On 1 October 2011, at approximately 23.50, police authorities in the Maritime Station of Ceuta (Spain) assessed the vehicle driven by the defendant. The defendant intended to board the ferry in direction to Algeciras (mainland Spain). Authorities realised he was transporting a female woman – later determined to be his life partner – who did not possess the necessary documents to enter Spain. The defendant had provided his partner with an authentic Moroccan passport and a Spanish residence permit belonging to another person. He submitted these documents to authorities with the purpose of deceiving them and, consequently, receiving authorisation to board the ferry with his companion. In the vehicle also travelled the newly born son of the defendant and his common law wife.
The Public Prosecutor had initially pursued criminal charges against the defendant’s companion for use of an authentic ID by an unauthorised person. The case against her was later dropped. The Provincial Court of Cádiz (Spain) convicted the defendant of attenuated migrant smuggling and, as necessary accomplice, use of an authentic identification document by unauthorised person.
For further details see “Commentary”.
Summary proceedings 0000015/2012. Oral proceedings took place on 15 December 2015.
9 months for migrant smuggling and 2 months and 29 days for use of authentic identification document by unauthorised person
Note: The Provincial Court of Cádiz determined the replacement of the penalty of imprisonment for migrant smuggling by a fine in the amount of 1436 Euro.
Amount: 1 month and 14 days at the daily rate of 2 Euro.
No prior criminal record. In custody from 1 October 2011 until 26 October 2011, for reasons related to the instant case.
The Audiencia Provincial de Cádiz (Spain) noted as follows:
Against this background, the Provincial Court of Cádiz convicted the defendant of attenuated migrant smuggling and, as necessary accomplice, use of an authentic ID by unauthorised person. Importantly, the Court noted that while the legal reform of the Criminal Code (and Article 318 bis specifically) had established lighter penalties for migrant smuggling, the previous version of the incriminating norm allowed for the replacement of imprisonment penalties by fines. Accordingly, it resorted to the law most beneficial to the defendant – i.e. the law in force at the time of events - in agreement with the Public Prosecutor. Consequently, it determined the penalty of imprisonment should be replaced by a fine of 1436 Euro.
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).