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  This module is a resource for lecturers  

 

Other examples

 

The case law below is illustrative of challenges regarding the interpretation and application of laws on smuggling of migrants and trafficking in persons and the possible implications of opting for one or the other offence:

Box 10

Appeal Nº 15-80270

Defendants A. and Z. (a couple) assisted in the irregular entry and stay of two foreign women in France. During a trip to Senegal, A. recruited Y. (her cousin) to go to France, take care of the house and her three children. A. instructed Y. to procure a false passport to enter France. She then seized Y.'s true identity documents. Y. worked for the couple of defendants for 150 Euro per month, which A. automatically transferred to Y's aunt in Senegal. Y. never perceived any remuneration for her work. The defendants did not make the necessary declarations to social security. Y. slept and ate at the defendant's residence. With the support of a compatriot, Y. addressed and received support from the Committee against Modern Slavery. Taking advantage of A.'s absence during one of her trips to Senegal, Y. escaped from the residence of the defendants. She presented a complaint to police in August 2009. In October 2009, the Committee against Modern Slavery informed the police that another woman (X.) lived in the residence of A. and Z. in similar conditions as those undergone by Y. X. and Y. constituted themselves civil parties in the proceedings against the defendants. They requested compensation for the damages and grievances suffered.

The Court of Appeal of Cayennes (France)convicted the defendants for "aggravated assistance to the irregular entry, transit or stay of a foreigner in France" as well as concealed work and employing workers without a work permit. It thus convicted the defendants to the payment of 3000 Euro in compensation to X. and 9000 Euro in compensation to Y. The civil parties appealed the legal qualification of the facts and the amount of compensation.  On appeal, the Court of Cassation confirmed the decision on the following grounds:

  • The circumstances of the case and the facts deemed proved indeed point to a situation of trafficking in human beings.
  • Article 4 European Convention on Human Rights establishes States obligation to take the necessary measures to prevent, punish and suppress slavery and forced labor. By not re-qualifying the facts, the Court of Appeal is likely to have mis-interpreted the law.
SHERLOC Case Law Database on the Smuggling of Migrants - France
 Box 11

Resolución 658/2015

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 masseuse - 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 at 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 centers. 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 5worked 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 labor 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, 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. On the same day, 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. 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. Specifically, it noted:

  • The legal reform operated by Organic Law 1/2015 of 31 March considerably reduced the penalty frame for migrant smuggling. Before 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 instrumentalization 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).
  • 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. 
  • 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.
SHERLOC Case Law Database on the Smuggling of Migrants - Spain

It should be noted that the challenges highlighted in the case above may naturally translate into investigative difficulties. Law enforcement and prosecutors may be able to, as a matter of discretion, prosecute either smuggling or trafficking offences. For instance, while authorities may be convinced they face a trafficking case, lack of evidence regarding exploitation may direct authorities to pursue a stronger case of smuggling rather than a weaker trafficking indictment.

The examples in Boxes 10 and 11 could also be used by the lecturer to carry out class exercises. Through the analysis of the cases, students should identify the potential challenges or elements of overlap that could cause difficulties in distinguishing between smuggling and trafficking (similar to Exercise 1 ). The lecturer may consider initially refraining from disseminating the reasoning of the Court, only doing so after some initial discussion. The outcome of the groups' assessment should then be discussed with the rest of the class.

 

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