“Of the human trafficking” is how is titled the Title VII bis of the Book II of the Spanish Penal Code (CP). It is a title made up of only one article, where is exclusively typified the crime of human trafficking. The Title VII bis is relatively new, for it was introduced in the CP through the Organic Law 5/2010 of 22 June, in which for the first time was given an individual treatment to the crime of human trafficking and the crime of illegal immigration, for having ambits of application clearly different. The section twelfth of the exposition of motives of such law says, “The unified penal treatment of the crimes of human trafficking and illegal immigration which had the article 318 bis was clearly inadequate, for the great differences which exist between both crimes. The division of the regulation of these two realities is indispensable for either complying with the obligations derived from the international compromises or ending the continuous interpretative conflicts.
In order to carry out this objective it is created the Title VII bis, denominated “Of the human trafficking”. Thereby, the article 177 bis typify a crime in which prevail the protection of the dignity and the freedom of the passive subject who suffer it. On the other hand, it is essential to stress that we are not before a crime which can be exclusively committed against foreigners, but which will comprehend all the kinds of human trafficking, either national or transnational, whether related or not with the organized crime.
On the contrary, the crime of illegal immigration will have always a international character, prevailing, in this case, the defense of the interests of the State in controlling the immigration. Besides of the creation of the article 177 bis, and as consequence of the necessity of endowing of internal coherence to the system, this reorganization of the types has required the abolition of the norms contained in the articles 313.1 and 318 bis 2.”
In order to explain better the content of this Title VII bis and other particularities related with it, we are going to divide this writing into the following points: 1) The crime of human trafficking; 2) The concurrence of crimes to which can give rise the crime of human trafficking; 3) Differences between the crime of human trafficking and the crime of illegal immigration, and; 4) The inherent difficulties to the assessment of the moral damages.
1) The crime of human trafficking:
As we have already seen in the brief introduction with which we commenced, the separate treatment of the crime of human trafficking with respect to the crime of illegal trafficking was introduced in the CP with the reform of this through the LO 5/2010.
One of the motives for separating both crimes, is consequence of the international compromises assumed by the Spanish State, as the ratification of the Council of Europe Convention on the fight against the human trafficking, in which is defined the human trafficking as: “the recruitment, transport, transference, dwelling or reception of persons, making use of threats or force or another ways of coercion, the kidnapping, fraud, deception, abuse of authority or another situation of vulnerability, or the offering or acceptance of payments or advantages for obtaining the consent of a person who has authority upon another, for its exploitation. The exploitation will comprehend, at least, either the exploitation of the prostitution of another person or other ways of sexual exploitation, the forced work or services, the slavery or the practices analogous to the slavery, the serfdom or the extirpation of organs.”
This is the reason why, a lot of people has denominated the crime of human trafficking as the slavery of the twenty-first century, for the crime consists in the use of coercion or the taking advantage of a situation of special vulnerability, for exploiting a human being, as it was an object, machine, from which could be obtained an economic benefit. The said by the Spanish Supreme Court´s sentence (STS) number 396/2019 of 24 July is a good example: “This is why the crime of human trafficking with the goal of sexual exploitation, consists, in this case, once in our country the forced persons, are obliged to exercised the prostitution in different club hostess, scattered along the Spanish territory, places where the human dignity lacks of the more essential meaning, in order to obtain the benefit for which the women has been brought as they were things, from which is tried to be obtained the maximum economic benefit, while those persons are in conditions of being exploited. It is not necessary to go to far countries for observing the slavery of the twenty-first century, with going to so close places located at the border of our roads, where to find one or various club hostess in whose interior is practiced the prostitution with forced persons, slaved, who are bough and sold between the different club hostess, while those human beings are forced to pay even the ticket to their indignity”.
It is a crime which protect two different legal goods, the dignity and the freedom of the person, both rights are rights recognized by the Spanish Constitution, in its article 10 and its article 17 respectively, being both personal legal goods. This is why, the Supreme Court has determined that the crime of human trafficking has an individual subject and not plural, it means that there will be as many crimes as victims in application of the norms regulating the real concurrence of crimes of the article 73. This was the criteria agreed by the no jurisdictional Plenary of the Second Chamber of the Supreme Court of 31 May 2016: “The crime of human trafficking defined in the article 177 bis of the CP, reformed by the LO 1/2015 of 30 March, obliges to sanction as much crimes as victims, in accordance with the rules which regulate the real concurrence of crimes.”
