Kidnapping, unlawful deprivation of liberty or hostage-taking?

Kidnapping, unlawful deprivation of liberty or hostage-taking?

Several kidnappings have been in the news (again) recently. For example, on June 1, 2020, a 13-year-old boy from Genk was released after an alleged 42-day hostage situation and on June 3, 2020, according to several media sources, a new suspect was identified in the infamous kidnapping case-Madeleine McCann.

It should be noted that not every abduction is the same, even legally. In fact, there may be 'kidnapping', 'unlawful deprivation of liberty' either 'hostage-taking'; crimes that should be clearly distinguished from each other and punished in different ways.

Kidnapping

The crime 'abduction' can be committed - according to the letter of the law - only with respect to minors and vulnerable persons. Vulnerable persons in this regard are, for example, the elderly, pregnant women or people with mental or physical disabilities. Moreover, even when a child who is not yet 12 years old has voluntarily followed the kidnapper, kidnapping can occur.

The penalties associated with kidnapping range from 5 to 30 years.

Although the sentence may be extended to life imprisonment in case there is a terrorist motive involved. These sentences also apply to the person who keeps a minor or vulnerable person with him, after the actual abduction, when that person knows that an abduction has taken place. Nevertheless, the penalties are reduced if the abducted minor or vulnerable person is voluntarily returned within the 5 days.

Unlawful deprivation of liberty

There is a unlawful deprivation of liberty when arresting or detaining someone without a lawful order or legal reason. It should be noted in this context that the crime can also be committed by public officers and officials when, for example, they unlawfully AND arbitrarily arrest one or more persons or when they fail to terminate or establish an unlawful deprivation of liberty, depending on their powers.

The crime of "unlawful deprivation of liberty" is punishable by sentences ranging from 3 months to 5 years, depending on the duration of the deprivation of liberty.

The penalties are admittedly further aggravated if the "kidnapper" poses as a cop, for example, or if terrorist, racist or sexist motivations are present.

It is noteworthy that an unlawful deprivation of liberty by a public officer or public servant does not qualify as a terrorist crime and thus the aggravating circumstance of a terrorist motive does not apply to such public servants, except when they are not prosecuted in that capacity.

Hostage

Hostage-taking, lastly, is "the arrest, detention or abduction of persons for the purpose of securing their bail for the satisfaction of an order or condition, inter alia, to prepare or facilitate the commission of a crime or wrongdoing, to facilitate the flight, escape of the perpetrators of a crime or wrongdoing or their accomplices, to obtain their release or to cause them to escape punishment." In other words, a hostage taking is equivalent to a kidnapping or unlawful deprivation of liberty but with a specific purpose.

As for the penalties, the hostage taker will risk a minimum 15-year sentence but only if he voluntarily releases the hostage within the 5 days after the kidnapping.

In case that condition is not met, a sentence of 20 years to 30 years applies; a sentence that is further aggravated when a minor or vulnerable person is taken hostage, the hostage is tortured or well-defined consequences are due to the hostage taking.

If you would like more information about this, please feel free to contact us at info@bannister.be or 03/369.28.00.

June 8, 2020