Human Trafficking Defense Lawyers

The offense of human trafficking is set out in Article 177 bis of the Penal Code, which in itself constitutes Title VII bis of Book II. It is one of the most serious offenses in the legal system, because the protected legal interest is the dignity and moral integrity of the person, treated as an end in themselves and never as an object of trade. It must not be confused with the offense of facilitation of illegal immigration (Art. 318 bis CP), which protects the control of migratory flows: trafficking is punishable even if the victim is a national and even if no border is crossed.

Concept and protected interest

Trafficking consists of subjecting a person to a process of objectification for the purpose of exploitation. The offense is built on three cumulative elements: a conduct, a means of commission and a purpose. Carrying out any of the conducts, using one of the typical means and pursuing any of the purposes of exploitation, completes the offense regardless of whether the exploitation actually takes place.

Conduct and means of commission

Article 177 bis.1 CP punishes anyone who, whether in Spanish territory, from Spain, in transit or bound for it, recruits, transports, transfers, harbors, receives or exchanges or transfers control over a person, using any of these means: violence, intimidation or deception; abuse of a situation of superiority, of need or of vulnerability of the victim; or the giving or receiving of payments or benefits to obtain the consent of the person controlling the victim. Where the victim is a minor, the offense exists even if none of the above means are present (Art. 177 bis.2 CP): the consent of a minor is irrelevant.

Purposes of exploitation and sub-areas

Trafficking is characterized by the purpose of exploitation. Article 177 bis.1 CP lists the various forms, each with its own evidentiary and defense problems:

• Sexual exploitation and forced prostitution, including pornography, the most common form, which connects with offenses against sexual freedom.
• Labor exploitation, including slavery, servitude and forced labor or services.
• Forced begging, especially where minors or vulnerable persons are instrumentalized.
• Forced marriages, a purpose expressly incorporated into the offense.
• Organ trafficking for the purpose of removing bodily organs.
• The carrying out of criminal activities, where the victim is recruited to commit offenses under coercion.

This page acts as the central hub of the area; each sub-area has its own specific analysis, which should be consulted to learn the applicable classification, penalties and defense strategy.

Penalties

The basic form under Article 177 bis.1 CP is punishable by imprisonment of five to eight years. This is a serious penalty that justifies pre-trial detention in many cases and allows significant aggravation. Article 177 bis.4 CP imposes the penalty raised by one degree where the life or physical or psychological integrity of the victim has been endangered, or where the victim is especially vulnerable by reason of illness, pregnancy, disability or personal situation, or is a minor.

Aggravating factors and enhanced liability

Article 177 bis.5 CP aggravates the penalty where the offender is a public authority, their agent or a public official acting with abuse of office, also imposing absolute disqualification. Article 177 bis.6 CP provides for the penalty raised by one degree and disqualification where the offender belongs to a criminal organization or association dedicated to trafficking; for leaders or those in charge, the penalty is imposed in its upper half. Article 177 bis.7 CP governs the criminal liability of legal persons, with fines and penalties that may extend to dissolution. Under Article 177 bis.9 CP, the penalties for trafficking are imposed without prejudice to those corresponding to the offenses actually committed (sexual exploitation, injuries, etc.), under the rules of concurrence.

Confiscation and non-punishment of the victim

The extended confiscation of Article 127 bis CP applies, allowing the convicted person to be deprived of the assets and profits derived from the trafficking activity, even of property whose lawful origin is not proven. As an essential element of protection, Article 177 bis.11 CP establishes the non-punishment clause for the victim: the trafficked person is exempt from punishment for the criminal offenses committed while being exploited, provided that their participation is a direct consequence of the trafficking suffered. This excuse is decisive where the accused is, in reality, a victim.

Defense strategy

We build the defense around the absence of a purpose of exploitation, the lack of a typical means of commission, the distinction from the facilitation of illegal immigration under Art. 318 bis CP, the possible application of the non-punishment clause where the client is a victim, and scrutiny of the evidence (statements of protected witnesses, expert reports, interceptions). We act before Investigating Courts, Criminal Courts, Provincial Courts, High Courts of Justice and the National Court. Velázquez 27, Madrid. ☎ 91 078 65 74.