Smuggling of migrants

Offences

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

Mode

• sea

Trafficking in persons

Offences

• Trafficking in persons (adults)

Exploitative Purposes

• Exploitation of the prostitution of others or other forms of sexual exploitation

Resolución 807/2016

UNODC No.:
ESPh030

Fact Summary

Date(s) of offending: on/from 2009 to TBC - at least, 2011

Defendant 1, originally from Nigeria, addressed in that country a woman (D.) of humble origins, promising work and a better life in Spain for a fee of 30 000 Euro. With that purpose, D. left to Morocco, where she remained nearly three years waiting for Defendant 1 to bring her to Spain. Finally, in 2009, Defendant 1 facilitated the illegal entry of D. and her five year old child, by sea, in Algeciras (Spain) for the price of 18 000 Euro. D. then travelled to Madrid (Spain) by bus, where she was received by Defendant 1. They immediately travelled by plane to Gran Canaria (Spain). D. used the passport of another person, which was given to her by Defendant 1.

D. lodged in the residence of Defendant 1, together with the latter’s husband (Defendant 2) and another woman.

D. was immediately forced to work as a prostitute by Defendants 1 and 2 as well as Defendant 3 (brother of Defendant 1) so as to pay the costs of the travel to Spain, allegedly in the amount of 18 000 Euro. Furthermore, D. should pay the costs of living, notably (i) 125 Euro for water and electricity, (ii) 50 Euro for food, (iii) 200 Euro rent. In addition, she was to pay 300 Euro to Defendant 3 for taking care of her child while she was working as a prostitute. Both D. and her son were physically abused as a means of forcing D. into prostitution. Likewise, she was threatened with harm on her and her relatives, notably though voodoo rituals. In this manner, the Defendants managed that D. always delivered the total amount of her gains at the end of the day. Defendant 2 was in charge of taking note of the payments done.

 

Victim N. became acquainted with Defendant 1 in Morocco. The latter promised the former work in a supermarket in Spain. In exchange for a money fee, Defendant 1 organised the illegal entry of N. in Spain, by sea. She arrived in Granada (Spain) in 2011, together with her son. She met an intermediary of Defendant 1 in Madrid, who delivered her false documentation so she could be able to board a plane to Gran Canaria on 2 April 2011. N. was then received by Defendant 1 and taken to the latter’s residence. She was forced into prostitution by all Defendants with the alleged purpose of paying the costs of the travel (in the reported amount of 30 000 Euro). N. was threatened with serious harm to her, her child, and close relatives, though she was never actually physically abused.

Every night, D. and N. left the residence of Defendants 1 and 2 towards a designated area where they worked as prostitutes from 00.00 to 06.00.

 

In ascertaining the facts, authorities relied on testimonial evidence and electronic surveillance (telephone bugging). Documental evidence was also considered.

 

Legal findings:

The Audiencia Provincial de Las Palmas de Gran Canaria (Spain)convicted Defendant 1of crimes against the rights of foreign citizens, enforced prostitution and trafficking in human beings. It convicted Defendants 2 and 3 of enforced prostitution.

The Supreme Court reduced the term of imprisonment for migrant smuggling (i.e., crimes against the rights of foreign citizens) from 4 years to 1-year imprisonment. It upheld the remaining of the appealed decision.

 

For further details see “Commentary”. 

Commentary and Significant Features

As far as relevant for the assessment of migrant smuggling, the Audiencia Provincial de Cádiz (Spain) noted as follows:

 

