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).