Forced Labour Convention, 1930 (No. 29) - Belgium (RATIFICATION: 1944)
Protocol of 2014 to the Forced Labour Convention, 1930 - Belgium (RATIFICATION: 2019)

CMNT_TITLE

Articles 1(1), 2(1) and 25 of the Convention. Trafficking in persons. The Committee previously noted the Government’s commitment to combating trafficking in persons through continuous adaptation of the national legislative and institutional framework against this crime. It requested the Government to continue its efforts and to provide information on the implementation of the Anti-Trafficking Action Plan (2015–19), the measures taken to ensure better identification and protection of victims and on prosecutions and convictions handed down under sections 433 ter to 433 novies of the Penal Code relating to trafficking of persons.

Implementation of action plans. The Government indicates that three action plans have already been implemented and that in 2020 an addendum specifically concerning child victims was added to the national action plan for 2015–19. A new action plan for 2021-2025 has been submitted to the Interdepartmental Task Force for the Coordination of Action against Human Trafficking, which brings together all competent persons and coordinates national policy in this field. The Committee also observes that the Centre for Migration (Myria), as the independent national reporter on trafficking in persons, publishes an annual report assessing the evolution and results of the policy to combat human trafficking. In 2020, the report focused on the exploitation of domestic workers, with particular attention paid to the impact of the COVID-19 health crisis on the combat against trafficking in persons. Among the points made in the report is the need to continue awareness-raising activities for the public at large and to focus particularly closely on diplomatic domestic personnel.

Protection of victims. The Committee notes that the Government, apart from psychosocial and medical assistance, administrative support and legal aid to victims provided by the three specialized reception centres, has continued to take measures to improve protection of trafficking victims. For example, the latter now automatically receive a residence document valid for 45 days, rather than an order to quit the territory within 45 days. Moreover, the principle of not penalising victims of trafficking has been formally integrated into the Penal Code. The Committee also notes from the Myria’s 2019 report, that Myria has analysed and proposed improvements to the aid system for trafficking victims in areas including the right to information, access to specialized aid services, legal aid and participation in the criminal procedure, and compensation. The Government also refers to several legal rulings in which the courts awarded damages (for material and non-material prejudice) to victims who are party to civil proceedings in cases on human trafficking.

Prosecutions and penalties. In reply to the Committee’s requests related to repression of cases of trafficking in persons, the Government provides information on the training activities organized by the department responsible for trafficking in persons within the National Social Security Office (ONSS) for labour inspectors with regard to trafficking for economic exploitation. The Government also refers to inspection visits conducted with a view to detecting cases of trafficking for labour exploitation and in particular to targeted monitoring undertaken in sectors identified as presenting a risk. In 2020 these inspections concerned the hotel, restaurant and café sector and nail bars. These inspections have made it possible to refer a growing number of victims to the legal authorities in 2018, 2019 and 2020 (65, 82 and 156, respectively). The Government indicates that for 2017, 2018 and 2019 convictions made under article 433 of the legal code stood at 112, 127 and 113 respectively. Between 2016 and 2020, 1715 cases were brought before the criminal courts, 57 of which were for trafficking for sexual exploitation and 31 for labour exploitation. A total of 750 cases were dismissed, in large part for technicalities such as “insufficient charges” or “perpetrator(s) unknown”)

The Committee again welcomes the measures taken by the Government to combat trafficking in persons through a comprehensive and coordinated approach. It requests the Government to continue providing information on: (i) measures taken to continue to raise the awareness of the public and the competent authorities in identifying trafficking in persons for the purposes of both sexual and labour exploitation; (ii) the follow-up given to the recommendation of Myria in respect of improving the legal aid system for victims and their compensation; (iii) the evaluation of the implementation of the new national action plan conducted by the Interdepartmental Task Force for the Coordination of Action against Human Trafficking, as well as proposals formulated by the Task Force; and (iv) and the legal procedures engaged, judgments handed down in cases of trafficking and redress for victims.

Noting that the Government has not provided its first detailed report on the application of the Protocol of 2014 to the Forced Labour Convention, 1930, the Committee requests it to provide this report at the same time as the report on the Convention, both in 2024.

