Case Law Database

Smuggling of migrants


• Enabling illegal entry
• Enabling illegal stay


• sea

Resolución 3/2016

Fact Summary

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.



Legal findings:

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”. 

Commentary and Significant Features

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


  • The applicable regime to the entry, transit and stay of foreigner in Spain varies according to whether they are nationals – or relatives of nationals – of Member States of the European Union or Economic European Area (EEA), on the one hand, or third countries, on the other. This is so as per (i) Article 1 Real Decreto 240/2007, (ii) Articles 1 and 25 Ley Orgánica sobre los Derechos y Liberdades de los Extranjeros en España y su Integración Social, and (iii) Article 3 Regulation (EC) No 562/2006 of the European Parliament and of the Council of 15 March 2006 establishing a Community Code on the rules governing the movement of persons across borders (Schengen Borders Code).
  • In line with Article 25 Ley Orgánica sobre los Derechos y Liberdades de los Extranjeros en España y su Integración Social, the entry in Spain of non-nationals of the European Union or EEA shall present the necessary valid documents to attest (i) their identity (notably, an authentic passport), (ii) the purpose and scope of the stay in the country, (iii) the fact that they possess means of subsistence while in Spain or are in the position to provide for them.
  • The historical special relations between the Spanish autonomous city of Ceuta and Morocco have dictated a specific regime re the entry, circulation and stay of Moroccans therein. Thus, it is important to note that the facts under appraisal in the instant case regard the facilitation of illegal entry, transit and stay of an irregular Moroccan migrant in mainland Spain, independent of whether the same migrant was entitled or otherwise to enter, transit and stay in the territory of Ceuta.
  • The version of Article 318 bis Criminal Code in force at the time of the events punished the conduct of those that “directly or indirectly, promote, favour or facilitate illegal trafficking or clandestine migration of individuals from, in transit or with destination to Spain, or with destination to another country of the European Union”. While the scope of the provision is very ample – and regardless the position one may adopt regarding its fairness – it definitely intended to contemplate those situations whereby someone resorted to deceiving mechanisms – including fraudulent documents – to elude border control authorities. There is, in such situations, an extra quidthat goes beyond the mere breach of migratory fluxes’ control. This is precisely what occurred in casu. One is, at least, in presence of a situation of facilitation of clandestine migration.
  • Article 318 bis (5) establishes the attenuated crime-type of migrant smuggling, in consideration of the (i) minor gravity of the crime, (ii) specific personal circumstances of the defendant, and (iii) purpose pursued with the criminal conduct.
  • The general attenuating circumstance provided for in Article 23 Criminal Code – familial bonds – is to be applied in the instant case because, if for nothing else, the Public Prosecutor invoked its application. The Provincial Court is thus bound by the prohibition of reformatio in pejus.


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).

Sentence Date:
Provincial Court of Cádiz

Cross-Cutting Issues


... for

• completed offence

... based on

• criminal intention

... as involves

• principal offender(s)



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

Involved Countries



Investigation Procedure

Involved Agencies

• Criminal Police
• Public Prosecutor

Procedural Information

Legal System:
Civil Law
Type of Proceeding:
Proceeding #1:
  • Stage:
  • Details:
  • Official Case Reference:
    Resolución 3/2016
  • Court

    Court Title

    Provincial Court of Cádiz

    Court Title

    Audiencia Provincial de Cádiz


  • City/Town:
  • Province:
  • • Criminal


    Summary proceedings 0000015/2012. Oral proceedings took place on 15 December 2015.



  • Verdict:
  • Sentences


    Term of Imprisonment:
     11 Months

    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.


    Other Sanctions

    Suspension of the right to be elected for public office for the duration of the sentence

    Defendants / Respondents in the first instance


    No prior criminal record. In custody from 1 October 2011 until 26 October 2011, for reasons related to the instant case.

    Charges / Claims / Decisions

    Crimes against the rights of foreign citizens
    Criminal CodeArticle 318bis (1) and (5)
    Use of authentic identification document by unauthorised person (necessary accomplice)
    Criminal CodeArticles 392 (2) and 400 bis