  • Defendant 1 may not invoke a breach of the rights to honour, personal image and privacy given the allegation of her involvement in voodoo rites against the victims. The fact that said victims had previously claimed such rituals were exercised by a third identified person is irrelevant because the evidence showed (i) Defendant 1 forced the victims to make such claims, (ii) Defendant 1 performed the voodoo rituals.
  • From the evidence submitted and the facts proved, it is unquestionable that a crime of migrant smuggling took place in the instant case. Defendant 1 prepared, organised and enabled the illegal entry of the victims in Spain. She did so with the intent of forcing them into prostitution, resorting to physical abuse and threats carried out by Defendants 2 and 3. She resorted to deceit to allure the victims and took advantage of their vulnerable (financial) situation. This was not a circumstance of humanitarian assistance; rather, the defendants acted with the intent of obtaining a financial or other material benefit. Mere declarations of denial bear no value against solid evidence to the contrary.
  • Even when not expressly petitioned by the defendant, the norm applicable shall be that resulting from the legal reform operated via Organic Law 1/2015, of 30 March, for it is more beneficial to the defendant (i.e., the penalties are considerably lower). It shall apply retroactively. The purposes of said legal reform were the following:

(i)             Make national law on migrant smuggling consistent with EU law in this regard, notably Framework Decision 2002/946/JAI, which reserves the most serious penalties of imprisonment (and imposes imprisonment) to cases of organised criminality and risk to the life and physical integrity of the migrant.

(ii)            Harmonise legal provisions and corresponding penalties. That is, Article 318 bis came into force to cover as well cases of trafficking in persons. The penalty frame described therein reflected the seriousness of the offences it aimed to address. With the coming into force of Article 177 bis Criminal Code (Trafficking in Human Beings), the penalty frame in Article 318 bis was unadjusted and excessive to the criminal conduct it intended to punish.

(iii)           Reflect Directive 2002/90/CE, which determines that migrant smuggling and trafficking in human beings must be regulated and punished separately.

  • Article 318bis Criminal Code, following the legal reform operated by Organic Law 1/2015, punishes the facilitation of illegal entry or transit of irregular non-EU citizens in Spain. In addition, it punishes facilitation of illegal stay in Spain for profitable purposes. The main goal is to protect the unity of European law in a matter of common interest as is the control of migratory movements. In those serious cases where the life or physical integrity of migrants have been put at risk, Article 318 bis also intends to protects the rights of foreign citizens.
  • Defendant 1 organised the illegal entry of the victims in Spain through pateras – i.e. small embarkations – that escape border-crossing points. Obviously, it cannot be argued that by not facing any border controls, the entry in Spain was legal. To the contrary, the use of such means reveal the intent of deceiving authorities and fulfils the crime type of migrant smuggling.
  • The conduct for which Defendant 1 was accused of migrant smuggling could be integrated under Article 177 bis Criminal Code (Trafficking in human beings). However, this was not done in earlier stages of the proceedings. For the Supreme Court to evaluate – at this stage of appeal – the most appropriate applicable norm, and eventually decide to apply Article 177 bis, would violate the principle of restrospectivity of most favourable criminal laws. This is so because (i) Article 177 was already in force at the time of the events, (ii) it was not invoked in the proceedings as a more suited provision than Article 318 bis to cover the facts, (iii) Organic Law 1/2015 made Article 318 bis Criminal Code much more favourable to the defendant than Article 177 bis Criminal Code.
  • There is no double punishment resulting from the fact that Defendant 1 is punished for both migrant smuggling and trafficking in human beings given that the juridical assets protected are different in both crime types.

 

Against this background, the Supreme Court reviewed the penalty applied to Defendant 1 of migrant smuggling. Specifically, it replaced the four years’ imprisonment term with one-year imprisonment (maximum penalty under Article 318 bis Criminal Code as per legal reform operated by Organic Law 1/2015).

The Supreme Court dismissed the appeal on all other grounds.

 

This case illustrates the close dynamics of migrant smuggling and trafficking in human beings, whereby victims of the former may easily become victims of the latter too. Migrants’ vulnerability (financial, linguistic, social, cultural) is key for criminals’ success. For instance, voodoo rites may hold a victim hostage more effectively than physical abuse. It will much depend on cultural beliefs and backgrounds. It is important that investigations are sensitive to/aware of these contextual realities.

