Summary

Is the Dutch criminalization of labour exploitation in Article 273f of the Dutch Criminal Code (DCC) in accordance with the principles of criminal law and does it comply with the requirements of both international human rights and international and European anti-trafficking rules?

To answer this question, chapter 2 first presents a conceptual model of exploitation. Exploitation refers to the action of taking advantage of someone in an unfair manner. However, the result – namely an unfair advantage or at least an intention thereto – is not the only defining element. A second element is a defect in the process by which the unfair outcome comes about. Such a defect is caused by influence through coercion, deception or the abuse of incapacity or circumstances. Unfair benefits that are not associated with these influences cannot be qualified as exploitation. An exploiter thus uses coercion, deception or abuses incapacity or circumstances of another person with the intention to benefit unfairly from him or her.

In this thesis, exploitation caused by coercion, deception or the abuse of incapacity is defined as harmful exploitation. This form of exploitation involves limiting a victim’s negative freedom. The exploiter determines the route to be followed by the victim or narrows his or her options. Exploitation that results from the abuse of circumstances is defined as mutually advantageous exploitation. This type of exploitation does not involve an infringement of negative freedom, and the exploiter expands (instead of reduces) the victim’s number of opportunities. However, it may prevent positive liberty from becoming available to the victim.

Chapter 3 demonstrates that labour exploitation is not criminalized as an independent crime in the Netherlands. The phenomenon is being counteracted with the punishment of human trafficking in Article 273f DCC. The current human trafficking clause’s application to labour exploitation has grown over the years. The history of law shows that trafficking/exploitation and labour/sex trafficking were originally seen as separate phenomena. Article 273f DCC has evolved into a complex and lengthy provision and aims to cover a broad range of activities related to human trafficking and exploitation both within and outside of the sex industry. Exploitation is therefore not the same as human trafficking, although forms of exploitation can fall under the current Dutch human trafficking criminal offence.

Section two of Article 273f DCC provides a non-exhaustive list of what can constitute exploitation. In this context, exploitation comprises at least the exploitation of another person in prostitution, other forms of sexual exploitation, forced or compulsory labour or services including begging, slavery, slavery-like practices, servitude and exploitation of criminal activities. Even though the Dutch legislature offers only a description and not a precise definition, it is clear that exploitation consists of harmful exploitation on the one hand and mutually advantageous exploitation on the other. Slavery, servitude and forced labour are forms of harmful exploitation as they entail restricting the exploited person’s freedom. ‘Other forms of exploitation’ involve mutually advantageous exploitation. This latter form of exploitation is further explained in legal history and jurisprudence. Mutually advantageous exploitation must entail a situation in which an individual is gaining unfair benefit by abusing another person in an excessive manner, with that other person having no other reasonable choice but to undergo the abuse. The degree of unfair profit (or economic gain) plays an explicit role in this variant; in the case of harmful exploitation, it is of less importance. The Dutch Supreme Court has ruled that it is impossible to provide a general definition of exploitation, as it depends heavily on the circumstances of a case. For the purpose of assessing exploitation, the nature and duration of employment, the restrictions imposed on the individuals concerned and the economic benefit for the employer can all be significant. When these and other relevant factors are weighed, the generally accepted standards in Dutch society should be used as a reference. Furthermore, incurring criminal responsibility does not require that a victim is actually exploited; an individual’s intention to exploit is sufficient to lead to his or her conviction.

Chapters 4 and 5 form the framework for a review of the Dutch criminalization of labour exploitation. Chapter 4 expounds the principles of criminal law, which in this thesis include: 1) the harm principle, 2) the subsidiarity principle, 3) the proportionality principle, 4) the effectiveness principle, 5) the principle that criminalization does not interfere with fundamental human rights, 6) the legality principle, 7) the actus reus principle, 8) the wrongful conduct principle, 9) the mens rea principle and 10) the coherence principle. These principles are relevant to the questions of when and how conduct should be criminalized. Although the predominant idea is that no definitive system of criminal criteria determines which conduct has to be criminalized, the principles can indeed provide guidance concerning the content and scope of criminal penalties. Using the principles as a framework can thus facilitate judgements that are better balanced in relation to when a criminal prohibition is in place, how this prohibition is to be understood and its advantages and disadvantages.

