Processo nº 0001389-24.2002.4.03.6113
Court: Justiça Federal – Seção Judiciária de São Paulo – 13º Subseção Judiciária – Fórum de Franca – 2ª Vara [Federal Justice – Judiciary Section of São Paulo]
Franca, São Paulo
Reference: Processo nº 0001389-24.2002.4.03.6113
Court: Tribunal Regional Federal da 3ª Região, Primeira Turma [Appelate Court]
São Paulo, São Paulo
Reference: Processo nº 0001389-24.2002.4.03.6113 ACR 17735
Víctima / Demandantes de primera instancia
Acusado / Demandado de primera instancia
resumen de los hechos
Between 1996 and 2002, the defendant Sandra Regina Paim, with the purpose of profit, promoted the output of several Brazilian women to Spain, where they would work as prostitutes.
The criminal prosecution was established from the brief of the victim E.G., who reported that the defendant had offered her to work as a prostitute at a casino, located in the city of Castellon Della Plana, Spain. Once the victim accepted the proposal, the defendant convinced the mother of E.G. to let her go, organized the trip, paid for the tickets and documents needed.
E.G. was not the only victim of Sandra Regina Paim, the defendant recruited several Brazilian women for the same purpose. E.G. said in her testimony that Sandra arranged a meeting to explain the details of the trip. During the meeting the defendant introduced the women to a Spanish man known as Pepe and explained that she gain one thousand dollars for each woman she sends to Spain.
Due to some problems, the victim E.G. decided to return to Brazil. Trough the intervention of Brazilian Police, via Interpol, she returned. However on February 20, 1998, just a few days after the victim came back to Brazil, the defendant sought the victim forcing her to return to Spain to pay off her debt. The defendant threatened the victim, who decided to go back. The victim was robbed on the day of her departure, which made her stay in the city of Franca, Brazil.
Another victim, E.M.R., in her deposition endorsed the statements of E.G. about the fact that Sandra Paim promoted the output of Brazilian women for the purpose of commercial sexual exploitation. She reported that the defendant persuaded her to work as prostitute in Spain, what she did during three months. She also informed that in the same month of her departure, many other women were sent to Spain by Sandra Paim.
Article 231 Penal Code
Penal Code, article 231, §§ 2º and 3º (two times), combined with article 69
Tráfico internacional de pessoa para fim de exploração sexual
Art. 231. Promover ou facilitar a entrada, no território nacional, de alguém que nele venha a exercer a prostituição ou outra forma de exploração sexual, ou a saída de alguém que vá exercê-la no estrangeiro.
Pena - reclusão, de 3 (três) a 8 (oito) anos.
§ 1o Incorre na mesma pena aquele que agenciar, aliciar ou comprar a pessoa traficada, assim como, tendo conhecimento dessa condição, transportá-la, transferi-la ou alojá-la.
§ 2o A pena é aumentada da metade se:
I - a vítima é menor de 18 (dezoito) anos;
II - a vítima, por enfermidade ou deficiência mental, não tem o necessário discernimento para a prática do ato;
III - se o agente é ascendente, padrasto, madrasta, irmão, enteado, cônjuge, companheiro, tutor ou curador, preceptor ou empregador da vítima, ou se assumiu, por lei ou outra forma, obrigação de cuidado, proteção ou vigilância; ou
IV - há emprego de violência, grave ameaça ou fraude.
§ 3o Se o crime é cometido com o fim de obter vantagem econômica, aplica-se também multa.
International Trafficking in person for the purpose of sexual exploitation
Art. 231. To promote or to facilitate the entry in the national territory, for someone who will exert the prostitution or other form of sexual exploitation, or the output of someone who will exercise it abroad.
Penalty: imprisonment of 3 (three) to 8 (eight) years.
§ 1 The penalty is also applied for those which recruit, entice or buy the trafficked person, as well as, those which having knowledge of this condition, transport, transfer or host the trafficked person.
