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”.
España
MarruecosThe 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.
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).