Chapter 5 describes the requirements to criminalize labour trafficking based on both international human rights and international and European anti-trafficking rules. In this regard, the following are especially important: Article 8 of the International Covenant on Civil and Political Rights (ICCPR), Article 4 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), the UN Trafficking Protocol of 2000, the Council of Europe’s Convention on Action against Trafficking in Human Beings of 2005, the 2002 EU Council Framework Decision on Human Trafficking and the 2011 EU Directive on Human Trafficking (which replaced the 2002 Council Framework Decision).

Chapter 6 answers the question of whether the Dutch criminalization of exploitation is in accordance with the abovementioned principles of criminal law. As far is it concerns harmful exploitation, criminalization is certainly in line with criminal law principles. Conversely, the penalization of mutually advantageous exploitation concurs with different criminal law principles. Starting from the harm principle, mutually advantageous exploitation does not cause any harm seeing as no setback of interests exists. Criminalizing conduct that does not cause any harm also conflicts with the principle of proportionality. At the same time, evidence of coercion or deception (which is necessary for harmful exploitation) is not always easy to bring forward. Coercion or deception can sometimes overlap with a situation of abuse, with the abuse situation being easier to demonstrate. The question of whether evidential problems induce a broadening of penalization then arises. The underlying thought is than that real harm (through coercion or deception) actually exists but is difficult to prove. Suppose an employer threatens to report an illegal resident to the police if he does not work for the employer under miserable circumstances. Such a threat can be expressed without witnesses. If the employer subsequently denies making the threat, the evidence is insufficient. A more widely defined criminal offence that also includes abuse makes it possible to condemn the employer. After all, the illegal resident’s vulnerable situation and the miserable labour conditions can be demonstrated. This is not contrary to the harm principle, because real harm does in fact exist. Furthermore, it can be difficult to distinguish coercion or deception from abuse. For example, compare the following situations in which a refugee is employed under severe unfavourable conditions without being paid:

The differences are subtle, but the first situation is more difficult to regard as a threat than the second. In practice, situations 1 and 2 or 1 and 3 may overlap. For example, a suspect may not explicitly say that he will report a refugee to the authorities (which means no hard case of 2 exists) but still suggest it in the way he presents his labour ‘offer’ (which reflects a soft case of 2). Another example is a suspect not explaining everything about a refugee’s legal status and using the refugees ignorance to let him or her work for him (which is a soft but not a hard case of 3).

In addition, the difference between a threat and an abusive offer depends on the ‘normally expected behaviour’. Threats are suggested consequences that are not welcome in comparison to the consequences that would ensue in the normal course of events. In contrast, proposals are suggested consequences that are welcome in view of the normal course of events. However, confusion about these concepts can arise because the normal course of events can be interpreted differently. This makes differentiating between the concepts even more complicated. As such, coercion and deception are not always easy to distinguish from abuse. The forms of influence may overlap.

It can thus be concluded that the punishment of mutually advantageous exploitation (through the abuse of a situation) is in theory not recommended in view of the harm principle. However, when evidential issues and the difficulty of distinguishing different influences are taken into account, in second instance the criminalization is defensible. Nevertheless, in the case of exploitation through an abuse of circumstances, judges must be aware that a situation may possibly not involve an infringement of a victim’s freedom and that he or she may not experience the ‘exploitation’ as negative; the victim may instead see the situation as an opportunity to start a better life elsewhere. The judge should then carefully explain why the exploiter’s conduct nonetheless deserves punishment.

Whether the punishment of mutually advantageous exploitation is compatible with the subsidiarity principle remains to be seen. In any case, it is clear that civil law provides insufficient relief in situations of exploitation, either they are harmful or mutually advantageous. A victim who was exploited, even with consent, was in a weaker position than his or her exploiter; if this were not the case, he or she would not have allowed the exploitation. Moreover, that weaker position can deter a victim from taking any civil legal action (due to feelings of anxiety or dependence or other sociological or psychological circumstances). Civil process costs can also serve as an obstacle. The question then is whether administrative law provides enough opportunities. The prohibition of exploitation expresses our society’s basic values in view of international treaties. As the trafficker and exploiter both act in violation of fundamental values, suppression through criminal law is intelligible. An administrative procedure may also be insufficient because exploiters do not report themselves and relevant administrative government agencies may not observe signals of exploitation – even though society broadly recognizes the importance of combating exploitation. Using stronger compulsive (criminal law) measures to sanction offenders may then be desirable.

The criminalization of harmful or mutually advantageous exploitation is additionally not in breach of fundamental rights, the legality principle, the actus reus principle, the wrongful conduct principle or the mens rea principle.