Let us see now, what is concretely said by the article 177 bis: “1. Will be punished with the punishment from five to eight years of imprisonment as convicted offender of the crime of human trafficking who, either in Spanish territory, or from Spain, in transit or having it as destination, employing violence, intimidation or deception, or abusing of a situation of superiority or of necessity or of vulnerability of a national victim or foreigner, or through the delivery or receipt of payments or benefits for obtaining the consent of the person who has the control upon the victim, recruit, transport, move, take in, or receive, including the exchange or transference of control upon such person, with any of the following ends:
a) The imposition of works or forced services, the slavery or similar practices to the slavery, the serfdom or the mendicity.
b) The sexual exploitation, including the pornography.
c) The exploitation for carrying out criminal activities.
d) The extraction of its body organs.
e) The celebration of forced weddings.
The exists a situation of necessity or vulnerability when the person does not have another alternative, real or acceptable, but to submit to the abuse.
When the victim of human trafficking is a minor of age, will be imposed, in any case, the punishment of special disqualification for any profession, trade or activities, whether remunerated or not, which entails regular and direct contact with minors of age, for a superior term from six to twenty years than the duration of the freedom´s privative punishment imposed.
- Even when are not used any of the means enumerated in the above point, it will be regarded as human trafficking any of the actions indicated in the above point when they are carried out with respect to minor of age with the goal of exploring them.
- The consent of a victim of human trafficking will be irrelevant when it has been obtained through any of the means indicated in the first point of this article.
- Will be imposed the punishment superior in degree to the envisaged in the first point of this article when:
a) When has been put into risk the life or physical or psychic integrity of the person object of the crime;
b) The victim is specially vulnerable for reason of illness, pregnancy, handicap or personal situation, or a minor of age.
c) The victim is a person whose situation of vulnerability has been originated or aggravated for the displacement derived from a armed conflict or an humanitarian catastrophe.
If more than one circumstance concur, it will be imposed the punishment in its superior half. - Will be imposed the punishment superior in degree to the envisaged in the point one of this article and absolute disqualification from six to twelve years to those who commit the facts taking advantage of their condition of authority, or public servant. If besides concur any of the circumstances mentioned in the fourth point of this article, will be imposed the punishments in their superior half.
- Will be imposed the punishment superior in degree to the envisaged in the first point of this article and special disqualification for profession, trade, industry or commerce for the term of the conviction, when the guilty pertains to an organization or association of more than two persons, including of transitory character, which has as object the carrying out of such activities. If any of the circumstances envisaged in the fourth point of this article concur, will be imposed the punishment in its superior half. If the circumstances envisaged in the fifth point of this article concur, will be imposed the punishments envisaged in this in its superior half.
When are the bosses, administrators or persons in charge of such organizations or associations, will be imposed the punishment in its superior half, which can be hightened to the immediately superior in degree. In any case will be hightened the punishments to the immediately super in degree if any of the circumstances envisaged in the point fourth or fifth of this article concur. - When in accordance with the established in the article 32 bis a legal person is liable of the crimes comprehended in this article, will be imposed to it the punishment of fine from the triple to the quintuple of the benefit obtained. Attending to the rules established in the article 66 bis, the judges and courts may impose the punishments gathered from the letters b) to g) of the point seven of the article 33.
- The provocation, the conspiracy and the proposal for committing the crime of human trafficking will be punished with the inferior punishment in one or two degrees to the corresponding crime.
- In any case, the punishments envisaged in this article will be imposed without prejudice of those which correspond, in its case, for the crime of the article 318 bis of this Code and the rest of the crimes really committed, included those which constitute the corresponding exploitation.
- The convictions of foreign judges or courts for crimes of the same nature of those envisaged in this article will produce the effects of recidivism, except when the criminal records either has been cancelled or can be cancelled according to the Spanish law.
- Without prejudice of the application of the general rules of this Code, the victim of human trafficking will be exempted from punishment for the penal infringements which it has committed in the situation of exploitation suffered, always that its participation in them was the direct consequence of the situation of violence, intimidation, deception or abuse to which it has been submitted and that exists an adequate proportion between such situation and the criminal fact committed.”
