Non-punishment of acts committed under duress
Among other things, MP Songul Mütluer asked whether the non-punishment principle for victims of criminal exploitation should be enshrined in law, as Centre against Child and Human Trafficking (CKM) recommends after recent research on the criminal justice approach to tackle criminal exploitation in the Netherlands. The non-punishment principle, included in both the Warsaw Convention and the 2011 European Trafficking in Persons Directive, places an obligation on countries not to prosecute victims who commit crimes under duress. After all, if someone else forces you to commit those offences, it would be harsh to receive punishment for it. CKM spokesperson Shamir Ceuleers: "Yet that often does happen. In the Netherlands, a boy forced into drug offences is more likely to be prosecuted and convicted as a drug criminal than to be recognised as a victim and offered protection."
"Public prosecutor and judge sufficiently capable"
In 2011, the Netherlands chose not to enshrine the non-punishment principle in law, as both the Public Prosecutor's Office (OM) and the judge can choose not to prosecute or not to impose a sentence. Nevertheless, the question arose almost immediately as to whether the Netherlands would thereby meet its legal obligations of the European directive. The Dutch National Rapporteur indicated in 2017 that the question of whether the non-punishment principle is applied depended mainly on whether prosecutors and judges observe the principle, and stressed that the principle should be given a firmer place in the criminal justice chain.
Non-punishment by prosecutors rarely applied
Ceuleers: "Twelve years since the establishment of the non-punishment principle, it is clear that the protection it is supposed to provide to victims of trafficking is far from self-evident. Its application in practice is still not clearly regulated, contrary to what the National Rapporteur on Trafficking in Human Beings advised in 2017." Research by CKM shows that the Dutch prosecution service rarely applies the principle, let alone does so in a transparent, structured way that victims can trust or rely on. That the application of the principle is problematic, is recognised even by the prosecution itself.
Not well protected by courts either
By judges, too, the non-punishment principle is applied in an unclear manner, researchers Van Loenen and Medema-Baroud concluded earlier this year. For example, judges do not explicitly include the non-punishment principle in their considerations, or reject an appeal to the principle, while subsequently, and remarkably, taking into account in their sentencing the fact that the accused is both suspect and victim of a crime. Moreover, Van Loenen and Medema-Baroud conclude that judges expect victims to bear the burden of proof regarding their victimisation, and to testify about their victimisation. In practice, victims are vulnerable people in vulnerable positions who cannot possibly be asked to do so. The researchers speak of a problematic development at a moment when, given the increase in criminal exploitation among Dutch youth, the importance of the non-punishment principle is actually growing.
Shamir Ceuleers: "It is clear that the current practice is not working."
Tackling exploitation by criminals more urgent than ever
Ceuleers sees it the same way: "We see a huge increase in the number of victims of criminal exploitation, often linked to drug crime, which makes the problem more urgent than ever. Nevertheless, the minister and the state secretary of Security and Justice stick to arguments dating from 2012." Indeed, in their responses, they argue, as the government did around the emergence of the non-punishment principle, that “both the public prosecutor and the judge are sufficiently equipped to apply the principle adequately, also taking into account the concrete circumstances that arise in these cases.” Ceuleers: "It is clear that the current practice is not working. Neither for the victims prosecuted as offenders nor for our fight against organized crime. Now is the time to enshrine this in law and get the implementation right, so that the criminals who exploit victims can be caught."
In 2021, CKM published the first report on criminal exploitation in the Netherlands, which showed that potentially many young people are a victim of this crime, yet remain undetected as victims of human trafficking.