CMNT_TITLE

Articles 1(1), 2(1) and 25 of the Convention. Trafficking in persons. 1. Legislative and institutional framework. The Committee notes the detailed information provided by the Government in its report on the reinforcement of the legislative and institutional framework to combat trafficking in persons. It notes in particular the legislative amendments to section 433 ter–433 novies of the Penal Code relating to trafficking in persons, which: (i) add aggravating circumstances for trafficking, such as the direct or indirect use of deceit, violence, threats or any other form of coercion; (ii) provide for special confiscation of property of enterprises in the event of economic exploitation further to the trafficking of persons; and (iii) strengthen the protection of the privacy of victims in the event of sexual exploitation. The Committee also notes that the Interdepartmental Task Force for the Coordination of Action against Human Trafficking (placed under the authority of the Minister of Justice) is the main entity coordinating action against trafficking in persons. Its composition and operating procedures were modified by a Royal Order of 21 July 2014 incorporating into its structure three specialist reception centres for trafficking victims run by non-governmental organizations (NGOs).

The Committee also notes the Anti-Trafficking Action Plan (2015–19), which comprises seven priority areas, including improving protection for trafficking victims’ long-term training for professionals dealing with trafficking issues and awareness raising for personnel on the ground, civil society actors and the general public regarding different aspects of human trafficking. The action plan also updates the list of indicators for trafficking in persons and includes a section relating to minors. The Committee encourages the Government to continue its efforts to combat trafficking in persons and requests it to provide information on the implementation of the Anti-Trafficking Action Plan (2015–19) and the results achieved.

2. Protection of victims. The Committee notes the Government’s indication that the circular on criminal law policy of the College of General Prosecutors and competent ministers (Col 01/2015) explicitly establishes the principle of not penalizing victims of trafficking for offences resulting from their being exploited. The Committee also notes that the Anti-Trafficking Action Plan (2015–19) contains measures to improve support for trafficking victims, including those who are not involved in the protection procedure, and to ensure respect for their rights in terms of recovering outstanding wages. With respect to the latter, an information leaflet is being prepared regarding the procedures to follow so that potential victims of labour exploitation can easily recover their wages. Moreover, the Committee notes that assistance given to victims includes the provision of accommodation, legal aid and medical treatment. These services are provided by the reception centres which are officially recognized by the Royal Decree of 18 April 2013 concerning the recognition of specialized centres catering for victims of trafficking, certain aggravated forms of trafficking and authorization for such centres to initiate legal proceedings. The Committee requests the Government to continue providing information on the steps taken to ensure better identification and protection of victims and also assistance and compensation, as provided for by the legislation, indicating the number of victims who have received assistance, particularly those who have received compensation for harm suffered or who have asserted their rights vis-à-vis the competent authorities and obtained the payment of outstanding wages.

3. Reinforcement of bodies responsible for law enforcement and prosecution. The Committee notes the Government’s indication that numerous training courses have been organized by the various departments and partners involved in action against human trafficking. Since the adoption of the Anti-Trafficking Action Plan (2015–19), training days for judges, criminal investigation police officers and the social inspection services have been held in both the French-speaking and Dutch-speaking areas of the country, and measures to facilitate the identification of trafficking victims have been taken, such as the distribution of leaflets describing indicators for human trafficking and the provision of information on the website of the Interdepartmental Task Force.

The Committee also notes the statistics provided by the Government relating to trafficking offences reported during the 2014–16 period. The Committee observes that in 2016 the statistics provided by the Department for Minors and Victims of Human Trafficking showed that most victims were trafficked for economic exploitation (48 men and 13 women), and a total of 48 women were subjected to sexual exploitation, which was the second most common form of exploitation.

Furthermore, the Committee notes the detailed information provided by the Government on the application in practice of the relevant provisions of the Penal Code prohibiting trafficking in persons. For example, in a case involving the cleaning sector for which the Brussels Court of First Instance issued a ruling on 25 May 2016, a number of individuals who were irregularly resident had been exploited by cleaning companies in performing subcontracted night work in a number of branches of a fast-food chain. After several years of investigation by the social inspection services, the company was prosecuted for being an accomplice to the offences and its director was sentenced to three years’ imprisonment plus a fine of €165,000. The Committee requests the Government to continue providing information on prosecutions, convictions and penalties based on the provisions of the Penal Code criminalizing trafficking in persons for both labour and sexual exploitation, and also on measures to reinforce the capacities of law enforcement bodies.

CMNT_TITLE

The Committee takes note of the Government’s report, as well as of the observations of the National Labour Council (CNT), received on 7 October 2014, concerning the reports submitted by the Belgian Government on the application of the ratified Conventions. The Committee notes that the CNT endorses the information provided by the Government in its reports and refers to the specific problems faced by domestic workers which led it to elaborate a series of proposals presented to the Ministry of Employment.

