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Improving access to protection and remedy for victims of human trafficking in Belgium and the Netherlands

October 18, 2021

A new technical study, launched by the ILO Brussels office, analyzes the challenges faced by victims of human trafficking to access protection and remedy in Belgium and the Netherlands.

Photo: “Thank you to all the people from the shelter who carry me towards the light.” Woman from China © PAG-ASA, Massimo Timosi

©lisakristine.com

Belgium and the Netherlands have ratified the ILO Protocol on Forced Labour, hence committing to prevent all forms of forced labour, including human trafficking, protect victims and ensure their access to justice. The ILO office in Brussels recently launched a technical study analyzing the progress and challenges related to the access to protection and remedy for victims of human trafficking for the purpose of labour exploitation in these two countries (an executive summary as well as the key findings, action points and recommendations are available). 50 for Freedom talked with the authors of the study, Irene Wintermayr and Amy Weatherburn, to find out more about their research.

Irene Wintermayr,
Policy Officer, ILO Office for the European Union
and the Benelux countries
Dr Amy Weatherburn,
Postdoctoral Researcher (FNRS-F.R.S),
Center for European Law and Institute for European Studies, Université Libre de Bruxelles

50 for Freedom (50FF): What was your motivation to undertake this research together?

Irene Wintermayr:  I met Amy in a shelter for human trafficking victims in Brussels where we both work as volunteers. In my case, I was helping out with the night shifts in the shelter. As many stay in the shelter for several months, I developed real relationships with some persons and in the evenings, we often exchanged on their hopes and concerns for the future. While all the people I encountered were identified trafficking victims, for many, it was not clear whether the criminal investigation into their case would continue. That was a big concern for them: if the investigation were to be stopped, it would mean – in the majority of cases – that they would lose their status of “victim of trafficking” and all the rights associate with it – including their residence permit. For many of them, it would mean that after having lived years or even a decade in Europe, they would have to return to their countries of origin, where they had absolutely no perspective of building a life.

Amy Weatherburn: Indeed, our involvement with the human trafficking shelter really was the starting point for our research project. In addition, we were both familiar with the anti-trafficking literature in our professional lives: Irene works as a policy officer for the ILO and I am a researcher with a focus on the implementation of criminal law related to human trafficking for labour exploitation. For this research, we were very keen to examine the avenues to justice and protection for all human trafficking victims, whether formally identified as such or not. Specifically, we wanted to find out which options were available for persons who clearly have been in an exploitative situation but who were not formally recognised as “victims” or lost their status. It can be the case for instance, when the criminal investigation in their case is discontinued, or if they refuse to cooperate with authorities. In our research, we looked at avenues for remedy in criminal, civil or labour courts, how labour inspectors can facilitate access to compensation, and the availability of state compensation funds (such as for victims of crimes, for work accidents or insolvency when the employer has gone bankrupt).

50FF: How did you proceed to collect information?

Amy: Well, we were fortunate that, for both Belgium and the Netherlands, solid research, studies and information are available on the institutional set up and policies in place. So we started with desk research – studying more closely the existing legal and policy framework. But we also wanted to know how these different avenues worked in practice, as we wished to identify both barriers and good practices. Therefore, we identified a number of persons in both countries who, in their daily work, support human trafficking victims or people in severe situation of labour exploitation. We interviewed professionals in specialised reception or coordination centres for human trafficking victims, labour rights support organisations, labour prosecutors, trade unionists and labour inspectors.

Irene: These discussions were very positive and inspiring. All the persons we interviewed are committed and competent professionals, devoted to supporting people who have been trafficked. They really do a very important work for the persons exploited.

50FF: Did some of the findings of your research come as a surprise to you?

Amy: An important finding that emerged strongly from our research is that the role and support of trade unions and specialised NGOs are indispensable to make use of the different avenues to claim remedy or compensation that exist in both countries. Many victims are in very precarious situations, they may not have a residence permit, speak the language nor have sufficient financial resources, and they are not used to dealing with authorities. As a result, they lack awareness of the different avenues for remedy or compensation and their ability to navigate them is nigh on impossible without third-party support organisations. There is definitely a need to strengthen the resources and mandate of such organisations in both countries.

Irene: We often think how victims can seek justice. However, according to several persons we interviewed, many victims, in particular from EU Member States, prefer to start over quickly and find a new job rather than getting involved in potentially lengthy formal proceedings and dealings with authorities. Therefore their main concern is to receive their back wages, and to receive them in a non-bureaucratic and rapid manner. Many are even willing to accept an amount that is lower than what they are entitled to if received quickly. This may have to do with the fact that victims in an irregular situation, above all, do not wish to come to the attention of the authorities and run the risk of being deported to their country of origin. Furthermore, getting involved or starting judicial proceedings is a lengthy, potentially costly process with an uncertain outcome.

