation of unaccompanied foreign minors;