Articles 1(1), 2(1) and 25 of the Convention. Trafficking in persons. In its previous comments, the Committee noted the various measures taken by the Government to combat trafficking in persons, both at the legislative and institutional levels. The Committee notes that, in its latest report, the Government provided comprehensive information on the strengthening of the legislative and institutional framework against trafficking in persons. The Committee observes that the Government takes into consideration the experience acquired by the different stakeholders in combating trafficking in persons, and relies on the annual reports of the Centre for Equal Opportunities and the Fight against Racism, which plays the role of an independent national rapporteur since 1995. These reports present an objective critique of the evolution of trafficking in persons in Belgium. In particular, the Committee takes note of:

• -the strengthening of the legislative framework, following the adoption of the Law of 29 July 2013 which clarifies and extends the definition of trafficking of human beings, under section 433quinquies of the Penal Code, by adding the act of exercising control over a person among the constitutive behaviours of trafficking and by extending and specifying the purposes of exploitation, including with respect to labour exploitation;
• -the role of the Interdepartmental Unit for the Coordination of the Fight against the Trafficking and Smuggling of Human Beings and of its Office, which coordinated the different stakeholder initiatives against trafficking and elaborated the second plan of action that covers the period 2012–14. In this regard, the Government indicates that this plan underlines the necessity of strengthening awareness-raising measures and provides information on the measures taken to this effect. It also provides information on the cooperation between the law enforcement services and judges, on the role of the list of indicators to identify the victims and its updating, and on the procedure for the protection of victims, in particular with regard to the three phases of the victim’s status (during which victims may benefit from different residence and work permits);
• -the recognition, by Royal Decree of 18 April 2013, of three specialized centres that provide accommodation, support, psychological and medical help, and legal assistance, to the victims. This Decree allows these centres to institute legal proceedings as third parties;
• -the work developed by the Information and Research Service on the fight against trafficking and undeclared work.

The Committee notes that all of this information indicates the continued commitment of the Government to combat the complex phenomenon of trafficking in persons. The Committee encourages the Government to pursue its efforts and requests it to continue providing information on the measures taken to:

• -prevent trafficking in persons, either for sexual or labour exploitation, and in particular to raise awareness among the authorities regarding the new provisions of section 433quinquies of the Penal Code;
• -strengthen the protection of victims, including by ensuring that they are not prosecuted for offences that they have been forced to commit, as advocated by the Centre for Equal Opportunities and the Fight against Racism in its last report;
• -ensure that perpetrators of this offence are subject to effective and dissuasive penalties, in conformity with Article 25 of the Convention. In this regard, the Committee requests the Government to indicate if the competence of the labour inspection has been extended to the identification and ascertainment of the penal offence of trafficking. It also requests the Government to continue providing statistics on the legal procedures initiated and the penalties applied. Finally, the Committee requests the Government to provide information on the evaluation that will be undertaken regarding the implementation of the second plan of action which covers the period 2012–14.

CMNT_TITLE

Articles 1(1), 2(1) and 25 of the Convention. Trafficking in persons. In its previous comments, the Committee had noted the various measures taken by the Government to combat trafficking in persons, both at the legislative level (in particular with the adoption of the Act of 10 August 2005, which amended a number of provisions with a view to combating human trafficking and the practices of abusive landlords in a more effective manner) and the institutional level (the adoption of a national action plan to combat human trafficking, the setting up of the Interdepartmental Task Force for Coordinating Action against Human Trafficking, and the establishment of specialized reception centres for victims of human trafficking). The Committee had requested the Government to continue providing information on any new measures taken to combat the trafficking in persons more effectively.

In its last report, the Government referred to the Act of 15 December 1980 respecting the access, stay, establishment and departure of foreign nationals that provides protection for victims of human trafficking, including unaccompanied minors. The Government provides statistics for the 2009–10 period on the number of persons, classified by nationality, who have been granted protective status and a residence permit. As regards the evaluation of the Circular of 26 September 2008 on the implementation of multidisciplinary cooperation in relation to the victims of human trafficking, by the Interdepartmental Task Force for Coordinating Action against Human Trafficking, the Government points out that this Circular is being evaluated to determine whether new measures of protection are necessary.

The Committee also took note of the 2010 report of the Centre for Equality of Opportunity and Action against Racism, which provides an exhaustive analysis of the policy to combat human trafficking, and puts forward a certain number of recommendations, in particular:

• – the need to centralize data on trafficking to be able to carry out strategic analyses and evaluations of the policy conducted;
• – the need to strengthen the means of those involved in inquiries and proceedings to ensure they have efficient investigative tools and that trafficking becomes a priority for follow-up action by magistrate;
• – the need to continue making labour inspectors aware of the importance of drafting detailed reports, which the labour auditor might use as a basis for initiating legal proceedings.

