Imagine a Nigerian minor forced into prostitution with false documents. Or children forced to commit robberies in organized gangs. While being victims of trafficking of human beings, these minors are also perpetrators of crimes committed under duress. Can justice prosecute them? Yes, but since July 1 2019, these victims can no longer be punished for offences resulting from their exploitation.
Why enshrine this principle in law?
Previously, Belgian law did not contain a principle of non-punishment specific to victims of trafficking of human beings. The Nigerian minor mentioned above could be prosecuted for forgery and the children in organized gangs for theft or robbery with violence. However, prosecutions rarely took place. The proceedings were often closed without further action because of the situation of the perpetrators, in reality the victims.
If the victim was nevertheless prosecuted, he or she could invoke coercion, namely the fact that he or she was forced to commit an illegal act. However, coercion is not always obvious to characterize and some victims have been convicted of offences committed as a result of their exploitation. It occured in a 2008 case of the Charleroi Criminal Court: illegally staying Moroccans were forced to sell drugs by their traffickers. The latter were convicted of drug trafficking and not human trafficking. As a result, the victims were not recognized as such and could not invoke coercion, risking prosecution for drug trafficking. Thanks to the intervention of the King’s Prosecutor, however, they were granted the status of victims of trafficking of human beings, which enabled them to escape conviction.
By being inserted in law, the principle of non-punishment then becomes a statutory ground for exemption i.e. the person’s responsibility is established but a penalty cannot, under any circumstances, be imposed. If the person is recognised as a victim of trafficking in human beings, he or she will be able to benefit from this principle of non-punishment. A new paragraph 5 is added to article 433 quinquies of the Criminal Code: “A victim of trafficking in human beings who takes part in offences as a direct consequence of his exploitation shall not be punished for those offences”.
The first objective of this law is to protect the human rights of the victim deprived of his or her free will, by avoiding unfair punishment. This will make the judicial approach more consistent. The second objective is to establish a relationship of trust and therefore better collaboration between victims and investigators. Traffickers often use blackmail to avoid complaints against them. If the victim talks to the police about his or her situation, the perpetrator will in return report the offences committed by the victim as a result of his or her exploitation. The victim will therefore prefer to remain silent rather than file a complaint against the perpetrators. However, the victim’s testimony in this type of case is very often decisive in obtaining a conviction.
Establishing a relationship of trust is even more challenging when the victims are minors, and therefore more easily under the control of their operators. If the latter are part of the family circle, the children’s loyalty is sometimes so strong that there is no argument that can convince them to file a complaint against their own. Except possibly the assurance not to be sued.
Thirdly, this new law also meets the expectations of actors on the ground for whom the legislation in force was not always easily applicable (Myria report of 2012). In cases of forced crime (e. g. violent robbery), the victim/actor will have difficulty being recognized as a victim and will be more easily convicted of these acts, without proof of coercion. While a person who had false documents, which is considered a less serious offence, will be less likely to be punished, creating unequal treatment. With this legislative change, no victim of trafficking can be convicted of any offence committed in the context of their exploitation.
Although this reform is a step forward, questions are still outstanding. How will the law be applied in practice? What will be the limits of the principle? Will all violations be taken into account? And what about the victims who then become exploiters: will they also escape conviction? Only time will tell.