The case is related to the crime of human trafficking for the purpose of sexual exploitation that occurred in a brothel called “The Sheik” in Ushuaia, committed by a man and two women. Seven women, captured and transported by one of the defendants, were exploited at the brothel from November 2011 to October 2012. They also lived in the property of one of the defendants (Pedro Montoya), who was responsible for the exploitation. The system they used was one of “copas” and “pases”, were women approached men firstly (copas) before providing sexual services (pases). Furthermore, the Municipality frequently held visits to check compliance with Municipal Order Number 4162, requiring sanitary notebooks for women exercising prostitution. This Order was repealed in August 2012.
There was an abuse of the situation of vulnerability, as all of the victims were women with low incomes, low levels of education, and who came from poor families who they had to support financially. Furthermore, it was proven that women received only a percentage of the money, and that they lived in the premises in precarious conditions. They were also required to request permission in order to leave, and faced constant debt.
In November 2011, the Argentinean Human Trafficking Prosecutor Office (PROTEX) received a testimony in the framework of another case (Case 873/2011), motivating this office to file a complaint in 12 April 2012, initiating the present case.
On 25 November 2014, Victim 1 initiated a civil action against two of the defendants and the Municipality of Ushuaia, claiming compensation for the damages suffered as a consequence of the sexual exploitation.
Money: money found in the brothel.
Property: brothel were the exploitation occurred; truck used by the defendant to transport the victims.
The 10th September 2012, an intervention of the phones used by the accused was authorized. Afterwards, the 9th October 2012, a raid and detention was held.
Federal Oral Tribunal of Tierra del Fuego and Federal Chamber of Criminal Cassation, 2nd Chamber
On 30 November 2016, the Federal Oral Tribunal of Tierra del Fuego found the defendants guilty, and ordered two of them together with the Municipality of Ushuaia to pay compensation to one of the victims – who had attached civil actions to the criminal procedure in question.
The Tribunal held that there was a human trafficking situation in accordance with the Argentinean Law 26.364, since the three elements required were present: the act (in this case, recruitment and transportation of 4 victims; and harbour of all of the victims), the means (abuse of a situation of vulnerability) and the purpose of exploitation (sexual exploitation) of a total of seven victims. An aggravating circumstance was also found (the crime was committed against more than 3 victims). The Tribunal dismissed the aggravating circumstance of ‘3 or more perpetrators’, because 2 of the 3 defendants had secondary roles.
The Defence of L.C.A. required the application of the principle of non-punishment, contemplated in article 5 of the Argentinean Law 26.364. However, the Tribunal dismissed the application of the clause to her case, as there was no evidence that her sexual encounters in the brothel formed part of the sexual exploitation committed by the main defendant, Pedro Montoya.
The majority of the Tribunal granted the Civil Action filed by Victim 1 against Pedro Montoya, Ivana García and the Municipality of Ushuaia. Judge Ana María D’Alessio understood that the two defendants obtained an economic benefit from the Victim’s exploitation, which affected her personal, physical and psychological integrity. As for the Municipality, Judge D’Alessio interpreted the situation taking into account international standards on due diligence for States in cases of violence against women. Accordingly, since the Municipality knew about the activities taking place in “The Sheik” creating a risk of harm measures should have been taken to mitigate such risk. Similarly, Judge Enrique Jorge Guanziroli argued the Municipality created a risk by authorizing the functioning of the brothel.
On the other hand, representing the minority opinion in the judgment, Judge Luis Alberto Gimenez argued that the Municipality should not be held accountable in the framework of the civil action. To support his position, he argued that it was not the duty of the Municipality to prevent the commission of crimes, and that it was unfounded to held the Municipality responsible.
The Tribunal rejected the appeals filed by the Defendants and the Municipality, and admitted the motion of the Prosecutor Office and the Civil party. It annulled four points of the sentence (related, among others, to the issue of the level of the female perpetrators' criminal responsibility, the applicability of aggravating circumstances, and the determination on the amount of civil damages). Accordingly, it returned the file to the previous degree for a new trial related to these points. It also ordered to use the seized assets to compensate Victim 1.