The Committee also notes that, in its observations of 2010, the United Nations Human Rights Committee asked the Government to amend its laws so that the issuance of residence permits to victims of trafficking in persons is not conditional upon cooperation with court authorities and to give greater assistance to these victims (CCPR/C/BEL/CO/5).

The Committee encourages the Government to continue its efforts to combat the phenomenon of trafficking in persons. It would like the Government to provide information on the measures taken to overcome the difficulties identified by the Centre for Equality of Opportunity and Action against Racism with respect to, in particular, the granting of residence permits to victims, the role of the public prosecutor and labour inspection services, and the need to dispose of reliable and full data on the problem of trafficking in persons. The Government is also asked to send a copy of the evaluation of the Circular of 26 September 2008 by the Interdepartmental Task Force for Coordinating Action against Human Trafficking, as well as information on any measures taken as a result of such evaluation.

CMNT_TITLE

Articles 1 (paragraph 1), and 2 (paragraph 1), of the Convention. Trafficking in persons. In its previous comments, the Committee noted with interest the various measures adopted by the Government to combat trafficking in persons, including the adoption of various laws repressing trafficking and organizing the protection of victims, with the establishment of specialized institutions. It requested the Government to continue providing information on any further steps taken to strengthen the measures to combat trafficking in persons, the difficulties encountered by all the actors involved and the action taken in response, and to continue providing the publications and reports of the institutions that are competent in this field, as well as the available statistical data.

With regard to the new steps taken to reinforce measures to combat trafficking, the Government indicates in its latest report that the work of the Interdepartmental Task Force for the Coordination of Action against Human Trafficking, which is chaired by the Minister of Justice and includes representatives of the various ministries involved (Justice, Interior, Foreign Affairs, Social Affairs, etc.), was officially relaunched on 25 June 2008. This work includes the preparation of the Circular on the implementation of multidisciplinary cooperation in relation to the victims of human trafficking and/or certain more serious forms of human trafficking, of 26 September 2008. The objective of the Circular is to organize collaboration between the various services concerned (police, labour inspection, Bureau for Foreign Nationals, specialized reception centres, public prosecution service) with a view to improving the protection of the victims of trafficking by determining the conditions for obtaining the status envisaged by the Act of 15 September 2006 amending the Act of 15 December 1980 respecting the access, stay, establishment and departure of foreign nationals from the national territories. The Circular emphasizes the need for constant action to raise the awareness of the actors primarily involved through continuous training for the detection of any potential victims and, thereafter, for their support during the period of reflection envisaged by the protected status. A multilingual brochure for victims of trafficking indicates the contact data for the three specialized reception centres accessible 24 hours a day. The Circular provides that it will be evaluated by the Interdepartmental Task Force for the Coordination of Action against Human Trafficking within 24 months of its publication.

Furthermore, a national plan of action to combat human trafficking was approved by the Council of Ministers on 11 July 2008. The plan of action assesses the policy implemented to combat trafficking and identifies the projects to be developed over the next ten years. It contains a number of proposals, including possible modifications to the law and regulations, the development of prevention initiatives, investigations and prosecutions relating to human trafficking and the protection of victims. With regard to the domestic staff of diplomats, who are sometimes victims of trafficking, the plan of action proposes that a residence permit could be granted to a victim where a civil action is brought to the labour courts following a complaint, as criminal action is impossible in view of the immunity of the diplomats. In relation to the issue of subcontracting, also raised by the Committee in its last direct request, the plan of action takes up the proposal to establish the shared responsibility of those issuing instructions who have recourse to subcontractors employing victims of trafficking. The Committee notes, in light of the information contained in the plan of action, that the Minister of Employment sought the views of the Interdepartmental Task Force for the Coordination of Action against Human Trafficking on the action to be taken on the draft text, but has not received an answer.

