Human trafficking: what to do and what not to do?
Some time ago, it was discovered that several individuals who worked at a Borealis construction site are believed to have been victims of the crime of "human trafficking.
VRT NWS states that the victims "would have received a wage of at most 650 euros per month to work 6 out of 7 days to build a new factory".
After discovering this information, the Antwerp Labor Auditorate launched an investigation into human trafficking by a Borealis subcontractor.
Definition
Article 433quinquies of the Criminal Code states the following:
"Does the crime involve human trafficking, the recruitment, transportation, transfer, housing, sheltering of a person, taking or transferring control over him for the purpose:
1° the exploitation of prostitution or other forms of sexual exploitation;
2° the exploitation of begging;
3° performing work or providing services, in conditions contrary to human dignity;
4° exploitation through the removal of organs or human bodily material;
5° or cause such person to commit a crime or wrongdoing against his will.
Except in the case referred to in 5, the consent of the person referred to in the first paragraph to the intended or actual exploitation is immaterial."
In the case of the Borealis construction site, it is alleged that a well-defined subcontractor recruited the victims with as target To make them work in inhumane conditions.
But as is clear from the Criminal Code, human trafficking can also occur when one sexually exploits someone or takes away their organs.
Thus, the definition applies to many more cases than just cases of economic exploitation.
However, human trafficking is not the same as human smuggling where people are helped to cross a border illegally for the specific purpose of making money from those people, without necessarily involving exploitation.
Coercion not necessary ...
A peculiarity in Belgian law is that coercion not required is before human trafficking can occur.
This has the supposed advantage that more situations, such as undeclared and illegal employment, can be prosecuted as human trafficking without requiring that the victims were forced to work.
In other words, even if the victims chose to work for the wages offered, there may still be human trafficking as long as there is the motion element ("the recruitment, transportation, transfer, housing, reception of a person, the taking or transfer of control over him") and the exploitation element.
Moreover, there does not even have to be successful exploitation. As long as the perpetrator transports someone else for the purpose of their exploitation, he is punishable; whether he accomplishes that purpose or not.
Coercion is eventually still mentioned in Belgian legislation but only as an aggravating circumstance with the result that - when coercion is involved - a heavier penalty can be imposed.
... demeaning conditions do
Against this lack of a reference to the coercive element in the definition of trafficking - with the advantage that more situations can be denounced - is the explicit reference (regarding economic exploitation) to "circumstances contrary to the human dignity' tempering that advantage somewhat.
After all, when there is employment, even if it is under duress, there will not be trafficking for economic exploitation if there are not at the same time degrading conditions.
Since there is no other provision in our Penal Code that explicitly punishes forced labor or slavery, this impasse cannot be resolved through a prosecution for forced labor or slavery either.
In addition, the term "human dignity" is extremely vague and can give rise to very different interpretations, for or against the victim.
For example, there could be voices arguing that earning 650 EUR per month is exceedingly little but therefore not demeaning, with the result that there is no trafficking and the victims do not claim the status of "victim of trafficking," which in turn has implications for his or her residency status, as the aftermath of the Borealis case also shows.
Thus, given the difficulty of proving degrading conditions, prosecutions for socio-criminal offenses (which are easier to prove) are far more likely to be initiated than prosecutions for human trafficking, despite the residency implications involved.
If you have specific questions about human trafficking or would simply like more information about it, please feel free to contact us at info@bannister.be or 03/369.28.00.
