Corporate criminal liability Criminal liability Group or joint liability
Article 66 clarifies the responsibility as perpetrators of an offence of the persons who either carried out the offence or directly co-operated in its commission, who in any way provided essential assistance to the commission of the offence, or incited the commission of the offence.
In 2012, a court in Gent convicted a German company as well as four of its agents, of human trafficking for labour exploitation. The legal entity Kronos, was ordered to pay a 528,000 EUR fine, and its agents received sentences ranging from 1 year imprisonment and a 13,750 EUR fine, to 4 years imprisonment and a fine of 55,000 EUR. The principal, Belgian company Carestel, was charged as a co-perpetrator under Article 66 of the Criminal Code, and sentenced to pay a 99,000 EUR fine.
Carestel (Auto-Grill) managed the services in the rest areas of a number of motorways in Belgium. It concluded a contract with German company Kronos, concerning the cleaning of the toilets in rest areas managed by Carestel. Kronos was responsible for the recruitment, managing, harbouring and transport of the employees cleaning the toilets.
The labour inspection services found that these employees were working 15 hours per day, 7 days a week, for a very low salary. All of the employees were foreign nationals, mostly from Eastern Europe, and had no knowledge of the Dutch language. The Court considered that the fact that workers worked continuously 15 hours per day, 7 days a week for several weeks in a row was sufficient to find that the employees had been subjected to work in conditions contrary to human dignity, and thus found the defendants guilty of trafficking in human beings.
The court held that the evidence showed that the principal, Carestel, chose to turn a blind eye to the exploitation suffered by the staff employed by Kronos in restrooms managed by Carestel. The Court considered that Carestel’s knowledge of the fact that Kronos was employing foreign workers to carry out the work under the status of self-employed workers, which would seem like a suspicious arrangement given the nature and structure of the work, without checking that standards regarding working hours and wages were being respected, meant that the company consciously took the risk and accepted that its subcontracting to this company could lead to the exploitation of foreign workers.
This judgment affirmed that a commissioning company which has outsourced tasks to third parties and at a certain point becomes aware of the deplorable conditions to which workers are being subjected by this third party, and yet does not decide to end the contract or take other remedial action, is an accomplice to this exploitation.
Article 66. The following shall be punished as perpetrators of an offence:
Persons who carried out the offence or directly co-operated in its commission;
Persons who in any way provided assistance with the commission of the offence such that it could not have been committed without their help;
Persons who, through gifts, promises, threats, misuse of authority, conspiracy or reprehensible procedures, directly incited the commission of the offence;
Persons who, either through speeches made at meetings or in public places or through written material, printed matter, images or emblems of any kind that were put up, distributed or sold, offered for sale or put on public display, directly incited the commission of the offence, without prejudice to the statutory penalties applicable to persons guilty of incitement to commit offences, even where such incitement had no effect.
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.