Smuggling of migrants

Offences

• Enabling illegal entry
• Procuring, providing or possessing a fraudulent travel or identity document in connection with migrant smuggling

Aggravations

• Endangering lives or safety of smuggled migrants

Resolución 55/2016

UNODC No.:
ESPh35

Fact Summary

On 22 May 2016, at approximately 00.37, the defendant endeavoured to cross from Morocco to Spain through the border point of Beni-Enzar (Morocco). He was driving a vehicle with a fraudulent licence plate.

The vehicle enclosed two hidden compartments. Specifically, a metallic construction had been introduced behind the rear seat and in the front of the vehicle, just under the dashboard, between the glove compartment and the engine. Following a search operation, law-enforcement agents discovered two migrants in the hidden compartment at the front of the car and one migrant hiding in the rear cubicle. The three migrants were not in possession of the necessary documentation to legally enter and stay in Spain.

 

The defendant entered a plea bargain, having agreed with the qualification of the facts and the applied penalty. In particular, he conceded to the existence of aggravating circumstances: (i) endangerment of life and safety of migrants, (ii) recidivism.

 

Legal findings:

The Audiencia Provincial de Melilla (Spain) convicted the defendant of migrant smuggling and falsification of documents.

 

For further details see “Commentary”.

Commentary and Significant Features

The sentencing in this case was based on a guilty plea entered into by the defendant. The latter agreed his acts configured the crimes of migrant smuggling and falsification of documents. The defendant further agreed that his conduct had triggered aggravating circumstances, notably endangerment of the life and safety of migrants. His conduct resulted further aggravated by the fact that he was a recidivist for the same type of crime, that is migrant smuggling. He had finished serving his previous sentence (four years’ imprisonment) shortly before the events at stake in this case.

In respect of the aggravating circumstance of endangering the life and safety of migrants – and following prior jurisprudence (e.g. STS 887/2005, STS 1025/2012) – the following elements appear as indicators that paragraph 3 of Article 318 bis Criminal Code is to be triggered: (i) reduced dimensions of the hidden compartments where the migrants were transported, (ii) lack of ventilation, (iii) inhalation of contaminated air due to closeness to the engine, (iv) impossibility of moving.

 

When compared with Resolución 54/2016 Audiencia Provincial de Melilla, it is interesting to note that in casu – and even though both cases are based on a guilty plea and entailed endangerment of life and safety of migrants – the aggravating circumstance of recidivism led to a penalty two years’ higher.

Against this background, the Audiencia Provincial de Melilla convicted the defendant of aggravated migrant smuggling and falsification of documents.

 

 

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:
2016-12-21

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

Spain

Morocco

Investigation

Involved Agencies

• Criminal Police
• Public Prosecutor

Confiscation & Seizure

Seized Property:
Vehicle employed in the smuggling venture
 

Procedural Information

Legal System:
Civil Law
 
Proceeding #1:
  • Stage:
    other
  • Is the decision appealable?:
    Yes
  • Details:
    Judgment
  • Official Case Reference:
    Resolución 55/2016
  • Court

    Court Title:
    Provincial Court of Melilla
     
    Court Title:
    Audiencia Provincial de Melilla
     

    Location

  • City/Town:
    Melilla (Spain)
  • • Criminal
    Description:

    The Magistrate’s Court nº 4 of Melilla (Spain) referred the case against the defendant (Rollo de Sala 55/16) to the Provincial Court of Melilla.

     

    Outcome

  • Verdict:
    Guilty
  • Sentences

    Sentence

    Term of Imprisonment:
    6 years
     
    Fine of six months at the daily rate of 6 Euro (for falsification of documents)
    Other Sanctions:
    Suspension of the right to be elected for public office for the duration of the sentence
     

    Migrants

    Migrant:
    3 persons
    Gender:
    Male
    Nationality:
    Guinean

    Defendants / Respondents in the first instance

    Defendant:
    C.
    Gender:
    Male
    Nationality:
    Spanish
    Born:
    1955
    With prior criminal record for migrant smuggling (sentenced to four years’ imprisonment by the Provincial Court of Melilla on 25 July 2013). Remanded in custody since 23 April 2015 for crimes related to the case herein under analysis.

    Charges / Claims / Decisions

    Defendant:
    C.
    Statute:
    Criminal Code Article 318bis (1) and (3) (b) Crimes against the rights of foreign citizens (aggravated)
    Statute:
    Criminal Code Article 392 and 390 (1) Falsification of documents
    Term of Imprisonment:
    6 years
     
    Fine of six months at the daily rate of 6 Euro (for falsification of documents)

    Defendant was convicted to 6 years’ imprisonment for migrant smuggling and additionally given a fine of six months at a daily rate of 6 Euro (for falsification of documents).
    He was also suspended of the right to be elected for public office for the duration of the sentence.
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