Direct Request (CEACR) - adopted 2009, published 99th ILC session (2010)

Articles 1 (paragraph 1), and 2 (paragraph 1), of the Convention. Trafficking in persons. In its previous comments, the Committee noted with interest the various measures adopted by the Government to combat trafficking in persons, including the adoption of various laws repressing trafficking and organizing the protection of victims, with the establishment of specialized institutions. It requested the Government to continue providing information on any further steps taken to strengthen the measures to combat trafficking in persons, the difficulties encountered by all the actors involved and the action taken in response, and to continue providing the publications and reports of the institutions that are competent in this field, as well as the available statistical data.

With regard to the new steps taken to reinforce measures to combat trafficking, the Government indicates in its latest report that the work of the Interdepartmental Task Force for the Coordination of Action against Human Trafficking, which is chaired by the Minister of Justice and includes representatives of the various ministries involved (Justice, Interior, Foreign Affairs, Social Affairs, etc.), was officially relaunched on 25 June 2008. This work includes the preparation of the Circular on the implementation of multidisciplinary cooperation in relation to the victims of human trafficking and/or certain more serious forms of human trafficking, of 26 September 2008. The objective of the Circular is to organize collaboration between the various services concerned (police, labour inspection, Bureau for Foreign Nationals, specialized reception centres, public prosecution service) with a view to improving the protection of the victims of trafficking by determining the conditions for obtaining the status envisaged by the Act of 15 September 2006 amending the Act of 15 December 1980 respecting the access, stay, establishment and departure of foreign nationals from the national territories. The Circular emphasizes the need for constant action to raise the awareness of the actors primarily involved through continuous training for the detection of any potential victims and, thereafter, for their support during the period of reflection envisaged by the protected status. A multilingual brochure for victims of trafficking indicates the contact data for the three specialized reception centres accessible 24 hours a day. The Circular provides that it will be evaluated by the Interdepartmental Task Force for the Coordination of Action against Human Trafficking within 24 months of its publication.

Furthermore, a national plan of action to combat human trafficking was approved by the Council of Ministers on 11 July 2008. The plan of action assesses the policy implemented to combat trafficking and identifies the projects to be developed over the next ten years. It contains a number of proposals, including possible modifications to the law and regulations, the development of prevention initiatives, investigations and prosecutions relating to human trafficking and the protection of victims. With regard to the domestic staff of diplomats, who are sometimes victims of trafficking, the plan of action proposes that a residence permit could be granted to a victim where a civil action is brought to the labour courts following a complaint, as criminal action is impossible in view of the immunity of the diplomats. In relation to the issue of subcontracting, also raised by the Committee in its last direct request, the plan of action takes up the proposal to establish the shared responsibility of those issuing instructions who have recourse to subcontractors employing victims of trafficking. The Committee notes, in light of the information contained in the plan of action, that the Minister of Employment sought the views of the Interdepartmental Task Force for the Coordination of Action against Human Trafficking on the action to be taken on the draft text, but has not received an answer.

The Committee notes the statistics provided by the Government in its report, originating among others from the College of General Prosecutors and the Bureau for Foreign Nationals. The data from the College of General Prosecutors relates to the number of cases of human trafficking recorded by the various courts in the country between 1 January and 31 December 2007. According to these statistics, 418 cases brought to the judiciary in 2007 related to acts of trafficking in persons (compared with 451 in 2006). Although in 2006 the majority of the cases of trafficking investigated related to sexual exploitation (64 per cent, compared to 30 per cent in relation to labour exploitation), the trend was reversed in 2007, with 52 per cent of cases relating to labour exploitation, and 40 per cent concerning sexual exploitation. The Government explains this reversal by indicating that sexual exploitation is increasingly difficult to control, particularly due to the development of the Internet, which permits an interference that these figures might be underestimated. The statistics also show that, of the 418 cases concerning trafficking in 2007, 118 were set aside without further action, principally due to the lack of evidence and because they were untimely. As of 10 January 2008, 125 investigations were being carried out in cases of trafficking initiated in 2007. The data provided by the Bureau for Foreign Nationals indicate that in 2007 almost as many men as women were victims of trafficking (88 compared with 90), whereas in previous years, women had made up the majority of the victims. This levelling of the figures can be explained, according to the Government, by the over-representation of economic exploitation, of which more men are victims, in comparison with sexual exploitation, to which more women than men are subjected. With regard to the types of exploitation, out of 178 victims recorded in 2007, 114 were subject to economic exploitation, compared with 51 victims of sexual exploitation (moreover, nine individuals were recorded as being victims of trafficking and four as victims of other types of exploitation). With regard to convictions, the Government indicates that the latest statistics available from the Criminal Policy Service date back to 2004 and 2005, that is before the establishment of the offence of human trafficking by the Act of 10 August 2005.

The Committee notes the 2007 report on human trafficking issued by the Centre for Equality of Opportunity and Action against Racism (hereinafter “the Centre”), published in May 2008, which contains a global evaluation of the policy in combating trafficking in persons, analyses several cases of sexual exploitation in which the Centre has been a civil party and reviews Belgian case law for the period 2006–07 for both cases of sexual exploitation and economic exploitation.