Now we will analyze the crime of human trafficking following how it is regulated by the article 177 bis. The behavior which gives rise to the crime of human trafficking is described in its first point, this has been summarized by the Spanish jurisprudence in three requisites, two objective and one subjective. The Provincial Court of Albacete´s sentence number 716/2022 says: “The first is referred to the criminal action, alternative (any of them gives rise to the crime): “to recruit, transport, move, take in or exchange or transfer the control upon these persons”.
The second, demands determined means for committing the above action and which imply to subdue or abolish the decision-making will of the passive subject: violence, intimidation, deception…It is enough with any of such alternatives (Spanish Supreme Court´s sentence 5746/2015), and it is not necessary either that it persist during all the mobilizing process of the victim (Circular 5/2011 of the Prosecutor General´s Office – it can be recruited through deception and be transported through violence or abuse of situation of necessity).
The third, subjective element of the unjust demands an intentionality, demanding that the action is carried out with one of the ends which are pointed out by the own article (“númerus clauses”) and which has as goal to carry out the exploitation of the person (to impose forced works or services, the slavery or similar practice, serfdom or mendicity; to sexually exploit; or to extract body organs: also here, any of them suppose the commission of the crime).»
Therefore, we are before a crime of “anticipated consummation”, being possible its commission even before has been materialized any of the goals enumerated, on the other hand, their materialization suppose the concurrence of another crime, as the ninth point of this article 177 bis remembers to us, in these cases the rules of a real concurrence of crimes of the article 73 CP will be applied, or even the rules of a medial concurrence of crimes of the article 77.1 CP.
We have to take into account as well that, given the broad definition of the criminal action, the crime can be committed in various parts of the process of which is made up the crime of human trafficking, always that this action is carried out for complying with any of the ends of exploitation and using the means expressly envisaged. In the sentence of the Spanish Supreme Court number 214/2017 of 29 March are stressed the typical elements of the crime of human trafficking, that are those pointed out by the UNODC (United Nations Office on Drugs and Crime) and which are perceived in the successive stages in which is organized the human trafficking: “i) Stage of recruitment. The first stage of the crime of human trafficking consists in the initial behavior of recruitment, which consists in the luring of one person for controlling its will with ends of exploitation, which is equivalent to the recruitment of the victim. In this stage of recruitment is usually used the deception, through which the active subject, its collaborators or its organization organizes a mechanism of direct or indirect approach to the victim to achieve its acceptance of the proposal. It is also usually combined the deception with the coercion. The deception consists in using wholly or in part false date for making to believe the victim something that is not true and which generally is translated in legitimate offers of work, either in the domestic service, in industrial or commercial establishments, or even as models, and in general in offering to persons without means of subsistence a better conditions of life. Normally, the deception is used to maintain the victim under control during the stage of moving and initially in the places of exploitation, though soon is combined with or substituted by the coercion.
The coercion implies force, violence or intimidation for forcing the victims to accept the conditions imposed. The active subject to the crime use this element upon the victim through different generating elements: the threat of exercising a direct and personal harm to the victim or its family or those closed to the victim who are left in the country of origin are the more frequent. The contribution with papers and their theft, have a determinant part in the human trafficking: the identity documents and travel (passport,…) are frequently faked, and in any case retained by the active subjects or their collaborators for hindering the flight of the victims.
II) Moving stage. It occupies the second place in the criminal activity of the human trafficking. The moving consists in moving a person from one place to another using any means available (even by foot). The use of the expression moving stressed the change of country or community who carries out a person and is related with the technic of uprooting, which is essential for the success of the criminal activity of human trafficking. The moving may be carried out within the country, though is more usual with crossing of frontiers.
The uprooting consists in separating the victim from the place where it has lived or lives, cutting the affective ties which it has with them by means of the force, the coercion and deception. The objective of the uprooting is avoiding the contact of the victim with its social nets of help: family, friends, neighbors, with the end of maintaining a condition of isolation which allows the active subject to maintain the control and its exploitation. The uprooting is materialized in the moving of the victim to the place of exploitation. When the final location is reached the victim is dispossessed, with a lot of frequency, of its documents of identity and travel, as well as of other belongings which can relate it with its identity and its family or affective ties.
