As in all criminal cases, investigations and prosecutions of migrant smuggling must be sensitive to due process requirements and their impact on the admissibility of evidence. The examples below are illustrative of migrant smuggling cases in which evidence was declared inadmissible.
On 17 September 2012, the Services of Maritime Rescue of Cartagena (Spain) detected a small unseaworthy vessel off the coast of the city. The Coast Guard soon rescued the vessel, on board of which - in addition to the defendants - 14 Algerian migrants were found. The vessel had departed the previous day from the beach of Bouski Sidi Lakhdar, in the coast of Mostaganem (Algeria), in direction of Spain. The defendants helmed the boat. Migrants paid app. 6 000 000 dinars each for the trip. It was ascertained that the defendants had for several years been organizing smuggling ventures to procure the illegal entry of Algerian nationals into Spain by sea, with the purpose of obtaining a financial or other material benefit. In deciding the case, the court of first instance considered inter alia statements of the smuggled migrants given during the pre-trial phase.
The defendants were convicted. The Défense appealed, arguing, among other aspects, for the inadmissibility of declarations provided by a protected witness that did not attend court sessions. It contended that there had not been an exhaustion of all means to ensure the presence of the witness in court or his or her statements by video conference. The Supreme Court ruled out the appeal.
The Supreme Court highlighted that pre-trial evidence, duly documented and obtained in compliance with the principle of contradictory, is admissible in court if reasonable measures to ensure the presence of the witness in court were taken (even though ultimately with no success, as in the present case). The rights of the accused and principles of due process will not be breached if such conditions are fulfilled (e.g. witness interviewed in presence of the Prosecutor, investigative judge, and legal counsel of the defendant). If the Défense did not question the witness at the time of the pre-trial hearing for reasons imputable to itself, it may not later invoke this argument to challenge the admissibility of pre-trial evidence. Importantly, the constitutional protection refers to the possibility of exercising the contradictory rather than occurrence of contradiction.
United States of America v. N.B.L. et al
From 31 July 2000, through December 2000, the defendants wilfully, and knowingly, with the purpose of obtaining a financial or other material benefit, conspired to commit various offenses including hiring irregular migrants, providing false immigration documents, completing false immigration forms, and representing to the Nebraska (United States) Department of Labour that false social security numbers provided by irregular migrants were genuine. The defendants further recruited and provided transportation to migrants. The conduct of two confidential informants and an undercover Immigration and Naturalization Service (INS)agent prior to 5 December 2000, provides the factual basis for the overt acts. On 5 December 2000, the INS executed search warrants and conducted a raid at the company where the migrants were employed. The INS found and detained over 200 irregular migrants. The precise number of aliens is unclear because the government's records were not detailed. Apparently because it was costing the Government over 11000 USD per day to hold the migrants, on 6 and 7 December 2000, approximately 152 migrants were removed from the United States. Other 19 migrants were held in custody and sent to Dallas, Texas (U.S.A.) to appear before immigration judges. Others - 30 -, according to INS estimation - were released on their own recognizance. Of those released on their own recognizance, at least 11 became fugitives. Ultimately, the INS admitted that at least 181 migrants were either deported or were "voluntarily returned". The whereabouts of the others remained unknown to the INS.
Some of the defendants submitted motions to dismiss the indictment due to loss of material and favourable evidence.The Judge issued an order precluding the Government from using at trial any evidence regarding the hundreds of irregular migrants who were removed from the country. The Prosecution appealed against this order. The U.S. District Court for the District of Nebraska granted the motions of the defendants, consequently dismissing the indictments.
The Court determined, among other things, that the Sixth Amendment's assurance of compulsory process and the Fifth Amendment's guarantee of due process prohibit the government from seizing irregular migrants and removing them from this country when the result of that action is to deny criminal defendants favourable and material testimony from those absent aliens (United States v. Valenzuela-Bernal, 1982). Notably, "when a witness has been deported prior to a criminal trial, the defendant can demonstrate a denial of compulsory and due process which require the dismissal of the indictment if he or she makes "a plausible showing that the testimony of the deported witnesses would have been material and favourable to his defence, in ways not merely cumulative to the testimony of available witnesses". (…)
The defendants are obligated to prove bad faith to secure dismissal of the indictment. The element of bad faith can be proven in one of two ways: show that the Government: (i) departed from normal deportation procedures, or (ii) deported the irregular migrants to gain an unfair tactical advantage over the defendant at trial. In view of the facts of the case, the Government acted in bad faith when deporting the detained irregular migrants. (…)