1. Before Reporting to the Police
2. Making a Police Statement
3. Initiation of Legal Proceedings
4. Court Proceedings
5. After the Verdict
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1. Before Reporting to the Police
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A. Consult a Counsel!
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| If a sex worker becomes the victim of violence or trafficking in women, the police may be interested in her statements as a victim or as a witness – for instance against the perpetrators of trafficking in women, against persons who have brought her into the country or to whom she has had to give part of her earnings. However, women who work as sex workers without the appropriate residence permits are committing an offence (for further information see Sex Work and Prosecution). In this case, the woman is – as far as the police is concerned – both the victim of a crime and the accused.
She should therefore always seek advice before going to the police. In some cities advisory centres exist for migrant prostitutes which offer confidential advice. Advisory Centres will not forward information regarding the woman, her name and address to the police or aliens authorities. The advice is therefore always confidential. |
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B. Confidential Legal Advice
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| Some Advisory Centres give legal advice, which is free of charge. They also can arrange contact with specialist lawyers. However, in criminal proceedings against the perpetrator of trafficking or violence, the woman is only entitled for the state to pay the lawyer’s fees if she is a legal resident in Spain. |
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C. Confidential Medical Examination
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| Advisory centres also offer confidential medical examination for crime victims so that injuries and traces of the deed can be documented. |
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D. Police and Justice Prejudices against Prostitutes
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Within the police authorities there are special departments trained to interrogate women who became victims of violence. When a woman reports a crime committed against her she will always be interrogated by a member of this special department.
Although prejudices against prostitutes may sometimes exist, a woman who has been the victim of a crime can assume that the interrogating persons will take the crime and the investigations seriously and will not generally doubt her credibility. |
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E. Trafficking in Women
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| 1. Trafficking in Women is… |
- when a woman is actively encouraged through false promise or when she is forced to come to Spain
- and when she is forced into prostitution or into giving sexual services and exploited by blackmailing, threatening, humiliating, raping or imprisoning her or by taking away her earnings and her identity papers.
- It is irrelevant whether the woman has worked as a sex worker before or whether she was willing to work as a sex worker but was misinformed about work conditions and earnings.Under Spanish law, there is no special crime defining trafficking in women exactly as we define it above.
However, the actions described by us as trafficking in women will be punishable under Spanish law when the woman has been brought into Spain without having the adequate visa or permit by means of violence, fraud or intimidation, or when the perpetrator abuses a situation of necessity, or when he acts with the intention of making a profit. The name of this criminal offence is Illegal Traffic (“Tráfico Ilegal”) (Section 318 of the Criminal Code).
In addition, actions like physical injury, rape or coercion are of course punishable as well.
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| 2. Special Rights for Victims of Trafficking |
As there is no legislation concerning the trafficking of women into prostitution in particular, there are not many special rights for trafficked women. However, trafficked women may be granted a residence permit and a work permit under the condition that they are willing to cooperate with the authorities for the prosecution of the perpetrators.
Moreover, a special law does exist defining rights for the protection of victims. This does not just concern victims of trafficking, but crime victims in general. This law entitles crime victims to a range of procedural rights and protection measures. For details of the rights of crime victims and victims of trafficking in women, see the corresponding paragraphs below.
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2. Making a Police Statement
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| If the authorities find out that a woman has been the victim of a crime she will be asked to make a statement in the police station. The crime victim is also a witness to the crime and can testify against the offending person – for example against perpetrators of trafficking in women, against persons who brought her into the country or against a person to whom she had to give her earnings. |
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Please note:
A woman who works without the appropriate residence and work permit is committing an offence of administrative law. That means that she will not be sentenced under criminal law, but she may be fined. This may result in expulsion from the country. |
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A. Right to Remain Silent
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| A victim of a crime is not obliged to testify when questioned by the police. |
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B. Female Officer
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| If the woman wishes to make a statement, she is entitled to be interrogated by a female officer. |
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C. Translator
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| She is entitled to the services of a translator in her own language. If she feels unable to trust the translator for a well-founded reason, she is entitled to refuse him and ask for another translator. |
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D. Lawyer
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| She is entitled to answer only in the presence of her lawyer. |
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| Hint: Memorise a lawyer’s telephone number! |
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E. Trusted Person
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| She may generally ask for the presence of a trusted person (e.g. a friend or advisor) at questioning. However, the police is entitled to refuse her request. |
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Please note:
The woman has the right to communicate to a relative or to a trusted person the fact that she is in police custody. |
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E. No Custody
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| As a witness, the woman may not be held in police custody. However, she may be detained if she is also accused of illegal residence or illegal employment |
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G. Special Rights for Trafficked Women
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| 1. Right to Residency |
A woman who has been a victim or witness of trafficking in women and who is living in Spain without a residence permit can obtain a residence permit under the following conditions: if she reports the perpetrators of the crime to the police and if she cooperates with the police to the extent that is considered to be necessary by the authorities. The cooperation may merely consist of providing essential facts, or also testifying in the corresponding trial against the perpetrators of the crime.