The Committee notes the statistics provided by the Government in its report, originating among others from the College of General Prosecutors and the Bureau for Foreign Nationals. The data from the College of General Prosecutors relates to the number of cases of human trafficking recorded by the various courts in the country between 1 January and 31 December 2007. According to these statistics, 418 cases brought to the judiciary in 2007 related to acts of trafficking in persons (compared with 451 in 2006). Although in 2006 the majority of the cases of trafficking investigated related to sexual exploitation (64 per cent, compared to 30 per cent in relation to labour exploitation), the trend was reversed in 2007, with 52 per cent of cases relating to labour exploitation, and 40 per cent concerning sexual exploitation. The Government explains this reversal by indicating that sexual exploitation is increasingly difficult to control, particularly due to the development of the Internet, which permits an interference that these figures might be underestimated. The statistics also show that, of the 418 cases concerning trafficking in 2007, 118 were set aside without further action, principally due to the lack of evidence and because they were untimely. As of 10 January 2008, 125 investigations were being carried out in cases of trafficking initiated in 2007. The data provided by the Bureau for Foreign Nationals indicate that in 2007 almost as many men as women were victims of trafficking (88 compared with 90), whereas in previous years, women had made up the majority of the victims. This levelling of the figures can be explained, according to the Government, by the over-representation of economic exploitation, of which more men are victims, in comparison with sexual exploitation, to which more women than men are subjected. With regard to the types of exploitation, out of 178 victims recorded in 2007, 114 were subject to economic exploitation, compared with 51 victims of sexual exploitation (moreover, nine individuals were recorded as being victims of trafficking and four as victims of other types of exploitation). With regard to convictions, the Government indicates that the latest statistics available from the Criminal Policy Service date back to 2004 and 2005, that is before the establishment of the offence of human trafficking by the Act of 10 August 2005.

The Committee notes the 2007 report on human trafficking issued by the Centre for Equality of Opportunity and Action against Racism (hereinafter “the Centre”), published in May 2008, which contains a global evaluation of the policy in combating trafficking in persons, analyses several cases of sexual exploitation in which the Centre has been a civil party and reviews Belgian case law for the period 2006–07 for both cases of sexual exploitation and economic exploitation.

With regard to the coordination of the various initiatives adopted at the national level to combat human trafficking, the Centre’s report indicates that, despite the fact that many activities have been approved by the Interdepartmental Task Force for the Coordination of Action against Human Trafficking, many projects already approved have not received the necessary political support for their implementation. The Centre regrets in particular the variable levels of participation, with certain exceptions, of political representatives in the meetings of the Interdepartmental Task Force, which has not really played its expected role of instigating policy evaluation and improvement (page 24 of the report).

Among the court rulings referred to in the Centre’s report, the Committee notes the various decisions handed down in cases of trafficking for economic exploitation. Certain of these rulings develop the concept of setting a person to work under “conditions inconsistent with human dignity”, one of the elements that constitute trafficking (see, for example, the Magistrate’s Court of Gand, 22 October 2007, 19th Chamber; Court of Appeal of Liège, 24 October 2007, Fourth Chamber). In one case (Court of Appeal of Mons, 26 December 2007, 13th Chamber), related to Romanian nationals who had been persuaded to come to Belgium with enticing promises of permanent and highly-paid work, and who were in reality rarely paid and sometimes lodged under rather mediocre conditions, the court found that it mattered little whether the victims had in practice been able to travel as they wished in Belgium or to Romania since, in economic terms, they were bound to the accused in the absence of a legal administrative status on Belgian territory (the events occurred before the entry of Romania into the European Union). In another case, the Magistrate’s Court of Brussels (4 January 2007, 58th Chamber) did not uphold the classification of human trafficking, even though the working conditions of the plaintiffs were deplorable (ten hours work a day at €4 an hour, with ill treatment), and only took into account the violations of penal labour law. Finally, another case exemplified the lack of knowledge by certain judges of the role of reception centres, as the Magistrate’s Court of Huy appeared to consider, firstly, that reception centres would incite victims to bring charges with a view to obtaining residence permits in Belgium and, secondly, that the grounds for obtaining residence documents would be an allegation that rape had occurred (Magistrate’s Court of Huy, 27 April 2007, 7th Chamber).

Moreover, several court rulings were handed down in 2007 and 2008 in cases of trafficking for sexual exploitation purposes. The Committee notes that in a number of cases the courts awarded compensation to the victims for material damage (reimbursement of the earnings denied to the victims) in addition to compensation for moral damages prejudice (see, among others: Magistrate’s Court of Brussels, 20 December 2007, 46th Chamber). However, in another case (Court of Appeal of Gand, 31 May 2007, 3rd Chamber), it was found that such earnings were unlawful and therefore did not give rise to damages of compensation. The Centre indicates that this ruling appears to be fairly isolated on this point as many courts award damages to victims for the amount of the earnings they have been denied (page 108 of the report).

In conclusion, the Committee notes the Centre’s recommendation that stronger emphasis should be placed on the detection and identification of victims and the effective application of the period of reflection for victims. The Centre is also of the opinion that more frequent use should be made of anonymous testimony with a view to increasing the protection and confidence of victims in relation to the police services and the judicial system in general. Action towards the victims should be more focused on atypical victims of economic exploitation achieved through training and awareness-raising activities for the personnel of the various services involved. The Centre emphasizes the need for achieving a solution at the European level so that victims who have been exploited in another country could benefit from protected status in Belgium while in the country. It also advocates the introduction of a law establishing the shared financial responsibility of those who give orders in the context of human trafficking for economic exploitation and raising the awareness of judicial authorities so as to ensure that civil parties are systematically compensated through the return of confiscated earnings. The Centre also recommends at a later stage the adoption of legislation granting the status of victim of human trafficking irrespective of whether those concerned have collaborated with the judicial system.