Finally, some comments with regard to the principle of coherence. Article 273f DCC formulates nine variants of human trafficking (paragraphs 1-1 to 1-9), addressing traffickers, exploiters, importers/exporters of sexual service providers, child traffickers/exploiters and profiteers of trafficking and exploitation. The various offender groups are all classified as ‘human traffickers’, although the requirements for receiving this classification differ greatly. Some of the article’s paragraphs refer to a form of complicity, while others tackle principals. The classification of ‘trafficker’ is disproportionately heavy for some of the offender groups, as are the maximum penalties. The Dutch legislature has made insufficient use of the general criminal doctrines of participation and complicity. It would have been more consistent to use the qualification ‘trafficking’ only with regard to the traffickers addressed in paragraph 1-1 of the article. Furthermore, exploitation should be formulated as a separate offence in a distinct article. Also child trafficking and child exploitation should be penalized distinctly.

Lastly, the current offence encompasses conduct with both intent and negligence. It is advisable to frame a separate offence in which acting with only negligence is penalized with a different classification and lower maximum penalty.

Chapter 7 addresses whether Article 273f DCC fulfils the requirements of international human rights and international and European anti-trafficking rules. Pursuant to Articles 4 ECHR and 8 ICCPR, states are inter alia obliged to establish effective criminal offences in relation to slavery, servitude, forced labour and human trafficking as well as effective preventive and repressive policies against such practices. Moreover, the UN Trafficking Protocol and the EU Directive on Human Trafficking obligate states inter alia to punish human trafficking effectively. The intent of exploitation is central to the definition of human trafficking in these two instruments. Exploitation includes at a minimum slavery, servitude and forced labour, whereas trafficking contains both an intent of and actual exploitation. The human rights framework and international anti-trafficking treaties thus advocate both a preventive and repressive policy against situations of slavery, servitude, forced labour and other forms of exploitation. Slavery, servitude and forced labour in principle refer to harmful exploitation. Based on legislation of the European Court of Human Rights, forced labour can also refer to mutually advantageous exploitation. The ‘other forms of exploitation’ referred to in anti-trafficking treaties also involve mutually advantageous exploitation. Human rights and anti-trafficking treaties thus oblige states to punish both exploitation forms.

The Netherlands does not explicitly penalize slavery, servitude and forced labour. A specific ban on slave trade does exist in Article 274 DCC, but it does not abolish slavery itself. The Netherlands explicitly penalizes human trafficking (including labour exploitation) due to the UN Trafficking Protocol and the EU Directive on Human Trafficking. Because the focuses of the human rights and anti-trafficking frameworks have grown together, by implementing the trafficking treaties the Netherlands is also fulfilling its human rights obligations. However, if it appears that actual situations of slavery, servitude and forced labour are not addressed under Article 273f DCC, it is likely that the European Court will consider a violation of Article 4 ECHR and still requires explicit penal provisions against slavery, servitude and forced labour. Paragraphs 1-1 and 1-2 of Article 273f DCC define trafficking almost identically as in the UN Protocol and the EU Directive. The other paragraphs (namely 1-3 to 1-9 of Article 273f DCC) are not required under international law and could be removed, which would simplify the provision enormously.

Chapter 8 ends with concluding observations. The current Dutch criminal offence of human trafficking is not entirely compatible with the principles of criminal law or in all respects necessarily based on international treaty obligations. International treaties compel governments to criminalize human trafficking and exploitation. The provision in paragraph 1-1 of Article 273f DCC along already fulfils this obligation. At the same time, the merging of trafficking and exploitation in this paragraph is confusing. These activities can follow each other, but they can also take place independently; as such it would be preferable to formulate separate provisions to address them. In addition, the lack of a delimited definition of exploitation creates ambiguity about the scope of the current provision. It would thus be better to restrict the entire provision in Article 273f DCC to actual trafficking and exploitation, punish these forms of conduct separately in different articles and include a clearer definition of exploitation. This would also greatly simplify the present provision.

The offence of human trafficking would then only pertain to a person who – through force, threat, deception, abuse of incapacity or excessive abuse of circumstances – recruits, transports, transfers, harbours or receives another person for the purpose of exploitation. Moreover, exploitation would apply to a person who – through force, threat, deception, abuse of incapacity or excessive abuse of circumstances – brings or holds another person in a situation of slavery, servitude, forced labour or otherwise brings or holds another person to labour or services for the purpose of (financial) benefit at that individual’s expense.