With regard to the coordination of the various initiatives adopted at the national level to combat human trafficking, the Centre’s report indicates that, despite the fact that many activities have been approved by the Interdepartmental Task Force for the Coordination of Action against Human Trafficking, many projects already approved have not received the necessary political support for their implementation. The Centre regrets in particular the variable levels of participation, with certain exceptions, of political representatives in the meetings of the Interdepartmental Task Force, which has not really played its expected role of instigating policy evaluation and improvement (page 24 of the report).

Among the court rulings referred to in the Centre’s report, the Committee notes the various decisions handed down in cases of trafficking for economic exploitation. Certain of these rulings develop the concept of setting a person to work under “conditions inconsistent with human dignity”, one of the elements that constitute trafficking (see, for example, the Magistrate’s Court of Gand, 22 October 2007, 19th Chamber; Court of Appeal of Liège, 24 October 2007, Fourth Chamber). In one case (Court of Appeal of Mons, 26 December 2007, 13th Chamber), related to Romanian nationals who had been persuaded to come to Belgium with enticing promises of permanent and highly-paid work, and who were in reality rarely paid and sometimes lodged under rather mediocre conditions, the court found that it mattered little whether the victims had in practice been able to travel as they wished in Belgium or to Romania since, in economic terms, they were bound to the accused in the absence of a legal administrative status on Belgian territory (the events occurred before the entry of Romania into the European Union). In another case, the Magistrate’s Court of Brussels (4 January 2007, 58th Chamber) did not uphold the classification of human trafficking, even though the working conditions of the plaintiffs were deplorable (ten hours work a day at €4 an hour, with ill treatment), and only took into account the violations of penal labour law. Finally, another case exemplified the lack of knowledge by certain judges of the role of reception centres, as the Magistrate’s Court of Huy appeared to consider, firstly, that reception centres would incite victims to bring charges with a view to obtaining residence permits in Belgium and, secondly, that the grounds for obtaining residence documents would be an allegation that rape had occurred (Magistrate’s Court of Huy, 27 April 2007, 7th Chamber).

Moreover, several court rulings were handed down in 2007 and 2008 in cases of trafficking for sexual exploitation purposes. The Committee notes that in a number of cases the courts awarded compensation to the victims for material damage (reimbursement of the earnings denied to the victims) in addition to compensation for moral damages prejudice (see, among others: Magistrate’s Court of Brussels, 20 December 2007, 46th Chamber). However, in another case (Court of Appeal of Gand, 31 May 2007, 3rd Chamber), it was found that such earnings were unlawful and therefore did not give rise to damages of compensation. The Centre indicates that this ruling appears to be fairly isolated on this point as many courts award damages to victims for the amount of the earnings they have been denied (page 108 of the report).

In conclusion, the Committee notes the Centre’s recommendation that stronger emphasis should be placed on the detection and identification of victims and the effective application of the period of reflection for victims. The Centre is also of the opinion that more frequent use should be made of anonymous testimony with a view to increasing the protection and confidence of victims in relation to the police services and the judicial system in general. Action towards the victims should be more focused on atypical victims of economic exploitation achieved through training and awareness-raising activities for the personnel of the various services involved. The Centre emphasizes the need for achieving a solution at the European level so that victims who have been exploited in another country could benefit from protected status in Belgium while in the country. It also advocates the introduction of a law establishing the shared financial responsibility of those who give orders in the context of human trafficking for economic exploitation and raising the awareness of judicial authorities so as to ensure that civil parties are systematically compensated through the return of confiscated earnings. The Centre also recommends at a later stage the adoption of legislation granting the status of victim of human trafficking irrespective of whether those concerned have collaborated with the judicial system.

Noting all this information with interest, the Committee would be grateful if the Government would continue providing information in future reports on the measures taken to combat trafficking in persons, the difficulties encountered and the solutions proposed to overcome these difficulties. It would also be grateful if it would continue providing the latest statistical data available, as well as documents and reports of institutions involved in combating trafficking in persons. Furthermore, it requests the Government to provide a copy of the evaluation of the Circular of 26 September 2008 made by the Interdepartmental Task Force for the Coordination of Action against Human Trafficking (as envisaged in the Circular) when it has been completed.

Article 25. Penal sanctions imposed for trafficking in persons. The Committee notes that the Government’s report contains statistics from the Criminal Policy Service concerning convictions for violations relating to trafficking in human beings. The Government specifies that some of these statistics are based on section 77bis of Act of 15 December 1980 which, before the entry into force of Act of 10 August 2005, established penalties for both trafficking in human beings and smuggling of human beings. The Committee hopes that the Government will be able to provide statistical data in its next report covering the offence of trafficking in human beings, as set out in sections 433quinquies to 433novies of the Penal Code. It would also be grateful if the Government would provide a copy of court rulings handed down in cases of trafficking so that it can examine the manner in which Belgian courts apply the new provisions incriminating trafficking in human beings.