Case Law Database

Smuggling of migrants

Offences

• Enabling illegal entry
• Producing a fraudulent travel or identity document in connection with migrant smuggling
• Procuring, providing or possessing a fraudulent travel or identity document in connection with migrant smuggling
• Enabling illegal stay

Trafficking in persons

Case No. 2013/1339

Fact Summary

On the 17th of November 2010, two Bulgarian women entered a police station in Liège, and claimed that they were being forced into prostitution. The police decided to examine the mobile phone of one of the victims with her agreement, and put in place a telephone wiretapping device.

The police launched an investigation, and observed the defendants, in order to check their contacts with people engaged in prostitution, to establish a potential hierarchy among the defendants, and to locate the place where the victims were being hosted.

The police found that the four appellants were working in an organised manner in order to constantly monitor and control the victims, and also imposed a certain working rhythm over the girls. Moreover, one of the defendants was seen by the police while collecting money from the victims and another defendant was arrested in possession of an important sum of money.This evidence was supported by the testimonies of the victims: one of the victims stated that she had been forced to give all the money she earned to the defendant, who threatened to break her legs if she left, and forced her to work even when she was sick.

Another victim reported that she had been brought to Belgium by one of the defendants, who promised that she would work as a waitress or as a housemaid. Another victim said that a defendant had hit her and threatened her in order to force her into prostitution, and had also taken her ID card.

The police found during their enquiry, that three of the defendants often visited a restaurant, where one of the defendants was seen with some of the victims. The victims would come and sit at the same table as the defendant and would give him something under the table.

The defendants constantly controlled and monitored the victims and their work. During their observation of the defendants and their operation, the police witnessed how one of the defendants went to talk to one of the victims while she was on the street after midnight. The defendant talked to the victim, left and returned later in the night and argued with another victim. That same defendant came back a third time to observe a third victim.

On the same day, another defendant was dropped off at the same place and entered the restaurant. Another defendant joined him. One hour later one of them left the restaurant with a baton in his hand and came back one minute later. Five minutes later a third defendant arrived and joined them at their table.

Thanks to the telephone tapping, the police listened to a conversation between two of the defendants on November, 7. From that conversation, it appears that three of the defendants were responsible for the surveillance of the victims. As to the role of the fourth defendant, one of the witnesses declared that he was very good friends with one of the defendants, and that he also participated watching the victims in the street. He would also regularly change his mobile phone SIM card.One of the victims stated that this fourth defendant was also exploiting prostitutes himself. Even though the trial witness did not confirm this affirmation, it is supported by a recording of a phone conversation between two other defendants on November 10.

Sentence Date:
2013-04-23
Author:
United Nations Online Volunteers

Keywords

Organized Crime Convention:
Article 5 UNTOC
Trafficking in Persons Protocol:
Article 3, Trafficking in Persons Protocol
Article 5, Trafficking in Persons Protocol
Acts:
Recruitment
Transportation
Transfer
Harbouring
Means:
Threat or use of force or other forms of coercion
Fraud
Deception
Abuse of power or a position of vulnerability
Purpose of Exploitation:
Exploitation of the prostitution of others or other forms of sexual exploitation
Forced labour or services
Form of Trafficking:
Transnational
Organized Criminal Group
Sector in which exploitation takes place:
Commercial sexual exploitation

Cross-Cutting Issues

Liability

... for

• completed offence

... based on

• criminal intention

... as involves

• principal offender(s)
• participant, facilitator, accessory

Offending

Details

• occurred across one (or more) international borders (transnationally)

Involved Countries

Bulgaria

Belgium

Investigation Procedure

Confiscation and Seizure

Seized Money:
228000 EUR

Seized Property

Three cars

 

Special investigative techniques

• Special investigative techniques
• Electronic or other forms of surveillance

Procedural Information

Legal System:
Civil Law
Latest Court Ruling:
Appellate Court
Type of Proceeding:
Criminal
 

1st Instance: 

Court: First Instance Court of Liège, Criminal Section (Tribunal Correctionnel de Liège)
Location: Liège
Date of decision: 26 September 2012
Reference: 2012/2674

