http://genderjusticejournal.wordpress.com/2013/05/06/trafficking-legislative-changes-and-their-implementation-in-spain/
May 6, 2013 - By
Women's Link Worldwide
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.
