Crime Victims – Belgium

However, women who work as sex workers without the appropriate residence permits are committing an offence (“misdrijf“) (for further information on possibilities for legally entering and staying in Belgium, see the sections on . In this case, the woman is – as far as the police is concerned – both the victim of a crime (human trafficking) and the accused (because of contravening, inter alia, the law on aliens, the laws on the employment of foreign workers, or the laws on independent economic activity by foreigners).

In addition, the woman may always say that she would rather speak with a female officer.

• when the woman is actively encouraged by deception – through false promises regarding work possibilities and earnings – to come to Belgium, regardless of whether a job in another field was promised to her or whether she was willing to work in prostitution;
• when a sex worker’s identity papers or earnings are taken away from her;
• the use of any other kind of coercion;
• when a woman is forced into prostitution or into giving sexual services;
• when a sex worker is blackmailed, threatened, humiliated, beaten, raped or imprisoned;
• when one abuses the particularly vulnerable position of a foreigner (vulnerable due to an illegal or precarious administrative condition, or due to her being under age, or due to pregnancy).The name of the criminal offence in Belgian Law is Trafficking in Human Beings (“mensenhandel“). Prosecution of human trafficking has been possible since the law of April 13, 1995 entered into force. It inserted and changed several regulations in other laws.In the above instances it is irrelevant whether the woman previously worked as a sex worker or whether she was willing to work as a sex worker – if one of the circumstances – as specified in jurisprudence – applies to the woman’s situation, she regularly is a victim of trafficking.

Victims of trafficking in women have special rights and are entitled to special support services.

Phase 1:
If a foreigner is apparently a victim of human trafficking, and was found by the authorities (police, social inspection, prosecution service …) or a third party (individuals, NGO‘s etc.) they have to inform one of the three recognised centres for assistance of victims of human trafficking. The centres inform the apparent victim about her rights and possibilities. If she wants to think everything over before making a decision/a statement, she will receive a 45 days order to leave Belgium and the Schengen area . This is called the reflection period. One of the main conditions is that she break with her environment of exploitation and accept the assistance of a specialised centre.

Phase 2:
After she made a report/a statement, the supposed victim will

• receive a declaration of arrival (“aankomstverklaring”) for 3 months
• after one prolongation of this declaration of arrival an inscription in the register of foreigners (BIVR) which is valid for six months.With both these documents, she is allowed to work with a work permit C. The document will be prolonged as long as the conditions (co-operation with the judicial authorities and no contact with the environment of exploitation) are fulfilled and as long as the investigation is going on.She will also
• receive social welfare,
• have a right to education,
• have a right to legal and psychological assistance.

Phase 3:
When the judicial investigation is finished and the case is going to court, a victim of trafficking in human beings has the right to be represented by a lawyer. Once the perpetrators are convicted there is a possibility that the victim can stay for an undefined period.

If the prosecution service closes the investigation – for instance, because they cannot find the suspects, lack of proof etc. – the apparent victim will receive no more documents and has to leave the country.

Belgian law does not allow a witness to refuse to make a statement in order not to incriminate herself. The witness is committing a criminal offence if she makes a false declaration in order to put the blame on someone else. Giving false testimony (meaning a declaration not under oath) is also punishable (but close relatives who made their false declaration in favour of an accused relative are exempted from prosecution).

If the police has any doubt about whether or not the person they question is a victim of trafficking of human beings: the specialised advisory centre will have the opportunity to get in touch with this person. This can be realised, if the person agrees, by inviting a member of the special advisory centre’s staff to the police station.

If the woman’s statement or other evidence leads the police to believe that she may have been a victim of trafficking in women, she has special rights. The police is obliged to inform her about her special rights and has to direct her to one of the specialised advisory centres.

If the woman is a victim of trafficking and does not hold a residence permit, and has not yet made a statement she can receive an order to leave Belgium and Schengen territory  (“bevel om het grondgebied te verlaten“). This order is also a temporary residence permit for 45 days. During this period she can decide whether she wants to act as a witness.

If the woman decides to give evidence and accepts the assistance of a specialised centre, she can receive a temporary residence permit until the final judgement is given, including possible reviews. The woman is allowed to work. This document will be prolonged as long as she co-operates with judicial authorities and as long as the investigation is continuing. The woman is not allowed to contact anyone in the environment of exploitation.

The woman is entitled to obtain advice and support from an advisory centre. The police is obliged to inform her about her special rights. The advisory centre will have the opportunity to get in touch with the woman. This can be realised, if the woman agrees, by inviting a member of the advisory centre’s staff to the police station. The woman should insist that the police contact such an advisory centre. If police refuse to get in touch with the advisory centre, the woman should contact her lawyer and ask him/her to inform the prosecutor/investigating magistrate and the advisory centre.

At this level of the investigation, preliminary proceedings are secret and supervised. They are directed by the aides of the prosecution service. In Belgium there are specialist magistrates for several crimes. (“reference magistrates”(“referentiemagistraat“)). Therefore an investigation concerning human trafficking will be led by the reference magistrate for human trafficking.

At this level no warrants of arrest, nor search warrants nor other enforcing methods that infringe the basic rights of the individual person are possible. This is called a tracing investigation (“opsporingsonderzoek“).

