Case Law Database

Smuggling of migrants


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


• Endangering lives or safety of smuggled migrants

Resolución 281/2004

Fact Summary

Date(s) of offending: on/from 1 Aug 2004 to 1 Aug 2004

At the early hours of 1 August 2004, the defendant initiated swimming from a point in the coast of Morocco towards Ceuta (Spanish autonomous city located in the north coast of Africa). He did so while towing an undocumented migrant, national of Cameroon, who had paid him an undetermined fee to the effect. The defendant was equipped with a neoprene suit and fins. The migrant was himself equipped with a neoprene suit and a floating device. The defendant’s purpose was to facilitate the illegal entry of the irregular migrant in Spain.

Both individuals were detected by an officer of the Guardia Civil - who was, at the time, in a surveillance tower in the border control post – via a night vision device. The Maritime Service of the Civil Police was immediately informed of the occurrence.

At the time, the weather was foggy and windy. The sea presented slight to medium turbulence.

A patrol of the Maritime Service of the Guardia Civil searched for the defendant and the irregular migrant at sea. They were detected at approximately 3.30 a.m., at roughly one mile off the coast of Ceuta. They were rescued into the ship of the Guardia Civil and detained.

The defendant denied to have perceived any financial or other material benefit for his ‘services’. He declared that himself was an irregular migrant attempting to enter in Spain. This notwithstanding, both the defendant and the irregular migrant confirmed the latter had bought the neoprene suit the defendant wore in exchange for his help in reaching Spanish territory.


In ascertaining the facts, authorities relied much on testimonial evidence (from the defendant and irregular migrant as well as the law-enforcement officers involved in their detection, rescue and detention). Documental evidence was equally considered. Notably, in order to substantiate the dangers for the life of the irregular migrant, it was pondered a certified list of individuals that had died in 2003 and 2004 (thus far) while attempting to reach Spain via a modus operandi similar to the one employed by the defendant.


Legal findings:


The Audiencia Provincial de Cádiz (Spain)convicted the defendant of migrant smuggling.


For further details see “Commentary”. 

Commentary and Significant Features

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).

Cross-Cutting Issues


... for

• completed offence

... based on

• criminal intention

... as involves

• principal offender(s)
• organiser/director



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

Involved Countries



Investigation Procedure

Involved Agencies

• Guardia Civil, Criminal Police, Public Prosecutor

Procedural Information

Legal System:
Civil Law
Proceeding #1:
  • Stage:
    first trial
  • Official Case Reference:
    Resolución 281/2004
  • Decision Date:
    10 November 2004


    Court Title

    Audiencia Provincial de Cádiz (Spain)
    Provincial Court of Cádiz


  • City/Town:
    Ceuta (Spain)
  • • Criminal


    The competent Investigative Judge of Ceuta (Magistrate’s Court Nº 1) referred the case against the defendants to the Provincial Court of Cádiz. Oral proceedings took place on 10 November 2004. The defendant had been under custody since 1 August 2004 in relation to the proceedings herewith examined.


  • Verdict:
  • Migrants


    Defendants / Respondents in the first instance

    Number of other accused:

    Remanded in custody since 1 August 2004.

    Undocumented migrant.

    No prior criminal record.

    The Defence argued for the acquittal of the defendant or, alternatively, that he be sentenced to three years and six months’ imprisonment.

    Charges / Claims / Decisions

    Crimes against the rights of foreign citizens
    Criminal CodeArticle 318bis (1), (3) and (6)
    Term of Imprisonment:
    6 years
    Other sanctions: Interdiction of being elected to public office during the same period
    Other sanctions:

    Interdiction of being elected to public office during the same period