The non-punishment principle as an essential element of a human rights-based approach to action against trafficking in human beings

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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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Content of the presentation

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

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1. Federal Migration Centre

• 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

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2.Why a human rights-based approach?

• 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)

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2.Why a human rights-based approach?

• Large scope of the principle
• Not only prosecution
• Other ways victim is punished
• Breach immigration law, work in violation of
  labour laws ? detention centre and deportation
• Core of the issue no real autonomy

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• 3. Challenges relating to implementation
  examples from a civil law country (Belgium)

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6.
Belgian penal system

• Belgium, civil law country
• Definition of THB (art 433quinquies 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

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6.
Belgian penal system  filters  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)

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6.
Issues of non punishment

• Offences committed as a direct consequence/directl
  y 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)

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

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6.
Prostitutes forced to buy/use false 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

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6.
Prostitutes forced to buy/use false 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 defendants
  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

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• 2. Forced criminality and victims identification

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6.
Issues

• 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, victims
  status)
• Punish the real perpetrator (easier to make use
  of other persons and remaining in the background)

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6.
Case theft (Criminal Court of Turnhout, 17
october 2012, confirmed by Cour of Appeal of
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

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6.
Case theft (Criminal Court of Turhnout, 17
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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6.
Case drugs (Criminal Court of Charleroi)

• 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

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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

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• 3. Victim becomes perpetrator a difficult human
  rights choice

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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 victimstatus but
  refused and arrogant behaviour

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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)

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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?

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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

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6.
Recommandations

• 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

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• Thank you for your attention!