On 11 November 2009, the Embassy of Thailand in Spain received a phone call whereby it was alleged that six women were being held at a certain location and forced into prostitution. Two of the women had managed to escape and sought the assistance of the Embassy of Thailand. The Consul of Thailand addressed the Police in Burgos (Spain) asking for an investigation. The facts of the case are as follows.
Four Thai women (A., As. C. and D.) approached a group of people in Thailand with the purpose of receiving assistance in entering Spain illegally. The said group of people procured to the women visas, plane tickets, hotel reservations, and some cash – between 100 Euro and 200 Euro – so that, in the course of border control proceedings, they could give the appearance of solvency for the period they were supposed to remain in Spain. The Thai women thus engaged in debts ranging between 15 000 Euro and 17 000 Euro for the costs of travel and documentation. They were supposed to pay for it with the proceeds of their work in Spain. Two of the women (A. and As.) had gone to Spain with the intent of working as prostitutes. The third one (C.) – while having been offered work as massagist – agreed to work in prostitution upon her arrival in Spain. Finally, the fourth woman (D.) was intended to work as a waitress. She never engaged in prostitution notably because the day after her arrival in Spain occurred the police operation that underpinned the instant case.
A. arrived to the airport f Madrid-Barajas (Spain) on 17 September 2009. She was collected by Defendant 2 (life partner of one of the persons the four Thai women had approached in Thailand in order to receive assistance in entering Spain illegally) and with whom she had a child. As. Arrived at the same airport on 18 September, having been collected by Defendants 2 and 3. Defendants 2 and 3 immediately transported both women, in a van, to the Club ‘La Boheme’, approximately 234 Km away from Madrid, close to Burgos, where they settled.
C. arrived to the airport of Barcelona (Spain) on 29 October 2009. She was collected by Defendant 1. The latter accompanied the irregular migrant to the bus station, bought her a ticket to Burgos. Upon arrival, C. was collected by Defendants 2 and 6.
D. arrived to the airport of Madrid- Barajas on 10 November 2009. She was collected by Defendant 1. The same follow-up procedure as that adopted in respect of C. was engaged. C. and D. were also immediately accommodated in the Club ‘La Boheme’.
A., As., and C. started prostituting themselves in ‘La Boheme’ the day after their arrival. The Club kept 50% of the price of beverages clients invited them to. When clients wished to engage in sexual relations, Defendant 5 charged them 5 Euro for a packet composed of one bed sheet, one towel, one condom. The bedroom and sexual services price amounted to 50 Euro. This fee was allocated to the payment of the women’s debt towards the defendants. Importantly, the women were charged 50 Euro per day for accommodation and maintenance at ‘La Boheme’.
‘La Boheme’ was managed by Defendant 4. The latter was the administrator of a company dedicated to the creation and development inter alia of hotels, bars, leisure centres. He was regularly present at the ‘La Boheme’. Defendant 2 was also a cook in this establishment while Defendant 6 worked both as waiter and security thereof. Defendant 3 was an employee of ‘La Boheme’, working as driver and in the maintenance of the establishment. Defendant 5 worked as receptionist of the section of ‘La Boheme’ where the four Thai women lived and exercised prostitution. She was thus the one usually receiving payments from clients regarding services supplied by the Thai women.
All defendants were fully aware the Thai women (i) had entered Spain illegally, (ii) had incurred into considerable debt as a consequence thereof. All defendants benefited from the permanence of the women in the establishment as well as from the prostitution activities they were engaging in.
It was not determined that prostitution activities the Thai nationals engaged in were imposed on them by force, coercion, deception, threats, or abuse of a vulnerable position. The Thai women always declared to have dedicated themselves to these activities voluntarily. Indeed, it was ascertained the women could move freely, leave the ‘La Boheme’ alone or in company of other people, had their passports and mobile phones that they could have used to ask for help if they so wished. Likewise, it was not determined that the Thai women were subjected to exploitative labour conditions (e.g. not allowed days off, not permitted to give up prostitution, excessive working hours) that would amount to a violation of the rights of workers.
On 11 November 2009, law enforcement agents searched ‘La Boheme’, identified and led to the police station seven Thai women, including A., As., C., and D. After the initial questioning (before proper police and judicial authorities), the women were repatriated to Thailand. Their current whereabouts are unknown.
In ascertaining the facts, authorities relied much on testimonial evidence as well as the outcome of searches on site.
The Public Prosecution indicted the defendants for (i) aggravated migrant smuggling, (ii) enforced prostitution. Defendant 4 was further indicted for crimes against the rights of workers.
The Audiencia Provincial de Burgos convicted the defendants of aggravated migrant smuggling (due to the intent of obtaining a financial or other material benefit). It sentenced each of the defendants to six years’ imprisonment. All defendants were acquitted of enforced prostitution. Defendant 4 was in addition acquitted of crimes against the rights of workers. The Supreme Court granted the appeal only in respect of the quantum of the penalty, having significantly reduced it.
For further details see “Commentary”.
Ibidem Defendant 1
The following should be highlighted in the decision of the Supreme Court:
Against this background, the Supreme Court dismissed all grounds of appeal, except that concerning the application of Article 318 (bis) Criminal Code. Specifically, it maintained the conviction of the defendants for aggravated migrant smuggling but it applied a penalty of imprisonment lower than that asked by the Prosecution.
NOTE: As per Spanish national law, the purpose of obtaining a financial or other material benefit is not a constitutive element of the crime but rather an aggravating circumstance (see SHERLOC Database on Legislation – Spain).