10 AOUT 2005. - An Act to amend various provisions to strengthen the fight against human trafficking and trafficking and against the practices of sleep merchants (1)

ALBERT II, King of the Belgians,
To all, present and to come, Hi.
The Chambers adopted and We sanction the following:
CHAPTER I^er. - General provisions
Article 1^er. This Act regulates a matter referred to in Article 78 of the Constitution.
Art. 2. This law transposes the framework decision of the Council of the European Union of 19 July 2002 on the fight against trafficking in human beings, the Directive 2002/90/EC of the Council of the European Union of 28 November 2002 defining assistance to the entry, transit and irregular stay, and the framework decision of the Council of the European Union of 28 November 2002 to strengthen the criminal framework for the suppression of assistance to the stay.
CHAPTER II. - Provisions amending the Criminal Code
Art. 3. Article 43quater, § 1^er(a) The Penal Code is amended to:
1° It is inserted a 2°bis, written as follows: "2°bis. articles 433sexies, 433ssepties and 433octies; »;
2° to 5°, the words "at Article 77bis, § 2 or § 3" are replaced by the words "at Articles 77ter, 77quater and 77quinquies".
Art. 4. In article 324bis of the same Code, the words "using intimidation, threat, violence, fraudulent maneuvers or corruption or using commercial or other structures to conceal or facilitate the realization of the offences" are deleted.
Art. 5. Article 324ter, § 1^er, of the same Code, is replaced by the following provision:
"When the criminal organization uses intimidation, threat, violence, fraudulent maneuvers or corruption or resorts to commercial or other structures to conceal or facilitate the realization of the offences, any person who knowingly and voluntarily, in fact, is liable to imprisonment from one year to three years and to a fine of one hundred euros to five thousand euros or to one of these penalties only, even if it does not intend »
Art. 6. It is inserted in Book II, Title VIII of the same Code, a Chapter IIIbis entitled "From the exploitation of begging".
Art. 7. It is inserted in Book II, Part VIII, Chapter IIIbis of the same Code, an article 433ter, as follows:
“Article 433ter. - Will be punished by imprisonment from six months to three years and a fine of five hundred euros to twenty-five thousand euros:
1° Whoever hired, trained, diverted or detained a person for the purpose of giving him or her begging, has prompted him to beg or continue to do so, or has made him or her available to a beggar so that he may use it to incite public commission;
2° Whoever exploits the begging of others in any way.
The attempt to commit the offences referred to in paragraph 1^er will be punished by imprisonment from one month to two years and a fine of one hundred euros to two thousand euros. »
Art. 8. It is inserted in Book II, Part VIII, Chapter IIIbis of the same Code, a new article 433quater, as follows:
“Article 433quater. - The offence under section 433ter, paragraph 1^er, shall be punished by imprisonment from one year to five years and a fine of five hundred euros to fifty thousand euros when committed:
1° in respect of a minor;
2 by abusing the particularly vulnerable situation in which a person is present because of his or her illegal or precarious administrative situation, his or her precarious social situation, a state of pregnancy, a disease, a physical or mental disability, in such a way that the person in fact has no other true and acceptable choice than to submit to that abuse;
3° by direct or indirect use of fraudulent manoeuvres, violence, threats or any form of coercion. »
Art. 9. It is inserted, in Book II, Title VIII of the same Code, a Chapter IIIter entitled "From Trafficking in Human Beings".
Art. 10. It is inserted in Book II, Part VIII, Chapter IIIter of the same Code, a new article 433quinquies, as follows:
« Article 433quinquies. § 1^er. Constitutes the offence of trafficking in human beings by recruiting, transporting, transferring, hosting, welcoming a person, passing or transferring control over him, in order to:
1° to allow the commission against that person of the offences provided for in articles 379, 380, § 1^er and § 4, and 383bis, § 1^er;
2° to allow the commission against that person of the offence under section 433ter;
3° to put at work or to allow the person to work in conditions contrary to human dignity;
4° to collect or allow the removal of organs or tissues in violation of the Act of 13 June 1986 on organ removal and transplantation;
5° or commit a crime or offence to that person against his or her will.
Except in the case referred to in 5, the consent of the person referred to in paragraph 1^er the intended or actual operation is indifferent.
§ 2. The offence under § 1^er will be punished by imprisonment from one year to five years and a fine of five hundred euros to fifty thousand euros.