The secondary participation attributed to the female perpetrators was challenged by the civil party (victim), and the prosecution. The Tribunal accepted this appeal. It argued that it is not true that García had simply cooperated with Montoya in the case, as she executed autonomously criminal acts (transport, managing of the brothel). As for Alberca, the Tribunal deliberated that the transport and vigilance she exercised autonomously also constituted typical actions under article 145 of the criminal code.
The victim argued that the quantification of the damage was incorrect, as a shorter period was considered. She argued that the trips and hospitalizations she made did not interrupt her victimization. The Tribunal accepted this argument.
The Victim’s complaint also challenged the destination given to the assets, as they were given to the State and the Argentinean Supreme Court. The Tribunal emphasized the importance of providing reparations for the victims of exploitation and human trafficking, as well as specific national legislation recognizing that the seized assets in these crimes have a specific destiny. Hence, it accepted the victim’s complaint.
The defense for L.C.A. requested the application of the non-punishment provision; however, the Tribunal understood that the provision does not apply considering that she had not been exploited in “The Sheik”.
The defendants argued that the victims were not in a situation of vulnerability because they had freedom of movement. However, the Tribunal understood that this abuse existed, taking into account that the defendants withheld the money, and imposed on them to consume alcohol and drugs.
The Municipality also challenged the reparation order, arguing that it was invalid – since the Municipality had never been notified of the proceedings-, and unfounded . However, the Tribunal argued that international conventions are applicable, particularly emphasizing the due diligence obligation in the prevention of crimes.
Victim 1 was born in Córdoba, Argentina. She has secondary studies (incomplete), and three children. She had economic constraints. She had been sexually exploited on previously occasions before arriving to ‘The Sheik’.
AKS initiated a civil proceeding against two of the defendants and the Municipality of Ushuaia, to obtain compensation for the damages occurred as a result of the sexual exploitation she suffered. She alleged psychic incapacity of 70%, supported by medical reports.
Victim 2 has primary education, and arrived in Argentina at the age of 19 in 2012. Before, she was a hairdresser at her home country. She has two children, and she financially supports her family. She accepted the activity due to a financial constraint.
Victim 3 has primary education, and left her home country to find a job. She has 2 children. She had a precarious residence in Argentina, and her possibilities of work were limited. She had been sexually exploited on previously occasions before arriving to ‘The Sheik’. She arrived to Ushuaia one month before the raid.
Victim 4 came to Argentina to find new working possibilities. She has secondary studies. She had children leaving abroad that depended on her, and she suffered from economic constraints.
Victim 5 had secondary studies and she ran away from home. She had been sexually exploited on previously occasions before arriving to ‘The Sheik’.
Single mother of two children She had been sexually exploited on previously occasions before arriving to ‘The Sheik’. She arrived to Ushuaia one month before the raid
She was single and unemployed. She constantly sent money to her family. She has been previously sexually exploited in another brothel called “Black and white”. She lived in the brothel together with the victims. She was manager at “The Sheik”. but she was also obliged to render accounts to Montoya. The Court did not consider proven that L.C.A. was still providing sexual services at the brothel, and/or if those sexual services occurred under the subjugation of the sexual exploitation perpetrated by Montoya.
He is partner of Ivana Claudia García.
Article 145 bis subsection 3, in accordance with Law 26.364
Here is a link to the relevant legislation online:
https://sherloc.unodc.org/cld/legislation/arg/ley_26.842_-_ley_nacional_/articulo_2-30/articulo_2-30.html?lng=en
Here is the text of the relevant legislative provision(s):
Article 145 in accordance with Law 26.364: He who recruits, transports or transfers, within the country or from or towards abroad, harbours or receipts persons over 18 years old, using deception, fraud, violence, threat or any other form of intimidation or coercion, abuse of power of a position of vulnerability, giving or receiving of payments or benefits to chieve the consent of a person having control over another person, for the purpose of exploitation, will be imposed with a prison sentence of three to six years.