If the authorities consider that the information provided is very relevant, the administrative organs decide that the migrant woman will be exempt from any administrative liability and will not be expelled. Once the exemption of any administrative liability is granted, she can obtain a residence permit for the duration of one year, as well as a work permit and facilities for her social integration.
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| 2. Advice and Support |
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| a) Accommodation and Help |
will give information about support (e.g. accommodation, legal advice, food and clothing) for victims of trafficking.
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| b) Support in returning to her home country |
If the woman wishes to return to her home country, she will obtain the necessary support from the state.
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| c) No Halt of Criminal Proceedings Against the Victim / Witness |
Even though the woman is the victim or witness of a crime, the authorities are not prevented from prosecuting crimes or offences that were committed by the woman, e.g. working without an adequate work permit or illegal residence in and entrance to the country.
She should therefore always seek legal advice before making a police statement.
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3. Initiation of Legal Proceedings
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| After questioning the woman and other witnesses, the police decides whether to remit the case to the magistrate’s court. This will start a preliminary investigation gathering evidence against the perpetrator. During this investigation, the woman may be questioned again as a victim or witness. At the end of the investigation the magistrate’s court will decide whether to accuse the perpetrator before the criminal court. |
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A. Duration of Legal Proceedings
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Often a long time passes from the woman’s first hearing as a witness until the beginning of the legal proceedings.
The legal proceedings may take approximately one year. |
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B. Trafficked Women
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| 1. Right to Residency |
A woman who has been a victim or witness of trafficking in women and is living in Spain without a residence permit can obtain a residence permit under the following conditions: if she reports the perpetrators of the crime to the police and cooperates with the police in the extent that is considered by the authorities to be necessary. The cooperation may consist just in providing essential facts, or testifying in the corresponding trial against the perpetrators.
If the authorities consider that the information provided is very relevant, the migrant woman will be exempt from any administrative liability and will not be expelled. Once she has become exempt from any administrative liability, she can obtain a residence permit for the duration of one year, as well as a work permit and facilities for her social integration.
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| 2. Living Conditions |
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| a)Care Programs at Advisory Centres |
Advisory Centres will give support (e.g. accommodation, legal advice, food and clothing) to crime victims.
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| b) Support for Social Integration |
If the crime victim is willing to cooperate with the police, she will be supported by the state with facilities for her social integration.
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| c) Work |
A crime victim may obtain a work permit under the same conditions as she may obtain a residence permit (see above, Right to Residency). The residence and the work permit may be obtained at the same time in a single document.
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| 3. Decision to Appear as a Witness or Civil Party |
Before the commencement of court proceedings, the woman should decide whether to give evidence as a witness only, or whether also to appear as an accusing party (“denunciante”).
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| a)Role as a Witness |
1. Limited to the Giving of Evidence as a Witness
As a witness, the woman is invited to the court only to give evidence. She may neither participate in earlier appointments nor may she obtain information regarding the contents of the files. She is not informed about the course of proceedings, nor is she able to influence these.
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2. No Company of a Lawyer
As a witness, the woman is not entitled to appear before the court in the company of a lawyer.
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| b) Rights as an Accusing Party |
As an accusing party, the woman has considerably more rights during the proceedings than if she is merely a witness.
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1. Lawyer
If the woman acts in the proceedings as accusing party, she may be accompanied to her hearing by a lawyer. The lawyer also can represent her during the whole court proceedings.
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2. Participation in all appointments
The lawyer – and if she wishes it, also the woman herself – may participate in all court appointments. The monitoring of the whole proceedings could be very useful for the woman to prepare her own evidence as witness.
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3. Right to Inspection of Records
The lawyer of the accusing party is entitled to inspect records at any time during the initial enquiry and during the main proceedings. Thus, the woman learns early on what character court proceedings will take, e.g. how many accused parties there are, whether further witnesses are to give evidence or whether she will be the main witness, what evidence the public prosecution has gathered, etc.