§ 3. The attempt to commit the offence referred to in § 1^er will be punished by imprisonment from one year to three years and a fine of one hundred euros to ten thousand euros. »
Art. 11. It is inserted in Book II, Part VIII, Chapter IIIter of the same Code, a new article 433sexies, as follows:
"Article 433sexies. - The offence under Article 433quinquies, § 1^ershall be punished by imprisonment from five years to ten years and a fine of seven hundred and fifty euros to seventy-five thousand euros when the offence has been committed:
1° by a person who has authority over the victim, or by a person who has abused the authority or facilities conferred upon him by his or her functions;
2° by an officer or public official, a depositary or a public force officer acting on the occasion of the performance of his duties. »
Art. 12. It is inserted in Book II, Part VIII, Chapter IIIter of the same Code, a new article 433s, as follows:
"Article 433ssepties. - The offence under Article 433quinquies, § 1^er, shall be punished by the imprisonment of ten years to fifteen years and a fine of one thousand euros to one hundred thousand euros in the following cases:
1° where the offence was committed against a minor;
2° when committed by abusing the particularly vulnerable situation in which a person, due to his or her illegal or precarious administrative situation, his or her precarious social situation, a state of pregnancy, a disease, a physical or mental infirmity or impairment, in such a way that the person has in fact no other true and acceptable choice than to submit to that abuse;
3° when committed by direct or indirect use of fraudulent manoeuvres, violence, threats or any form of coercion;
4° where the life of the victim has been wilfully endangered or by serious negligence;
5° where the offence caused a seemingly incurable disease, a permanent physical or psychological incapacity, the complete loss of an organ or the use of an organ, or a serious mutilation;
6° where the activity concerned is an usual activity;
7° where it constitutes an act of participation in the principal or incidental activity of an association, whether or not the perpetrator has the status of leader. »
Art. 13. It is inserted in Book II, Part VIII, Chapter IIIter of the same Code, a new article 433octies, as follows:
"Article 433octies. - The offence under Article 433quinquies, § 1^er, shall be punished by the imprisonment of fifteen years to twenty years and a fine of one thousand euros to one hundred and fifty thousand euros in the following cases:
1° when the offence caused the victim's death without intent to give it;
2° where it constitutes an act of participation in the principal or incidental activity of a criminal organization, whether or not the perpetrator has the status of a leader. »
Art. 14. It is inserted in Book II, Part VIII, Chapter IIIter of the same Code, a new article 433novies, as follows:
"Article 433novies. - In the cases referred to in articles 433sexies, 433ssepties and 433octies, the perpetrators will also be sentenced to the prohibition of the rights set out in article 31.
Without having regard to the quality of a natural or legal person of the operator, owner, tenant or manager, the court may order the temporary or final, partial or total closure of the undertaking in which the offence under section 433quinquies was committed.
The special confiscation provided for in section 42, 1°, shall be applied to the guilty of the offence referred to in section 433quinquies, even where the property of the things on which it carries does not belong to the convicted person, without the fact that such confiscation may prejudice the rights of third parties to the property liable to be confiscated. »
Art. 15. It is inserted, in Book II, Title VIII of the same Code, a Chapter IIIquater entitled "From the abuse of the vulnerability of others by selling, leasing or making available property for the purpose of making an abnormal profit".
Art. 16. It is inserted in Book II, Part VIII, Chapter IIIquater of the same Code, a new article 433decies, as follows:
"Art. 433decies. - Will be punished by imprisonment from six months to three years and by a fine of five hundred euros to twenty-five thousand euros, anyone who has abused, either directly or through, of the particularly vulnerable position in which a person is located because of his or her illegal or precarious administrative situation or his or her precarious social situation, by selling, leasing or making available, in the intention of making an abnormal profit, The fine will be applied as many times as there are victims. »
Art. 17. It is inserted in Book II, Part VIII, Chapter IIIquater of the same Code, a new article 433undecies, as follows:
"Art. 433undecies. - The offence referred to in section 433decies shall be punished from one year to five years in prison and a fine of one thousand euros to one hundred thousand euros in the following cases:
1° where the activity concerned is an usual activity;
2° where it constitutes an act of participation in the principal or incidental activity of an association, whether or not the perpetrator has the status of leader.
The fine will be applied as many times as there are victims. »
Art. 18. It is inserted in Book II, Part VIII, Chapter IIIquater of the same Code, a new article 433duodecies, as follows:
"Art. 433duodecies. - The offence referred to in section 433decies shall be punishable by imprisonment from five years to ten years and a fine of one thousand euros to one hundred and fifty thousand euros if it constitutes an act of participation in the main or incidental activity of a criminal organization, whether or not the perpetrator has the status of leader.
