Participation in an organized criminal group

Offences

• Participation in criminal activities of organized criminal group

Degree of Involvement

• Knowledge of aim or activities of the organized criminal group or its intention to commit the crimes in question

Keywords

• criminal association
• organizing/directing commission of (serious) crime

Smuggling of migrants

Offences

• Enabling illegal entry

Sentencia 769/2013 - Supreme Court

UNODC No.:
ESPh009

Fact Summary

The judgment decides the appeal presented by two individuals against their conviction in first instance for crimes against the rights of foreign citizens (which comprises the smuggling of migrants).
On 17 September 2012, the Services of Maritime Rescue of Cartagena (Spain) detected a small boat – inadequate to navigate on the high seas - off the coast of the city. The Guardia Civil soon rescued the boat, on board of which – in addition to the appellants - were 14 Algerian migrants. The boat had departure the previous day from the beach of Bouski Sidi Lakhdar, in the coat of Mostaganem (Algeria), in direction to Spain. The appellants helmed the boat. Migrants paid app. 6 000 000 dinars each for the trip.
It was ascertained that the appellants had for several years been organising trips to procure the illegal entry of Algerian nationals into Spain by sea, with the purpose of obtaining a financial or other material benefit.
The appellants had been previously expelled from Spanish territory several times (latest record dating 12 August 2012).
 
 
 
In deciding the case, the court of first instance considered documentary evidence (re, e.g., diligences taken by authorities to locate witnesses), statements of the migrants (including pre-trial declarations) as well as appellants.
 
Legal findings:
In appeal, the Supreme Court upheld the decision of the court of first instance. For further details see infra under “Commentary”.

Commentary and Significant Features

In its judgment, the Supreme Court examined in detail the admissibility of pre-trial evidence. Specifically, the Defence argued for the inadmissibility of declarations provided by a protected witness that did not attend court sessions. It contended that there had not been an exhaustion of all means to ensure the presence of the witness in court or his or her statements by videoconference. In response, the Supreme held as follows:
  • Pre-trial evidence, duly documented and obtained in compliance with the principle of contradictory, is admissible in court if reasonable measures to ensure the presence of the witness in court were taken (even though ultimately with no success, as in the present case). The rights of the accused and principles of due process will not be breached if such conditions are fulfilled (e.g. witness interviewed in presence of the Prosecutor, investigative judge, and legal counsel).
  • If the Defence did not question the witness at the time of the pre-trial hearing for reasons imputable to itself, it may not later invoke this argument to challenge the admissibility of pre-trial evidence. Importantly, the constitutional protection refers to the possibility of exercising the contradictory rather than occurrence of contradiction.
 
The Supreme Court further clarified that the information provided by investigative authorities to the victims/witnesses regarding the possibility of obtaining residence permit were they to collaborate in the context of proceedings does not amount to witness tampering. Accordingly, it is not per se a valid motive to challenge the admissibility of evidence provided by such victim/witness.
 
The Supreme Court assessed indicia of the knowledge and willingness to commit the crime. It noted that the behaviour of a recidivist offender that repeatedly illegally enters the territory of the State concerned then endeavouring to be expelled to his country of origin so as to again procure the illegal entry of migrants in another country (as part of a structured modus operandi) provides important indication of mens rea.
 
Finally the Supreme Court dismissed the argument that alleged economic difficulties of the defendants could consubstantiate a state of necessity and, consequently, exculpate their criminal responsibility. In so concluding, the Court explained that in order to invoke a state of necessity it is necessary: (i) an objective, inevitable, unfair, illicit and impending harm that cannot be avoided without committing the offence, (ii) proportionality of the harm caused in order to prevent the feared harm, (iii) exhaustion of all legitimate means of action to prevent or neutralise the harm before acting illegally, and (iv) the existence of any subjective motivations will not allow resort to the defence of state of necessity. The Court reiterated that alleged economic difficulties do not meet the necessary criteria and does exculpate the criminal conduct of the appellants.
 
It is worth noting the effective police cooperation between Spanish and French authorities in this case. Conversely, the considerable time-demands for the execution of requests for mutual legal assistance appears as an aspect that may constrain investigations and prosecutions.
 
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).
Sentence Date:
2013-10-18

Cross Cutting

Liability

... for

• completed offence

... based on

• criminal intention

... as involves

• principal offender(s)
• organiser/director

Application of the Convention

Details

• involved an organized criminal group (Article 2(a) CTOC)
• occurred across one (or more) international borders (transnationally)

Involved Countries

Algeria

Spain

Investigation

Involved Agencies

• Criminal Police
• Public Prosecutor Office

International Cooperation

Involved Countries

Spain

France

Measures

• International law enforcement cooperation (including INTERPOL)
Outline:
Rogatory letter sent by Spain to France requesting a videoconference hearing with a witness. The request was denied due to lack of material time vis-à-vis the proposed date. France responded that such a request should be submitted at least 3 months in advance.
The assistance of French police authorities permitted to determine that the address previously communicated by the witness to Spanish authorities was false and that, accordingly, the whereabouts of the witness were unknown.
 

Procedural Information

Legal System:
Civil Law
Latest Court Ruling:
Supreme Court
Type of Proceeding:
Criminal
 
The Investigative Magistrate 2 of Cartagenafilled summary proceedings against the appellants (N. 72/12) for crimes against the rights of foreign citizens, and referred the case to the Audiencia Provincial de Murcia (Spain). The latter, on 15 March 2013, convicted the appellants for crimes against the rights of foreign citizens. The appeal herein under analysis followed.
 
 

Migrants

Migrant:
14 persons
Gender:
Male
Nationality:
Algerian

Defendants / Respondents in the first instance

Defendant:
E.
Gender:
Male
Nationality:
Algerian
Previously expelled from Spain three times.
Legal Reasoning:
In appealing the decision of the Audiencia Provincial de Murcia (Spain), E. argued inter alia (i) breach of the presumption of innocence for insufficiency of evidence supporting a conviction, (ii) inadmissibility in court of pre-trial evidence in the terms it occurred in casu (declarations of protected witness that did not attend court sessions). For further details, see infra under “Commentary”.
Defendant:
J.
Gender:
Male
Nationality:
Algerian
Previously expelled from Spain six times.
Legal Reasoning:
In appealing the decision of the Audiencia Provincial de Murcia (Spain), J. argued inter alia (i) breach of the presumption of innocence for insufficiency of evidence supporting a conviction, (ii) inadmissibility in court of pre-trial evidence in the terms it occurred in casu (declarations of protected witness that did attend court sessions). For further details, see infra under “Commentary”.

Charges / Claims / Decisions

Defendant:
E.
Statute:
Criminal Court Article 318 bis Crimes against the rights of foreign citizens
Term of Imprisonment:
6 years
 
Defendant:
J.
Statute:
Criminal Code Article 318 bis Crimes against the rights of foreign citizens
Term of Imprisonment:
6 years
 

Sources / Citations

Sentencia 769/2013
18 October 2013
Supreme Court
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