Participation in an organized criminal group

Offences

• Participation in criminal activities of organized criminal group

Degree of Involvement

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

Smuggling of migrants

Offences

• Procuring, providing or possessing a fraudulent travel or identity document in connection with migrant smuggling
• Enabling illegal stay

Mode

• sea
• land

Trafficking in firearms

Offences

• Illicit trafficking (Article 3(e))

Item Types

• firearms (Article 3(a))

Resolución 59/2015

UNODC No.:
ESPh048

Fact Summary

In September 2011, it was reported to authorities that a Pakistani individual – later identified as Defendant 1 – was member of an organised criminal group dedicated to the smuggling of migrants and weapons from France to Spain. Specifically, he would transport irregular migrants - arriving by train to Toulouse (France) - to Spain, in a Volkswagen van. He used to cross the border between 15.00 and 19.00. Authorities began monitoring Defendant 1 and were able to confirm he further often drove a vehicle Renault. On 17 October 2011, police officers followed Defendant 1, who crossed the border to France and later returned to Lleida (Spain), with two additional individuals. The vehicle was lost in the traffic of this city. On 23 October 2011, the Volkswagen and Renault travelled to France, one following the other, through the border crossing point of Les-Puente del Rey. Accordingly, authorities decided to prepare a control operation on site with the purpose of intercepting the vehicles, upon their return to Spain. At approximately 16.40 of the same day, the Renault was intercepted, being driven by Defendant 2. It carried functions of reconnaissance. Around 17.00, Defendant 1 was intercepted driving the Volkswagen and transporting eight irregular migrants (four Pakistani, one Indian and three Nepalese). Seven of the latter had reached Europe (Italy, France or Germany) by sea, in containers, from their countries of origin. The irregular migrants were then transferred by truck to the surroundings of the cross border area of Les-Puente del Rey, collected by Defendant 1, with the aim of leading them to Lleida.

Defendant 1 was detained during the traffic control operation afore-mentioned.

Authorities were able to determine that Defendant 1 was member of an organised criminal group, being in regular contract with several associates, some of whom not identified. The said criminal group, upon payment of considerable fees, ensured the smuggling of migrants – mostly from India, Pakistan and Nepal – to European countries, by sea, in containers. They would then ensure their transit by land until the wished country of destination. Sometimes, they were left close the train or bus stations. Other times, they remained few days in ‘safe houses’ until the arrangement of the necessary documentation so that the smuggled migrants could regularise their situation in Spain. In some instances, Defendant 1, in agreement with associates in the organised criminal group, resorted to Pakistani and Hindu individuals settled in England, who collected the migrants arriving to that country. They would then arrange for the follow-up of the smuggling venture, for instance, by providing train or bus tickets that led the migrants to a specified collection point or simply to their city or country of election.

After paying a 6000 Euro bail, Defendant 1 was released but continued to pursue his illegal activities, this time exploring alternative routes to Les-Puente del Rey. Investigations detected interactions of Defendant 1 with another smuggler known for having dedicated 36 years to the smuggling of migrants to France, Spain and Portugal. On 9 February 2012, Defendant 1 was observed participating in another smuggling venture, this time not only facilitating the irregular transit of migrants but also providing accommodation thereto in his residence.

On 5 March 2012, ten people were detained in the bus station of San Sebastian (Spain). They had paid considerable sums to be smuggled from England into Spain.

It was not determined that Defendant 2 perceived any profit for the assistance given to Defendant 1. The other defendants were deemed to have provided some form of support to the activities led by Defendant 1, including facilitating work in the black market to irregular migrants or promoting sham marriages.

In ascertain the facts, authorities relied on testimonial evidence, the outcome of electronic surveillance as well as search and seizure operations. In the course of the latter, important documentary evidence of the criminal activities engaged in by the defendants (and the organised criminal group) were discovered in their residence and other locations frequented by them.

 

 

Legal findings:

The Public Prosecutor had requested that (i) Defendant 1 be sentenced to six years’ imprisonment for migrant smuggling, (ii) Defendant 2 be sentenced to two years’ imprisonment for migrant smuggling, (iii) the remaining defendants be sentenced to one year and six months imprisonment for the crime of concealment. The Provincial Court of Lleida (Spain) convicted the defendants thought it applied sentences lower than the ones claimed by the Prosecution.

 

For further details see “Commentary”. 

Commentary and Significant Features

The Audiencia Provincial de Lleida (Spain) did not elaborate much on the applicable law, likely for considering that the proven facts were of such nature that they did not give leeway to doubts regarding the fulfilment of the objective elements of the case.

The manner in which investigations were carried out, with a combination of investigative techniques and a cautious yet effective approach are to be noted. Of particular importance in the solution of the case appears to have been the outcome of electronic and physical surveillance operations.

It is further noted that, despite stated links to several other countries, including EU Member States (such as Portugal, France, England and Germany) there is no indication that international police or judicial cooperation was triggered. If this was indeed the case, a relevant opportunity of potentially identifying criminal links and other members of the criminal group might have been neglected. This is all more so the case given the apparent considerable international dimension and robustness of the organised criminal group in question. This could have been an excellent opportunity to discuss and eventually deploy joint investigative teams (JITs) and or solicit the assistance of Europol, Eurojust and or INTERPOL.