Noting all this information with interest, the Committee would be grateful if the Government would continue providing information in future reports on the measures taken to combat trafficking in persons, the difficulties encountered and the solutions proposed to overcome these difficulties. It would also be grateful if it would continue providing the latest statistical data available, as well as documents and reports of institutions involved in combating trafficking in persons. Furthermore, it requests the Government to provide a copy of the evaluation of the Circular of 26 September 2008 made by the Interdepartmental Task Force for the Coordination of Action against Human Trafficking (as envisaged in the Circular) when it has been completed.

Article 25. Penal sanctions imposed for trafficking in persons. The Committee notes that the Government’s report contains statistics from the Criminal Policy Service concerning convictions for violations relating to trafficking in human beings. The Government specifies that some of these statistics are based on section 77bis of Act of 15 December 1980 which, before the entry into force of Act of 10 August 2005, established penalties for both trafficking in human beings and smuggling of human beings. The Committee hopes that the Government will be able to provide statistical data in its next report covering the offence of trafficking in human beings, as set out in sections 433quinquies to 433novies of the Penal Code. It would also be grateful if the Government would provide a copy of court rulings handed down in cases of trafficking so that it can examine the manner in which Belgian courts apply the new provisions incriminating trafficking in human beings.

CMNT_TITLE

1. The Committee notes the information sent by the Government in reply to its previous comments concerning applications for resignation by military staff (officers and non-commissioned officers), and the types of work carried out by persons sentenced to the penalty of labour and the associations and foundations authorized to take on such persons (section 37ter, quater and quinquies of the Labour Code).

2. Articles 1(1) and 2(1) of the Convention. Trafficking in persons for the purpose of exploitation. In its previous comments, the Committee noted with interest that the Government was developing an active policy to combat trafficking in persons and encouraged it to continue its work in this area. The Committee noted, in particular, that the Government had made full legislative provision (in particular with the adoption of the Act of 10 August 2005, which amended a number of provisions with a view to combating trafficking and the practices of abusive landlords in a more effective manner) and institutional provision (Centre for Equality of Opportunity and Action against Racism, Interdepartmental Task Force for Coordinating Action against Human Trafficking, special reception centres for victims of human trafficking) for this purpose. 

Among the new measures taken, the Committee notes the adoption of the Act of 15 September 2006 on the access, stay, establishment and departure of foreigners, which gives a legal basis to the special statute for victims of trafficking – a statute that was previously provided for in the circulars and directives of the Minister for Justice – and thus ensures greater legal security for victims. This statute provides for a specific residency permit scheme for trafficking victims who cooperate with the judicial authorities, and for the reception and support of these victims by three specialized centres which are recognized and financed by the Government.

In reply to the Committee’s comments on the difficulties faced by the competent authorities in combating the trafficking of persons, the Government states that the Interdepartmental Task Force for Coordinating Action against Human Trafficking has prepared a list of all the difficulties faced by the various partners in this regard and, in response, set up four working groups. One of the difficulties mentioned by the Government is the issue of the identification of victims and conditions for granting the status of “victim of trafficking”. Despite the fact that cooperation with the judicial authorities is a determining factor in granting this status, it seems that consideration has not always been given to the specific situation of certain victims and to the fact that it is difficult, if not impossible, for them to cooperate with the judicial authorities. This is most notably the case for young victims who may find it difficult to provide useful information for an investigation and domestic staff working privately for diplomats. Indeed, due to the immunity enjoyed by diplomats, they are, in principle, exempt from criminal proceedings. The Government also states that services which do not directly specialize in combating human trafficking may come across victims, but, through lack of training, omit to send them to the specialized centres. Sometimes, victims are more often considered as illegal immigrants or illegal workers than victims of trafficking. The Government states that the situation should improve thanks to better training given to front-line services (police and inspection services) and that the competent working group has already formulated recommendations in this area.

The Government also referred to the problem of subcontracting as an element that complicates the battle against the trafficking of persons because of the exploitation of their work. In this area, the existing legal networks are complex and, the longer the chain of subcontractors, the greater the risk of informality and exploitation. Recommendations aimed at establishing the financial co‑responsibility of contractors have been formulated by one of the working groups.