Unlike what is specified in the current Article 273f DCC, the proposed definition of exploitation demonstrates that it involves both 1) unfair economic gain and 2) a defect in the process by which the unfair outcome has come about (through the use of force, threat, deception, abuse of incapacity or excessive abuse of circumstances).

Although the above two components delineate the crime of exploitation more clearly, it still has a broad scope. The definition does not specify the required strength of either the degree of economic gain or the compulsion or abuse. It is therefore also important to criminalize exploitation under only ‘exploitative circumstances’. In this context, distinctions can be made between ‘exploitation’, ‘exploitative circumstances’ and ‘non-exploitative circumstances’. Exploitative circumstances exist if dirty or heavy work is to be carried out under miserable circumstances over a long period and is heavily underpaid. The relevant factors identified by the Supreme Court as the nature and duration of employment, the payment and the conditions under which the work is performed can determine if circumstances are ‘exploitative’ or ‘non-exploitative’. If the nature of the work is not dirty or heavy, the duration is very short and no deplorable conditions or underpayment exist, the labour is not occurring under ‘exploitative circumstances’. If an individual incites another to labour or services by force or abuse for the purpose of obtaining financial benefit at the expense of that person, and the act does not take place under ‘exploitative circumstances’, it is not punishable as exploitation. An example of a non-exploitative circumstance is a situation in which someone is misled to sell telephone contracts, with the promised profit being held by the deceiver in violation of the agreement. In the Netherlands several of such ‘telephone-contract situations’ were charged as human trafficking. Under the proposed restriction, this would not be possible anymore. Even though the two components of exploitation are present (i.e., unfair economic gain and a defect in the process through deception), the situation does not involve dirty or heavy work, long-term activity or circumstances that are necessarily bad. However, the deceiver could possibly be prosecuted for fraud.

Working with the proposed definition of exploitation – and only punishing it under ‘exploitative circumstances’ – better restricts the offence and ensures that only serious labour deficiencies fall under the penalty clause.

Finally, organ trafficking and organ exploitation both deserve separate punishment. Such trafficking and exploitation are not comparable with normally paid labour or services. Organ donation concerns a single act, while slavery, servitude, forced labour and other forms of labour exploitation generally involve longer service or work relations (i.e., it must take place under ‘exploitative circumstances’).

The proposed penal provisions in this thesis limit the scope of the crimes human trafficking and exploitation and provide clarity. As such, the proposals better address the conflict between the desirability of combating human trafficking and exploitation on the one hand and the undesirability of penalizing acceptable labour conditions on the other. Nonetheless, punishing exploitation involves a certain risk for society. The criminalization of mutually advantageous exploitation can result in a migrant who is willing to work temporarily under poor working conditions to build an existence somewhere else not being offered any work by an employer (and thus not being able to establish his or her new life) due to the criminal offence. In view of the principles of criminal law and considering the economic perspective of citizens in society, the government should erect as few penal barriers as possible against international trade, cooperation between people and (legal) labour migration. However, the impunity of mutually advantageous exploitation would also be problematic. Non-punishment would violate international obligations and could also leave victims of harmful exploitation unaided. In conclusion, it is not always easy to distinguish between the two forms of exploitation and a proof of harm is not always possible to obtain. As such, broader criminalization can bring relief. However, judges should provide extra careful consideration, particularly with regard to mutually advantageous exploitation. The proposed definition of exploitation considers not just abuse but also excessive abuse of circumstances (which brings or holds another person to labour or services for the purpose of (financial) benefit at that person’s expense). The excessive character ensures that not any undesirable working situation or any form of illegal labour migration falls under the criminal offence of trafficking or exploitation. It raises an additional evidential threshold. Moreover, inconvenient labour practices that do not involve exploitation should no longer be addressed through Article 273f DDC; they can instead be dealt with by more appropriate crimes or through labour law.

The legislator, public prosecutors and the judiciary must always be aware of the conflict between the combat of trafficking and exploitation and the prevention of creating barriers to acceptable working conditions. Especially in less obvious cases of exploitation (in which coercion, threat, deception or abuse of incapacity are not at stake), prosecutors and judges should clearly motivate why an individual is being excessively abused by another. This ensures that the punishment of human trafficking and exploitation remains limited to what it essentially constitutes: a serious crime against the personal freedom.