Participation in an organized criminal group

Offences

• Agreement to commit a serious crime (conspiracy)
• 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

Keywords

• Overt act in furtherance of agreement
• conspiracy
• criminal association

Smuggling of migrants

Offences

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

Processo 294/07

UNODC No.:
PORh002

Fact Summary

From early 2005 until 12 April 2006, G.V. – aware of the high number of Moldovan citizens wishing to go and work in Portugal – orchestrated a plan intended to facilitate the illegal entry of such individuals in Portugal. Her scope was to procure fraudulent work permits to interested Moldovans upon payment of 2000 Euro per person. This amount increased to 2500 Euro in November 2005. The work permits were issued at the Embassy of Portugal in Romania, in the context of a procedure that initiated in Portugal and depended of fictitious offers of work in Portugal. G.V. gathered the support of a number of people of her trust who assisted her in executing her criminal plan. The latter lied on three main vectors: (i) contact with, and recruitment of, interested migrants in Moldova; (ii) procurement of necessary documentation in Portugal (under the direct supervision of G.V.); (iii) supervision and coordination of the two afore-mentioned vectors (also under supervision of G.V). G.V. followed closely the different “individual files”, from the compilation of all relevant data and documents to referral to the consular services.
G.V., together with her closest associates, tried to gather the support of other persons necessary to the successful development of the criminal plan, notably businessmen (especially in the areas of construction and agriculture) who were willing to “sell” false offers of work. These businessmen perceived between 300 and 600 Euro for each fictitious job offer. They never intended to take on any migrant as a worker.
The appellant – a businessmen in the field of agriculture – was one of the persons who agreed to issue false offers of work, within the criminal scheme orchestrated by G.V., with the purpose of obtaining a financial gain. He never actually admitted any of such migrants at his service. It has not been determined the exact amount of the compensation he received for the job offer he issued.
 
Approximately in September 2005, G.V. delivered to the appellant the data of several Moldovan potential migrants. Acting upon it, the appellant prepared and signed the corresponding job offers. G.V. had established criminal links with individuals working in a number of governmental services, the positive feedback of which was essential to obtain the work permits for the interested Moldovan migrants. The members of the organised criminal group - if necessary in order to expedite the procedure - also falsified documents, e.g. by signing instead of the migrants. Various visas were issued as a result of this criminal venture. This scheme led to the entry in Portugal of several migrants in possession of documents fraudulently obtained.
 
At a certain stage, the Embassy of Portugal in Bucharest became suspicious of the number of offers of work issued by the same individuals. It then decided to suspend the consular files relating thereto. In view of the delay in obtaining the work permits and after being informed by the Embassy of Portugal that the concerned files were under investigation, G.V. attempted to destroy all documents connecting her to the criminal plan. Notably, she threw into rubbish containers, inter alia, one offer of contract issued by the appellant.
 
In ascertaining the facts, authorities relied on (i) interception of communications; (ii) documental evidence (e.g. the investigation retrieved at least 6 offers of work issued by the appellant dated 1 September and 10 November 2005), and; (iii) testimonial evidence (namely from the appellant and officers of the Service of Foreigners and Borders regarding the investigations carried out in this case).
 
Legal findings:
The Court of First Instance of L convicted the appellant of one count of migrant smuggling (auxílio à imigração illegal).
The Court of Appeal of Évora (Portugal) partially overturned the decision.
 
For further details see “History of Proceedings” and “Commentary”. 

