In assessing the case, the Audiencia Provincial de Cádiz (Spain) noted as follows:

• Article 318 bis (1) Criminal Code – in the wording in force at the time of the events – punished those that ”directly or indirectly, promote, favour or facilitate the illegal trafficking or clandestine migration of persons from, in transit, or with destination to Spain”. The offence thereby established determines a ‘crime of tendency’, i.e. it will be consummated by promoting or favouring – by any means – clandestine migration (see STS 16-06-02).
• For a person to be criminally responsible under Article 318 bis Criminal Code it will suffice his or her participation in any of the ‘tasks’ or acts that will compose the envisaged ultimate criminal result. In other words, migrant smuggling is a crime that is consummated a priori, that is independent of whether irregular migrants actually managed to cross the border into the desired country.
• Such ‘tasks’ or actions include (i) funding the smuggling venture, (ii) acting as intermediary, (iii) carrying out driving or piloting functions.
• The modus operandi(so-called ‘human engines’) resorted to in order to lead the migrant into Spain and the fact that he did not possess the necessary documentation to enter the country suffice to deem fulfilled the constituent elements of the crime type enshrined in Article 318 bis Criminal Code.
• The manner in which the defendant promoted the illegal entry of the foreigner in Spain posed serious risks to the life and safety of the latter, thus giving rise to an aggravating circumstance of the crime type. The rules of experience and common sense do not permit to aver ignorance regarding this aspect. Indeed, Moroccan waters are known for there low temperatures, all more so the case given that the events of relevance in the instant case occurred at dawn. The human body usually is at 36,5 º C. Submersion in cold water activates several natural processes such as vasoconstriction and muscle tremor in order to maintain an acceptable body temperature. The thermal connectivity of water is 26 times superior to that of the air. This mean, for instance, that water at 25ºC (temperatures reached in the Atlantic Ocean only sometimes in summer and at specific times) absorbs human heat as fast as the air at 5ºC. This phenomenon gives rise to the so-called ‘silent hypothermia’.
• The evaluation of the ‘risk to the life and safety’ of the irregular migrant is to be assessed ex ante; that is, it is not necessary that the conduct resulted in a concrete and effective harm to the person in question. Likewise, it is not necessary that the migrant require medical or hospital care. This notwithstanding, it is worth noting that both the defendant and the migrant present clear symptoms of hypothermia. The case of the migrant is particularly concerning given that – because he exercised much less during the smuggling venture – the water in such conditions acts as a major dissipater of the heat necessary for the proper functioning of the human body. Furthermore, the migrant was totally dependant on the performance of the defendant. In the event of some unforeseen circumstance, the risks for the migrant resulted highly increased.
• In the instant case, the conduct is further aggravated by the purpose of obtaining a financial or other material benefit. This was confirmed by the migrant and results from logical reasoning as well as the information thus far gathered by law-enforcement. It is extremely unlikely that individuals that possess no familial or even nationality bonds with the smuggled migrants would risk their lives in circumstances as the ones underpinning the case under assessment for reasons other than profit. Furthermore, it is well known that the known ‘motores humanos’(human engines) are a common method of leading irregular migrants from Morocco to Spain, swimming. This is agreed upon payment of fees, without which smugglers would not be able to gather the equipment necessary to proceed to such a dangerous venture. There is no ground to support the claim that the defendant acted for humanitarian reasons.
• The penalty frame for aggravated migrant smuggling was six to eight years’ imprisonment. Given that (i) the defendant had no prior criminal record, (ii) the circumstances in which the defendant smuggled the migrant were dangerous and posed serious risks to his own life and safety, mostly when compared to those that promote and facilitate migrant smuggling from a distance and perceiving high profits, the appropriate penalty shall be placed at six years’ imprisonment.

Against this background, the Audiencia Provincial de Las Palmas de Gran Canaria convicted the defendant of aggravated migrant smuggling. However, it applied a penalty of imprisonment lower than that asked by the Prosecution.

NOTE: As per Spanish national law, the purpose of obtaining a financial or other material benefit is not a constitutive element of the crime but rather an aggravating circumstance (see SHERLOC Database on Legislation – Spain).