Human Trafficking for Forced Begging or to Commit Crimes: Defence Lawyers (Art. 177 bis CP)

Article 177 bis of the Spanish Criminal Code defines the offence of human trafficking, one of the most serious infringements in our legal system as it strikes directly at a person's dignity and freedom. Among the various purposes the provision contemplates, two are especially complex both to prove and to defend: begging (included in Art. 177 bis.1.a CP, alongside forced labour or services, slavery and servitude) and exploitation to carry out criminal activities (Art. 177 bis.1.c CP). At the office of Alonso Sala in Madrid, we take on the defence of individuals under investigation or charged with these offences throughout Spain.

What Art. 177 bis CP punishes

The provision penalises anyone who, using violence, intimidation or deception, or abusing a situation of superiority, of need or of vulnerability of the victim, recruits, transports, transfers, harbours, receives, or exchanges or transfers control over them. The conduct must be directed towards one of the legally defined purposes of exploitation. Letter a) expressly includes begging among the forms of exploitation, and letter c) covers exploitation to carry out criminal activities, thus covering both those who force another person to beg in public and those who compel them to commit offences (theft, small-scale drug dealing, etc.) for their benefit.

Penalties

The base penalty is imprisonment of five to eight years. Where one of the circumstances of Art. 177 bis.4 CP applies —the victim being a minor; being especially vulnerable by reason of illness, pregnancy, disability or personal circumstances; the victim's life or physical or mental integrity having been endangered; or vulnerability deriving from an armed conflict or humanitarian catastrophe— the penalty one degree higher is imposed, reaching twelve years of imprisonment. Where more than one circumstance concurs, that elevated penalty is imposed in its upper half. Where the offence is committed by someone belonging to an organisation or association dedicated to these activities, the penalty one degree higher likewise applies (Art. 177 bis.6 CP), and the upper half —which may be raised to the immediately higher degree— for leaders, administrators or those in charge. In addition, under Art. 177 bis.9 CP, the penalties are imposed without prejudice to those corresponding to the offences actually committed in the course of exploitation, concurrently.

Reinforced protection of minors and persons with disabilities

The Criminal Code grants reinforced treatment to the most vulnerable groups. Where the victim is a minor, it suffices that one of the forms of conduct (recruitment, transport, harbouring, etc.) is carried out for any of the purposes of exploitation for trafficking to exist, without any need to prove the use of a means of commission (violence, deception or abuse). This provision of Art. 177 bis.2 CP makes the victim's minority a decisive factor, which obliges the defence to verify the true age and the supporting evidence with rigour. The victim's minority and a disability in need of special protection also operate as circumstances of Art. 177 bis.4 CP that raise the penalty one degree.

Elements of the offence and evidence

Trafficking is an offence of tendency: it does not require that the exploitation be consummated, only that the conduct be directed towards it. The prosecution must establish both the typical conduct and the means of commission (except in the case of minors) and the purpose of exploitation. The doctrine of the Supreme Court requires that trafficking be clearly distinguished from neighbouring offences, such as facilitating illegal immigration or mere family cohabitation in contexts of begging. A large part of these proceedings rest on the testimony of the alleged victim, the assessment of which must satisfy the criteria of absence of subjective incredibility, plausibility and persistence. The existence of family ties, mutual aid or lawful economic activities that have been misinterpreted opens up significant avenues of defence.

How we approach the defence

Our intervention begins with the analysis of the police report and the prosecution evidence: identifying the means of commission relied upon and examining statements, geolocation data, telephone interceptions and entry-and-search records. We dispute the presence of intent to exploit, the true relationship between the parties, and the possible reclassification to less serious offences. Velázquez 27, Madrid. For an initial assessment of your case, you may contact us on ☎ 91 078 65 74.