Finally, another problem referred to by the Government is the difficulty that actors in the field may encounter in interpreting the notion of setting a person to work in “conditions inconsistent with human dignity”. This notion, which is one of the principal elements of the definition of trafficking, may seem subjective. In this respect, the Committee notes the adoption and the entry into force, on 1 February 2007, of Directive No. COL 01/07 of the Minister of Justice. This Directive, which provides for a framework and uniform criteria aimed at the homogenous development of the policy on investigations and proceedings in respect of human trafficking within the various geographical judicial divisions, contains annexes aimed at providing assistance to actors in the field. Annex 1 sets out to determine the notion of human dignity within the framework of labour exploitation and explains that the victim’s own perception of his conditions of work is irrelevant; the facts must be assessed in relation to national criteria and not in relation to the conditions practised in the victim’s country of origin. Annex 2 provides a detailed list of indicators used to help identify trafficking. Moreover, the Committee notes that, in its last annual report on the trafficking of human beings (July 2007), the Centre for Equality of Opportunity and Action against Racism considers the first interpretations given by the courts of the notion of work inconsistent with human dignity to be on the whole positive, with the courts not merely taking into consideration the most extreme situations.

The Committee notes all this information with interest. It notes that the Government is actively engaged in combating the trafficking of persons and that it seeks to modify its legislative and institutional framework in response to the complex and constantly evolving nature of this phenomenon. The Committee asks the Government to continue providing, in its future reports, information on any new measures taken to combat the trafficking of persons more effectively and on the difficulties encountered by the actors in the field and the action taken in response. It also asks the Government to continue providing the annual reports of the Centre for Equality of Opportunity and Action against Racism and to provide any publication or report issued by the competent institutions in this field, as well as any available statistics.

CMNT_TITLE

1. Article 2, paragraph 2(c), of the Convention. Work exacted as a consequence of a conviction in a court of law. The Committee notes the adoption of the Act of 17 April 2002, under which labour, as a correctional penalty or a police penalty, may be applied on its own (new sections 37 ter, quater and quinquies of the Penal Code). The Committee notes that it is thus a principal penalty and an autonomous penalty, and that judges intending to apply it must inform offenders of its scope, and may impose it only if the offenders are present at the hearing and have given their consent, either in person or through their legal counsel. The length of the penalty of labour may not be less than 20 hours or more than 300 hours. Such labour is performed free of charge for public services of the State, communes, provinces, communities and regions or for non-profit-making associations or social, scientific or cultural foundations. The Committee notes that the penalty of labour may not consist of work which is as a rule done by paid workers in the public service or association in question (section 37 quater). Offenders are supervised by an officer from a "justice centre" (maison de justice), coming under the Ministry of Justice, and execution of the penalty of labour is monitored by the Probation Committee of the offender’s place of residence. The actual content of the penalty is determined by the abovementioned officer after he has heard the offenders and taken account of their observations. The Committee notes that the legislation contains several provisions for supervising and controlling arrangements for the execution of the penalty of labour. It would appreciate receiving information on the types of work that may be required under this penalty including a list of the associations and foundations authorized to take on offenders performing such sentences.

2. Trafficking in persons. The Committee notes that in its latest reports, the Government provides none of the information requested by the Committee in its general observation of 2000 on measures taken by governments to prevent, repress and punish trafficking in persons. It nonetheless notes from information available that the Government is developing an active policy to combat trafficking in persons and has made legislative and institutional provision for the purpose. The Act of 13 April 1995 introduces for the first time into national law a provision allowing the offence of human trafficking to be punished, by incorporating a new section, 77 bis, into the Act on the access, stay, establishment and departure of foreigners. Since then, numerous texts have been adopted to strengthen the legal framework. In this regard, the Committee notes the adoption, on 10 August 2005, of an Act to amend several provisions with a view to combating more effectively the trafficking of human beings and the practices of abusive landlords. In particular, the Act introduces into the Penal Code a chapter on human trafficking (section 433 quinquies to 433 novies) and a chapter on abuse of vulnerability through the selling, hiring or offering of goods with a view to making undue profit (section 433 decies to 433 quinquiesdecies). These provisions of the Penal Code thus set forth in detail the various components of the offence of human trafficking. The Committee notes with interest that several institutions have been established and a number of measures taken to combat such trafficking:

-  in 1995, the Centre for Equality of Opportunity and the Fight against Racism was made responsible for promoting the fight against human trafficking. Every year the Centre publishes an independent public report assessing developments and the results of the policy to combat international trafficking in human beings;

-  an interdepartmental task force has been set up to coordinate the fight against human trafficking;

-  special reception centres have been established for victims of human trafficking;

-  several measures have been adopted to protect victims of such trafficking, including the adoption in 2002 of an Act on the anonymity of witnesses and an Act establishing rules on the protection of threatened witnesses, and the introduction of a new work permit ("C permit") for victims of trafficking;

-  in 2004 a Royal Order was issued confirming the roles of the abovementioned Centre for Equality of Opportunity and the Fight against Racism and Interdepartmental Task Force, and setting up a Centre for Information and Analysis regarding Trafficking in Human Beings, to be responsible for gathering, centralizing, managing, transmitting and analysing anonymous data that are of use in combating human trafficking.

