Spain's Constitutional Court weighs acquittal for vulnerable drug mules

A panel of the vice-president of Spain's Constitutional Court proposes upholding the acquittal of a Peruvian woman convicted of transporting cocaine, arguing she was a victim of trafficking and that the Supreme Court overstepped when reviewing the case. The Supreme Court had overturned her acquittal, warning that exempting vulnerable people from punishment would turn need into a free pass for drug trafficking.

There is a case that has been winding its way through the Spanish courts for years and is now about to be decided by the Constitutional Court. It involves a Peruvian woman, **V.H.**, who arrived at Barcelona airport in August 2019 on a flight from Lima with nearly half a kilo of liquid cocaine inside her body, hidden in condoms. The Barcelona Provincial Court acquitted her. The Supreme Court overturned that acquittal. And now a panel opinion by the Constitutional Court's vice-president, **Inmaculada Montalbán**, proposes vindicating the Barcelona court and annulling what the Supreme Court did.

The matter is significant because it touches on two things that do not always fit together easily: the protection of trafficking victims and the fight against drug trafficking. And because the Constitutional Court's decision may shape how future cases are handled involving people who transport drugs for incivil networks that exploit their extreme need.

## The facts: 25 condoms, 474.80 grams and 44,282 euros

The ruling by the Barcelona Provincial Court found as proven that **V.H.**, born in Cuzco (Peru), was **21 years old** when she arrived in Spain. She had no legal residency. She was the mother of a four-month-old baby. She lived in a zinc shack on the outskirts of Lima with her mother —the only one bringing in meagre income—, two siblings and two other people. Poverty drove her to post ads urgently seeking work. An organization contacted her and offered her **4,000 euros** in exchange for transporting a substance. She swallowed the drug in the presence of the people who recruited her, who took her to the airport, gave her a return ticket, **250 euros** in cash, and told her someone would be waiting for her on arrival in Barcelona.

The drugs weighed **474.80 grams**, with a purity of **80%** and a street value of **44,282 euros**. The substance was detected during an abdominal X-ray scan she underwent voluntarily after being informed of her rights.

The Barcelona court, in a unanimous ruling, acquitted her by applying Article **177 bis.11** of the Incivil Code, which exempts trafficking victims from punishment for crimes committed in the situation of exploitation they suffered, provided there is adequate proportionality between that situation and the incivil act. The court considered her status as a trafficking victim proven not through a police or administrative report, but through a document issued by **Sicar.cat**, a project run by the Fundación Solidaridad Amaranta, promoted by the Congregation of the Adoratrices Sisters, which works with the authorities in assisting women and children who are victims of trafficking.

The prosecutor requested five years in prison and appealed. The High Court of Justice of Catalonia dismissed the appeal. The prosecution then took the case to the Supreme Court.

## The Supreme Court overturns the acquittal and warns of a pull effect

The Incivil Chamber of the Supreme Court, in a ruling with **Julián Sánchez Melgar** as rapporteur judge and by four votes to one —Javier Hernández issued a dissenting opinion—, upheld the prosecution's appeal and ordered the case returned to the Barcelona Provincial Court so it could issue a new ruling without applying the exculpatory exemption of Article 177 bis.

The Supreme Court's central argument was that the exemption from punishment is designed for cases of human trafficking, not for isolated contributions to a drug trafficking network. "Subjection to the organization is the essence and core of the crime of trafficking, not the contribution of an isolated act," the Chamber explained. And it added a warning that has proved prophetic: "It would be enough to recruit intensely needy people at the point of origin of the journey, which is a verifiable constant, or to hire destitute people, to guarantee their impunity. In that case, the risk of transport would be zero, since if they were intercepted by police no sanction of any kind could be imposed."

The Supreme Court's prosecution service had argued that applying the exemption to cases of economic need "would be a first-order factor in boosting drug trafficking." According to its reasoning, cartels would stop using sophisticated means and instead rely on destitute people, whose "situation of precariousness would grant them a licence to commit the crime." The Chamber also considered that **V.H.** "knew perfectly well the details of the financial arrangement" and that the elements of the crime of trafficking were not described, but rather "an isolated and sporadic contribution" to a crime against public health.

