Routledge Handbook of Human Trafficking
Page 48
Define the priorities of criminal policy;
Organise how to collect data in order to draw the best picture for police purposes of the phenomenon of THB;
Provide for a specialised prosecutor in the King’s Prosecutor’s office as well as in the Labour Law Auditor’s office in each judicial district, and a specialised prosecutor in the General Prosecutor’s offices,29 and define their functions;
Call for the best co-operation between the specialised prosecutors of the various offices, as well as with the public prosecutor’s department for the protection of youth;
Stress the need to proceed to a financial investigation into the assets of the perpetrators, and to special investigation techniques.
A set of appendices contains a list of indicators of THB, methods of investigation and of prosecution in the diplomatic environment, and the way offences are reported. A specific guideline for prosecutors dealing with cases of exploitation of begging (COL 20/2016), including through THB, entered into force on 1 October 2016.
Network of expertise
The specialised prosecutors in THB are ex officio members of the network of experts in THB of the Board of General Prosecutors. Networks of expertise may be created by the Board of General Prosecutors in different criminal fields. They are composed of prosecutors and external experts; they are responsible for the optimal circulation of information amongst the prosecutors, and can be tasked with a support mission to the Board of General Prosecutors.30
In the interests of efficiency, the missions of the networks are operated by a co-ordination team. This team is supposed to respond to enquiries regarding law enforcement – from prosecutors in the field – as well as to contribute to the development of criminal policy at the request of the Board of the General Prosecutors. The team also prepares training programmes and collects and disseminates important judgments. The network of expertise for THB organises regular plenary sessions to which all the specialised prosecutors are invited, as well as other partners, including NGOs, the Aliens’ Office, federal police, local police, and the National Rapporteur on Trafficking in Human Beings. It provides a forum for exchanges of views on current issues and on recent important judgments.
Tool for on-call duty
The prosecutors on duty are not necessarily specialised in THB. Therefore, they are provided with short and distinctive instructions on how to manage cases of trafficking they encounter while on duty (including specificity of the offence of THB, identification of victims, what evidence to collect, how to conduct the first hearings, primary assistance to victims, and contacts with the shelter).
How is the work of the prosecutor affected by the protection needs of the victim?
The national referral mechanism
The Belgian national referral mechanism is regulated by the Circular of 23 December 2016 on implementing multidisciplinary co-operation in respect of victims of THB and/or certain aggravated forms of smuggling of migrants, entered into force on 20 March 2017. The Circular stipulates that as soon as a victim or potential victim is detected by the police or labour inspectorate, or by a specialised reception centre believing that the individual is a victim of trafficking, the services concerned must inform the public prosecutor in order to launch the procedure for the formal identification of the victim.
Once a victim has been detected, the public prosecutor involved carries out formal identification of the person concerned as a victim of THB entitled to the protection status provided for in Belgian law. The prosecutor makes the final decision; in case of doubt, in consultation with the other partners, particularly the police and labour inspectors and the specialised reception centre.
Links between protection and prosecution
Once detected and formally identified as a potential victim of THB, the person may be granted successively different types of permission to stay in Belgium if he/she is without Belgian residency:
At first, the individual is granted a permission to stay during the reflection and recovery period of a maximum of 45 days;31
If the individual has, within the reflection period, lodged a complaint or made a statement against alleged perpetrators, he/she receives a temporary right to remain for three months, maximum; this permit is renewable once at the request of the specialised reception centre, for the purpose of the investigation or if the Aliens’ Office considers it expedient in the circumstances;
At the end of the temporary stay of three months, the victim receives, by decision of the prosecutor, a residence permit for six months; the prosecutor’s decision is based on the input of the other stakeholders (specialised reception centre, Aliens’ Office, police, social inspection); in making this decision, the prosecutor, at the request of the Aliens’ Office, addresses five questions: is the investigation or the prosecution still ongoing? At this stage, can the person be considered as a victim of THB? Is the person willing to cooperate? Has the person broken links with the presumed perpetrator(s)? Is the person a threat to public order or national security? If the answers are positive to the first four questions and negative for the ultimate one, the Aliens’ Office gives instructions to issue the permit; this permit is renewable as long as the conditions are fulfilled and at least until the court decision;
The victim receives an unlimited residence permit if their complaint has led to a conviction of THB, or if the prosecutor has brought charges of THB.32
At any time during this procedure, the prosecutor may decide that the individual concerned is not a victim of trafficking, after consultation with the other stakeholders (police and specialised reception centre). Moreover, the prosecutor must be informed by the shelter if it should be about to stop providing assistance to a victim; according to the Circular of 23 December 2016, the prosecutor and the shelter would in this case try to find the best solution in order to safeguard the rights of the victim, as well as to avoid losing his/her testimony (this might, for instance, entail the transfer of the victim to another specialised reception centre).
