11 An amendment should remedy this.
12 2 April 1965.
13 16 March 1971.
14 4 August 1996.
15 Social Penal Code, Title VI, Chapter 2. The Social Penal Code is aimed at codifying all penal provisions contained in separate laws regulating labour and social security. It deals with the prevention, the statement, and the prosecution of offences under these laws. The Code provides for the powers, the means of action, and the jurisdiction of social inspectors; establishes a classification of offences according to their seriousness, the less serious being prosecuted by the administration and others by the Labour Law Auditor; and stipulates the penalties for violation of the laws on labour and on social security.
16 But less serious offences are handled by the administration, which can impose a fine on the perpetrator (Social Penal Code, Book I, Title IV, Chapters 1 and 3).
17 Criminal Code, Art. 433 quinquies.
18 Judicial Code, Art. 144 ter.
19 Code of Criminal Procedure, Book I, Chapter IV bis, Art. 47 duodecies.
20 Act of 7 December 1998 instituting an integrated two-tier police service.
21 Act of 7 December 1998 instituting an integrated two-tier police service; Act of 5 August 1992 on the function of the police.
22 Code of Criminal Procedure, Book I, Chapter IV, Section 1 bis, Art. 28 bis, § 2, which defines the proactive investigation as the act of investigating, collecting, recording, and processing data and information revealing a reasonable suspicion that punishable offences are to be committed or will be committed.
23 In Belgium, prostitution is not an offence.
24 Social Penal Code, Art. 23 to 49/2.
25 This attribution is provided in the Law on Foreigners because, before being integrated in the Penal Code in 2005, the offence of THB was covered by the Law on Foreigners.
26 Suspecting a violation of social penal provisions, together with trafficking, while employing domestic workers, the inspectors visited the rooms, including private living space, of Saudi Arabian princesses in a hotel in Brussels. This was authorised by the magistrate of the police court (at that time competent for this). However, they did not take into account that a house search for the purpose of investigating THB is subject to the Code of Criminal Procedure, which required a specific warrant from the investigation judge, and not on grounds applicable to social penal offences. The employers challenged the regularity of the proceedings, which required two decisions of the Supreme Court. The last, and definitive one, rejected the appeal of the employers on technical arguments. See Cass., 24 April 2013, p. 12.1919.F, www.juridat.be; Cass., 23 September 2015, p. 14.0238.F, www.juridat.be.
27 Law on access to the territory, the stay, the establishment and the removal of foreigners, 15 September 1980, Art. 81.
28 The non-punishment clause is not a legal provision under the Belgian legislation, so the guidelines could not make it mandatory for the prosecutors.
29 These offices have jurisdiction over cases at the second level of jurisdiction (appeal); one for common offences, the second for offences against the social penal law.
30 Judicial Code, Art. 143 bis, § 3.
31 The reflection period is not applicable to unaccompanied minors.
32 Law on access to the territory, the stay, the establishment and the removal of foreigners, 15 September 1980, Art. 61/2 to 61/5.
33 To be understood as a special investigation technique, the staking-out must be systematic, which means for at least more than five consecutive days; or more than five non-consecutive days in a period of one month; or is a staking-out for which technical means are used; or is a staking-out made in an international context; or is a staking-out operated by a special unit of the federal police. This special investigation technique can be used only if required by the investigation, and if other means of investigation cannot help. Criminal Code of Procedure, Art 47 sexies.
34 The infiltration has the purpose to develop, under a false identity, a lasting relationship with one or several persons who are seriously suspected of having committed offences in the framework of a criminal organ-isation. This special investigation technique can be used only if required by the investigation, and if other means of investigation cannot help. Criminal Code of Procedure, Art 47 octies.
35 The use of informers is to enable a police officer to maintain a relationship with someone believed to have a close connection with one or several suspects. Code of Criminal Procedure, Art. 47 decies.
36 Code of Criminal Procedure, Art. 90 ter, § 1 (1).
37 Ibid., § 1 (3).
38 Ibid., § 2 (7 ter), referring to Penal Code, Art., 433 sexies to 433 octies. In the Belgian Penal Code, the offence of THB consists of only two elements: the action and the purpose (Art. 433 quinquies). The means are considered as aggravating circumstances. There are three levels of aggravating circumstances, corresponding to three levels of aggravated penalties: 1 –position of authority over the victim – offence committed by a public servant or police officer in the course of his/her duty (Art. 433 sexies); 2 –minor victim – abuse of vulnerability – use of fraud – violence – threat – other forms of coercion – endangering the life of the victim – the offence caused an apparent incurable disease, a permanent physical or psychical disability, the complete loss of an organ or of the use of an organ, or a serious mutilation /offence is a regular activity for the perpetrator(s) /offence contributing to the activity of a gang association (Art. 433 septies); 3 –unintentional death of the victim /offence contributing to the activity of an organised crime group (Art. 433 octies).
39 Cass., 7 Feb. 1979, Rev.dr.pén., 1979, p. 392; Cass., 4 Dec. 2001, Larcier cass., 2002, No. 491 (somm.), obs.; Cass., 17 Dec. 2002, P02.0027.N.
