The Audiencia Provincial de Cádiz (Spain) noted as follows:

• The evidence submitted and the facts proven support the conclusion that a crime of migrant smuggling (‘crimes against the rights of foreign citizens’) – as per Article 318 bis Criminal Code - was committed.
• Article 318 bis (1) Criminal Code punishes anyone who – directly or indirectly - favours, promotes or facilitates the smuggling of migrants (tráfico de personas) or irregular migration (inmigración clandestina). It includes facilitation of movements of irregular migrants (i) from abroad into Spain, (ii) from Spain abroad, and (iii) within Spain if it is related to the smuggling venture.
• In the instant case, the criminal conduct was aggravated by the fact that the modus operandi employed to smuggle the undocumented migrant into Spain (so-called “motores humanos”, i.e. human engines) posed increased risks to the life and physical integrity of the migrant, who did not know how to swim. In addition, when rescued by law-enforcement agents, both individuals presented symptoms of hypothermia and tiredness. The conditions of the sea, weather and wind added to the perils faced by the migrant (and the defendant). Furthermore, it is well known – in view of the amount of similar cases dealt with by authorities – that the area where the defendant and the irregular migrants were rescued (i.e. North of Ceuta) is characterised by strong and dangerous tides and sea streams. The following factors enhanced the risk of death of the migrant:
  • Distance already travelled, distance remaining to the coast, and the fact that only the defendant was equipped with propelling fins. In such circumstances, in the face of a setback in the physical condition of the defendant (coupled with the strenuous surroundings), the latter would have likely been obliged to abandon the migrant in order to save himself.
  • Long time of exposure to very low temperatures. Furthermore, even is the defendant had been able to tow the irregular migrant to the coast, the migrant could still have died because of the water’s effect of diffusion of heat. Documental evidence indeed attested that, in 2003, 11 persons had died in such conditions. In 2004, thus far, five persons had perished in similar circumstances.
  • The risk to the life and physical integrity of migrants (aggravating circumstance in the crime of migrant smuggling, as per Article 318 bis (3) Criminal Code) is not to be assessed in concreto. Rather, it is to be evaluated ex anteon the basis of a number of circumstances occurring in the specific case - e.g. the temperature of the water, whether the migrant knew how to swim, distance to the coast, conditions of the sea – per se able to lead to the objective and logical conclusion that a serious risk for the life or physical integrity of the migrant could have originated therefrom. In view of the specifics of the case, the fact that the distance to the coast was not major when the defendant and the irregular migrant were rescued does not suffice to exclude a serious risk of harm to the latter.
  • The conduct of the defendant was motivated by the intent of obtaining a financial or other material benefit. Even though the defendant so denies, it is inexplicable that a person would risk such a dangerous venture to assist persons that are not his or her relatives or co-nationals simply for humanitarian or solidarity reasons. Such behaviour is only explicable by a profitable motive. Furthermore, the equipment necessary to pursue a similar endeavour is expensive. While the amount paid by the irregular migrant to the defendant was not determined, both admitted that the irregular migrant had bought the neoprene suit used by the defendant in exchange for the latter’s assistance in travelling to Spain. This alone amount to a material benefit.
  • The fact that the defendant declared to be himself – and might indeed have been - an irregular migrant attempting to enter Spain is not sufficient to exclude criminal responsibility. In addition, he perceived a financial or other material benefit for his ‘services’. This excludes any argument that he might have acted on humanitarian grounds or for solidarity purposes.

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).