The fine will be applied as many times as there are victims. »
Art. 19. It is inserted in Book II, Part VIII, Chapter IIIquater of the same Code, a new article 433terdecies, as follows:
"Art. 433terdecies. - In the cases referred to in sections 433undecies and 433duodecies, the guilty shall also be sentenced to the prohibition of the rights specified in section 31.
The special confiscation provided for in section 42, 1°, shall be applied to the guilty of the offence referred to in section 433decies, even where the property of the things on which it carries does not belong to the convicted person, without the fact that such confiscation may prejudice the rights of third parties to the property that may be the subject of confiscation. It must also be applied, under the same circumstances, to the furniture property, the furniture property, the building property, the bedroom or any other space referred to in that section. "
Art. 20. It is inserted in Book II, Part VIII, Chapter IIIquater of the same Code, a new article 433quaterdecies, as follows:
"Art. 433quaterdecies. - Depending on the case, the Crown Prosecutor or the examining magistrate may seize the furniture, the part of it, the building property, the bedroom or any other space referred to in section 433decies. If he decides to practice the seizure, the furniture, the part of it, the building property, the bedroom or any other space referred to in section 433decies must be sealed or, with the written agreement of the owner or lessor, be made available to the C.P.A.S. in order to be temporarily restored and leased. The decision of the Crown Prosecutor or the investigating judge, as the case may be, to proceed with the seizure is served on the owner or lessor. In the event of the seizure of a building property, the decision must be served no later than 24 hours and be presented for transcript at the mortgage office of the place where the property is established. The day of the transcript taken into account is that of the meaning of the seizure decision. The seizure remains valid until the time of the final judicial decision by which the confiscation has been pronounced, or the lifting of the seizure is pronounced. An lifting of the seizure may be granted at any time, as the case may be, by the King's Prosecutor or by the investigating judge after the King's Prosecutor has notified the King's Prosecutor. The person seized shall not bring the remedies provided for in sections 28sexies and 61quater of the Code of Criminal Investigation until after one year from the date of the seizure. »
Art. 21. It is inserted in Book II, Part VIII, Chapter IIIquater of the same Code, a new article 433quinquiesdecies, written as follows:
"Art. 433quinquiesdecies. - In the cases referred to in section 433decies, the victims may, if any, be accommodated or relocated by a decision, as the case may be, by the competent minister, the competent authority or officials designated by them, in consultation with the relevant authorities. The costs of lodging are borne by the defendant. When the defendant is paid, the costs are charged, as the case may be, to the competent State or C.P.A.S. »
CHAPTER III. - Provisions amending the Preliminary Title of the Code of Criminal Investigation
Art. 22. In Article 5ter of the Preliminary Title of the Code of Criminal Investigation, the words "on the things referred to in Article 42, 1, or" are inserted between the words "rights" and the words "on the things referred to in Article 505 of the Criminal Code".
Art. 23. In section 10ter of the same Title, replaced by the Act of 28 November 2000, the following amendments are made:
1° to 1°, the words "and 383bis, §§ 1^er and 3 of the Criminal Code are replaced by the words "383 bis, §§ 1^er and 3, 433sexies, 433ssepties and 433octies of the Criminal Code";
2° to 3°, the words "at Article 77bis, §§ 2 and 3" are replaced by the words "at Articles 77ter, 77quater and 77quinquies".
Art. 24. Article 21bis, paragraph 1^er, of the same Title, amended by the laws of 13 April 1995 and 28 November 2000, the words "and 409" are replaced by the words ", 409 and 433quinquies, § 1^erParagraph 1^er, 1°,".
CHAPTER IV. - Provisions amending the Code of Criminal Investigation
Art. 25. Article 90ter, § 2, of the Code of Criminal Investigation, inserted by the law of 30 June 1994 and amended by the laws of 7 April 1995, 13 April 1995, 10 June 1998, 10 January 1999, 28 November 2000, 29 November 2001, 11 December 2001, 7 July 2002, 6 January 2003, 5 August 2003 and 19 December 2003, are amended as follows:
1° It is inserted a point 7°ter, which reads as follows:
"7°ter. articles 433sexies, 433ssepties and 433octies of the same Code; »;
2° 17° is replaced by the following provision:
« 17°. to articles 77ter, 77quater and 77quinquies of the Act of 15 December 1980 on access to territory, residence, establishment and removal of aliens; "
Art. 26. In section 91bis of the same Code, as amended by the Act of 28 November 2000, the words "and 428 of the Criminal Code" are replaced by the words ", 428, 433quinquies at 433octies of the Criminal Code, and sections 77bis to 77quinquies of the Act of 15 December 1980 on access to territory, residence, establishment and removal of foreigners,".