 

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

Liability

... for

• completed offence

... based on

• criminal intention

... as involves

• principal offender(s)
• organiser/director

Application of the Convention

Details

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

Involved Countries

Spain

Morocco

Nigeria

Investigation

Involved Agencies

• Criminal Police, Public Prosecutor

Details

• electronic or other forms of surveillance

• Gender Dimension

Procedural Information

Legal System:
Civil Law
 
Proceeding #1:
  • Stage:
    appeal
  • Official Case Reference:
    Resolución 807/2016
  • Decision Date:
    27 October 2016

    Court

    Court Title:
    Tribunal Supremo
    Supreme Court
     

    Location

  • City/Town:
    Madrid (Spain)
  • • Criminal
    Description:
    The competent Investigative Judge in San Bartolomé de Tirajana (Spain) referred the case against the defendants (abbreviated proceedings 41/2015) to the Provincial Court of Las Palmas of Gran Canaria (Spain). Oral proceedings took place on 13 December 2005. On 25 September 2015, the Provincial Court of Las Palmas of Gran Canaria convicted the defendants of migrant smuggling, enforced prostitution and trafficking in human beings. It followed the appeal herein under analysis.
     

    Outcome

  • Verdict:
    Other
  • Other Outcome:
    Partial dismissal
     

    Migrants

    Migrant:
    2 persons
    Gender:
    Female
    Nationality:
    Nigerian
    Migrant:
    2 persons
    Gender:
    Child
    Nationality:
    Nigerian

    Victims / Plaintiffs in the first instance

    ??????:

    Did the case involve victim compensation?  YES

    Financial compensation paid: Currency: Euro  Amount: 60 000

    Other compensation:

    Further comments: Defendant 1 was sentenced to pay 30 000 Euro to N; Defendants 1,2, and 3 were sentenced to pay 30 000 Euro to D.

    Defendants / Respondents in the first instance

    Defendant:
    M.
    Gender:
    Female

    Born in Lagos, Nigeria

    Resident in Las Palmas of Gran Canaria (Spain)

    Remand in custody since 25 September 2013

    On appeal, the Defence argued inter alia a breach of (i) due process principles, (ii) presumption of innocence, (iii) principle of legality, (iv) rights to honour, personal image, and own and family privacy. It further argued that Article 318bis had been erroneously applied.
    Defendant:
    M.
    Gender:
    Male

    Husband of Defendant 1

    Born in Lagos, Nigeria

    Resident in Las Palmas of Gran Canaria (Spain)

    Remand in custody from 25 September 2013 to 21 September 2015

    Defence argued inter alia a breach of (i) presumption of innocence, (iii) principle of legality.
    Defendant:
    G.
    Gender:
    Male

    Brother of Defendant 1

    Born in Lagos, Nigeria

    Resident in Las Palmas of Gran Canaria (Spain)

    Remand in custody from 25 September 2013 to 21 September 2015

    Defence argued inter alia the erroneous application of the law.

    Charges / Claims / Decisions

    Defendant:
    M.
    Statute:
    Criminal Code Article 318bis (1), (3) and (6) Crimes against the rights of foreign citizens
    Statute:
    Criminal Code Article 188 (1) Enforced prostitution
    Statute:
    Criminal Code Article 177 bis Trafficking in human beings
    Term of Imprisonment:
    1 year
     

    NOTE: Defendant 1 had initially been sentenced to 4 years’ imprisonment for migrant smuggling (the term of imprisonment for this count was reviewed on appeal).

    In addition, Defendant 1 was sentenced to: (i) three years imprisonment and 18-month fine at the rate of 12 Euro per day, for the crime of enforced prostitution, (ii) seven years imprisonment, with interdiction of being elected to public office during the same period, for the crime of trafficking in human beings.
    Defendant:
    M.
    Statute:
    Criminal Code Article 188 (1) Enforced prostitution
    Term of Imprisonment:
    3 years
     
    Fine / Payment to State:
    216  Euro  Amount: 18-month fine at the rate of 12 Euro per day.  
    Defendant:
    G.
    Statute:
    Criminal Code Article 188 (1) Enforced prostitution
    Term of Imprisonment:
    3 years
     
    Fine / Payment to State:
    216  Euro  Amount: 18-month fine at the rate of 12 Euro per day.  
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