III) Exploitation stage. It consists in obtaining economic, commercial or of another type benefits, through the forced participation of another person in acts of prostitution, including acts of pornography or production of pornographic material. The Palermo protocol of 15 December of 2015 is referred as goal of the human trafficking to the exploitation of the alien prostitution, to other forms of sexual exploitation, to the forced work or services, to the slavery or the analogous practices to the slavery, to the serfdom or to the extraction of organs.”
Therefore, it is not necessary to participate in all the procedure above described for being regarded as an author of the crime of human trafficking, it is enough with taking part in any of these three stages, if this participation has any of the goals mentioned in the article 177.1 bis and besides is used any of the means mentioned in the same article (violence, force, coercion…). For the sake of clarity, we can add the said by the Provincial Court of Oviedo´s sentence number 2455/2022: “As is pointed out by the recent sentence of the Spanish Supreme Court number 1739/2022 of 22 April, “the jurisprudence of this Chamber has declared that the crime of human trafficking can be committed in varios moments, from the recruitment up to the takin in, being able to concur any of the elements demanded, in other words, the violence, the intimidation, the deception or the abuse of any of the mentioned situations, in any of the mentioned temporal moments, always that exists the typical goal” (Spanish Supreme Court´s sentence number 324/2021 of 21 April). Understanding that, as was qualified by the Spanish Supreme Court´s sentence 861/2015 of 20 December, the reform of the CP of 2015 suppresses the action which consists in accommodating in the victim. It was established neither in the Directive of 2011 nor in the Warsaw Convention. The exclusion is irrelevant: we have to insist in it again. The accommodation is always expression of the typical behaviors of taking in which determine by their own the consummation of the crime.”
Later this same sentence adds: “the carrying out of any of the modalities enumerated (to recruit, transport, move, take in or receive) determines the commission of the crime always that as here occurs, it is oriented or predetermined to the achievement of any of the goals envisaged in the type like the sexual exploitation, and any of the means for committing the crime concurs: violence, physical or moral, deception, or abuse of superiority, vulnerability or necessity. It is enough with one of those behaviors for being author. Hence, it is unimportant that any of the various actions to which is attributed the direct or indirect participation of the accused (recruitment, moving, transportation or taking in) is excluded: the unlawfulness of the action will subsist (Spanish Supreme Court´s sentence number 861/2015 of 20 December).»
In relation with this article 177 bis we have to comment one more thing, what we should understand by a situation of necessity or vulnerability. According to the article 177.1 bis, there will exist this situation when “the person does not have another alternative, real or acceptable, but to submit to the abuse.” The legislator seems not to want to define better what are the motives which provoke this situation of lack of alternatives, in my opinion, the more usual will be the poverty into which is the victim. Nevertheless, we can add a couple of examples that I have found in the jurisprudence of the Spanish courts, like in the Province Court of Madrid´s sentence number 17412/2022 which says that: “necessity and vulnerability of the victim, have been appreciated assessing factors as, the ignorance of the language, the absence of documents and the lacking of any social or family ties ( Spanish Supreme Court´s sentence number 298/2015 of 13 May).”, or like the Provincial Court of Salamanca´s sentence number 923/2022 which says that: “As has been declared by the Spanish Supreme Court´s sentence number 146/2020 of 14 May, regarding the abuse of a situation of superiority or a situation of necessity or vulnerability of the victim, it supposes to take advantage of the situation of inferiority in which is the passive subject. This situation of superiority may take place in different ways (hierarchical, kinship, friendship or neighborhood), being excluded the situation of superiority which is generated by the minority of age or incapacity of the victim, since they are causes of aggravation of the punishment.” This last excerpt says something really interesting at its end, for it is true that may be imposed the punishment superior in degree to the envisaged in this first point of the article 177.1 bis, when specific conditions of vulnerability concur, the established in the points b) and c) of the fourth point of the article 177 bis.
2) The concurrence of crimes to which can give rise the crime of human trafficking:
We should depart from the said by the ninth point of the article 177 bis, “the punishments envisaged in this article will be imposed without prejudice of those which correspond, in its case, for the crime of the article 318 bis of this Code and the rest of the crimes really committed, included those which constitute the corresponding exploitation.”
