El principio de no punición de las víctimas de trata en el Código penal español. Problemas aplicativos

Abstract

On the one hand, this article studies art. 177 bis 11 of the Spanish Penal Code, which, in accordance with international regulations, contains the principle of non-application of penalties to the victims of trafficking in human beings, whose effectiveness States must promote, despite presenting serious deficits in the application. An example of the lack of application is a recent resolution of the spanish Supreme Court (STS 960/2023), which offers an exegesis of the art. 177 bis 11 that, for the reasons explained in the work, cannot be shared. That judicial decision declares the provision not applicable to a victim of trafficking for criminal exploitation by virtue of an understanding of the crime of trafficking in human beings that does not correspond to the provisions of the Spanish Penal Code, also giving absolute priority to general prevention considerations incompatible with the reasons that support the principle of non-punishment of trafficking victims. On the other hand, the study analyzes the possibility of applying to the case the defenses of duress or necessity, and concludes that it is necessary to review the non-application of necessity to some cases of drug trafficking in situations of extreme poverty and vulnerability