Trafficking: Legislative changes and their implementation in Spain

For: Gema Fernandez and Teresa Fernandez

Trafficking in human beings for the purpose of exploitation is a cruel reality that raises the concern of the people who work in the defence of human rights, international agencies and, more recently, of governments. The causes of the phenomenon of human trafficking are unseen and hidden. Women and girls are the most vulnerable to this state of slavery.

 

Spain is one of the main transit and/or destination countries for victims of trafficking, although due to the complexity of the phenomenon, it is very problematic to know precisely the extent of this serious human rights violation. The fact that there are no reliable figures on the number of victims makes it very difficult to measure the problem in a real way. It is a challenge to ensure real and effective protection to the victims due to the secrecy and invisibility surrounding trafficking.

 

Despite this, since 2009, there have been significant legislative changes relating to the fight against trafficking in Spain. Such as, the adoption of the Comprehensive Plan to Combat Trafficking in Human Beings for the Purpose of Sexual Exploitation; the introduction of Article 59 bis of the Organic Law 4/2000, which regulates, among other rights, that the recovery and reflection period of the victims of the offense is autonomous and independent of other crimes in the Criminal Code. Other legislative changes include the introduction of the Organic Law 5/2000 and the signing of the Protocol Framework for the Protection of Victims of Human Trafficking by various ministerial representatives.

 

However, the delay with which the Spanish authorities incorporated these legislative changes was significant. Thus, the Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children, known as the Palermo Protocol, the main international instrument in the fight against trafficking, which dates back to 2000, only came into force in Spain in 2003. However the measures contained in it did not generate any change in the law. In 2009, the Court of Justice of the European Union condemned Spain for breaching its obligations with respect to the inclusion of Directive 2004/81/EC of the Council in its national law. This Directive is related to the issuance of a residential permit to victims of trafficking that cooperate with the competent authorities. And finally, the Council of Europe Convention on Action Against Trafficking in Human Beings was adopted in Warsaw in 2005 and entered into force in Spain in August 2009.

 

It has been just over two years since the last amendment of the Criminal Code came into force in Spain. This introduced article 177 bis, which is dedicated to defining the offense of trafficking in human beings as being against those people who are

in Spanish territory, from Spain, in transit or destination to it, by use of violence, intimidation or deceit, or abusing a situation of superiority or necessity or vulnerability of the national or foreign victim, by recruiting, transporting, transferring, harbouring or receipt with any of the following purposes: (a) the imposition of forced work or services, slavery or practices similar to slavery or to servitude or begging; (b) sexual exploitation, including pornography; (c) removal of body organs.

 

Two sentences of the Provincial Courts of Barcelona and Madrid, November 26 and December 26 2012 respectively, were the first in Spain to apply the new crime of trafficking in human beings as set out in Article 177bis of the Spanish Criminal Code. Although a final judgement has not yet been made against them since the appeal may be brought before the Spanish Supreme Court, its importance should be highlighted. If the accused are found guilty of the charge, this will create a judicial precedent with regard to trafficking in human beings for the purposes of sexual exploitation. Recently, a new sentence was added to the Provincial Court of Barcelona, with the date of 6 February 2013.

 

The first judgement sentenced an organised group who were responsible for capturing two women in Paraguay and transferring them to Madrid by deception. Here, they were forced into prostitution and subject to deplorable conditions. The second judgement condemned the traffickers of a young Bulgarian woman. Taking advantage of her and her family’s impoverished situation, they convinced her to travel to Barcelona to work in hospitality, when the real purpose was to force her into prostitution. The documentation of the three women was removed from them and they were subjected to constant harassment, coercion and sexual abuse. The money they had earned from prostitution had to be handed over to the traffickers

 

The judgement, which analyses the phenomenon of trafficking, is that of the hearing of Barcelona on 26 December 2012. Although one can perceive certain confusion in the terminology of the reading – probably due to its originality regarding the courts of this country- and an excessive paternalism towards the victims, many points of the reading are remarkable. In the body of the judgement is part of the definition of the Palermo Protocol; this crime must be understood as a blatant violation of human rights and a form of modern slavery. Then the judges examine the elements of article 177 bis. They must ensure that the dignity and freedom of the victims is legally protected and that the crime meets specific criteria. That is to say, that for there to be an offense requires that this occurs through the use of violence (physical force applied to the person to reduce his/her decision-making capacity and freedom of movement), intimidation (forcing the person into or deterring from some action by inducing fear), deception (creating a misconception by manipulating reality), or other situations of superiority by the trafficker.

 

Then the judges examine the elements of article 177 bis. They must ensure that the dignity and freedom of the victims is legally protected and that the crime meets specific criteria. –this does not make much sense, but will ask the office.

 

It should also be noted that this ruling highlights one of the problems that organisations specialised in trafficking have been explicitly denouncing: – the need to modernise and update the outdated Law on the Protection of Witnesses and Experts.  This update would ensure the safety of those who collaborate in dismantling the networks of trafficking in human beings.

 

At Women’s Link we actively follow-up to these decisions and we are dedicated to analysing their content and monitoring the implementation of human rights and gender perspectives. While significant progress has already been started to prosecute criminals who exploit people in our country, there is still a need for combined consideration among social organisations, the prosecutorial and judicial authorities, police and its administration to ensure the effective implementation of the regulatory framework. This framework should focus on defending the rights of victims of trafficking in human beings. In addition, it should be remembered that the last April 6 2013, was the deadline given by the Directive 2011/36/EU of the European Parliament and of the Council to convert its laws, but as of yet no steps have been made by Spain to do so.

 

 

 

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