Therefore, we have to understand that the crime of human trafficking will usually concur with the commission of others, with which will have a relation of either a real concurrence of crimes of the article 73 CP, in which case each crime should be punished separately, or a medial concurrence of crimes of the article 77, when the human trafficking is the means to carry out another crime.
Within the first scenario, the real concurrence of crimes of the article 73, the crime which usually will concur along the crime of human trafficking is the crime of illegal immigration of the article 318 bis. But we cannot dismiss the concurrence of other crimes, as a crime of injuries.
In the second group, the medial concurrence of crimes of the article 77, the crime which will often concur along the crime of human trafficking will be the crime of prostitution of the article 187. In these cases the courts have established the existence of a medial concurrence of crimes and not real, since they consider that although the article 177 bis gathers as one of the specific ends of the human trafficking the sexual exploitation, this does not wholly cover the desvalue of the action when this exploitation is effectively carried out, and besides, there exists this characteristic relation of the article 77, in which a crime is the necessary means, the human trafficking, for committing another, the sexual exploitation.
As always let us try to complete what we have just seen, with two excerpts from sentences which can help us to underpin it:
- Provincial Court of Salamanca´s sentence 923/2022:
a) About the existence of a real concurrence of crimes between the crime of illegal immigration and the corresponding crime of human trafficking, departing from the fact that for the human trafficking it is not necessary the previous infringement of the immigration controls, in a fraudulent way… Our Supreme Court Sentence number 430/2019 of 27 September already established the possibility of a concurrence of crimes between the crimes against the right of the foreign citizens for illegal immigration, in a real concurrence of crimes with a crime of human trafficking with ends of sexual exploitation committed by organization or association, and a medial concurrence of crimes with a crime of coercive prostitution.
The same we have declared in the Supreme Court Sentence number 396/2019 of 24 July. The Supreme Court Sentence number 861/2015 of 20 December, declares that is usual relation between the human trafficking and the crime of prostitution, to be in a medial concurrence of crimes.
The same results from the ninth point of the article 177 bis of the Penal Code, for the punishments envisaged in such article has to be imposed without prejudice of those which correspond, in their case, for the crime of the article 318 bis of this Code and the rest of the crimes effectively committed, including those which constitute the corresponding exploitation. - Provincial Court of Oviedo´s sentence 2455/2022:
The Spanish Supreme Court´s sentence number 845/2021 of 4 November, which talks about facts analogous to the present, declares that “From the lecture of the art. 177 bis 1 CP results that one of the typical ends is the sexual exploitation, being doctrine of this Chamber that the sanction for this crime does not absorb all the gravity of the behavior when effectively takes place such exploitation, opting, as a general rule, in the cases of concurrence of crimes between this crime and the relatives to the prostitution, for the solution of the medial concurrence of crimes, insofar as being consummated such end of sexual exploitation, the crime of the article 177 bis would be a previous instrument of such end crime, which makes suitable to apply, the rule envisaged in the art. 77.1 for the denominated medial concurrence of crimes. The art. 77.3 of the Penal Code establishes the way in which has to be set the punishment in the cases of a medial concurrence of crimes: “In the second, will be imposed a superior punishment to which would have corresponded, in the concrete case, for the gravest infringement, and which cannot exceed of the sum of the concrete punishments which would have been imposed separately for each one of the crimes. Within these limits, the judge or court will individualize the punishment according to the criterio expressed in the article 66. In any case, the punishment imposed cannot exceed the limit of duration envisaged in the above article.””
3) Differences between the crime of human trafficking and the crime of illegal immigration:
The first great difference between both crimes is the legal good protected in each case, if for the crime of human trafficking this is the dignity and freedom, in the crime of illegal immigration the legal good protected according to the Provincial Court of Salamanca´s sentence number 923/2022 is: “the social interest of controlling the flows of immigration and the freedom, the security and the dignity of the immigrants moved to Spain (Spanish Supreme Court´s sentences number 569/2006 of 19 May; 153/2007 of 28 February; 770/2007 of 19 September; 801/2007 of 29 September; and 823/2007 of 15 October).»