50FF: Another recent ILO research has demonstrated how the COVID-19 crisis is particularly affecting the most vulnerable and least protected people and increasing the risk of forced labour and child labour. Did the pandemic also have an impact on the access to protection and remedy for victims?

Amy: Well, we were just finishing the last interviews in April 2020, when Belgium and the Netherlands went into lockdown. It was evident that the COVID-19 pandemic would have an impact on access to protection and remedy due to, for example the reduced capacity of labour inspectors to conduct workplace inspections, as their resources were re-directed to ensuring compliance with COVID-19 measures. This will likely result in a reduction in the number of referred and/or registered victims of human trafficking.

Irene: We managed to have follow-up conversations with several of the organisations we had interviewed to get an idea of the impact of the COVID-19 pandemic and the measures taken to tackle it. For instance, they mentioned that it resulted in a backlog of cases as well as the restricted availability of services that are usually provided in persons to human trafficking victims.

50FF: What do you hope to achieve with the publication of the report?

Amy: We are aware that both Belgium and the Netherlands are relatively advanced in the institutional and policy framework they have in place to provide access to protection and remedy for human trafficking victims. But we hope that the report will lead to or feed reflection processes of how to  make it more effective in both countries. Some of the action points we put forward include a number of “low-hanging fruits” that could be implemented rather quickly, without any legislative or policy changes. For instance, there are possibilities to claim back unpaid wages or damages for workplace accidents in criminal proceedings, but these possibilities appear not to be used systematically. This means the victim has to start an additional civil court case to claim back unpaid wages and such damages.

Irene: Our report also includes important action points that would need perhaps more reflection and consultation with stakeholders. These include questions on how to expand and improve protection for migrant workers in an irregular situation to support them to lodge complaints or launch judicial proceedings. Another key issue is ensuring access to adequate resources and continued training on human trafficking for labour inspectors, law enforcement and also importantly prosecutors and judges to increase detection, identification and prosecution rates.

50FF: Your report lists a series of practical recommendations on how to improve the access to protection and remedy for victims. If you could pick one recommendation that should be implemented, what would that be, and why?

Amy: For me it would be to ensure that the identification of victims is decoupled from the obligation to cooperate with criminal proceedings. Not all victims are willing to cooperate with authorities for many reasons including a lack of trust in authorities or fear of retaliation from their exploiters. At present, in both countries – and contrary to international and regional legal obligations[1] – this conditionality means that not all victims are given access to support and remedy they should be entitled to. Crucially, there is no alternative mechanism for victims who do not wish to cooperate with legal proceedings. In addition, it is necessary to strengthen the protection given to migrant workers in an irregular situation to help them launch complaints, be it through criminal, civil or labour proceedings.

Irene: For me, it would be to look into how administrative fines could be used more effectively and quickly benefit to workers. This would not replace prosecution in case of human trafficking, or should not prevent workers to pursue proceedings, but should be complementary. It is important, as it seems to be a critical element for many victims.

50FF: Besides making recommendations, you have also identified good practices in place that could inspire other countries. Could you present a few?

Irene: We identified good practices in each country that could inspire the respective other country, but also, we hope, policy-makers beyond Belgium and the Netherlands.

For example, as I said earlier, many exploited workers simply want to move on with their lives as fast as possible and recuperate their unpaid wages. One approach that we identified as a good practice is the use of “on the spot payments” by Social Legislation Inspectors in Belgium. If these inspectors come across workers who have not been paid during workplace inspections, they can request employers to pay any outstanding wages on the spot. Importantly, inspectors can presume that the person has been working for the employer for three months if the employer cannot prove otherwise. This is a good practice as it caters to the needs of potential victims to receive their back wages in a timely manner.

Amy: The Dutch advance payment option acknowledges that despite awards of compensation by judges, effective recuperation of compensation by victims is difficult in practice. In the Netherlands, if after eight months the convicted perpetrator has still not paid the compensation, the government steps in and advances the compensation to the victim. The provision of a State-funded mechanism really considers the victims’ interests and right to effective remedy by shifting the burden of recuperating the compensation awarded from the victim to the State.

 


[1] The ILO Recommendation 203, the Council of Europe Trafficking Convention and the EU Anti-Trafficking Directive stipulate that victims’ access to protection should not be made conditional upon the victim cooperating in criminal proceedings. Paragraph 5(2), ILO Forced Labour (Supplementary Measures) Recommendation, 2014 (No. 203), Article 11(3), Directive 2011/36/EU of 5 April 2011 on preventing and combating trafficking in human beings and protecting its victims, and replacing Council Framework Decision 2002/629/JHA OJIL101, 15.4.2011, p.1–11; Article 12 (6), Council of Europe Convention on Action against Trafficking in Human Beings (2005).