Increased penalties, attention to special vulnerability and safe transnational referrals
This is an english translation of the original text published by Proyecto Esperanza
On 20 December, the Official State Gazette (BOE) published Organic Law 13/2022, of 20 December, which amends Organic Law 10/1995, of 23 November, of the Criminal Code, with the aim of increasing the penalties for crimes of trafficking in human beings for victims displaced by armed conflict or humanitarian catastrophe.
This modification consists of the introduction of a new aggravated modality in section 4 of article 177 of Organic Law 10/1995, of 23 November, of the Criminal Code, so that when „the victim is a person whose situation of vulnerability has been caused or aggravated by the displacement derived from an armed conflict or a humanitarian catastrophe“, the penalty imposed for the crime of trafficking committed will be increased.
The reason for this amendment is mainly due to the situation arising from the armed conflict in Ukraine, a humanitarian disaster which, as is often the case, has led to the forced displacement of millions of people to several European countries, including Spain. In the context of war, people fleeing the conflict are eligible for international protection. Due to the urgency of their need to leave the country, however, they may be forced to resort to traffickers as their only means of escape, for example without travel or identity documents. In addition, once they arrive at their destination, they may face discrimination, restrictions on freedom of movement, or have limited access to humanitarian assistance or other support systems. All of these circumstances increase the risk of being trafficked. For these reasons, refugees, and asylum seekers (especially women and children) are considered highly vulnerable to trafficking at different stages of their flight, and even once they have reached their destination.
The amendment of the criminal code is a step forward in recognising the seriousness of trafficking in especially vulnerable groups such as asylum seekers and refugees. However, beyond reinforcing and improving the prosecution of the crime, it is equally important to maximise prevention and protection measures for potential victims, in order to avoid situations of abuse and exploitation, as well as to improve the early detection of signs throughout the process of flight. In this sense, SICAR cat and Proyecto Esperanza continue to advance in our participation as partners in the European project „Transnational Initiative against Trafficking in the Context of Asylum Systems“ (#TIATAS), whose main objective is to improve the detection of signs of trafficking among asylum seekers through:
- Capacity building and training for key actors, such as professionals from migrant reception centres and asylum system operators.
- Development of common tools, guidelines and procedures to improve, if necessary, the safe referral and access to services of trafficked persons to other EU countries in transnational cases.
In line with the second of the above objectives, the European Commission has just proposed the creation of a European Referral Mechanism as part of its process to update the European Anti-Trafficking Directive 2011/36. In our view, this measure should ensure the safe referral of trafficked persons to other countries. Possible referral should be made based on their specific needs, including the centrality of their safety and protection, and therefore applying the principle of non-refoulment, where referral may pose a high risk of re-trafficking, or where their return is not safe and sustainable.