Coercive, unfair or deceptive recruitment Corporate criminal liability Criminal liability Forced labour Human trafficking
The basic Article 433quinquies §1 of the Belgian Criminal Code provides the definition of human trafficking under Belgian law. Article 433 quinquies stipulates that human trafficking shall mean “the recruitment, transportation, transfer, harbouring or receipt of persons, and taking or transferring the control exercised over a person for the purpose of sexual exploitation, the exploitation of begging, the removal of organs, to force that person to commit an offence against their will, and exploitation for the purpose of employment in conditions contraty to human dignity.”
This offence is punishable with 1 to 5 years of imprisonment, and with a fine of 500 – 50.000 EUR (article 433quinquies, §2). The fine shall be multiplied by the number of victims (article 433quinquies, §4).
The Act of 10 August 2005 Amending Various Provisions with a view to Strengthening the Fight Against Trafficking in Human Beings and the Practices of Slum Landlords introduced the specific criminalisation of human trafficking into articles 433quinquies – 433novies of the Belgian Criminal Code, thereby amending the Criminal Code and introducing a comprehensive prohibition of all forms of human trafficking.
Belgium’s definition of human trafficking is very extensive. The criminal offence of human trafficking under Belgian only requires two constituent elements:
- The action: the recruitment, transportation, transfer, harbouring and receipt of persons and taking or transferring control over them; and
- The exploitative purpose, namely: sexual exploitation, the exploitation of begging, for the purpose of work or services in circumstances contrary to human dignity, for the removal of organs, or to force that person to commit a crime or an offence against their will.
Significantly, coercive ‘means’ are not an essential component of the criminal offense of human trafficking under Belgian law, but rather operate as aggravating circumstances. With regard to human trafficking for labour exploitation, Article 433 quinquies criminalises employment under conditions contrary to human dignity, regardless of the means used. This leaves considerable discretion to a judge to decide whether a person has been subjected to conditions contrary to human dignity. The Belgian authorities have stated that the broader scope of Article 433 quinquies was intended to facilitate prosecutions. However, the Council of Europe’s Group of Experts on Action Against Trafficking in Human Beings (GRETA) have warned that the broad definition could lead to confusion between trafficking and other criminal offenses, and that possible difficulties could arise regarding mutual legal assistance with foreign governments that use a definition more consistent with international law.
Belgium is one of the few jurisdictions where companies, alongside the physical persons running them, have been successfully prosecuted for their involvement in human trafficking for labour exploitation. In a key case in 2012, a court in Gent convicted a German company, as well as four of its agents, of aggravated human trafficking for labour exploitation under Article 433 quinquies. Legal entity Kronos was ordered to pay a 528,000 EUR fine, and its agents received sentences ranging from 1 year of imprisonment and a 13,750 EUR fine, to 4 years of imprisonment and a fine of 55,000 EUR. The principal, Belgian company Carestel was charged as an accomplice and ordered to pay a 99,000 EUR fine.
Law / Belgium / Criminal Code
The Belgian Criminal Code is the basic statutory instrument containing various provisions on penalties and offences.
The Belgian Criminal Code has been amended by numerous Acts (the provisions outlined in this database are as amended by these Acts.). The thre Acts that are most relevant to human trafficking for labour exploitation are:
- Act of 10 August 2005 amending various provisions with a view to strengthening the fight against trafficking of human beings and the practices of slum landlords: this Act has inter alia led article 433quinquies – 433novies to be inserted into the Criminal Code, thereby creating the autonomous offence of human trafficking, and has amended the offence of human smuggling contained in article 77bis – 77sexies Aliens Act .
- Act of 24 June 2013 on the punishment of the exploitation of begging and prostitution, human trafficking and smuggling in relation to the number of victims: this Act stipulates that the monetary fine that is to be imposed for the offences of exploitation of begging and prostitution (article 380 Criminal Code), human trafficking (article 433quinquies – 433novies Criminal Code), and human smuggling (article 77bis – 77quinquies Aliens Act) is to be multiplied by the number of victims.
- The Act of 31st May 2016 to further implement European regulation on the sexual exploitation of children, child pornography, human trafficking and facilitation of illegal entry, unauthorised transit and illegal residence. This Act amends articles 433septies (extension of the list of aggravating circumstances) and 433novies Criminal Code (amendment of the list of penalties). The Act also introduces article 433novies/1, that prohibits and penalises the publication and distribution of texts, drawings, photos and other images and audio clips that could give an indication of the identity of the victim of human trafficking, except when this was done with her of his written consent or within the framework of a judicial inquiry.