 

 

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:
2015-02-20

Cross Cutting

Liability

... for

• completed offence

... based on

• criminal intention

... as involves

• principal offender(s)
• participant, facilitator, accessory

Application of the Convention

Details

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

Involved Countries

Spain

France

United Kingdom of Great Britain and Northern Ireland

Portugal

Germany

India

Pakistan

Investigation

Involved Agencies

• Criminal Police
• Public Prosecutor

Details

• Special investigative techniques
• electronic or other forms of surveillance

Procedural Information

Legal System:
Civil Law
Type of Proceeding:
Criminal
 
 
Proceeding #1:
  • Is the decision appealable?:
    No
  • Details:
    Judgment
  • Official Case Reference:
    Resolución 59/2015
  • Decision Date:
    20 February 2015

    Court

    Court Title:
    Provincial Court of Lleida
    Audiencia Provincial de Lleida
     

    Location

  • City/Town:
    Lleida (Spain)
  • • Criminal
    Description:

    The Magistrate’s Court Nº 1 of Vielha (Spain) referred the case against the defendant (summary proceedings 53/2015) to the Provincial Court of Lleida (Spain).

     

    Outcome

  • Verdict:
    Guilty
  • Other Outcome:
    Conviction with one of the defendants having been acquitted of migrant smuggling.

     

    Defendant #1:  Imprisonment 6 years and Suspension of the right to be elected for public office for the duration of the sentence

    Defendants #2:  Imprisonment 2 years 

    Defendants #3 and #5 to #11: Imprisonment 1 year and 6 months


     

    Victims / Plaintiffs in the first instance

    Victim:
    Multiple victims, at least 20. Mostly Pakistani, Indian and Nepalese.

    Multiple, at least 20

    Defendants / Respondents in the first instance

    Defendant:
    H
    Gender:
    Male
    Nationality:
    Pakistani
    Born:
    1972
    No prior criminal record. In custody on 27-28 October 2011 and from 8 March 2012 until the date of the decision herein under analysis for reasons related to the instant case
    Defendant:
    D
    Gender:
    Male
    Nationality:
    Pakistani
    Born:
    1974
    No prior criminal record. In custody from 8 March 2011 until 11 June 2013 for reasons related to the instant case.
    Defendant:
    V
    Gender:
    Male
    Nationality:
    Pakistani
    Born:
    1971
    No prior criminal record. In custody from 8 March 2012 until 14 May 2013.
    Defendant:
    V.M
    Gender:
    Male
    Nationality:
    Pakistani
    Born:
    1973
    Concealment
    Defendant:
    P
    Gender:
    Male
    Nationality:
    Pakistani
    Born:
    1985

    No prior criminal record. In custody from 8 March 2012 until 10 June 2013 for reasons related to the instant case.

    Defendant:
    F
    Gender:
    Male
    Nationality:
    Pakistani
    Born:
    1987
    No prior criminal record. In custody from 27 October 2011 until 1 Marh 2013 for reasons related to the instant case.
    Defendant:
    M
    Gender:
    Male
    Nationality:
    Pakistani
    No prior criminal record. In absentia.
    Defendant:
    R
    Gender:
    Male
    Nationality:
    Pakistani
    Born:
    1980
    No prior criminal record.
    Defendant:
    J.P
    Gender:
    Male
    Nationality:
    Indian
    Born:
    1978
    No prior criminal record.
    Defendant:
    A
    Gender:
    Male
    Nationality:
    Moroccan
    Born:
    1973
    No prior criminal record.
    Defendant:
    E
    Gender:
    Male
    Nationality:
    Pakistani
    Born:
    1982
    No prior criminal record.

    Charges / Claims / Decisions

    Defendant:
    H
    Statute:
    Criminal Code Article 318bis (1), (2), (4) and (5) Crimes against the rights of foreign citizens
    Defendant:
    D
    Statute:
    Criminal Code Article 318bis (1), (2), (4) and (5) – As an accomplice Crimes against the rights of foreign citizens
    Defendant:
    V
    Statute:
    Criminal Code Article 451 (1) Concealment
    Defendant:
    V.M
    Statute:
    Criminal Code Article 451 (1) Concealment
    Defendant:
    P
    Statute:
    Criminal Code Article 451 (1) Concealment
    Defendant:
    F
    Statute:
    Criminal Code Article 451 (1) Concealment
    Defendant:
    M
    Statute:
    Criminal Code Article 451 (1) Concealment
    Defendant:
    R
    Statute:
    Criminal Code Article 451 (1) Concealment
    Defendant:
    J.P
    Statute:
    Criminal Code Article 451 (1) Concealment
    Defendant:
    A
    Statute:
    Criminal Code Article 451 (1) Concealment
    Defendant:
    E
    Statute:
    Criminal Code Article 451 (1) Concealment

    Court

    Audiencia Provincial de Lleida

    build 377 2019-05-08T18:02:26.612+02:00