CHAPTER V. - Provision amending the Judicial Code
Art. 27. Article 144ter, § 1^er, 1°, third dash, of the Judicial Code, as amended by the Act of 21 June 2001, the words "in article 77bis, §§ 2 and 3", are replaced by the words "in articles 433sexies, 433s and 433octies of the Criminal Code and in articles 77ter, 77quater and 77quinquies".
CHAPTER VI. - Provisions amending the Act of 15 December 1980 on access to territory, residence, establishment and removal of aliens
Art. 28. Article 77 of the Act of 15 December 1980 on access to territory, residence, establishment and removal of aliens, as amended by the laws of 1^er June 1993, 15 July 1996, 29 April 1999 and 26 June 2000, is replaced by the following provision:
“Article 77. - Who knowingly assists a person who is not a national of a Member State of the European Union to enter or stay in the territory of a Member State of the European Union or a State Party to an international convention relating to the crossing of external borders and linking Belgium or to transit through the territory of such a State, in violation of the law of that State, or in the facts that have prepared the entry, transit or stay,
Paragraph 1^er does not apply if aid is provided for primarily humanitarian reasons. "
Art. 29. Section 77bis of the Act, inserted by the Act of 13 April 1995 and amended by the Acts of 26 June 2000, 28 November 2000, 2 January 2001, 2 August 2002 and 23 January 2003, is replaced by the following provision:
"Article 77bis. - Constitutes the offence of trafficking in human beings, by contributing, in any way, either directly or through an intermediary, to allow the entry, transit or stay of a non-national person of a Member State of the European Union on or by the territory of such a State or a State Party to an international convention relating to the crossing of external borders and directly linking Belgium, in violation of the law of heritage
The offence under paragraph 1^er will be punished by imprisonment from one year to five years and a fine of five hundred euros to fifty thousand euros.
The attempt to commit the offence referred to in paragraph 1^er will be punished by imprisonment from one year to three years and a fine of one hundred euros to ten thousand euros. "
Art. 30. An article 77ter, as follows, is inserted in the same law:
“Article 77ter. - The offence under section 77bis shall be punished by the imprisonment of five years to ten years and by a fine of seven hundred and fifty euros to seventy-five thousand euros when committed:
1° by a person who has authority over the victim, or by a person who has abused the authority or facilities conferred upon him by his or her functions;
2° by an officer or public official, a depositary or a public force officer acting on the occasion of the performance of his duties. "
Art. 31. Article 77quater, as follows, is inserted in the same law:
“Article 77quater. - The offence provided for in Article 77bis shall be punishable by imprisonment from ten years to fifteen years and a fine of one thousand euros to one hundred thousand euros in the following cases:
1° where the offence was committed against a minor;
2° when committed by abusing the particularly vulnerable situation in which a person, due to his or her illegal or precarious administrative situation, his or her precarious social situation, a state of pregnancy, a disease, a physical or mental infirmity or impairment, in such a way that the person has in fact no other true and acceptable choice than to submit to that abuse;
3° when committed by direct or indirect use of fraudulent manoeuvres, violence, threats or any form of coercion;
4° where the life of the victim has been wilfully endangered or by serious negligence;
5° where the offence caused a seemingly incurable disease, a permanent physical or psychological incapacity, the complete loss of an organ or the use of an organ, or a serious mutilation;
6° where the activity concerned is an usual activity;
7° where it constitutes an act of participation in the principal or incidental activity of an association, whether or not the perpetrator has the status of leader. "
Art. 32. An article 77quinquies, as follows, is inserted in the same law:
“Article 77quinquies. - The offence provided for in Article 77bis shall be punishable by imprisonment from fifteen years to twenty years and a fine of one thousand euros to one hundred and fifty thousand euros in the following cases:
1° when the offence caused the victim's death without intent to give it;
2° where it constitutes an act of participation in the principal or incidental activity of a criminal organization, whether or not the perpetrator has the status of a leader. »
Art. 33. An article 77sexies, as follows, is inserted in the same law:
"Article 77sexies. - In the cases referred to in articles 77ter, 77quater and 77quinquies, the perpetrators will also be sentenced to the prohibition of the rights set out in article 31 of the Criminal Code.
