Smuggling of migrants

Offences

• Enabling illegal entry
• Enabling illegal stay
• Financial or other material benefit (to smuggler)

Sentencia 31357 of 2010

UNODC No.:
COLh043

Fact Summary

In February, August and October 2005, the defendant acted as the Consul of Colombia in Tulcán, Ecuador.

An application for visa, dated 13 July 2005, signed by the defendant, was addressed to the coordinator of visas and immigration of the Ministry of Foreign Relations of Colombia. Therewith, the defendant endorsed the request of the applicant (Chinese foreigner), ascertaining he had personally interviewed him at the Consulate of Colombia in Tulcán. The defendant noted in his observations that the alleged interviewee had “manifested his intent of staying legally in Colombia, with his family”. Yet, it was proven that said individual had never left his home country, China (confirmation by the Administrative Security Services (Departamento Administrativo de Seguridad)). Similar proceedings, in similar circumstances, were followed in respect of a Chinese female foreigner. The visa application was dated 15 September 2005. Other five equivalent instances of facilitation of illegal entry and stay of Chinese nationals were determined. The documents issued by the defendant informed the authorization later issued by the public officer in charge for the issuing of visas in the Ministry of Foreign Relations of Colombia.

The seven Chinese nationals entered Colombia illegally by failing to comply with the legal requisites determined by law to the effect.

In ascertaining the facts, authorities relied much on documental evidence.

Legal findings

The defendant was convicted of falsification of official document, procedural fraud and migrant smuggling. He was sentenced to 13 years’ imprisonment.

For further details see “Procedural History” and “Commentary”. 

Commentary and Significant Features

The Supreme Court of Justice noted as follows:

  • In his quality of public official, the defendant issued documents aimed at supporting the approval of Colombian visas to Chinese nationals. The defendant was aware such documents contained facts he knew did not correspond to the truth. The defendant made false declarations endorsing false facts. The afore-mentioned fraudulent documents informed the decision, i.e. visa authorization, issued by the competent officer in the Ministry of Foreign Relations of Colombia. With his behavior, the defendant facilitated the illegal entry and stay in Colombia of seven Chinese migrants. Said migrants indeed entered Colombia.
  • Article 188 Criminal Code determines that those promoting, inducing, forcing, facilitating, financing, collaborating or any other way participating in the entry or exit of persons in or from the country, without fulfilling the necessary legal requirements, with the purpose of obtaining a financial or other material benefit, will incur into a penalty of six to eight years’ imprisonment. This constitutes a so-called ‘blank criminal norm’ insofar as its concrete constituent elements are defined – also – via other legal provisions. That is, the “necessary legal requirements” are not listed in Article 188 Criminal Code. Given that such requisites are often defined by decree or regulation, the principle of non-retroactivity needs to be carefully assessed so as to give effect to the application of the most favourable penal law maxim. In this respect, it is important to stress that in 2005 was applicable Decree 0273 of 27 January 2005, which imposed on Chinese nationals the need for visas to enter and stay in Colombia. The Decree was abolished on 1 January 2007. Relevantly, the variations of legal requirements re entry or stay do not affect the core of the criminal type but rather adapt its application to existing and variable circumstances. What is punishable by Article 188 is the facilitation of illegal entry or stay. This core remained unaltered.
  • Article 188 Criminal Code protects both personal autonomy and the sovereignty of the State. This legal provision is to be understood and interpreted in light of international legal instruments that intend to combat organized criminality, notably the United Nations Convention against Transnational Organised Crime (UNTOC) and its Supplementing Protocols (including the Protocol against the Smuggling of Migrants by Land, Sea and Air). Following Law 800 of 2003, the Constitutional Court declared UNTOC and its Protocols incorporated and applicable within the Colombian legal order (Sentencia C-962 of 21 October 2003). Law 800 of 2003 was the subject of a favourable assessment of constitutionality, bearing in mind inter alia the maxim that the most favourable penal law in time is to apply to the defendant. In addition, it is relevant to recall United Nations General Assembly Resolution A/RES/54212, of February 2000. This document set forth the ground and support for the Protocol against the Smuggling of Migrants by Land, Sea and Air. Being an emanation of the UN General Assembly, it integrates the realm of general principles of law, the observation of which is mandatory.
  • The introduction of the ‘intent to obtain a financial or other material benefit’ as a constituent element of the crime type occurred by legal reform operated by Law 747 of 2002 in order to make national legislation meet the requirements set forth in international law, especially the Protocol against the Smuggling of Migrants by Land, Sea and Air. It is not necessary to prove the defendant actually perceived a profit; rather, it suffices the intent to do so. The perception of profit is not a part or component of the realization of the conduct. It rather concerns the utilization of the products arising out of the criminal conduct (agotamiento).
  • It is irrelevant that irregular migrants consented to the smuggling venture because this affects neither the danger they were submitted to nor the breach to the interests of the sovereign State. This approach is consistent with international law (including the Protocol against the Smuggling of Migrants by Land, Sea and Air) and the principles of Human Rights Law.
  • In the instant case, the applicable penalty for migrant smuggling (i.e. six to eight years’ imprisonment) shall be increased in view of the occurrence of the aggravating factor enshrined in Article 188B (4) Criminal Code, that is perpetration of the crime by public officer. In such circumstances, the penalty frame varies between ten years and eight months and 18 years’ imprisonment. The applicable penalty for migrant smuggling was set at 130 months’ imprisonment.

