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Nieuwe publicatie: "Balancing protection and prosecution in anti-trafficking policies"

Nieuwe publicatie: "Balancing protection and prosecution in anti-trafficking policies"

De Nordic Council of Ministers publiceerde een nieuw boek over mensenhandel, "Balancing protection and prosecution in anti-trafficking policies". Hierin wordt een vergelijkende studie gemaakt van de periode die slachtoffers van mensenhandel hebben waarin zij kunnen reflecteren of zij al dan niet meewerken met de politie. Slachtoffers die in Europa toekomen hebben vaak een onduidelijk beeld van hun eigen situatie en zij kunnen gewoonlijk gebruik maken van een "reflectieperiode", waarvan de duur verschilt per land. Doel van deze periode is zowel de bescherming van de slachtoffers als de vervolging van de mensenhandelaars. Dit rapport bekijkt de implicaties van de verschillende modellen die worden gehanteerd in de Scandinavische landen, België en Italië.

Wij geven hieronder de beschrijving van de situatie in België, zoals deze in deze studie naar voor wordt gebracht [1]. Uitzonderlijk voor België is de situatie van de 3 NGO’s die zich bezig houden met mensenhandel, namelijk Payoke in Antwerpen, Pag-asa in Brussel en Surya in Luik.

  • Initial length: 45 days
  • Who is eligible: Potential victims as identified by one of three NGOs
  • Type of initial period permit: “Ordre de quitter la territoire” (order to leave the country). Postponement of obligation to leave Belgium.
  • Mandatory cooperation with police: After 45 days
  • Followed by: Three months TRP while prosecutor decides on whether to pursue case, then renewable TRP for six months at the time
  • Permanent residence permit option: Can apply after trial. Outcome dependent on trial outcome or prosecutor’s assessment of whether person is a VoT even if defendant is acquitted.
  • Assistance mandatory: Victims must agree to be assisted by one of three appointed NGOs
  • CoE Convention status: Signed: 17 November 2005; Ratified: 27 April 200

The Belgian system of reflection periods is one of the oldest in existence. Belgium had an early start in awareness of and policy against trafficking in human beings. When in 1993 journalist Chris de Stoop published a book [2] about trafficking of women and girls to the sex industries of Belgium and the Netherlands, it set in motion a range of events. One was the creation of a senatorial investigative committee on human trafficking issues. As part of the process, trafficking for labour exploitation also came to the fore.

The reflection period itself and the associated temporary residence permits follow clear requirements: victims may be eligible for a 45 day reflection period, which means that their presence on Belgian territory is temporarily legalised and they are issued with an “ordre de quitter la territoire”. During this period they must decide whether or not to cooperate with police. If they decide to make a statement to the police, they can be granted a temporary residence permit of three months, which involves extended rights, including a work permit. During this period, the prosecutor’s office will decide whether the case will be further pursued. If so, the victim may receive a renewable six month temporary residence permit, with even more rights, including family reunification. Victims also have the right to stay in the country while court proceedings take place.

There are also options for permanent residence. The chances of getting permanent residence are high if the traffickers are found guilty, but this is not an absolute requirement for a residence permit to be granted. In certain cases it can suffice that the prosecutor states that it is likely that the person is in fact a victim of trafficking, in order to obtain permanent residence. Perhaps the most distinguishing feature of the Belgian system is the particular position and history of the trafficking NGOs. An application for a reflection period can only and exclusively be sent to the Aliens Office by one of three NGOs that provide assistance to trafficking victims: Payoke in Antwerp, Pag-asa in Brussels and Surya in Liège. Furthermore, the authorities early on took the initiative to the formation of these NGOs for service provision to trafficking victims: Pag-asa and Surya were formed at the specific request of the authorities. While Payoke was already in existence, its focus had been on prostitution, and the organisation was approached with a request to redirect its activities to assisting trafficking victims. The NGOs have thus been an integral and stable part of the anti-trafficking policy in Belgium for a very long time. Furthermore, these NGOs have a very strong and explicit position in legislation, as law enforcement is obliged to cooperate with the organisations. They also have the formal right to accompany victims in their meetings with police.

The Belgian system is focused on prosecution of traffickers and victims’ cooperation with the police. Brussels-based Pag-asa says that in most cases victims will already have decided whether or not to cooperate with police when they come into contact with the NGOs, and that in these cases they will apply directly for a three month residence permit.
The legal system in Belgium (Code Napoléon) means that victims are not required to testify in court against traffickers, but that their statements will be presented as evidence. While a victim can in theory decide to cease cooperating with the police and prosecution at any time, in practice the only consequence would be a loss of the right to residence. Once a statement has been made and a case has been opened, the prosecutor can proceed with the case regardless of the victim’s consent. Further, previous statements can still be admitted as evidence. While this spares the victims the potential ordeal of having to be subjected to examination and cross-examination in a courtroom, it also means that once the wheels are set in motion there is nothing the victim can do to stop the court process. On the one hand this takes some of the direct responsibility away from the victim. On the other, it means that the decision of cooperating with police is irreversible, and for some it may be a question of whether 45 days is enough to make this kind of decision.

If the victim after 45 days has decided not to cooperate with the police, he or she is obliged to leave the country. In practice, however, this rarely happens. In the case of returns, the NGOs cooperate with the International Organization for Migration (IOM). However, there are reportedly only a handful of voluntary returns through a repatriation scheme each year. The rest try to stay in Belgium illegally or try to go to another country. What remains unclear is what happens to victims who after 45 days of contact with authorities and NGOs re-enter irregularity, and how many return to the exploitative situation they had initially left. In the view of service providers, victims may hope to find other (irregular) work, or in the case of prostitution, try to operate independently. However, the prospects for a foreign woman to work independently in prostitution were considered to be limited.

An open question, and not only for Belgium, is whether the reflection period is actually used for making the decision to cooperate with the police. Do victims who are in doubt change their minds during this period? The answer to this is inconclusive. While the NGO representatives interviewed for this report shared the view that in most cases victims had already decided to press charges when they came to the NGOs, they also had experience of cases where the victim was in doubt and needed time to think. One factor that appeared to help victims decide to make a statement to the police was living in the communal shelter with other victims who had advanced further in the process of pressing charges. According to service providers, seeing that others cope with the process and that they are treated decently made giving a statement to the police a more tangible and predictable option.

The most important motivating factor for cooperating with the police is, according to service providers, the prospect of obtaining a permanent residence permit. This means that entering into the reflection period and subsequent temporary residence is also an attractive option for victims who come from EU countries, and not only for the third country nationals for whom it was originally intended. Another very important factor was recognition of the wrong that had been committed, and being believed as a crime victim.

All in all, the Belgian system, having had a stable existence for more than a decade appears to work according to its purposes. What remains an open question is whether such a system that is strongly focused on prosecution is able to address the needs of all types of victims, or whether victims with cases that are not easily "prosecutable” are excluded.
According to many service providers in this sector internationally, numerous victims need considerable time to open up and discuss what has happened to them.

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Balancing protection and prosecution in anti-trafficking policies

[1] Balancing protection and prosecution in anti-trafficking policies, p.39-42

[2] Ze zijn zo lief, meneer (They Are So Sweet, Sir), 1993