40 Cass., 5 Feb. 1985, Pas., 1985, I, p. 690.
41 GRETA, Report Concerning the Implementation of the Council of Europe Convention on Action Against Trafficking in Human Beings by Belgium (2013) 14, No. 225. See, also, www.ctif-cfi.be. See, also, Centre pour l’Egalité des chances, Report 2011, Chapter 1 “Follow the money”, www.myria.be/files/Traite-rapport-2011.pdf.
42 See note 47.
43 Code of Criminal procedure, preliminary title, Art. 10 ter §§ 2 to 5.
44 See Court of Appeal Gent, 11 May 1999, No. 653/98 on sexual abuse of minors in Thailand, though not qualified as THB.
45 Code of Criminal Procedure, Art. 182.
46 Royal Decree, 18 April 2013, Art. 9.
47 Law of 13 April 1995, Art. 11 § 5.
48 Pag-Asa, Report 2014, www.pagasa.be/uploads/Rapport%20Annuel%20PAG-ASA%202014.pdf.
49 Information given directly to the author by Payoke.
50 Information given directly to the author by Sürya.
51 Information given directly to the author by Payoke.
52 The other one being the Interdepartmental Coordination Unit for Action against Trafficking and Smuggling; Royal Decree, 21 July 2014, Art. 11.
53 Law 13 April 1995, Art. 11 § 5.
54 Information given directly to the author by Myria.
55 GRETA, Report Concerning the Implementation of the Council of Europe Convention on Action Against Trafficking in Human Beings by Belgium (2013) 14, No. 10, www.coe.int/t/dghl/monitoring/trafficking/docs/Reports/GRETA_2013_14_FGR_BEL_with_comments_en.pdf.
Part 4
Needs of victims of trafficking
19
Trafficking in persons
A victim’s perspective
Conny Rijken
Introduction
Historically, protection and assistance to victims of human trafficking in many countries is anchored in migration law, and dependent on whether or not a residence permit is granted to the victim. Apart from some limited exceptions, co-operation with law enforcement authorities in criminal investigations is a condition for the granting of a residence permit to victims of trafficking. Given the fact that many victims are national victims (for instance, in the Netherlands around 25%) or, in the context of the EU
, are EU citizens and do not need a residence permit, this link with migration law excludes them from the special programmes for trafficking victims. Moreover, many victims do not want to go to the police; or do not consider themselves victims of trafficking; or are unaware of the protection and assistance facilities available, which further limits the range of such programmes. This triggers the question whether or not the current protection and assistance provided to victims of trafficking matches the needs of these victims.
Elaborate research into the needs of trafficking victims has not taken place on a large scale, and the research by Zimmerman, published in 2006, can be considered as the starting point for such research, albeit with a particular focus on health problems.1 On a smaller scale, research on the needs of trafficking victims in the Netherlands was conducted in 2012–2013, the results of which will be presented in this chapter.2 Although the research was conducted in the Netherlands, the findings are applicable to victims in other countries: first, because they encounter similar problems; second, because a number are from other countries and were already victimised in another country; and third, because similar problems have been identified in other countries, as will be discussed below. This chapter tries to answer two questions. The first question is: which factors and patterns play a role in the decision by victims of trafficking to leave the situation of exploitation, make use of assistance, report to the police, or testify against, the trafficker? The second question addresses the needs of victims of trafficking, and whether these needs are sufficiently taken into account when providing victim support and assistance. Victims are often perceived as lacking will and passive, whereas some might be able to make a cost and effect decision within the opportunities of their situation.3 Of course, these options are often considerably restricted in a trafficking situation. The way victims leave the exploitative situation, whether through intervention of the police, their own free will, or with the help of a third person, affects their willingness to co-operate and their (acute) needs.
To answer these questions, a survey was conducted in 2012 among 36 victims of human trafficking in the Netherlands whose stories were elicited in focus groups and open-ended in-depth interviews. The respondents included victims of labour exploitation and sexual exploitation, and were residents of the Netherlands (eight), another EU country (ten), or a third country (18). A quantitative analysis was conducted on the information on victims of trafficking contained in 78 criminal case files of the prosecution service and 25 victim case files compiled by a relief organisation. In addition, elaborate interviews with 15 experts in the field of human trafficking for sexual or labour exploitation were conducted to facilitate understanding of the needs of victims of human trafficking. However, before addressing the two questions identified above, a more fundamental question is addressed, namely: who is a trafficking victim?
Who is a trafficking victim?
