Defensor del Pueblo Human Trafficking in Spain INVISIBLE VICTIMS Defensor del Pueblo Human Trafficking in Spain INVISIBLE VICTIMS Madrid 2012 Defensor del Pueblo Spain. Defensor del Pueblo. Human Trafficking in Spain : Invisible victims. Madrid. Defensor del Pueblo, 2012. – 256 p.: graf., il.; 29 cm. – (Informes, estudios y documentos; 30). 1. Human Trafficking – Víctims – Spain. I Title. II. Series Translation of: Defensor del Pueblo. Trata de seres humanos en España: víctimas invisibles (2012). All parts of the text of this publication may be reproduced providing the source is credited. Under no circumstances may reproductions of this document be used for profit. © Defensor del Pueblo Eduardo Dato, 31 – 28010 Madrid www.defensordelpueblo.es Design and printing: Composiciones RALI, S.A. – www.rali.es Legal Deposit: M 23206-2012 ISSN: 2254-3910 (Informes, estudios y documentos) INDEX I. SUMMARY. 7 1. Trafficking from a human rights perspective. 10 1.1. Gender Perspective . 11 2. Types of human trafficking in Spain. 11 2.1. For the purpose of labor exploitation. 11 2.2. For purposes of sexual exploitation . 12 3. Identification and Protection of Victims in Spain. 15 3.1. Recovery and reflection period . 15 3.2. International Protection . 16 3.3. Trafficked Minors . 17 4. Conclusions. 18 5. Recommendations. 20 II. FORMS OF HUMAN TRAFFICKING IN SPAIN. 23 1. For the purpose of labor exploitation . 25 1.1. The situation in the international context . 25 1.2. The situation in Spain. 35 2. For the purpose of sexual exploitation . 70 2.1. Situation in the European context . 70 2.2. The situation in Spain. 74 2.2.1. Main routes: Romania, Nigeria, Brazil and Paraguay . 85 III. IDENTIFICATION AND PROTECTION OF VICTIMS IN SPAIN . 115 1. Identification protocols . 118 1.1. Trained and qualified staff . 119 1.2. Cooperation between authorities and ngos. 130 1.3. Reasonable grounds . 137 1.4. Recovery and reflection period and assistance during the procedure . 141 1.5. Residence permit . 149 1.6. Exemption from liability and possibility of assisted return . 151 2. Victim assistance. 157 3. Special reference to victims of human trafficking and international protection. 165 3.1. Introduction . 165 3.2. Entry through unauthorized border crossings . 177 5 Defensor del Pueblo 3.3. In airports. 187 3.4. In immigrant detention centers . 193 3.5. Impact on trafficking victims of the application of council regulatory provisions, (EC) no. 343/2003, 18 February 2003, “Dublin II” . 196 4. Special Reference to the Identification and Protection of Child Trafficking Victims. 202 4.1. Age assessment practices. 206 4.2. The specific case of minors who request international protection . 219 4.3. The case of young children who illegally access national territory accompanied by adults who claim to be their parents. 224 4.4. Child victims of trafficking under the guardianship of child protection agencies . 231 IV. CONCLUSIONS . 239 V. RECOMMENDATIONS . 249 1. To the Ministry of Labor and Social Security . 251 2. To the Ministry of the Interior. 252 3. To others. 253 6 I SUMMARY he decision was made to approach human trafficking through a monograph- ic report because of the complaints received from non-governmental or- Tganizations that work with the victims, as well as the knowledge obtained through periodic visits by the Ombudsman Institution. This report aims to carry out an analysis of the current state of affairs regarding hu- man trafficking, giving voice to all of the organizations and organisms that work in this field. It also aims to analyze the international conventions signed by Spain as well as the European regulations, with the objective of confirming whether the stand- ard of protection for victims in Spain is sufficient. Finally, the report seeks to offer a profound analysis on human trafficking in Spain to the Parliament and Spanish society, together with corresponding conclu- sions and recommendations directed to the relevant organisms of the Public Administration. PREPARATION AND PRODUCTION OF THE REPORT The Ombudsman Institution relied on the participation of departments of the Pub- lic Administration, representatives from various international organisms, and labor unions as well as the organizations that comprise the Spanish Network to Combat Human Trafficking. In addition, in 2008, the Ombudsman Institution incorporated a new section to the Visit Protocol, which it carries out in its Migration and Equal Treatment Area. This section is comprised of data on human trafficking, with focus paid to relevant aspects according to each of the centers visited. Accordingly, the Ombudsman Institution visited immigrant detention centers, temporary immigrant reception centers on the Peninsula and in Ceuta and Melilla, boarder posts in Madrid