§ 2 The penalty is increased by half if:
I - the victim is a minor of 18 (eighteen) years;
II - the victim, by illness or mental disability, does not have the necessary discernment for the practice of the act;
III - if the agent is ascendant, stepfather, stepmother, brother, stepson, spouse, companion, tutor or curator, preceptor or employer of the victim, or if he assumed, by law or otherwise, obligation of care, protection or surveillance; or
IV - there are employment of violence, serious threat or fraud.
§ 3 If the crime is committed in order to obtain economic benefit, a fine is also applied.
Art. 69 - Quando o agente, mediante mais de uma ação ou omissão, pratica dois ou mais crimes, idênticos ou não, aplicam-se cumulativamente as penas privativas de liberdade em que haja incorrido. No caso de aplicação cumulativa de penas de reclusão e de detenção, executa-se primeiro aquela.
Art. 69 - when the agent, through more of an action or omission, practices two or more crimes, identical or not, it is applied, cumulatively, the custodial penalties in which he is incurred. In the case of cumulative application of penalties of imprisonment and detention, the first shall be executed before the other.
The defendant was condemned to the penalties of the article 231, caput and § 3º (two times) combined with article 71 in material conquest with the article 231, caput and §3º (just once) combined with article 14, II, single paragraph, all of them of the Penal Code. The judge sentenced the defendant to 5 (five) years and 3 (three) months of imprisonment, under the initial semi-open regime and a fine of 45 (forty-five) daily fine in the amount of 1/10 (one-tenth) of the minimum wage on the time of the events.
The defendant appealed against the decision of the First Instance. Based on the article 386, III, of the Penal Code, the defendant argued that there were no proof that she influenced the decision of victims in order to them work as prostitutes in Spain, as well as no evidence that she had gain any profit. She required judicial forgiveness, since she is a hard-working person, primary, has a fixed address and is a mother. She also pleaded for a reduction of the sentence to the legal minimum.
Considering the testimonies of both victims E.G. and E.M.R., as well as the defendant´s statements during the inquisitorial stage, the Court deliberated that the materiality and authorship of the criminal offense had been proven. The defendant not only introduced the victims to the owners of the Spanish Cassino, where they would work as prostitutes, but also took them to the Federal Police in order to get passports. Therefore, the Court concluded that the defendant facilitated the output of the victims for the purpose of sexual exploitation, only for profit, in accordance to article 231, caput, § 3º, of the Penal Code, in its original writing.
With regards to attempted crime of human trafficking with the purpose of sexual exploitation, in the terms of the article 231, caput, § 3º, combined with article 14,II, all of them of the Penal Code, the Court decided that the statements of the victim E.G. were solid enough to prove that after the victim returned to Brazil, the defendant met her in order to force her to go back to Spain, what didn´t happen just because she was robbed at the day of her departure. Thus, the Court considered that the testimony is a evidence of the materiality and authorship of the criminal offense.
The Court denied the request of judicial forgiveness, once the article 231 of the Penal Code doesn´t provides any hypotheses for it.
The Court decreased the penalty base of the crimes consummated and attempted to the legal minimum (three years of imprisonment and ten daily fine), because the circumstances considered in the First Instance decision to fixe the penalty base above the legal minimum were elements of the criminal offense itself, which can not be taken into account for not happen the judicial institute of bis in idem.
The Court also decided to decrease the amount of the fine to one third of the minimum wage, once there were no elements to determinate the financial situation of the defendant.
The Court maintained the material conquest, in the terms of article 69 of the Penal Code. It was noted that the consummated crimes practiced against E.G. and E.M.R, occurred long before (about one year) of the attempted crime, so the attempt could not be considered as a continuity of the consummated offenses.
Therefore the Court, partially upheld the appeal to reduce the sentence penalty base to the legal minimum, decreasing the final penalty to 4 (four) years and six (6) months
of imprisonment in an initial semi-open regime and a fine of 14 (fourteen) daily fine in the amount of 1/30 (one-thirtieth) of the minimum wage on the time of the events.
PROCESSO nº 0001389-24.2002.4.03.6113 ACR 17735