Pursuant to the Protocol against the Smuggling of Migrants, the purpose of obtaining, directly or indirectly, a financial or other material benefit is a requirement of all offences under the Protocol. It comprises any type of financial or non-financial inducement, payment, bribe, reward, advantage, privilege or service (including of a sexual nature). While benefits may be non-economic in nature, they should not include emotional fulfilment resulting from assisting illegal entry or stay of a relative or acting for humanitarian motives (see further below under the section on the humanitarian exception).
Notwithstanding the above, many States parties to UNTOC and the Protocol against the Smuggling of Migrants do not include the financial or other material benefit element in their domestic offences. Rather, in many cases it is included as an aggravating circumstance (for example, Canada, Italy, Malaysia and the United States). The reason often invoked is that including the financial or other material benefit as a constituent element of the crime would increase the burden on the prosecution.
Importantly, it is worth recalling that the focus of UNTOC and the Protocol against the Smuggling of Migrants is targeting organized criminality. As highlighted previously, migrant smuggling is appealing for organized criminal groups because of the high profits that can be earned. The argument could be made that by not including the financial or other material element in the definition of the crime, authorities may be losing focus (and deviating resources) from the type of conduct that poses a real danger to national security.
The defendant was prosecuted for having enabled the illegal stay of two foreigners in Italy, by providing accommodation. Specifically, the defendant had lodged two irregular migrants in the apartment formally rented to her, in exchange of the payment of a monthly rent. The defendant "lent" her name to one of the irregular migrants to allow circumventing rules on the registration of bails and norms on public safety. The defendant was convicted by the Court of First Instance. The ruling was upheld on appeal. However, the Court of Cassation reversed the decision.
It was highlighted that migrant smuggling in its modality of enabling illegal stay requires "dolo specifico", that is the intent of the perpetrator in obtaining an undue/unfair profit by taking advantage of the illegal situation of the migrant. In other words, it is not sufficient to favour the illegal stay of a migrant by making available to him or her a place of lodge or accommodation. It is additionally demanded the intent of perceiving an unjust profit through the exploitation of the illegal situation of the foreigner. This is materialized in the imposition, through the terms of the lease, of unfair and excessively onerous conditions on the migrant (the most vulnerable contractual party) when compared with the standard of contractual relationships or general terms of the contemporary market. This legal framework - the result of a conscious legislative decision - demands the judiciary to pay attention to the mens rea of this specific crime type.
Appeal - Case Expte. Nº 10733/2007/6
The defendants were accused of running textile ateliers (3) where several Bolivian migrants were employed. At least 12 were in Argentina in irregular situation. Some migrants lived with their families in the work place, where - according to the Prosecution - sanitary conditions were substandard. The ateliers were set in adjacent estates. There was a close relationship between the appellants, notably three of them were brothers. The prosecution argued that the defendants carried out illegal activities - i.e. facilitation of illegal stay of migrants in Argentina - as a regular activity. [The defendants were placed under precautionary detention. It followed an appeal].
The Court of Appeal (…) acknowledge[d] [the defendants] employed some irregular migrants. However, it concluded that the facts proven did not integrate the crime-type of migrant smuggling, in the modality of "facilitating illegal stay". Specifically: (…)