2nd Instance:

Court: Court of Appeal of Liege, 8th Criminal Chamber
Location: Liège
Date of decision: 23 April 2013
Reference: Case n°2013/339

 
 

Migrants

Migrant:
10 persons
Nationality:
Bulgarian

9 adults, 1 child between 16 and 18 years of age

Defendants / Respondents in the first instance

Defendant:
Anonymous 1
Nationality:
Bulgarian
Defendant:
Anonymous 2
Nationality:
Bulgarian

The defendant was a repeat offender

Defendant:
Anonymous 3
Nationality:
Bulgarian
Defendant:
Anonymous 4
Nationality:
Bulgarian
Defendant:
Anonymous 5, 6, 7

Defendants 5, 6, and 7 did not appeal against the sentence. For this reason, the information about them available in the appellate decision is very limited.

Charges / Claims / Decisions

Defendant:
Anonymous 1
Legislation / Statute / Code:

Article 433 quinquies of the Penal Code

Article 433 septies 2° of the Penal Code (abuse of a person in a vulnerable position)

Article 433 septies 3° of the Penal Code (deception, duress or violence)

Charge details:
Human Trafficking (Aggravated)
Verdict:
Guilty
Legislation / Statute / Code:

Art. 379 of the Penal Code 

Charge details:
Incitement to Immoral Behaviour
Verdict:
Guilty
Legislation / Statute / Code:

Art. 380 of the Penal Code

Charge details:
Exploitation of Immoral Behaviour
Verdict:
Guilty
Legislation / Statute / Code:

Article 323, art. 324 bis of the Criminal Code

Charge details:
Leading a Criminal Organisation
Verdict:
Other
Finding:

Changed to ‘heading a criminal association’ (less serious charge, for an organised but less structured criminal network)

Legislation / Statute / Code:

Art. 196 of the Penal Code

Charge details:
Forgery
Verdict:
Guilty
Legislation / Statute / Code:

Article 8 and 23 of the Law Adopted on 8 June 2006

Charge details:
Possession of Prohibited Weapons
Verdict:
Guilty
Legislation / Statute / Code:

Article 1, 2, 6, 9, 14, 75 al 1, 80, 81, 95 of the Law of 15 December 1980

Charge details:
Illegal Stay
Verdict:
Guilty
Term of Imprisonment:
5 years
Fine / Payment to State:
Yes  5500  EUR  (Up to 10,000 USD)
Appellate Decision:
Upheld

The appellants are 4 of the defendants in the first instance case, but also the public prosecutor and the Center for Equal Opportunities (public organisation, probably a plaintiff in the first instance).

The defendants contested, in particular, the regularity of the criminal investigation on several points concerning the telephone tapping:

- They claimed that the seizure of the cell phone of the victim was illegal: however, the court of appeals found that, since the victim owning the phone gave her consent, there was no irregularity in this regard.

- The defendants also contested the regularity of the rulings ordering the telephone tapping, and argued that the rulings applied to several means of communication and/or to several people, and that they were not sufficiently motivated. The Court of Appeal noted that the law does not say that there must be one ruling per person and per mean of communication. In addition, the telephone tapping is motivated by the fact that the defendants were operating from a closed space; as a result the telephone tapping was rendered necessary to check the contacts of the defendants with people engaged in prostitution, to establish a potential hierarchy among the defendants, and to locate the place where the victims were being hosted.

The court of first instance re qualified the charge of “heading a criminal organisation” into “participating in a criminal association”, which is a less serious accusation. The court of appeal confirmed this finding because the activity undertaken by the defendants was organised but not sufficiently structured to be qualified as a criminal organisation.

The appellate court found that one of the victims was under 18 years of age, but not under 16 years of age. Therefore, the ensuing aggravating circumstance was reduced to reflect this.