Trafficking victims are not a homogeneous group. They differ as to their demographics (some are from third countries, others from EU countries, others from the country in which they are exploited), the forms of exploitation (sexual, labour, other), and to the level of force, coercion, and violence that has been used. This makes it nearly impossible to generalise about the needs of trafficking victims. However, what victims do have in common is that they experience harm as a consequence of a criminal act. The UN Declaration on the Basic Principles of Justice for Victims of Crime and Abuse of Power states:
“Victims” means persons who, individually or collectively, have suffered harm, including physical or mental injury, emotional suffering, economic loss or substantial impairment of their fundamental rights, through acts or omissions that are in violation of criminal laws, including those laws proscribing criminal abuse of power.4
This generates two problems: first, the scope of what act constitutes the act of trafficking is still debated;5 and second, what happens if the act cannot be investigated or prosecuted. According to the UN Declaration, the statement of the victim should be decisive or leading to determine victimhood, and victim status is not conditional on investigation and prosecution. In cases of human trafficking, a victim is entitled to protection and assistance, and therefore it seems reasonable to require the victim to provide information and indications which indicate he/she is a victim of human trafficking. But agreement on the level of information and indications, or the need to prove information and indications, does not exist. This vagueness complicates the determination of victimhood, and it very much depends on experience, knowledge, and sensitivity of police and other identifying authorities whether identification is successful.6 This is even further complicated if victims do not self-identify victimhood, or deny the exploitative situation they are in.
The term victim is often associated with weakness, passivity, and helpless persons who are in need of being rescued, and therefore many trafficking victims do not recognise themselves as victims.7 Such perspectives may lead to systems of control, dependency, and over-protection, including restrictions on movement or leaving the premises, which do not always fit the needs of victims, and might even be detrimental to them. Views on prostitution or sex work often guide interventions by police or NGOs, which either see all sex workers as victims, or blame the sex worker, and sometimes the victim, for working in prostitution.8 Victims can be seen as well as courageous persons who have taken a conscious decision and dare to take risks to improve their living conditions and those of their children or family – a decision which turns out to have been disastrous if they are trafficked. The term ‘victim’ may not always neatly fit this type of victim. In many cases, victims are inclined to self-blaming for ending up in an exploitative situation, which is reinforced by the fact that many trafficking victims have or had a love affair with the exploiter or believed they were in such a relationship. This complex situation makes it more difficult for victims to come forward with their story and disclose the full picture, and leads to victim blaming by law enforcement authorities, judges, and sometimes NGOs.9
How victims escape the exploitative situation and accept support
Regarding the factors that play a role in a victim’s decision to leave the situation of exploitation to seek help and co-operate with the authorities, the theory of rational choice has been applied. This theory contends that such decisions are taken after balancing the advantages and disadvantages of different options. Generalising about the victim’s decision strategies is impossible given the diversity of the victims. However, in many cases in the research conducted in the Netherlands, the family has had an influential role in the decision of Dutch victims to leave the situation of exploitation, even if family relations were disrupted and feelings of shame and embarrassment were present among victims. This was primarily the case for a number of Dutch victims. A number of victims (especially from other EU countries) were informed by the owner of the brothel (not the trafficker) in which they were working about the options to go to the police and to report the exploitation. In some cases, police raids created the possibility for victims to escape the exploitative situation. Many victims from third countries, but also EU-nationals, had been locked up in houses or apartments without knowing where they were located, and without an option to escape. They were often uncovered through police raids, or took advantage of inattentiveness of the traffickers to escape.
A distinction can be made between victims who left the exploitative situation on their own initiative, and victims who were taken out of the exploitative situation by others, most often the police. A trigger situation often makes a person decide to leave the situation and to stand up against the trafficker. Examples of such situations are extreme violence, pregnancy, and opportunity to escape. These victims are often inclined to accept assistance and/or to report to the police. This is different from those victims who came out of the exploitative situation as a consequence of police intervention. They are still under the influence of the trafficker, try to protect the trafficker, and some of them want to go back so as to av
oid getting into trouble with the trafficker. They do not want to report to the police, and decline support and assistance.10
Many victims come into contact with police and care institutions after a police action. Especially for victims of labour exploitation, this is not, in all cases, considered as positive. The exploiter still owes them money and they have to find new employment. This might be true for victims of sexual exploitation, as well. When victims are identified following a police intervention, they might not be mentally ready to stand up against the employer, and therefore will not, or at least not immediately, be prepared to disclose in full their situation. Victims state in interviews that in the first period after they are out of the exploitative situation they still protect the trafficker and are not ready to disclose information about the trafficker. They first have to be ‘untied’ or ‘unwebbed’ from the trafficker and trafficking situation before they are able to make their own decision and compose their own thoughts. This is more difficult if the victims did have a ‘presumed’ love affair with the trafficker: such victims then, more often, go back to the exploitative situation.
Why victims report and seek help
The organisations specialising in support for prostitutes seem to have a low threshold for trafficking victims working in prostitution to come forward with their story – because they already know the organisation from their outreach work and activities. These organisations are also a good entry point for other organisations (e.g., family doctors, churches, migrant and refugee organisations) that come into contact with victims of trafficking but do not provide them with assistance and support. When victims know they will be taken care of if they escape their exploitative situation, and when basic needs (safety, accommodation) are secured, they are more inclined to take the steps to escape. The role of the family of the victims is multidimensional: they can help the victim to leave the exploitative situation; they can provide for a safe environment and accommodation; but on the other hand, they often trigger feelings of shame and embarrassment, which is a burden both in contacting the family and in asking the family for help.
Routledge Handbook of Human Trafficking Page 49
