Case Law Database

Trafficking in persons

Not. Nr. 1214/07

Fact Summary

The victim, S., was discovered on 28 January 2006 on board a ship for inland navigation working as a sailor. He did not have a working permit, and therefore was considered an illegal alien. The victim had worked as a sailor on the ship since 8 December 2005, and had been hired by Defendant 1, the ship owner.

The victim declared that he had been contracted through an official agency (Sanara). This agency was recruiting Romanian shipping crews to work in Germany, the Netherlands and Belgium. The victim had an individual contract for embarkation, written in English. The victim stated that although he did not speak English, he understood that he would receive a monthly wage of EUR 750 plus board and lodging, and was also aware of the expected work load. These conditions made him decide to travel to Antwerp, Belgium. From the victim’s testimony, it may be concluded that he had worked voluntarily and under the conditions he had agreed to. Furthermore, the victim was receiving even a higher salary than originally agreed upon, of EUR 900 a month. Defendant 1 stated that the victim worked as an independent worker. Every month the victim presented an invoice for his services to Defendant 1, and the money was paid accordingly.

Defendant 2, the captain of the ship, declared that the ship usually navigated only 5 days a week. He also stated that the victim was responsible for keeping the ship clean and in good condition, and for  facilitating passage through the lock-gates. Working hours for the captain himself and the victim were not fixed, falling between 06:00 and 22:00, but often finishing earlier at around 19:30.

Both Defendants declared that the victim was provided the same meals as Defendant 2. The Court concluded that these statements were likely to be true, because the victim in his testimony did not complain about the meals.

Sentence Date:
2010-01-25
Author:
United Nations Online Volunteers

Keywords

Trafficking in Persons Protocol:
Article 3, Trafficking in Persons Protocol
Acts:
Recruitment
Transportation
Transfer
Harbouring
Receipt
Means:
Abuse of power or a position of vulnerability
Form of Trafficking:
Transnational
Sector in which exploitation takes place:
Other sectors

Cross-Cutting Issues

Liability

... for

• completed offence

... based on

• criminal intention

... as involves

• principal offender(s)

Offending

Details

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

Involved Countries

Netherlands

Romania

Investigation Procedure

Confiscation and Seizure

Seized Money:
3000 EUR

Procedural Information

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

1st Instance: 

Court: Court of 1st Instance

Location: Brugge

Date of decision: 27 September 2007

 
 

Victims / Plaintiffs in the first instance

Victim:
S.
Gender:
Male

Defendants / Respondents in the first instance

Defendant:
Defendant 1
Gender:
Male
Nationality:
French
Legal Reasoning:

Under Art. 433 quinquies 1, 3 of the Belgian Criminal Code, the Court of first instance found the Defendant 1 guilty of human trafficking. The court of first instance declared the facts of the case proven.

Sentenced:

-       Confiscation of EUR 5901.72 (Equivalent of assets directly derived from the crime. Calculation based on the sector labour agreement minimum wage, calculated for 13.5h working hours a day minus wage already paid).

-       Suspended sentence of one year with probation period of five years.  

-       Fine: EUR 1000 (fixed) + EUR 4500 (additional percentage on fines).

-       Denial of the right to vote (under Art. 433 novies Criminal Code (Belgium), for a period of five years.

-       Payment: EUR 137.50 solidarity contribution to the Federal Fund for financial assistance to victims of intentional violence.

-       Payment: EUR 28.84 general court fee

-       Payment: 0.5 x EUR 31.24 court proceedings.


Defendant:
Defendant 2
Gender:
Male
Nationality:
Belgian
Legal Reasoning:

Charge: Under Art. 433 quinquies 1, 3 of the Belgian Criminal Code, the Court of first instance found the Defendant 2 guilty of human trafficking. The Court of first instance declared the facts of the case proven.

 Sentenced:

-       Fine: EUR 1,000 (fixed) + EUR 4,500 (additional percentage on fines).

-       Suspended sentence of one year with probation period of five years.

-       Denial of the right to vote (under Art. 433 novies Criminal Code (Belgium) for a period of five (5) years.

