The owners of dozens of Spanish brothels will be judged by defraud VAT in their premises through a business network and the irregular management of credit card payments in their premises. As elDiario.es has learned, the criminal chamber of the National Court has rejected the appeals filed against the prosecution of more than 30 people in the Pompeya operation, including that of the Prosecutor's Office, which asked that prostitution not be subject to payment of taxes as it is illegal: "Neither the pimp is a businessman nor is the prostituted woman a worker", alleged the Public Ministry.
The debate on prostitution, much more than abolishing or regulating
The judges claim to share the "ethical disqualifications" of the prosecutor in the case but insist that, if there is no evidence of coercion, prostitution can be a "free will agreement between the client and the person who is professionally engaged in such a task. ”.
Operation Pompeya, led by the National High Court, broke out in June 2015, when the National Police arrested more than 60 people linked to some of the largest brothels in the country. The case, seven years later, is one step away from the oral trial with 32 people on the bench accused not of sexually exploiting women but of defrauding 111 million euros between the Personal Income Tax (personal income tax) and Value Added Tax (VAT) of the profits of the premises.
They did it, according to the investigators, by diverting card payments from customers through 130 Point of Sale Terminals (POS) to a corporate tangle that allowed them to avoid the Treasury. Now the criminal chamber of the National Court has rejected various appeals filed against the abbreviated procedure order, including the one presented by the Prosecutor's Office questioning whether the sexual exploitation of women can be taken into account as a legal activity subject to the payment of VAT , in order to accuse them of this fiscal crime.
Just like advanced elDiario.es, the prosecutor Carlos García Berro criticized that Judge José Luis Calama affirmed in his indictment that the prostitutes of these premises were "workers for tax purposes", after the investigation could not prove that they lived under the coercion of the owners of the locals. This, for the Prosecutor's Office, supposes a "whitening of pimping" and, in addition, "neither the pimp is a businessman, nor is the prostituted woman a worker, nor is prostitution a provision of services freely agreed between adults."
The criminal court has sided with the investigating judge and has rejected the prosecutor's appeal. In their resolution, the judges explain that they share the considerations of the Public Ministry at a moral level but not at a legal level: “Sharing with the Public Prosecutor's Office the disqualifications of an ethical and offensive nature of human activity that such activity implies, in what that affects the strictly criminal point of view understands, on the contrary, that the activity of prostitution, as an agreement free of will between the client and the person who professionally dedicates himself to such a task, is not illegal”.
What the Penal Code punishes, remembers the room, is to coerce a woman so that she is forced to prostitute herself. “There is no doubt that the proceedings must continue their course” against the accused, says the section of the criminal court made up of Ángela Murillo, Paloma González and Juan Francisco Martel.
In another order in which the judges answer the appeal of another defendant, the judges develop their considerations on why the payment of VAT can be demanded from the owners of brothels even though they flatly reject that there is an employment relationship between the pimp and the women . “And this without entering the stormy world of relations between the businessman or professional and the hostess girls, whose labor nature we must reject, for the sake of the comprehensive protection of these women and in order to avoid violating their dignity and other fundamental rights. ”.
The room also answers here to the considerations of the Prosecutor's Office affirming that they should go to trial for that fiscal crime. Considering that they must pay VAT, according to the National High Court, is "perfectly reconcilable with the rejection of the despicable conditions in which people dedicated to prostitution and alternate perform their services." This debate, in addition, "is a matter of oral proceedings that cannot be resolved at this procedural moment," they settle.
Tax crime or money laundering?
One of the appeals that the criminal court has rejected is that of Jesús María Larrañaga, owner of the Larratruk company that allegedly helped brothel owners channel their income behind the back of the Treasury. The room recognizes that "it is doubtful" that the fraud systems analyzed can be considered as crimes against the Public Treasury in the case of this businessman or, rather, money laundering, but they conclude that this will have to be determined in the trial.
"The doubts raised by the Public Prosecutor's Office regarding the existence of an alleged crime against the Public Treasury must be cleared up during the oral trial," says one of these resolutions examined by this newspaper.
In other cases that reject appeals from more defendants, the criminal court endorses Judge Calama's "solid argumentation" to prosecute 32 people. “The result of the police and judicial investigation carried out has managed to convert the initial suspicions and conjectures into true and convincing rational indications of criminality” despite, says the court, “the evident signs of opacity that those involved have shown during the processing of the the cause".