The reserved ones of the hostesses cannot be equated to the constitutionally protected private address (except in cases of flagrante delicto) from the entry of third parties without the permission of the owner or judicial authorization. It is one thing for intimate acts to take place inside, and another thing is for them to be considered a dwelling place. Consequently, the police can enter these rooms if they suspect that an offense is being committed. This is stated by the Criminal Chamber of the Supreme Court in a recent ruling confirming the conviction of the manager of a brothel in Almería for a crime against the rights of workers and another for prostitution of minors. In the same way, it validates the convictions of three other defendants for exhibitionism and prostitution of minors.
The search occurred at the premises after the police statement of a sixteen-year-old girl who had been tricked into prostitution.
The ruling (the text of which can be consulted here), of last April 7, rejects the battery of arguments put together by those convicted in their defense. The magistrates deny that their right to home inviolability was violated, “for the good and simple reason that the premises in question was an establishment open to the public that was not the home of any of the accused or of any person.” The Supreme therefore assumes the reasoning given in this regard by the Superior Court of Justice (TSJ) of Andalusia in the judgment under appeal.
The inviolability of the home, guaranteed by article 18.2 of the Spanish Constitution, preserves this place, as a “space suitable for developing private life”, from the interference and gaze of others, but, as the magistrates recall, “not all closed spaces nor does every place that requires the consent of the owner so that third parties can legally enter it constitutes a domicile. Public places, they reason, “do not protect the intimacy that protects the home and those who are in them do not have a claim to privacy that the place cannot provide them.” Specifically, they conclude, it does not have this category and, therefore, enjoys this protection, the one reserved for sexual relations between clients and workers of a hostess.
This is a doctrine that the Supreme Court has been applying for decades. The judges understand that, for the registration of recreational premises, such as bars, cafeterias, pubs, etc., a prior resolution is not necessary that authorizes it, “unless there is, in addition to the part intended for the public, another reserved for residence of the owners of the business, in which case the latter and not the former, will be considered domicile.
He knows in depth all the sides of the coin.
In any case, in the registry of the Almería club there was an order from the investigating judge authorizing entry based on a series of indications: previous investigations into the establishment and, mainly, the victim’s statement at the police station. Faced with the complaints of the condemned, the Supreme Court endorses the order and justifies the delay in the presence of the lawyer of the Administration of Justice as notary for “operational reasons”. And it is that the raid occurred at the same time in three different premises to which the lawyer on duty had to go. The official did arrive at the registry of the establishment, the only time in which her absence could lead to the nullity of the procedural actions that took place there.
Minor without papers
The facts for which the manager of the intervened establishment has been convicted of prostitution of minors date back to June 2016. The girl was captured through deception. According to the sentence, the woman hired an undocumented minor as a waitress on those dates with the promise that she would help her obtain legal residence. In reality, her “true purpose” of her, it is said, was to earn money by prostituting the girl. The woman, knowing the age of the girl and that she did not have a legal residence, did not document her contract or register her with Social Security.
The minor started working as a waitress the first day, but the next day they told her that she also had to do “erotic dances” for the clients if she didn’t want to lose her job. Shortly after, she was also forced to perform services of a sexual nature in the reserved area of the establishment. The rate was 30 euros for 15 minutes, 60 euros for half an hour and 110 euros for an hour; half for the local and the other half for the woman in question. Another employee, who worked as a manager, was the one who kept the accounts in a notebook. She was also prosecuted along with another worker, the owner, and her lawyer. As detailed in the sentence, it was the employee and the lawyer who introduced the minor to the world of prostitution. The lawyer also had several sexual encounters with the girl, one of them in her office, promising to help her and her mother obtain residence permits.
The young woman was working in the establishment until, in mid-June, the police intervened and she was released. In 2019, the Provincial Court of Almería sentenced the manager of the premises to four months in prison for a crime against the rights of workers and three years in prison and a fine of 4,050 euros for prostitution of minors. In addition, he was forced to compensate the girl with 4,500 euros. The manager was also sentenced for prostitution of minors to two years and six months in prison and a fine of 2,340 euros. The same crime for which the lawyer was sanctioned, who accumulated two years in prison for this and another six months for indecent exposure. Finally, the establishment worker was sentenced to six months for indecent exposure.
The convicts appealed the ruling before the Andalusian TSJ, which confirmed the sanctions. Now, the Supreme Court has ratified the convictions of the guilty, who will have to assume the fulfillment of the sentences.
The magistrates of the Criminal Chamber, chaired by Manuel Marchena, reject one by one the arguments of those convicted in the April 7 resolution. Faced with the statement that the minor was more in an alternate situation since she was always free to “deploy all the sexual activities that she wanted”, the court replied that the crime of prostitution of minors (article 188.1 of the Penal Code) it also integrates those “behaviors that induce, promote, favor or facilitate their prostitution even without any coercion”. This precept, they continue, does not protect public morality, “but sexual freedom or indemnity in a broad sense.” Prostitution, they argue, “cannot be considered a kind of irreversible state, so that the minor already started does not lose the protection of the legal system against the behavior of the elderly”. The convicted, they conclude, took advantage of the sexual exploitation of the girl.
The Supreme resolution points out the controversy over the criminal treatment of prostitution of 16-year-olds. The convicts requested that the Chamber rule on the decriminalization of currently illegal behaviors on minors who have exceeded the age of sexual consent. So, they argued, all those over 16 “have full sexual freedom in all possible areas and only deserve the same criminal protection for adults when their sexual freedom has been affected.” Regardless, they added, “if it is in exchange for financial remuneration or any other promise.”
The magistrates of the Supreme do not answer the question considering that it exceeds its function because it had not been alleged at any previous point in the process.