-       Payment: EUR 137.50 solidarity contribution to the Federal Fund for financial assistance to victims of intentional violence.

-       Payment: EUR 28.84 general court fee.

-       Payment: 0.5 x EUR 31.24 court proceedings.

Charges / Claims / Decisions

Defendant:
Defendant 1
Legislation / Statute / Code:

Art. 433 quinquies §1-3̊ Criminal Code (Belgium)

Art. 42, 43bis, 433 novies 3̊ Criminal Code (Belgium)

Unofficial translation:

Human trafficking for the purpose of setting someone to work or letting someone be set to work under conditions contrary to human dignity, to have recruited, transported, transferred, harboured, received, changed or handed over control, over the victim, his consent to intended or eventual exploitation not of importance, with the condition of abusing the particularly vulnerable position the victim was in, due to pregnancy sickness, physical or mental handicap, to such an extent that the victim had no real and acceptable choice than undergoing the abuse.

Charge details:
Human Trafficking
Verdict:
Guilty
Compensation / Payment to Victim:
No 
Fine / Payment to State:
Yes  3182  EUR  (Up to 10,000 USD)

EUR 3000 = Confiscation of assets derived directly from the crime (estimation)

EUR 25 = General court fees

EUR 157.55 = Court fees (1st instance + Appeal). Shared responsibility with Defendant 2.

Appellate Decision:
Upheld

The Court of Appeal emphasized that human trafficking can occur in different intensities, and there was a particular necessity to pay attention to nuances in labour trafficking cases.

The Court noted that the calculation and comparison with minimum wage norms, as ruled by Court of first instance, was not realistic and objective due to the specific characteristics of the victim’s job.

The Court stated that it was unlikely that the victim had worked 7 days per week and 11 hours or more per day. The Court reminded that the victim’s tasks were limited and also pointed out to other indicators such as the type of the ship (container), number of lock-gates per trajectory, the fact that the ship was not navigating on Sundays, and that the captain was not on board from Saturday evening until Monday morning. Therefore, the Court found it unlikely that the victim had worked seven days per week and without breaks.

However, it was established that the victim’s wage was below the minimum wage rate of the collective labour agreement in this sector, which in itself was an indicator of labour exploitation. The Court of Appeal also established that the work/wage ratio had violated the victim’s human dignity, although not to the extent as established by the Court of first instance.

Furthermore, the Court concluded that the victim was not at any moment forced to work and was in possession of valid identification documents. He could come and go as he wished, and received board and lodging, about which the victim did not formulate any complaint.

The Court also took into consideration the fact that the defendants had not been convicted before and had clean criminal records.  

The Court acknowledged the vulnerable position of the victim and also acknowledged that this position had been abused by the defendants. However, the Court emphasised that this abuse was not committed to such an extent as to leave the victim with no other real and acceptable choice apart from undergoing the abuse. The victim was in the possession of his valid passport and free to go.

In conclusion, the Court deferred the proceedings. It emphasised that a conviction for human trafficking without paying attention to further nuances could have very negative future repercussions for the defendants. The facts of the present case could not be characterised as the worst and “ugliest” examples of human trafficking.

The Court:

-       Found the defendants guilty of human trafficking but did not consider proven the aggravating circumstance of abusing the victim’s vulnerable position to such an extent as to leave the victim with no other real and acceptable choice apart from undergoing the abuse.*

-       Deferred sentence for a period of five (5) years.

-       Ordered the confiscation of profits derived directly from the crime of EUR 3,000.

-       Ordered the payment of EUR 25 as indemnification.

-       Ordered the payment of EUR 157.55 as court fees, to be paid jointly by the defendants.


Defendant:
Defendant 2
Legislation / Statute / Code:

Art. 433 quinquies §1-3̊ Criminal Code (Belgium)

Charge details:
Human Trafficking
Verdict:
Guilty
Compensation / Payment to Victim:
No 
Fine / Payment to State:
Yes  182  EUR  (Up to 10,000 USD)

EUR 25 + EUR 157.55 = EUR 182.55

Appellate Decision:
Upheld

Ibid. Defendant 1.

Court

Appellate Court (hof van beroep, Gent, 6e kamer)