Date(s) of offending: on/from 1 Aug 2004 to 1 Aug 2004
At the early hours of 1 August 2004, the defendant initiated swimming from a point in the coast of Morocco towards Ceuta (Spanish autonomous city located in the north coast of Africa). He did so while towing an undocumented migrant, national of Cameroon, who had paid him an undetermined fee to the effect. The defendant was equipped with a neoprene suit and fins. The migrant was himself equipped with a neoprene suit and a floating device. The defendant’s purpose was to facilitate the illegal entry of the irregular migrant in Spain.
Both individuals were detected by an officer of the Guardia Civil - who was, at the time, in a surveillance tower in the border control post – via a night vision device. The Maritime Service of the Civil Police was immediately informed of the occurrence.
At the time, the weather was foggy and windy. The sea presented slight to medium turbulence.
A patrol of the Maritime Service of the Guardia Civil searched for the defendant and the irregular migrant at sea. They were detected at approximately 3.30 a.m., at roughly one mile off the coast of Ceuta. They were rescued into the ship of the Guardia Civil and detained.
The defendant denied to have perceived any financial or other material benefit for his ‘services’. He declared that himself was an irregular migrant attempting to enter in Spain. This notwithstanding, both the defendant and the irregular migrant confirmed the latter had bought the neoprene suit the defendant wore in exchange for his help in reaching Spanish territory.
In ascertaining the facts, authorities relied much on testimonial evidence (from the defendant and irregular migrant as well as the law-enforcement officers involved in their detection, rescue and detention). Documental evidence was equally considered. Notably, in order to substantiate the dangers for the life of the irregular migrant, it was pondered a certified list of individuals that had died in 2003 and 2004 (thus far) while attempting to reach Spain via a modus operandi similar to the one employed by the defendant.
The Audiencia Provincial de Cádiz (Spain)convicted the defendant of migrant smuggling.
For further details see “Commentary”.
Remanded in custody since 1 August 2004.
No prior criminal record.The Defence argued for the acquittal of the defendant or, alternatively, that he be sentenced to three years and six months’ imprisonment.
Interdiction of being elected to public office during the same period
The Audiencia Provincial de Cádiz (Spain) noted as follows:
Against this background, the Provincial Court of Cádiz convicted the defendant of aggravated migrant smuggling. The applicable penalty varied between six and eight years’ imprisonment. Considering that the defendant had no prior criminal record, the Audiencia Provincial of Cádiz sentenced the defendant to six years’ imprisonment.
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).