The public prosecutor plays a major role in deciding the status of foreign victims on Belgian territory. Both during the investigation, according to the answers given, and at the end of it, according to his/her decision whether to proceed to trial or to drop the charges, the impact on the status of the victim will be crucial: either he/she will immediately lose the right to stay in Belgium, and as a person illegally in Belgium might be deported at any time; or, on the contrary, he/she will be permitted to remain indefinitely in the territory.
Tools for efficient inquiries
Special investigation techniques consist of invasive techniques of investigation used for the purpose of prosecution of suspected offenders, or for collecting, recording, and processing data and information in case of serious suspicion that an offence has been, or will be, committed. These techniques, which include the staking-out of persons or places,33 the infiltration of criminal networks,34 and the use of informers,35 can be used to collect evidence against suspected traffickers. For instance, in a trial ongoing at the time of writing, the staking-out of a petrol station (with a camera) helped the investigators to obtain evidence of the movements of truck drivers, the fact that some of them were living in the station, and that they were in contact with certain persons despite their denial of this fact.
These techniques may be used only with the authority of the public prosecutor. Police officers are empowered to monitor the use of these techniques. Moreover, if the public prosecutor decides to proceed to trial, the Court Indictment Division would assess the legitimacy of the techniques if used during the investigation.
Whenever the public prosecutor drops the charges after having authorised the use of special investigation techniques, he must report this in his quarterly report to the General Prosecutor, who must verify the legitimacy of the techniques.
Phone tapping and recorded conversations
The Code of Criminal Procedure stipulates that when the investigation requires, meaning that there is no other means of investi
gation that will achieve the desired objective, the investigation judge may order phone tapping and recording of conversations where there are clear signs that offences are taking place.36 Under the specific authorisation of the investigation judge, phone tapping can be used against suspects as well as premises.37 While not permitted with regard to all offences, it is specifically permitted in the case of suspected THB with aggravating circumstances.38
Police entrapment
Police entrapment consists in creating the mens rea, or in reinforcing it in the mind of the person who will commit the offence.39 Entrapment will not necessarily result in automatic failure of the prosecution. It cannot be relied upon by the defence if the intention to commit the offence existed before the police intervened, nor if the action of the police was limited to creating the opportunity for the perpetrators to commit the offence of their own volition.40
Entrapment has been lawfully used with regard to THB by the federal police to detect and identify networks of escort girls: a date is made with an escort; the phone call is recorded; when the escort arrives for the encounter, the police intervene and check the identity of the escort and of any person accompanying her, the last being the real target.
House searches
House searches for the purpose of obtaining evidence of crime require an authorisation by the investigation judge in the context of a mini instruction. Labour inspectors may conduct house searches for breaches of labour laws, in compliance with the Social Penal Code, under an ordinary authorisation of the investigation judge with no judicial instruction required. However, if the search is conducted also for THB, it must be done in compliance with the Code of Criminal Procedure, which requires a specific warrant and the launch of a judicial instruction.
Financial investigation
THB is often conducted in the framework of a financial business developed by organised crime groups. It is thus important to identify this financial business and to dismantle it by using financial investigations and asset recovery. Moreover, effective compensation of the victims hangs on the success of seizures and confiscations of materials and profits of crime, which requires speedy identification of assets by investigators and prosecutors.
Belgian Law contains various provisions on the basis of which financial investigations may be launched, including:
Art. 43 quater of the Penal Code, which allows for confiscation upon conviction of assets obtained as a result of the offence; confiscation is permitted of assets acquired up to five years prior to prosecution if there are indications that the assets derive from the offence, and if the convicted person cannot demonstrate that the assets were acquired lawfully;
Art. 35 of the Code of Criminal Procedure allows the seizure of a sum equivalent to the value of the assets presumably deriving from the offence; this measure can be ordered during the pre-trial investigation, as well as during the judicial investigation;
Art. 524 bis of the Code of Criminal Procedure allows the judge, on finding an accused guilty, to require, on demand of the public prosecutor, a specific investigation into the assets of the accused; this measure, which gives wide powers to the investigators, can lead to confiscation.
The judicial authorities are assisted by the Financial Information Processing Unit, which analyses suspicious financial transactions and informs the judicial authorities when strong signs of laundering appear to arise from certain forms of crime, including THB.41
International jurisdiction
According to Art. 10 ter of the Code of Criminal Procedure, any person who has committed the offence of THB with aggravating circumstances42 abroad may be prosecuted in Belgium.