The Committee encourages the Government to pursue these efforts and requests it, in its future reports, to provide information on the difficulties the authorities meet in combating human trafficking, punishing the perpetrators and protecting the victims, together with information on any measures taken or envisaged to overcome such difficulties. Please also provide a sample of the annual report produced by the Centre for Equality of Opportunity and the Fight against Racism and of any publications or reports produced by other institutions involved in this area.

3. Freedom of military personnel to leave their employment. The Committee notes the statistical information sent by the Government on applications for resignation by military staff (officers and non-commissioned officers) and the information concerning the grounds on which some of these applications were refused. It requests the Government to continue to provide information on the number of such applications that have been refused and the grounds for refusal.

CMNT_TITLE

1. The Committee notes with interest the adoption of the Act of 16 March 2000 on the resignation of certain categories of military staff, the termination of the appointment or reappointment of certain military candidates, the determination of the period of active service and the recovery by the State of part of the expenses granted by it for training and part of the salary received during training. The Committee notes in particular:

-  the provisions of section 3 which define and determine the length of the "actual service";

-  the provisions of sections 4-8 which establish the principle that part of the salary received during military training and part of the expenditure on training for certain categories of military personnel must be repaid if the persons concerned are allowed to resign before the end of the period of actual service, the amount to be repaid being proportionate to the uncompleted part of the said period;

-  the provisions of sections 10-13 setting the conditions for the acceptance of resignations and the instances in which resignation is deemed to be contrary to the interests of the service.

The Committee asks the Government to explain what constitutes the "exceptional cases, which must be expressly accounted for by the King or by the authority which He shall designate", referred to in sections 10-13 of the Act, in which resignations may be refused where the period of actual service (i.e. a period of from three to 12 years) has been completed. Please give examples of cases where applications to resign have been refused.

The Committee also asks the Government to state the time limit within which the competent authority must accept or refuse an application to resign. Please provide examples of exemptions under section 8 of the Act from the repayment of training expenses and salaries received during training.

2. The Committee notes the statistical information contained in the Government’s report. It notes that in the period from 1 June 1998 to 31 May 2000 seven applications to resign from officers and 27 from non-commissioned officers were rejected although they met the conditions for acceptance. The Committee asks the Government to state the reasons for these rejections.

CMNT_TITLE

The Committee notes the information supplied by the Government concerning the right of commissioned and non-commissioned career officers to resign. The Committee notes that, between 1 July 1991 and 30 June 1993, out of 66 applications made by commissioned officers to resign, the 57 which fulfilled the conditions set out in the regulations were accepted and none were refused; of the nine applications which did not fulfil these conditions, two were refused. In the case of non-commissioned officers, out of the 670 applications which were made, the 530 which fulfilled the conditions were accepted and none were refused; of the 123 applications which did not fulfil the prescribed conditions, 17 were refused.

The Committee requests the Government to continue supplying information on this matter.

CMNT_TITLE

The Committee has taken note of the information supplied by the Government concerning the right of career officers and non-commissioned officers to resign. The Committee notes that between 1 July 1990 and 30 June 1991, of 46 applications for release submitted by officers, 36 satisfied the prescribed conditions and were accepted and none were rejected; of nine applications which did not satisfy the conditions, five were rejected. Of the 331 applications submitted by non-commissioned officers, 269 satisfying the conditions were accepted and none were rejected; of the 60 applications not satisfying the conditions, two were rejected.

The Committee asks the Government to continue supplying information on the subject.

CMNT_TITLE

The Committee notes the information supplied by the Government concerning the right of career officers and non-commissioned officers to resign. It notes that out of 22 resignation applications made by officers, 21 were accepted and one was refused because it did not fulfil the requirements laid down by the regulations; the officer concerned has not appealed against the Minister's decision. Three hundred and one resignation applications made by non-commissioned officers were accepted, including nine which did not fulfil the requirements laid down by the regulations.

The Committee requests the Government to continue supplying full information on cases in which decisions are taken to reject a resignation application that fulfils the requirements laid down by the regulations, including copies of the rulings handed down by administrative tribunals.