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4. Lawyer’s Rights of Procedure
The lawyer – or the woman herself – has the full right to applications during the proceedings. Before the sentence, s/he is entitled to sum up the case before the court. In this way s/he ensures that the court and the public prosecution take into consideration the woman’s interests and rights.
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5. Lawyer’s Fees
The lawyer’s fees may be paid by the state if the woman herself does not have sufficient means. However, in a criminal proceeding the lawyer’s fees will be paid by the state only under the condition that the woman has a legal residence permit for the duration of the legal process.
However, if the lawyer’s fees are paid by the state, she does not have the right to choose her lawyer freely, as the Commission of the Bar Association chooses a lawyer for her.
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| c) Conditions for the Status as an Accusing Party |
If the woman wants to participate in the proceedings as an accusing party, she or her lawyer may apply for this at any moment between the woman’s statement to the police and the end of the court proceedings.
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4. Court Proceedings
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| When criminal proceedings are opened, the crime victim is invited to give her evidence as a victim or witness. At the end of the proceedings, the court issues a verdict as to whether the accused is guilty or not. |
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A. Duration of Court Proceedings
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| The court proceedings will take approximately one year, on average. |
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B. A Witness Gives Evidence
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| The following details apply to the statement made by the woman, whether as a witness only or as an accusing party . |
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| 1. Duration |
The statement is given either in the course of one day or over several days. Occasionally the woman may also be asked to attend a second time later in the proceedings because new questions concerning her have arisen.
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| 2. Questions |
The woman will be questioned by the judges, the public prosecutor, the perpetrator’s lawyer and under certain circumstances also by her own lawyer.
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| 3. Obligation to Testify |
Under Spanish law, there is a basic right for the witness not to testify if she does not wish to do so.
However, if the woman decides to give evidence she must answer questions truthfully and omit nothing, otherwise she risks criminal action against her on the grounds of false testimony. However, she may remain silent on anything which incriminates herself or her family.
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| 4. Lawyer |
The woman may only be accompanied by a lawyer when giving evidence, if she participates in the proceedings as an accusing party. If she merely appears as a witness, she is not entitled to her lawyer’s presence.
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| 5. Translator |
The witness is entitled to the services of a translator in her own language. If she feels unable to trust the translator, she can refuse her/him on grounds of interest. The court then decides whether to provide another translator.
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C. Protection of the Witness
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| 1. Police Protection |
The witness may be accompanied and protected by the police before, during and after her hearing and for all the time considered necessary.
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| 2. Secrecy of the Witness’s Identity |
The witness’s name, surname, address, place of work and profession are not included in the investigations, nor is any other type of information that may lead to her/his identification. Merely a number or a code may be used to identify her.
As well, the witness will not be photographed nor will her/his image be taken by any other method.
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| 3. Evidence in a Non-Public Hearing |
Under certain conditions (for example, if minors, sexual assaults or family matters are concerned) the public may be excluded from the whole proceedings or from the hearing of the victim.
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| 4. Evidence Without Being Seen |
Evidence must be given in the courtroom. However, evidence can be given without being seen.
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| 5. Ban on Soliciting Certain Evidence |
All questions that may morally or materially harm the victim or her relatives are forbidden. The same applies to leading questions.
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| 6. Change of Identity |
If the woman is at high risk, she may be given a new identity and be provided with the economic resources to change her residence and place of work.
However, this will only happen in very exceptional cases.
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D. Compensation for the Victim
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| 1. From the Perpetrator |
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| a) Within Criminal Proceedings |
The Spanish law previews the right to claim compensation for the victim within the criminal proceedings.
However, for victims of trafficking in women, in practice it will be difficult to obtain compensation by claiming it in the criminal proceedings.
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| b) Within Civil Proceedings |
The woman also may directly institute civil proceedings to claim compensation. The civil proceedings must not be instituted before the end of the criminal proceedings.
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| 2. No Compensation From the State |
No compensation can be claimed for victims of crime from the state.
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5. After the Verdict
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A. Right to Residence
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A woman who has been a victim or witness of trafficking in women can under certain conditions obtain a residence permit (see above, Special Rights for Trafficked Women).
The residence permit is granted for one year. Also after the end of the court proceedings, the woman can apply for an extension. |
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B. Support in Leaving the Country
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| If the woman decides to return to her home country, she will obtain all necessary support in leaving the country, if she applies for it. |
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