I. International conventions applicable in Belgium
Belgium has ratified a number of international conventions relevant to FGM, including the Council of Europe Convention on preventing and combating violence against women and domestic violence (Istanbul Convention, 2011), the United Nations Convention on the Elimination of All Forms of Discrimination against Women (CEDAW, 1979), the Universal Declaration of Human Rights (1948), the European Convention for the Protection of Human Rights and Fundamental Freedoms (1950), the United Nations Convention for the Rights of the Child (CRC, 1989) and the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1984).
II. Belgium’s Penal Code
Article 409 of the Belgian Penal Code (2001) (later: PC) provides for a prison sentence of three to five years for “all persons participating, facilitating or encouraging all forms of female genital mutilation or any attempt to do so, with or without the consent of the person concerned.” As of July 2014, encouraging the practice of FGM is punishable with imprisonment, for a period of between eight days and one year.
The statutory limit on the prosecution of FGM-related crimes is five years, rising to ten years where there are aggravating circumstances and 15 years if the victim was a minor, in which case the period of statutory limitation begins only once the victim has reached 18 years of age.
The minority of the victim is an important aggravating circumstance in sentencing, and any person who has participated in, encouraged or facilitated FGM on a minor, including abroad, can be pursued in Belgium if the perpetrator is on Belgian territory (Principal of Extraterritoriality, Articles 10 and 12 of the Criminal Procedure Code). Other aggravating circumstances include after-effects of the act, profit, and the victim’s dependence on or vulnerability to the perpetrator (i.e. parent, doctor).
Despite the legislative tools available, however, just 19 FGM-related cases were filed in Belgium between 2008 and 2014, none of which has led to a conviction. There is therefore no jurisprudence available on the subject (Alié, 2014).
III. Child protection
A victim of FGM is treated in the same way as a victim of child abuse.
Depending on the relevant community legal framework, the first step is usually for frontline professionals (health, school, family-planning, social-services or youth-organisation staff) to establish a programme aimed at supporting the family to prevent or end an abusive situation.1)Belgium’s French-speaking community applies the 1991 decree on youth support (M.B. 12 June 1991) and the 2004 decree on assistance to victims of child abuse (M.B. 12 June 1991). In the Brussels Region, voluntary aid is regulated by French- and Flemish-community Decrees, whereas compulsory aid is regulated by the 2014 ordinance of the French Community Commission of the Brussels-Capital Region in relation to youth support (M.B. 1 June 2004). In the Flemish Community, the 2008 decree on special assistance to youth (M.B. 1 June 2004) and the 2013 decree on integrated youth care applies (M.B. 13 September 2013), while in the German-speaking community the 2009 decree on youth care and child protection applies (M.B. 22 October 2009).
If a minor remains in danger, frontline services may report the case to specialist youth services (SOS Children, the Youth Support Service or the CAN Centre/Youth Care Support Centre), which can in turn inform the Prosecutor’s Office if protective measures are required. The Prosecutor’s Office can file a national- or Schengen-level alert to prevent the child leaving the territory. If the danger is real and persists, the Prosecutor’s Office can refer the case to a juvenile-court judge, who may order protective supervision measures (including educational guidance and medical assessments). In emergency cases, a juvenile-court judge has the authority to make a placement order for a specified period and/or to prohibit parents leaving the territory with their child.
Belgium recognises FGM as a form of gender-based persecution, which can be grounds for awarding refugee status (Directive 2011/95/EU of the European Parliament and European Council, 13 December 2011, Article 9, §2, f).2)For additional information on this subject, see http://www.intact-association.org/fr/documentation/nos-publications/recommandations.html However, jurisprudence as to the criteria for granting international protection to those who have undergone FGM or who fear that their child may be circumcised is not unanimous. Belgium has not yet incorporated into law European Directives on reception and asylum procedures, under which states are required to pay more attention in identifying vulnerable groups and take into account gender violence within the framework of examination of an application for asylum.
V. Professional Confidentiality
Belgian law permits but does not require the lifting of professional confidentiality where a child or a vulnerable person has been subjected to FGM (Article 458bis of PC).
In case of a risk of FGM, anyone confronted with this imminent danger of serious harm has an obligation to help (Article 422bis of PC). Failure to do so could result in a prison sentence of between eight days and one year, in addition to a fine. The penalty is increased if the victim is a minor or vulnerable person. The state of necessity may give rise to the lifting of professional secrecy to prevent FGM occurring.
VI. Evolution of criminal policy on FGM
Belgium’s College of Public Prosecutors is currently (2016) developing a circular on criminal policy on honour-related violence, including FGM. This circular offers guidelines to police and public prosecutors in addressing a range of honour-related violence.