The sentence will be four to ten years of imprisonment if:
1. The author is ascendant, spouse, related in direct relation, sibling, tutor, partner, guardian, person in charge of the education or guard, ministry of a recognized or non-recognized cult, or state official;
2. The crime was committed by three (3) or more persons in an organized manner;
3. Victims are three or more.
Aggravated Human Trafficking
L.C.A. was convicted for having a secondary participation of the crime of human trafficking, aggravated due to the plurality of victims. She was the visible face of the group – as she was the ‘manager’ of the brothel-, but her participation was secondary as she followed Montoya’s orders.
L.C.A. was ordered to pay to victim 1 t a monetary compensation related to the damages suffered as a consequence of the trafficking and exploitation. Pedro and the Municipality of Ushuaia were also condemned to jointly pay the amount of money detailed.
Article 145 bis subsection 3, in accordance with Law 26.364.
Here is a link to the relevant legislation online:
https://sherloc.unodc.org/cld/legislation/arg/ley_26.842_-_ley_nacional_/articulo_2-30/articulo_2-30.html?lng=en
Here is the text of the relevant legislative provision(s):
Article 145 in accordance with Law 26.364: He who recruits, transports or transfers, within the country or from or towards abroad, harbours or receipts persons over 18 years old, using deception, fraud, violence, threat or any other form of intimidation or coercion, abuse of power of a position of vulnerability, giving or receiving of payments or benefits to chieve the consent of a person having control over another person, for the purpose of exploitation, will be imposed with a prison sentence of three to six years.
The sentence will be four to ten years of imprisonment if:
1. The author is ascendant, spouse, related in direct relation, sibling, tutor, partner, guardian, person in charge of the education or guard, ministry of a recognized or non-recognized cult, or state official;
2. The crime was committed by three (3) or more persons in an organized manner;
3. Victims are three or more.
Aggravated Human Trafficking
Ivana Claudia García was convicted as having a secondary participation of the crime of human trafficking, aggravated due to the plurality of victims. Her role was to reinforce Montoya’s authority.
Article 145 bis subsection 3, in accordance with Law 26.364
Here is a link to the relevant legislation online:
https://sherloc.unodc.org/cld/legislation/arg/ley_26.842_-_ley_nacional_/articulo_2-30/articulo_2-30.html?lng=en
Here is the text of the relevant legislative provision(s):
Article 145 in accordance with Law 26.364: He who recruits, transports or transfers, within the country or from or towards abroad, harbours or receipts persons over 18 years old, using deception, fraud, violence, threat or any other form of intimidation or coercion, abuse of power of a position of vulnerability, giving or receiving of payments or benefits to chieve the consent of a person having control over another person, for the purpose of exploitation, will be imposed with a prison sentence of three to six years.
The sentence will be four to ten years of imprisonment if:
1. The author is ascendant, spouse, related in direct relation, sibling, tutor, partner, guardian, person in charge of the education or guard, ministry of a recognized or non-recognized cult, or state official;
2. The crime was committed by three (3) or more persons in an organized manner;
3. Victims are three or more.
Aggravated Human Trafficking
Pedro Eduardo was convicted as an author of the crime of human trafficking, aggravated due to the high number of victims. He had the leading role, and he was the one dominating the process of trafficking and exploitation. He recruited, transported and harboured the victims.
Pedro was ordered to pay to victim 1 a monetary compensation related to the damages suffered as a consequence of the trafficking and exploitation. L.C.A. and the Municipality of Ushuaia were also condemned to jointly pay the amount of money detailed.
Federal Oral Tribunal of Tierra del Fuego
The First Instance decision is significant mainly for three reasons:
1. A victim of human trafficking initiated a civil action in the framework of the criminal proceeding, and this was admitted by the Tribunal, allowing her to obtain compensation from two defendants and the Municipality.