Defendant:
Anonymous 2
Legislation / Statute / Code:

Article 433 quinquies of the Penal Code

Article 433 septies 2° of the Penal Code (abuse of a person in a vulnerable position)

Article 433 septies 3° of the Penal Code (deception, duress or violence)

Charge details:
Human Trafficking
Verdict:
Guilty
Legislation / Statute / Code:

Art. 379 of the Penal Code 

Charge details:
Incitement to Immoral Behaviour
Verdict:
Guilty
Legislation / Statute / Code:

Art. 380 of the Penal Code

Charge details:
Exploitation of Immoral Behaviour
Verdict:
Guilty
Legislation / Statute / Code:

Article 323, art. 324 bis of the Criminal Code

Charge details:
Leading a Criminal Organisation
Verdict:
Other
Finding:

Changed to ‘leading a criminal association’ (less serious charge, for an organised but less structured criminal network)

Legislation / Statute / Code:

Art. 196 of the Penal Code

Charge details:
Forgery
Verdict:
Guilty
Legislation / Statute / Code:

Article 1, 2, 6, 9, 14, 75 al 1, 80, 81, 95 of the Law of 15 December 1980

Charge details:
Illegal Stay
Verdict:
Guilty
Term of Imprisonment:
6 years
Fine / Payment to State:
Yes  5500  EUR  (Up to 10,000 USD)
Appellate Decision:
Upheld

Ibid.

Defendant:
Anonymous 3
Legislation / Statute / Code:

Article 433 quinquies of the Penal Code

Article 433 septies 2° of the Penal Code (abuse of a person in a vulnerable position)

Article 433 septies 3° of the Penal Code (deception, duress or violence)

Charge details:
Human Trafficking
Verdict:
Guilty
Legislation / Statute / Code:

Art. 379 of the Penal Code 

Charge details:
Incitement to Immoral Behaviour
Verdict:
Guilty
Legislation / Statute / Code:

Art. 380 of the Penal Code

Charge details:
Exploitation of Immoral Behaviour
Verdict:
Guilty
Legislation / Statute / Code:

Article 323, art. 324 bis of the Criminal Code

Charge details:
Leading a Criminal Organisation
Verdict:
Other
Finding:

Changed to ‘leading a criminal association’ (less serious charge, for an organised but less structured criminal network)

Legislation / Statute / Code:

Article 8 and 23 of the Law adopted on 8 June 2006

Charge details:
Possession of Prohibited Weapons
Verdict:
Guilty
Legislation / Statute / Code:

Article 1, 2, 6, 9, 14, 75 al 1, 80, 81, 95 of the Law of 15 December 1980

Charge details:
Illegal Stay
Verdict:
Guilty
Term of Imprisonment:
5 years
Fine / Payment to State:
Yes  5500  EUR  (Up to 10,000 USD)
Appellate Decision:
Upheld

Ibid.

Defendant:
Anonymous 4
Legislation / Statute / Code:

Article 433 quinquies of the Penal Code

Article 433 septies 2° of the Penal Code (abuse of a person in a vulnerable position)

Article 433 septies 3° of the Penal Code (deception, duress or violence)

Charge details:
Human Trafficking
Verdict:
Guilty
Legislation / Statute / Code:

Art. 379 of the Penal Code 

Charge details:
Incitement to Immoral Behaviour
Verdict:
Guilty
Legislation / Statute / Code:

Art. 380 of the Penal Code

Charge details:
Exploitation of Immoral Behaviour
Verdict:
Guilty
Legislation / Statute / Code:

Art. 323, art. 324 bis of the Penal Code

Charge details:

Leading a Criminal Organisation (offense)

Verdict:
Other
Finding:

Changed to ‘leading a criminal association’ (less serious charge, for an organised but less structured criminal network)

Remark: this charge is less serious than for the first 3 defendants, Belgian law distinguishes ‘délits’ (translated here as offense) and crimes.

Term of Imprisonment:
3 years
Fine / Payment to State:
Yes  5500  EUR  (Up to 10,000 USD)
Appellate Decision:
Upheld

Ibid.

Defendant:
Anonymous 5, 6, 7

Court

Court of Appeal of Liège, 8th Criminal Chamber [Cour d’appel de Liège, Huitième Chambre Correctionnelle]