Smuggling of migrants

Offences

• Enabling illegal entry
• Enabling illegal stay
• Financial or other material benefit (to smuggler)

Mode

• sea

Trafficking in persons

Offences

• Trafficking in persons (adults)

Resolución 658/2015

UNODC No.:
ESPh052

Fact Summary

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.

 

Legal findings:

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”. 

Commentary and Significant Features

The following should be highlighted in the decision of the Supreme Court:

 

  • The legal reform operated by Organic Law 1/2015 of 31 March considerably reduced the penalty frame for migrant smuggling. Before the said review, the penalty applicable ranged from four to eight years’ imprisonment (six to eight years’ imprisonment if the offence had been committed with the purpose of obtaining a financial or other material benefit). With the 2015 legal reform, the penalty was reduced to fine or imprisonment ranging from three to 12 months. If the crime was perpetrated with the purpose of obtaining a financial or other material benefit, the penalty was to vary between seven and a half months and one year imprisonment.
  • The new version of Article 318 (bis) Criminal Code is to be applied – even though it was not in force at the time of the events – given that it provides a more beneficial regime to the defendants. The ruling principles of criminal procedure so impose.
  • With Organic Law 5/2010 of 11 February, trafficking in persons ceased being contemplated under the umbrella of Article 318 (bis) and received autonomous codification. Article 318 (bis) Criminal Code was thus confined to the punishment of a much less serious offence. The distinction between smuggling of migrants and trafficking in persons became then clear.
  • Trafficking in persons entails enhanced gravity precisely because it consists of the instrumentalisation of human beings through mechanisms that thwart freedom of decision and consent. The ultimate purpose is that of submitting victims to various situations of exploitation (e.g. slavery, sexual exploitation). It is regulated under EU law, namely via Directive 2011/36/EU of The European Parliament and of the Council of 5 April 2011 on preventing and combating trafficking in human beings and protecting its victims, and replacing Council Framework Decision 2002/629/JHA.
  • Conversely, migrant smuggling is vested – under both national and EU law – with a less serious character (and, consequently, sanction) vis-à-vis human trafficking. This is so exactly because migrant smuggling lies on the agreement/consent of the migrant in engaging in the smuggling venture. What is punished is the breach to the (i) Council Directive 2002/90/EC of 28 November 2002 defining the facilitation of unauthorised entry, transit and residence, and (ii) Council framework Decision 2002/946/JHA of 28 November 2002 on the strengthening of the penal framework to prevent the facilitation of unauthorised entry, transit and residence. 
  • The Defence’s argument according to which the declarations offered by the Thai women should not be admissible as evidencerectior, this evidence should be deemed null – because they had not manifested their impossibility to be present at trial cannot be upheld. These witnesses were irregular migrants in Spain. It was fully justified that they were returned to their country of origin following the collection of relevant evidence. The anticipated hearing of these witnesses was the appropriate course of action. It appeared as a logical and probable deduction that the witnesses would not or could not be available for trial.
  • The defendants benefited from the fact that the Prosecution did not indict for trafficking in persons. Having done so would have required a totally different assessment, investigation and judicial evaluation. It cannot be dismissed the initial allegation submitted to the Embassy of Thailand in Spain and by the Thai Consul to police re the deprivation of the women’s freedom with the purpose of forcing them into prostitution. There are several reasons why a victim of human trafficking may hide details of their real circumstances. The penalties associated to trafficking in persons are also much higher than those reserved to migrant smuggling.

 

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).

Sentence Date:
2015-10-26

Cross Cutting

Liability

... for

• completed offence

... based on

• criminal intention

... as involves

• principal offender(s)

Application of the Convention

Details

• occurred across one (or more) international borders (transnationally)

Involved Countries

Spain

Thailand

Investigation

Involved Agencies

• Criminal Police
• Public Prosecutor

• Gender Dimension

Procedural Information

Legal System:
Civil Law
Latest Court Ruling:
Supreme Court
Type of Proceeding:
Criminal
 
 
Proceeding #1:
  • Stage:
    appeal
  • Is the decision appealable?:
    No
  • Official Case Reference:
    Resolución 658/2015
  • Decision Date:
    26 October 2015

    Court

    Court Title:
    Supreme Court, Criminal Section
    Tribunal Supremo, Sala de lo Penal
     
    • Criminal
    Description:
    The Magistrate’s Court nº 3 of Burgos (Spain) referred the case (Summary Proceedings 31/2013) to the Provincial Court of Burgos. On 13 June 2014, the Provincial Court convicted the defendants of migrant smuggling (aggravated in view of the purpose of obtaining a financial or other material benefit).
     

    Outcome

    Other Outcome:
    Appeal partially granted
     

    Sentences

    Sentence

    Term of Imprisonment:
     8 Months
     
    Defendants # 1 to #6 were convicted to 8 months imprisonment along with the suspension of the right to be elected for public office during the time of the sentence.

    Migrants

    Migrant:
    6 persons
    Gender:
    Female
    Nationality:
    Thai

    Repatriated
    following initial declaration before police and judicial authorities. Whereabouts unknown.

    Defendants / Respondents in the first instance

    Defendant:
    I
    Gender:
    Female
    Nationality:
    Thai
    Defendant #1
    Legal Reasoning:
    The Defence claimed inter alia a breach of the presumption of innocence and principle of legality (by wrongful application of Article 318 (bis) Criminal Code).
    Defendant:
    L
    Gender:
    Female
    Nationality:
    Thai
    Defendant #2
    Legal Reasoning:
    Ibidem Defendant 1
    Defendant:
    E
    Gender:
    Male
    Defendant #3
    Legal Reasoning:
    Ibidem Defendant 1
    Defendant:
    F
    Gender:
    Male
    Defendant #4
    Legal Reasoning:

    Ibidem Defendant 1

    Defendant:
    P
    Gender:
    Female
    Defendant #5
    Legal Reasoning:
    Ibidem Defendant 1
    Defendant:
    G
    Gender:
    Male
    Defendant #6
    Legal Reasoning:
    Ibidem Defendant 1

    Charges / Claims / Decisions

    Defendant:
    I
    Statute:
    Criminal Code Article 318bis (1) and (2) Crimes against the rights of foreign citizens (aggravated)
    Defendant:
    L
    Statute:
    Criminal Code Article 318bis (1) and (2) Crimes against the rights of foreign citizens (aggravated)
    Defendant:
    E
    Statute:
    Criminal Code Article 318bis (1) and (2) Crimes against the rights of foreign citizens (aggravated)
    Defendant:
    F
    Statute:
    Criminal Code Article 318bis (1) and (2) Crimes against the rights of foreign citizens (aggravated)
    Defendant:
    P
    Statute:
    Criminal Code Article 318bis (1) and (2) Crimes against the rights of foreign citizens (aggravated)
    Defendant:
    G
    Statute:
    Criminal Code Article 318bis (1) and (2) Crimes against the rights of foreign citizens (aggravated)
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