Barajas and El Prat in Barcelona, Civil Guard command headquarters, and provincial immigration units. During these visits, the Ombudsman Institution analyzed files of potential trafficking victims and evaluated the degree of expertise 9 Defensor del Pueblo and commitment of those responsible for each department in the fight against human trafficking. The Ombudsman Institution initiated 174 inspections within distinct departments of the Public Administration, framed within 61 ex officio investigations and 32 complaints. In addition, the Ombudsman Institution accompanied organizations that carry out fieldwork with victims and visited facilities for trafficking victims or interviewed those in charge of these organizations. The Ombudsman Insti- tution also interviewed fifty-nine human trafficking victims and potential victims. 1. Trafficking from a human rights perspective Trafficking is a violation of human rights. It is a crime. Traffickers are criminals and must be persecuted. The victims must be protected. For this reason, the law must offer the victims a safe environment that allows them to recuperate and report the crime. It is very important not to forget that the obligation to protect the victims does not depend on whether the victims decide to report the crime. In Spain, human trafficking is a crime persecuted and punished by the Criminal Code. The purpose of this crime is exploitation, which includes sexual, labor, beg- ging, trafficking of organs, and slavery. The consent of the victim becomes irrelevant when it is shown that it was obtained by unlawful means. The lack of data regarding the true extent of human trafficking seriously compromises the capacity of potential measures to combat this crime, es- pecially considering the transnational dimension of this crime. The lack of data also hinders the realistic evaluation of the impact of any future plan for intervention. Other forms of exploitation remain hidden in the majority of cases. In labor ex- ploitation cases, active participation of all pertinent authorities is necessary. These authorities should continually pledge their commitment to combating this crime. Globally, the majority of human trafficking crimes occur on a national or regional level. This is not the case in Europe, the destination for many victims. The majority of the human trafficking victims detected in Europe come from Romania, Bulgaria, China and Nigeria. 10 Human Trafficking in Spain: Invisible Victims 1.1. GENDER PERSPECTIVE According to data from the United Nations, two thirds of the trafficking victims detected globally are women. Seventy-nine percent of the victims are traf- ficked for the purpose of sexual exploitation. In fact, gender-based violations of human rights are one of the fundamental causes for the existence of human traf- ficking. Gender violence and other forms of discrimination against women and girls can foster and exacerbate their vulnerability, leading them to become victims of human trafficking. This trend is seen in Europe, where 70% of the victims detected are women. 2. Types of human trafficking in Spain 2.1. FOR THE PURPOSE OF LABOR EXPLOITATION In order to analyze the situation in Spain, the Ombudsman Institution consulted the Office of the Attorney General’s latest annual reports as well as the data pro- vided by the Labor and Social Security Inspection Agency. In addition, the Ombudsman Institution monitored distinct police operations that have dismantled criminal networks. Despite the fact that various situations of trafficking for the purpose of labor exploi- tation have been detected, the Ombudsman Institution was not able to interview victims of this type of exploitation in Spain, nor have formal complaints been received regarding this situation. Therefore, the Ombudsman Institution has opted to use ex officioinvestigations and the existing study analysis in order to approach the current state of affairs. According to Labor Inspection Agency data, between 2009 and 2011 only 21 cases of trafficking for the purpose of labor exploitation were detected in Spain. During this timeframe, each year there were more than 100 cases in which labor exploitation was detected but which did not comply with all of the elements required in order to be considered human trafficking. In order to make up for the lack of interviews with victims of labor exploitation, be- tween May 2010 and January 2012, the Ombudsman Institution began 11 ex officioinvestigation s as a result of the media reports on the dismantling of crimi- nal rings dedicated to labor exploitation. The Ombudsman Institution monitored police conduct regarding presumed victims as well as the procedural steps taken following arrests. 11 Defensor del Pueblo It is important to emphasize that the results