If the accused is not on Belgian territory, a prosecution may be launched if the offence was committed by a foreigner against a person who was at the time a Belgian citizen, but only at the request of the public prosecutor (this does not apply to long-term residents of Belgium). When he/she receives a complaint, the public prosecutor refers it to the investigation judge, unless:
The complaint is manifestly unfounded;
The offence contributed to an act of terrorism;
No proper public prosecution may result from the complaint;
It appears from the circumstances of the case that for the good administration of justice, and in respect of the international obligations of Belgium, the case should be referred to an international court, or the court of the place where the facts were committed, or the court of the State of which the accused is a citizen, or the court of the State where the accused is present.
If he/she decides that any of the first three conditions is fulfilled, the public prosecutor brings the case to the Court of Indictment Division, which decides whether to refer the case to the investigation judge. If he/she decides that the last condition is fulfilled, the public prosecutor drops the charges and notifies the Ministry of Justice.43
Cases referring explicitly to the application of this provision to THB are quite rare.44
Additional elements on court procedure
Ways to introduce the case to the criminal court
If the public prosecutor decides to press charges at the end of the pre-trial investigation, or if the Indictment Court considers at the end of the judicial instruction that the accused should be referred to the criminal court, the public prosecutor brings the case.
If the public prosecutor decides to drop the charges, or if the Indictment Court decides to dismiss them, the victim may nonetheless take legal action themselves by issuing a writ of summons to the perpetrator(s) and to the public prosecutor.45 The trial will then be held exactly as if it had been initiated by the public prosecutor, and the victim will have the same entitlement to compensation.
However, a direct summons initiated by the victim of THB if he/she stays illegally on the territory does not have the same effect on his/her situation as the decision by the public prosecutor to bring the case. The latter provides the victim with a protected status, including a right to stay on the territory, while the former does not. In the case of a direct summons by the victim, the right to stay on the territory would nonetheless derive from the verdict by which the offence of THB is established.
Particularities for NGOs and the National Rapporteur
Besides those involved in the trial, the three specialised reception centres which are official shelters for victims of trafficking – Payoke in Antwerp, Pag-Asa in Brussels, and Sürya in Liège –46 may also join the proceedings undertaken against the traffickers, either in their own name or on behalf of victims who mandate them to this effect.47 They can seek compensation for themselves as a civil party, or for the victims. In 2014, Pag-Asa brought civil claims in two cases,48 while Payoke only once sought compensation for itself.49 Sürya’s policy is to stay away from such proceedings.50 The main reason why the NGOs initiate so few actions is the cost. As they are funded by public authorities to assist the victims, they cannot receive compensation for expenses connected to assistance of the victim; so when they act as a civil party, their claim is usually symbolic.51
This mechanism by which the NGOs are allowed to represent the victim is a great support for victims, and may be helpful in reducing contact with the accused during the trial (the victim has no obligation to appear in person before the court).
Myria, one of the National Rapporteurs or equivalent mechanism on THB,52 has the same right to be a civil party53 in order to further one of its objectives, promoting the fight against THB. The main purpose of its participation in legal proceedings is thus to obtain recognition of a situation of trafficking in certain cases and to develop case law. It can also support victims. It brought six claims in 2014 and five in 2015, usually limited to one symbolic euro.54
Conclusion
The Belgian proceedings may seem quite complex, with the mix of inquisitorial and adversarial aspects aiming at balancing the rights of the accused, the protection of the victim, the aims of the prosecution, and the highest interest of justice.
Complexity arises, too, thro
ugh the sharing of jurisdiction over THB between different prosecution offices and law enforcement agencies, but this produces positive outcomes, as more than 50 percent of THB cases are related to economic exploitation.55
Through the special investigation techniques, as well as specific guidelines, the public prosecution office seeks to provide an adequate response, together with other partners, to the challenges posed by THB.
Notes
1 This summary is inspired by Franchimont, M., Jacobs, A., and Masset, A., Manuel de procédure pénale (Bruxelles: Larcier, 2012), pp. 22–28; Bosly, H.-D., Vandermeersch, D., and Beernaert, M.-A., Droit de la procédure pénale (Bruxelles: La Charte, 2008), pp. 11–13.
2 Code of Criminal Procedure, Book I, Chapter IV, Section 1 bis.
3 Ibid., Chapter VI, Section 1.
4 Code of Criminal Procedure, Book II, Title I.
5 Code of Criminal Procedure, Book I, Chapter IV, Section 1 bis, Art. 28 septies.
6 Ibid., Chapter IV, Section 1 bis, Art. 28 quater.
7 Belgian Constitution (revised in 1994), Art. 12 (Freedom of movement), Art. 15 (Inviolability of the home), Art. 22 (Respect for private life), Art. 29 (Confidentiality of correspondence).
8 Code of Criminal Procedure, Book I, Chapter IX, Art. 127–128.
9 Ibid., Chapter X.
10 Code of Criminal Procedure, Book II, Title I, Chapter II bis, Art. 216.