 

Against this background, in view of the doctrine of real concurrence of offences (as the defendant was also convicted of falsification of public documents and procedural fraud), the Supreme Court sentenced the defendant to the overall penalty of 13 years’ imprisonment.

 

 

NOTE: As per Colombian national law, the purpose of obtaining a financial or other benefit, for the perpetrator or a third party, is a constitutive element of the crime (see SHERLOC Database of Legislation - Colombia).

Sentence Date:
2010-06-23

Cross Cutting

Liability

... for

• completed offence

... based on

• criminal intention

... as involves

• principal offender(s)

Application of the Convention

Details

• occurred across one (or more) international borders (transnationally)

Involved Countries

Colombia

China

Investigation

Involved Agencies

• Criminal Police
• Public Prosecutor

Procedural Information

Legal System:
Civil Law
Latest Court Ruling:
Supreme Court
Type of Proceeding:
Criminal
 
 
 
Proceeding #1:
  • Stage:
    first trial
  • Is the decision appealable?:
    No
  • Details:
    Trial
  • Official Case Reference:
    Sentencia 31357
  • Decision Date:
    23 June 2010

    Court

    Court Title:
    Corte Suprema de Justicia
    Supreme Court of Justice
     

    Location

  • City/Town:
    Bogota'
  • • Criminal

    Outcome

  • Verdict:
    Guilty
  • Sentences

    Sentence

    Term of Imprisonment:
    13 years
     

    Seven years interdiction to the exercise of public functions or office (overall penalty re all convictions)

     

    NOTE: The defendant was sentenced to (i) 130 months’ imprisonment for migrant smuggling, (ii) 66 months’ imprisonment for falsification of official document, and (iii) 91 months’ imprisonment for procedural fraud. The final and overall sentence determined in line with the doctrine of real concurrence of offences was 13 years’ imprisonment

    Migrants

    Migrant:
    Nationality:
    Chinese
    7 unspecified migrants

    Defendants / Respondents in the first instance

    Defendant:
    G.R.D.D
    Gender:
    Male
    Nationality:
    Colombian
    Age:
    53
    Born:
    1957

    Consul of Colombia in Tulcán, Ecuador.

    The Defence argued inter alia that no evidence was available demonstrating the defendant had perceived a financial or other material benefit. In such circumstances, the crime of migrant smuggling could not be deemed perpetrated

    Charges / Claims / Decisions

    Defendant:
    G.R.D.D
    Statute:
    Criminal Code Article 188 Smuggling of migrants
    Statute:
    Criminal Code Article 286 Forging of official document by public officer
    Statute:
    Criminal Code Article 453 Procedural Fraud
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