Trata de personas

ECLI:NL:HR:2011:BR0448

Resumen de los hechos

During the period spanning from the 1st of January 2007, up to and including November 2007, the defendant forced the victim to work for him and to provide services without remuneration, through the use of force and the threat of using force. Furthermore, the defendant abused his position of superiority and the vulnerability of the victim in order to exploit the victim for his own personal financial gain.

The adult victim was mentally handicapped, and was described before the Court as someone who had the mental ability of a 10 year old. The defendant came to dominate the victim’s life completely. The defendant made use of force and abuse in order to exert control over the victim:  he knew that the victim was mentally challenged, because the victim worked at a social workplace for persons with disabilities; the defendant was also aware of the fact that the victim had difficulties saying ‘no’ to anything; and finally he physically abused the victim and threatened with beating him.

The victim filed a complaint with the police on November 30, 2007. The victim declared that he had known the defendant for 2-2,5 years, as they were neighbours. Before and after his day job at a social workplace, the victim had to stop by the defendant’s house to take care of the household chores, and to serve a morning breakfast. If the victim arrived late at the house, the defendant would call the victim on his cell phone or start sending him text messages. He also coerced the victim and threatened with beating him, and forced the victim to pay a financial sanction whenever he did not obey his orders. Furthermore, the victim also had to go grocery shopping and to buy marihuana for the defendant, for which the victim himself had to pay with his own money. The constant pressure exerted on the victim resulted in a complete loss of self-esteem, and in the development of psychological problems by the victim.

During a certain period, the defendant worked for a mail delivery service and the victim was forced to come along with the defendant in his van and assist him performing this job. Once, after the victim delivered a package to a wrong mailbox, the defendant hit him on the head. Bystanders called the police, but. when the police arrived, the victim was too afraid to press charges. Nonetheless, there was a police record of this event.

The social worker who supported the victim noticed that he was not doing well and that he was missing appointments. She was aware of the fact that the victim was easily influenced and insecure. On November 29, 2007 she arranged for the victim to talk with a community police officer. During this conversation, she noticed how the victim was getting increasingly anxious, as he continued to receive multiple text messages on his phone. When the victim explained what was happening, she arranged for him to spend the night at a different place, so he would not have to face the defendant. The social worker also compiled a record of the text messages on her computer. Some of these were later cited in Court, and served to provide evidence of the threats the victim was subjected to.

Fecha de la Sentencia:
2011-12-20
Autor:
United Nations Online Volunteers

Palabras clave

Trafficking in Persons Protocol:
Artículo 3, Protocolo contra la la trata de personas
Artículo 5, Protocolo contra la la trata de personas
Hechos:
Reclutamiento
Medio:
Amenaza o al uso de la fuerza u otras formas de coacción
Abuso de poder o de una situación de vulnerabilidad
Fines de explotación:
Trabajos o servicios forzados
Forma de la Trata:
Nacional
Sector en el que la explotación se lleva a cabo:
Servidumbre doméstica

Cuestiones transversales

Responsabilidad

Responsabilidad por

• Delito consumado

Base de responsabilidad

• Intención dolosa

Responsabilidad implica

• Delincuentes principales

Información sobre el procedimiento

Sistema jurídico:
Derecho continental
Última sentencia judicial:
Tribunal Supremo
Tipo de Proceso:
Penal
 

2nd Instance:

Court: Amsterdam Appellate Court
Location: Amsterdam  
Date of decision: 14 January 2010 

3rd Instance:

Court: Supreme Court of the Netherlands
Decision date: 20 December 2011

 
 

Víctima / Demandantes de primera instancia

Víctima:
Anonymous
Sexo:
Hombre
Edad:
positive integer value

Acusado / Demandado de primera instancia

Acusado:
Defendant
Sexo:
Hombre
Nacimiento:
1974

Cargos/Acusaciones/Decisiones

Acusado:
Defendant
Veredicto:
Guilty
Acusación/Reclamación:
Human Trafficking
Legislación/Código:

Art. 273f 1º and 4º of the Criminal Code 

Pena de prisión:
 6 Meses
 
Indemnización/Pago a la víctima:
Sí  500  EUR  (Up to 10,000 USD)
Fallo del tribunal de apelación:
Upheld

The defendant was convicted of human trafficking in the first instance, under art. 273f 1° and 4° of the Dutch Criminal Code. The present case concerns the appeal against conviction before the Supreme Court.

2nd instance:

The Appellate Court considered that the defendant completely dominated and controlled the victim’s life to such an extent that the defendant punished the victim with physical violence, and the victim tolerated this abuse. The Court found that the defendant had violated the victim’s physical and psychological integrity, as well as his freedom to make his own choices regarding his financial assets; which had, in turn, caused physical and psychological harm. The Court made reference to this being a violation of Article 8 of the European Convention on Human Rights.

Moreover, the victim was particularly vulnerable due to his mental condition, and did not have the psychological strength to end the situation. The Court held that the defendant had abused  the victim to force him to deliver services without remuneration. Furthermore, the Court considered that it could be inferred, from the defendant’s testimony, that he was aware of the fact that the victim was easy to persuade and afraid to refuse any orders given by the defendant.

The Appellate Court established that the situation in this case constituted ‘exploitation’, given the manner in which the victim was forced to execute certain tasks; the physical punishment applied whenever the defendant was not satisfied with the victim’s behaviour; and the psychological and physical consequences for the victim resulting from the defendant’s behaviour. The Appellate Court dismissed the appellant’s contention that the period of exploitation (in effect 3 or 4 months) had been too short to be labelled as ‘exploitation’. 

3rd instance:

The Supreme Court dismissed the defense’s contention that the nature of the chores carried out by the victim entailed that these tasks could not be considered as contrary to human dignity. The Supreme Court cited a previous Supreme Court decision (Hoge Raad, 27 October 2009, LJN BI7099, r.o. 2.6.1.) which established the following elements as crucial in order to determine whether a situation is exploitative:

-duration and nature of the relationship
-restrictions to the victim’s individual freedom
-economic gain derived by the defendant

Furthermore, the defense argued that the relationship between the defendant and the victim had started off as a friendship and gradually changed. Therefore, the defendant did not start off the relationship with the victim with the premeditated purpose of exploiting the victim. This argument was also dismissed by the Supreme Court. In this regard, the Court stated that because the acts of recruitment, transfer, transport, harbouring and receipt were not part of the charge nor the conviction in this case; we can conclude that an the criminal intention of exploiting the victim is not a crucial element for conviction in cases in which the existence of an exploitative situation has been proved. 

The Supreme Court also dismissed the argument that the victim did not express the will to receive financial reparations for the harm done, and therefore he was not to be granted a compensation or reparation. The Supreme Court held that the intangible harm caused to the victim should be compensated in line with Art. 36f of the Dutch Criminal Code.

For the aforementioned reasons, the Supreme Court dismissed the appeal, and therefore upheld the Appellate Court’s decision.

Tribunal

Supreme Court of the Netherlands [Hoge Raad der Nederlanden]

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