The second great difference is that, though both crimes are characterized for the movement of human beings, with the object of obtaining a benefit, in the crime of human trafficking have to concur two additional requisites: an undue way of recruitment, with violence, intimidation, deception, or abuse of power or payment of price, and; a proposal of exploitation, which will be mainly sexual.
The third great difference between both crimes is that, in the human trafficking the economic benefit is obtained from the exploitation of the person, in other words, with the consummation of any the of ends described in the article 177.1 bis, while in the illegal immigration the economic benefit is simply obtained with the price paid by the illegal immigrant, without usually existing a persistent relation between the immigrant and criminal once this has reached its destination.
And the last great difference between both is that, the crime of illegal immigration always has a transnational character, as the exposition of motives of the LO 5/2010 remembers to us, while the crime of human trafficking can take place with victims which can be European citizens or even Spanish.
4) The inherent difficulties to the assessment of the moral damages:
The article 109 CP says that: “The execution of a fact described by the law as crime obliges to repair, in terms envisaged by the law, the damages and prejudices caused by it.”
And the article 116 CP says: “1. All the persons criminally liable of a crime are also civilly liable if from the fact derive damages and prejudices.”
Thus, in case of deriving damage from the crime of human trafficking, the person criminally liable of it is obliged to repair them.
The crime of human trafficking attempts against the legal goods dignity and freedom, it is something which we have said repeatedly. The problem arises when we have to assess the damage caused, for not being patrimonial goods they are of impossible assessment. On the contrary, there would be not problem if the consequences of the crime were purely physical damages, for in these cases we can make use of the scale established by the Law 35/2015 of 22 September, which though only is mandatory for assessing the damages derived from a traffic accident, it can also be used to orient the composition which has to be paid when the damages derive from a malicious crime.
Given the special characteristics of this type of crimes, which do not leave marks with their commission, it is enough with setting in the sentence the facts which are the cause of the moral damages. It is not necessary complex arguments, as long as between the facts and the compensation exists a relation of causality, and the compensation is within the usual frame, commonly accepted, for similar cases. Furthermore, as we have already seen, the crime of human trafficking usually concurs with crimes against the sexual freedom, in whose case there does exist a specific disposition in the CP, the article 193, establishing that the sanction for one of those crimes should be accompanied by the corresponding compensation.
The Provincial Court of Madrid´s sentence number 17412/2022 says regarding the above: “In the matter of the moral damages derived from sexual crimes, we can talk about a implicit presumption that do not need subsequent explications. They are common feelings to all the persons which besides give rise to a legal disposition (art. 193 CP) when we talk about this kind of crimes. Something similar can be said for the crimes of usual family maltreatment. More problematic can be the matter of the assessment of the compensation. It cannot be carried out according to fixed criteria o arithmetic rules incompatible with the nature of such damage “not patrimonial” by definition and which can only be compensated with determined amount of money. We will be always before an exercise of the prudent arbitrariness: it is an assessing activity in equity rather than in law. While the end of the repair of the patrimonial damage is the entire repair, the moral damage is not repairable and the compensation has as function the relief or the mere compensation of which are not defined or precise parameters.”
The same sentence adds later: “The economic translation of a repair for moral damages is a task reserved for the discretion of the Court and cannot be attacked in cassation, where can only be debated the reasons but not the concrete amount, which not only is not subject to arithmetic rules; but it is of impossible accuracy when we talk about moral damages ( Spanish Supreme Court´s sentence number 957/2007, of 28 November). When the assessment suits to usual parameters that, without being exact, move around parameters commonly shared and recognizable, it will be not necessary an imposible reasoning, which justifies why are given “x” euros and not a slightly superior amount or a slightly inferior amount. In this matter cannot be demanded exacts equations.”
And later the same sentence says: “The Spanish Supreme Court´s sentence number 1534/1998 of 11 November, before a similar allegation, expresses what, on the other hand, is obvious: “The appellant has not taken into account that the motivation of the moral damage produced does not lack of basis, for has been set the facts which have produce the damage. The assessment of it in money is, impossible of making, insofar as the moral damages do not generate precise expenses (Spanish Supreme Court´s sentence number 1033/2013, of 26 December).”
Víctor López Camacho.
Twitter: @victorsuperlope.
More on my website: www.victorlopezcamacho.com