La exención de pena en “infractores-víctimas” en el delito de trata de seres humanos

Abstract

The principle of non-punishment of victims of human traffi cking who commit crimes as a direct consequence of the situation of exploitation they suff er is contained in supranational legal texts. Article 177 bis.11 of the Spanish Criminal Code determines that the application of this principle is conditioned to the appropriate proportionality between the situation of exploitation and the criminal act committed. This raises the question of compatibility between national and supranational legislation, insofar as there is an obstacle that is not present in supranational legal texts. The requirement of adequate proportionality indicates the possible existence of adequate proportionality and inadequate proportionality. In addition, it requires that unspecifi ed criteria be taken into account to evaluate the proportionality between the situation of exploitation and the criminal off ense. The lack of criteria that allow for this evaluation results in the potential risk of violating legal certainty, equality, the right to defense or the right to eff ective judicial protection. Thus, a legal instrument aimed at protecting victims of human traffi cking runs the risk of unequal treatment and lack of protection for such victims. The legal nature of this exemption from punishment is another of the most controversial issues. Part of the criminal doctrine includes this fi gure in culpability; another doctrinal sector, in punishability. However, both positions can be criticised. This forces the search for alternatives and legal proposals on the interpretation of the criminal off ence, its scope and limits, the search for criteria, as well as on the possible relocation of the principle of non-punishment.