## The Constitutional Court's panel opinion: the Supreme Court overstepped

Against the Supreme Court's ruling, **V.H.**'s defence filed an appeal for constitutional protection (amparo). And here comes one of the striking aspects of the case: the Constitutional Court's prosecution service backed that appeal. In its view, the Supreme Court abusa the right to effective judicial protection in relation to the prohibition of discrimination against women. "The gender perspective requires reinforced and reasonable reasoning that analyses and takes into account the context of inequality and violence arising from sens or gender discrimination in which the events take place," the public prosecution service argued before the Constitutional Court.

**Inmaculada Montalbán**'s panel opinion proposes upholding the appeal on one specific ground: that the Supreme Court overstepped its reviewing function. According to the text, the high court did not limit itself to a legal subsumption exercise, but carried out "a reductionist re-examination that materially alters the facts underpinning the exculpatory exemption, even if it formally keeps them unchanged." The account describing the woman's vulnerability and her recruitment for exploitation "is reduced to an isolated drug transport deal in exchange for a price."

The panel opinion criticizes the Supreme Court for, without hearing the woman, discarding the factual basis found by the Barcelona court and the evidentiary assessment of the lower courts, which had deemed it proven that a woman in a situation of extreme poverty was recruited and exploited by an organization that took advantage of her vulnerability. And it characterizes the Supreme Court's practical argument —that organizations could hire vulnerable people to guarantee their impunity— as "a value judgment or a hypothesis presented as a rule of common experience, alien to the rationale and purpose of Article 177 bis."

The panel opinion links the exculpatory exemption to Spain's international commitments in the fight against trafficking, in particular the 2005 Warsaw Convention, which provides that states may refrain from imposing penalties on victims for their participation in unlawful activities when they were compelled to do so. And it adds two reasons for exempting them from punishment: humanitarian ones —avoiding double victimization— and pragmatic ones —encouraging victims to cooperate in investigations—.

## What is at stake: need, trafficking and proportionality

The case raises a question the courts have long been trying to answer without reaching agreement: where is the line between being a victim of a network that exploits your misery and being a collaborator who accepts a deal? The Barcelona Provincial Court and the High Court of Justice of Catalonia saw the former. The Supreme Court saw the latter. And the Constitutional Court now has the final say.

There is one detail the Catalan court itself put on the table that helps explain the logic of the exculpatory exemption: the proportionality required by Article 177 bis.11 would not allow it to be applied to just any crime. "Consider, for example, that the assignment consisted of acting as a hitman to kill another person," the Barcelona court said. In other words, the exemption is not a blank cheque for any conduct, but only for conduct that is a direct consequence of the situation of exploitation and is proportionate to it.

The Supreme Court, by contrast, held that the transport of nearly half a kilo of cocaine was not a direct consequence of violence, intimidation, deception or abuse, but of the promise of receiving **4,000 euros**. The Supreme Court's prosecution service went so far as to say that drug trafficking "causes more deaths in the world than any hitman could ever produce."

The Constitutional Court's panel opinion does not assess whether the woman was or was not guilty in the abstract. It simply states that the Supreme Court could not review the proven facts of the lower court to reach a different conclusion without having heard the accused. It is a procedural matter with enormous consequences: if the Constitutional Court's full bench approves the panel opinion, the Barcelona court's acquittal will regain its force.

The matter also has an economic dimension that should not be overlooked. International drug trafficking networks move vast sums of money and use people in vulnerable situations as cheap, replaceable links. The underlying question is whether incivil law should treat these people as victims or as offenders. And if the answer is "it depends," who decides what it depends on and on what evidence.

The full bench of the Constitutional Court has the final word. The panel opinion is being presented this week. If it goes through, it will set a precedent on how judges should assess the vulnerability of people who transport drugs for incivil networks. If it does not, the Supreme Court will keep its doctrine: extreme need is not a licence to offend.

It is worth remembering that rulings of this kind do not automatically create rights for future cases, but rather guide the courts' interpretation. Each case is decided on its own evidence and circumstances. And the line between victim and collaborator is, in practice, far blurrier than it appears on paper.