2. The Municipality was held accountable in the framework of the civil action, based on a gender-perspective that took into consideration the international human rights obligations applicable in cases of violence against women.
3. Judge Ana María D’Alessio took into account the situation of poverty of the victims, among other conditions, to consider they were in a situation of vulnerability. She also takes into account UNODC’s Issue Paper on Abuse of a Position of Vulnerability” and the Brasilia Regulations.
The Federal Chamber of Criminal Cassation decision is important for the following reasons:
1. The Tribunal emphasized the importance of applying international conventions, in particular those related to international human rights of women. Furthermore, related to this issue, the Tribunal understood that the activity of the Municipality “reinforced the vulnerability of the sexually exploited women and participated in an economic benefit of exploitation, turning into a true pimp state”.
2. The Tribunal emphasized the necessity to allocate the seized assets to programmes destined to assist victims of trafficking and exploitation, and not to the State in general. This is in order to guarantee the victim’s right to obtain an appropriate reparation of the violations of their human rights they suffered. Judge Slokar understood that if not the judiciary system will be “avoiding to comply a primary and basic duty of the judiciary action: to repair the victim before benefiting the state”.
3. In relation to the non-punishment clause, the Tribunal rejected its application to L.C.A. because her sexual exploitation had been interrupted six years before she began working for Montoya. Accordingly, the Tribunal argued that “this exculpatory circumstance demands that there is no interruption between the victimization and the transition to the role of defendant, and that the fulfilment of the activities of exploitation and recruitment were the way in which the victim of human trafficking was able to achieve the end or the restraint of her/his own sexual exploitation”.
La decisión de la primera instancia es importante por tres razones:
1. La víctima de trata de personas inició una acción civil en el marco del proceso penal, la cual fue admitida por el Tribunal, permitiéndole obtener una compensación por parte de dos de los acusados y de la municipalidad.
2. La municipalidad fue encontrada responsable en el marco de la acción civil, utilizando una perspectiva de género que tuvo en consideración las obligaciones internacionales de derechos humanos aplicables en los casos de violencia contra la mujer.
3. La jueza Ana María D’Alessio tuvo en consideración la situación de pobreza de las víctimas, entre otras condiciones, para considerar que se encontraban en una situación de vulnerabilidad. Tambien tuvo en cuenta el Documento Temático de la Oficina de las Naciones Unidas contra la Droga y el Delito (ONUDC) sobre el “Abuso de la posición de vulnerabilidad”, así como las Reglas de Brasilia.
La decisión de la Cámara Federal de Casación Penal es importante por los siguientes motivos:
1. La Cámara enfatizó la importancia de aplicar convenciones internacionales, en particular aquellas vinculadas a los derechos humanos de las mujeres. Vinculado con ello, la Cámara entendió que la actividad de la municipalidad “reforzaba la vulnerabilidad de las mujeres explotadas sexualmente y participaba en el beneficio económico de tal explotación, transformándose en un verdadero ‘estado rufián o proxeneta’”.
2. Remarcó la necesidad de destinar los bienes decomisados a programas destinados a asistir a las víctimas de trata y explotación, y no al Estado en general. Esto, a los fines de garantizar el derecho de las víctimas a obtener una reparación acorde a las violaciones a sus derechos humanos sufridas. El Juez Slokar entendió que, de otra manera, el sistema judicial estaía omitiendo “atenerse a un deber que es primario y básico en la actuación judicial: reparar a la víctima antes que beneficiar al propio Estado”.
3. Respecto de la cláusula de no-punibilidad, la Cámara rechazó su aplicación a L.C.A. ya que su explotación sexual había sido interrumpida por 6 años antes de empezar a trabajar para Montoya. En este sentido, el Tribunal argumentó que “la eximente exige que no exista interrupción entre la victimización y el paso al rol de victimaria y que el desempeño de actividades de explotación o reclutamiento hayan sido la forma en que la víctima de trata logró poner fin o morigerar su propia explotación sexual”.