Commentary and Significant Features

The Court of Appeal partially overturned the decision. In doing so it determined as follows:
  • The Public Prosecutor did not answer to the Defence’s allegation on appeal that there had been no proof that the migrants to whom the appellant issued the offers of work had actually entered into Portugal. There is nothing in the evidence available contesting the position of the Defence. The Court of Appeal thus admitted the appeal on this point. This is an important point that bears consequences on the legal qualification of the facts.
  • It is unquestionable that “valid” documents issued by the proper institutions on the basis of false, erroneous or fraudulent information are “illegal”. Entry, transit and stay in Portugal on grounds of such documents will be undoubtedly “illegal”.
  • The objective elements of the crime of “assistance to illegal immigration” are favouring or facilitating the illegal entry, transit or stay in the country. The means by which one favours or facilitates can be any and are not defined by law. They include procuring a fraudulent document, like the appellant did in the instant case, hiding or providing accommodation to the irregular migrant. The subjective element amounts to the knowledge and willingness to take on an action that the perpetrator is aware will assist the potential migrant in entering, transiting or staying illegally in the country.
  • The crime of assistance to irregular immigration is a “crime de perigo abstracto”, that is the situation of favouring or facilitating irregular immigration entails per se a risk to the fundamental rights – and even the human dignity - of concerned foreign citizens, in addition to threatening the migration policy of the State, the European Union and related interests of public order. Thus, the simple proof of the conduct is enough to criminally punish the agent. The appellant committed the crime of migrant smuggling and is subject to punishment.
  • This notwithstanding, while migrant smuggling is a crime of perigo abstracto in relation to the juridical assets protected, it is a crime of result regarding the object of the action. In order words, the crime will be deemed perpetrated only if the migrant actually entered, transited or stayed in Portugal in an illegal situation. It is not necessary that the migrant reaches a specific location in the country or that the country accepts him or her.
Accordingly, in view of the above and bearing in mind that it was not proved that any of the migrants to whom the appellant issued offers of work actually entered the country, the appellant were to be punished under the framework of the crime of migrant smuggling but in the form of attempt. This must be the conclusion given that only the conduct of facilitation of illegal entry of migrants in the country was proved but not the achievement of the ultimate goal, i.e. their entry in irregular terms.
 
The Court of Appeal then reviewed the penalty applied to the appellant, given that he was convicted of attempted migrant smuggling. It noted the gravity of the crime and the negative impact it causes on social security, well-being of migrants and public order. It further noted that the economic situation of the appellant was not particularly complicated and that he acted out of pure greed. Conversely, it took into account that the appellant is well integrated in the society, is a work and family man. Following this balancing exercise, the Court of Appeal established the new penalty of 10 months suspended, with the possibility of being replaced by a fine (240 days X 7,50 Euro, in the total amount of 1800 Euro). Were the appellant to choose this latter option, the requirement of paying 2500 Euros to the legal person working for the support of migrants original from the East of Europe as condition for the suspension of the execution of the penalty of imprisonment would be logically revoked.
 
NOTE: As per Portuguese 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 – Portugal).
Sentence Date:
2015-01-06

Cross Cutting

Liability

... for

• attempt

... based on

• criminal intention

... as involves

• principal offender(s)

Application of the Convention

Details

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

Involved Countries

Portugal

Romania

Republic of Moldova

Investigation

Involved Agencies

• Criminal Police
• Public Prosecutor

Details

• controlled delivery

• Gender Dimension

Procedural Information

Legal System:
Civil Law
Latest Court Ruling:
Appellate Court
Type of Proceeding:
Criminal
 

The Court od First Instance of L. convicted the appellant of one count of migrant smuggling (“assistance to illegal immigration”). In so deciding the Court highlighted the incoherence and contradictions in the version of facts of the appellant vis-à-vis the evidence available and the rules of logic and common experience.

It followed the appeal under analysis.

 
 

Migrants

Migrant:
Nationality:
Moldovan
Exact number not indicated in the decision

Defendants / Respondents in the first instance

Defendant:
MHPR
Gender:
Female
Nationality:
Portuguese
Legal Reasoning:
On appeal, the Defence argued: (i) lack of evidence supporting the facts considered proven in first instance and that had led to the conviction. The Defence also sustained that there was no proof that the migrants (related to the offers of work issued by the appellant) ever entered Portugal, which would compromise the occurrence of the crime.

Charges / Claims / Decisions

Defendant:
MHPR
Verdict:
Guilty
Statute:
Decree Law 244/98, of 8 August, later amended by Decree Law 34/2003, of 25 February, on Entry, Stay, Exit and Removal of Foreigners from National Territory (“Entrada, Permanência, Saída e Afastamento de Estrangeiros do Território Nacional”) Articles 134 (1) and (2) and 136 Assistance to illegal immigration (“Auxílio à imigração illegal”) Guilty
Term of Imprisonment:
 10 Months
 
Term of imprisonment suspended upon condition of payment of 2500 Euro to a specific legal person whose core task was providing support to migrants original from the East of Europe.

Note: In first instance, the appellant had been convicted to 15 months imprisonment. The execution of the penalty would be suspended if the appellant delivered 2500 Euro to a specific legal person whose core task was providing support to migrants original from the East of Europe. The appellant would have to make proof thereof before the court, within six months of the sentence.
Fine / Payment to State:
1800  Euro  (Up to 10,000 USD) The appellant had the option of replacing the term of imprisonment with this fine.  

Court

Court of Appeal of Évora

Sources / Citations

Tribunal da Relação de Évora
Acórdão - Processo 294/07.0TAEVR.E1
6 January 2015
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