The special confiscation provided for in article 42, 1°, of the Criminal Code is applied to the guilty of the offences referred to in articles 77bis to 77quinquies, even when the property of the things on which it carries is not owned by the convicted person, without the fact that such confiscation may prejudice the rights of third parties to the property liable to be confiscated. »
Art. 34. Article 81, paragraph 1^erthe same Act, as amended by the Acts of 15 July 1996 and 2 August 2002, are amended as follows:
(1) the words "and sections 433quinquies at 433octies and 433decies at 433duodecies of the Penal Code" are inserted after the words "The offences under this Act".
(2) the words "by the officers of the gendarmerie" are replaced by the words "by the officers of the federal police and the local police."
CHAPTER VII. - Provisions amending the Act of 15 February 1993 creating a Centre for Equal Opportunities and Combating Racism
Art. 35. In article 2, paragraph 2, of the Act of 15 February 1993 creating a Centre for Equal Opportunities and Combating Racism, amended by the laws of 13 April 1995, 20 January 2003 and 25 February 2003, the words "and trafficking" are inserted between the words "trafficking" and the words "human beings".
Art. 36. In article 3, 5°, third paragraph, of the same law, as amended by the laws of 13 April 1995, 20 January 2003 and 25 February 2003, the words "human trafficking and child pornography" are replaced by the words "human trafficking and trafficking".
CHAPTER VIII. - Provisions amending the Act of 13 April 1995 containing provisions for the suppression of trafficking in persons and child pornography
Art. 37. The title of the Act of 13 April 1995 containing provisions for the suppression of trafficking in persons and child pornography is replaced by the following title: "Act of 13 April 1995 containing provisions for the suppression of trafficking and trafficking in persons".
Art. 38. In article 9 of the Act of 13 April 1995 containing provisions for the suppression of trafficking in persons and child pornography, the words "in articles 379 and 380bis of the Criminal Code or in article 77bis" are replaced by the words "in articles 379, 380, 433quinquies at 433octies of the Criminal Code, or in articles 77bis to 77quinquies".
Art. 39. The following amendments are made to section 11 of the Act:
1° § 1^er is replaced by the following provision:
« § 1^er. For the purposes of this chapter, we must hear:
1° by trafficking in persons: offences referred to in articles 379, 380, 433quinquies at 433octies of the Criminal Code;
2° by trafficking in human beings: the offences referred to in sections 77bis to 77quinquies of the Act of 15 December 1980 on access to territory, residence, establishment and removal of aliens. »;
3° in § 2, the words "and traffic" are inserted between the words "of trafficking" and the words "human beings".
Art. 40. In section 12 of the Act, the following amendments are made:
1° the word "annually" is replaced by the words "every two years";
2° the words "and traffic" are inserted between the words "of trafficking" and the words "human beings".
CHAPTER IX. - Provisions amending the Act of 8 July 1976 organic of public social action centres
Art. 41. In Article 57, § 2, last paragraph, of the Act of 8 July 1976 organic of the public centres of social action, as amended by the Act of 2 August 2002, the words "Article 77bis, § 4bis, of the Act of 15 December 1980 on access to land, residence, establishment and removal of aliens" are replaced by the words "Article 433quaterdecies of the Criminal Code".
Art. 42. A l'article 57ter /2, alinéa 1^er, of the same law, inserted by the law of 2 August 2002, the words "article 77bis, § 4bis, of the same law" are replaced by the words "article 433quaterdecies of the Criminal Code".
CHAPTER X.
Art. 43. Section 82 of the Youth Protection Act of 8 April 1965 is repealed.
Promulgation of this law, let us order that it be clothed with the seal of the State and published by the Belgian Monitor.
Given in Nice on 10 August 2005.
ALBERT
By the King:
The Minister of Justice,
Ms. L. ONKELINX
Seal of the state seal:
For the Minister of Justice, absent:
Minister of Defence,
A. FLAHAUT
____
Notes
(1) Session 2004-2005.
House of Representatives documents: 51-1560
Number 1: Bill.
n^bones 2-7: Amendments.
Number 8: Report.
No. 9: Text adopted by the commission.
Full report: 21 April 2005
No. 11: Draft amended by the Senate.
No. 12: Amendments.
Number 13: Report.
No. 14: Text adopted in plenary and subject to Royal Assent.
Full report: 7 July 2005.
Senate documents: 3-1138
Number 1: Project referred to by the Senate.
n^bones 2 and 3: Amendments.
Number 4: Report.
No. 5: Text amended by the commission.
No. 6: Amendments.
No. 7: Text amended by the Senate and referred to the House of Representatives.
Annales of the Senate: June 2, 2005.