A criminal investigation starts with a complaint from the victim or on the formal request of the prosecutor’s office. If the victim of a crime starts it with a complaint, which has to be done in front of the judge of instruction, a provisional fee of at least €125.00 has to be paid.

The criminal investigation (“gerechtelijk onderzoek”) is supervised and directed by the judge of instruction (“Onderzoeksrechter“), who is an independent judge who can use enforcing methods of investigation (e.g. warrants of arrest, search warrants). In general a criminal investigation is reserved for serious criminal offences, in which enforcing methods of investigation are necessary.

A criminal investigation ends with a report by the investigating magistrate in front of an investigation court (“raadkamer” or “kamer van inbeschuldigingstelling“) that will decide on whether to bring the case to court (“correctionele rechtbank“) or on classification.

Once in court (composed of one or three professional judges and no jury) the procedure becomes public and both victim and perpetrator(s) can defend themselves.

The court can rule to hear certain witnesses but in general the court will base its decision exclusively upon the contents of the file and the oral and written arguments of the different parties.

If legal proceedings have been initiated, a residence permit will be granted to a woman who is a victim of trafficking and a witness in the proceedings. The residence permit is granted from the beginning of the legal proceedings until the final judgement.

It is only granted if the woman co–operates with the police and prosecution service, and only on the condition that the woman has no contacts with anyone in the environment of exploitation, or any suspects, and if she is assisted by an advisory centre.

If the prosecution service closes the investigation (e.g. because they cannot find the suspects, lack of proof) the apparent victim will no longer receive residence documents and has to leave the country, if she has no other right to residence.

The statement is given either in the course of one day or over several days. Occasionally the witness may also be asked to attend a second time, later in the proceedings, because new questions concerning her have arisen.

The woman will be questioned by the judges only. The parties only suggest to the judge certain questions to pose. The judge can refuse to pose certain questions and he can re-formulate questions. In some cases the witness is not needed at all during the trial, because in most cases the judges base their verdict on the contents of the file.

In the position of a witness called before the judge, the woman is obliged to answer questions truthfully and must omit nothing; otherwise she risks criminal prosecution on the grounds of perjury/false testimony. Before acquiring the status of a civil party, she can be questioned under oath.

It is accepted that a witness can refuse to make a statement in order not to incriminate herself. But it is a criminal offence to make a false declaration in order to put the blame on someone else. Giving false testimony (a declaration not under oath) is punishable, but parents, children, brothers and sisters, grandchildren and the (ex)husband/wife, who made their false testimony in favour of the accused relatives, are excluded from prosecution.

When giving evidence, the woman may be accompanied by a lawyer only if appearing jointly as a civil party.

The witness is entitled to the services of a translator in her own language. If she feels unable to trust the translator, she does not have the right to refuse him/her. But if she mentions her distrust, that distrust will have to be noted in her statement, and the judge will usually arrange for another translator. She is not obliged to give an explicit explanation for her distrust, but it is advisable to do so.

The woman may be accompanied and protected by the police during the entire proceedings, and particularly during her statement. There is no legal entitlement to this protection. The prosecutor or the judge of instruction decides to what degree they consider the woman endangered. In order to obtain the best possible protection, the woman should inform the police of threats made against her by the perpetrators and/or by others.

In cases of serious threats against the woman, she may also receive protection on her way to the court or on her way home.

Generally, a witness has to state her name and address when giving evidence. However, if the woman is at high risk due to her testimony, the court may decide that the information will not be divulged to the public and to the other participants in the proceedings.

If a question is asked that might reveal the witness’ identity, the investigating judge/court magistrate can interfere and prohibit the witness from answering the question.

The public can be excluded from court sessions if personal or intimate questions are to be put to the witness. This can be ruled by the judge in matters of immoral offences for the entire duration of the trial. After that the pronouncement of the judgement is always in public.

It is not possible to exclude the accused party if the witness is afraid or has other reasons for not giving evidence in his or her presence. But it is possible for the witness to make her statement anonymously or via closed video conference.

If compensation from the convicted person is not forthcoming, the victim is entitled to claim compensation from the state for the losses she has suffered through criminal acts.

Soon, victims of human trafficking will be able to solicit payments from a special fund, as soon as the woman has received an indefinite residence permit (thus, possibly during the criminal proceedings). A royal decree will determine when the law enters into force. The commission that decides will judge on a case-by-case basis.

If the result of the legal proceedings is positive, the woman can apply for an indefinite residence permit. The application for an indefinite residence permit will be granted, if the deposition/complaint led to a the judge of first instance finding the accused guilty, or if the prosecutor has upheld the charge of human trafficking and if the deposition/complaint was of meaningful interest for the case.

If the woman decides to return to her home country, she will obtain travel costs and the costs of visa/documents. Public funds are also available to help the woman in cases where she has been deported.

Whether she is entitled to other public benefits depends on her nationality and on the regulations in force at that moment. She might get a bonus granted by the Belgian authorities or by the IOM.

Generally, no means are available to help the woman set up in her own country. Recently, however, IOM started re-integration programs for foreigners who decided to go back to their home countries. Through such initiatives there is a possibility of being assisted by social organisations and of receiving financial support.

Advisory Centres in Belgium help clients organise their homeward travel and supply contact information for support in the home country.