Base de datos de jurisprudencia

Tráfico ilícito de migrantes

Delitos

• Facilitación de la entrada ilegal
• Beneficio económico u otro beneficio de orden material (para los traficantes de migrantes)

Método

• Tierra

КОКZ-46/16

Resumen de los hechos

-       The public prosecution filed an indictment against the accused N.S.

-       By the verdict of the Basic Court in Skopje it was established that the accused N.S. committed criminal offenses Smuggling of migrants Article 418-b Paragraph 4 in conjunction with Paragraph 2.

-       The Accused N.S. was in custody as of 17.07.2015.

The Accused N.S. acknowledged that he had committed the criminal offense with which he was charged.

Comentario y aspectos destacados

Acting upon the appeal of the defence counsel of the convicted N.S. against the judgment of the Basic Court in Skopje, the Appellate Court in Skopje – Specialized Department for Investigation and Prosecution of Organized Crime and Corruption Offences (S. KOK. no. 115/15) in a closed session dismissed the appeal as unfounded and confirmed the first-instance verdict against N.S. convicting him of the criminal offence of Smuggling of Migrants under Art 418b paragraph 4 in relation to paragraph 2 of the RM CC and sentencing him to imprisonment of five years and six months.

 

Proceeding in accordance with Art 427 paragraph 1 of the Criminal Procedure Code, the court ex officio examined whether there had been a substantial violation of the criminal procedure referred to in Art 415 para. 1 items 1,5,6,8 to 11 of the CPC and found that no such violation was committed, that the impugned judgment was clear, comprehensible and completely in accordance with the rules and regulation regarding the existence of the criminal offence and criminal liability of the defendant.

 

Considering the fact that the first-instance court rendered the decision on the basis of a full, clear and unforced confession of the defendant N.S., which he had given during the examination in chief, referring to the facts which represent the description of the actions, aware of all crucial facts and the consequences that the confession entails, the first instance court, acting in keeping with law, processed and evaluated only such evidence as was relevant for deciding on the type and severity of punishment.

 

The decision of the Appellate Court emphasizes that in similar procedural situations, in accordance with Art 381 para 4 of the Criminal Procedure Code of the Republic of Macedonia, the convict has no right to appeal against the verdict on the grounds of improperly established facts. The court therefore did not consider the allegations of the convict that he had agreed on business cooperation with a transportation and logistics company Exxxxx Ltd and taken over a taxi vehicle in order to perform public transport in keeping with the Law on Road Traffic, that he had a ride to Gevgelija and that on his way back he was stopped by a group of foreign nationals. As a taxi driver, he agreed to drive them to Kumanovo, but he did not know that they were migrants. He stated that he did not have a prior agreement with them, that by checking the listing of his mobile phone it could be established that he had not communicated with anyone from the group, that no one else had hired him. He also pointed out that the indictment was based on the records and photo documentation on seized objects, which could be tampered with, so that the case could not be treated as a criminal offence, but perhaps as an infringement.

 

The Appellate Court found, on the basis of the facts, that the first instance court had correctly applied the Criminal Code, given that the actions of the convicted N.S. precisely described in the contested ruling, contained all the essential elements of the criminal offence of Smuggling of Migrants under Art 418b para 4 in relation with Art 2 of the Criminal Code, due to which the allegations on misapplication of material law were unfounded. 

 

Assessing the decision on the sentence, the Appellate Court pointed out that the first-instance court had acted correctly when it imposed imprisonment of five years and six months after taking into consideration both the mitigating and aggravating circumstances defined in Articles 39 and 40 of the Criminal Code.  In this regards, the first-instance court had correctly considered the intensity of damage to the protected good and the frequency of the criminal offence as aggravating circumstances, and - in correlation with these - the mitigating circumstances (the earlier life of the defendant, the fact that no criminal proceedings had been instituted against him, personal and family situation, material situation, circumstances and conduct following the perpetration of the offence, expressed regret and repentance for the committed criminal offence, proper conduct during the proceedings) and pronounced the sentence in accordance with the provisions pertaining to mitigation of penalties (the legislator prescribed the sentence of at least eight years of imprisonment).

Fecha de la Sentencia:
2016-09-01

Cuestiones transversales

Responsabilidad

Responsabilidad por

• Delito consumado

Base de responsabilidad

• Intención dolosa

Responsabilidad implica

• Delincuentes principales

Investigación

Organismos interesados

• Ministry of Interior
• Public Prosecutor's Office

Incautación y decomiso

Bienes incautados

Vehicle of the brand Opel Astra, mobile phone of the brand Samsung and Tablet of the brand NN.
 

Base jurídica

Objects in relation to which the offense has been committed
 
  • Base de condena:
    Decomiso en ausencia de condena
  • Observaciones

    Temporary seizure of objects
     

    Información sobre el procedimiento

    Sistema jurídico:
    Derecho continental
    Última sentencia judicial:
    Tribunal de apelación
    Tipo de Proceso:
    Penal
    Los acusados fueron juzgados:
    juntos (juicio único)
     
     
    Proceder #1:
  • Fase:
    primer proceso
  • Código de referencia oficial de la causa:
    KOK.br.115/15
  • Fecha de la Decisión:
    Mon Jun 13 00:00:00 CEST 2016

    Tribunal

    Título de la Tribunal

    The Basic Court in Skopje
    (Macedonian: Основниот суд Скопје I)
     

    Localidad

  • Ciudad/Pueblo:
    Skopje
  • • Penal

    Descripción

    Based on the facts that the Accused E.A. acknowledged that he had committed the criminal offense he was charged with, the Basic Court in Skopje has sentenced N.S. to 5 years and 6 months in prison.
     

    Resultado

  • Veredicto:
    Culpable
  • Condenas

    Condena

    Otras sanciones

    Security measure / confiscation of objects- mobile phone, tablet
     
    Proceder #2:
  • Fase:
    apelación
  • Código de referencia oficial de la causa:
    КОКŽ-46/16
  • Fecha de la Decisión:
    Thu Sep 01 00:00:00 CEST 2016

    Tribunal

    Título de la Tribunal

    Appellate Court of Skopje
    (Macedonian: АПЕЛАЦИОНЕН СУД СКОПЈЕ)
     

    Localidad

  • Ciudad/Pueblo:
    Skopje
  • • Otro

    Descripción

    The Court rejected the Defendant's appeal.
     

    Resultado

  • Veredicto:
    Otro
  • Otro resultado

    Decision Upheld.
     

    Migrantes

    Inmigrante:
    No information about the smuggled migrants was available based on the appellate decision in question.

    Acusado / Demandado de primera instancia

    Acusado:
    N.S.
    Sexo:
    Hombre
    Nacionalidad:
    de la ex República Yugoslava de Macedonia

    Cargos/Acusaciones/Decisiones

    Acusado:
    N.S.
    Acusación:
    Smuggling of Migrants
    Ley:
    Criminal Code of the Republic of MacedoniaArticle 418-b Paragraph 4 in conjunction with Paragraph 2
    Veredicto:
    Guilty
    Pena de prisión:
    5 años 6 Meses

    Tribunal

    Appellate Court of Skopje

    Archivos adjuntos