In annulling the decision appealed, the Supreme Court determined the jurisdiction of Spanish courts over crimes committed in international waters. In doing so, it significantly drew upon the international obligations set forth in the UNTOC and the Protocol against the Smuggling of Migrants, as duly ratified by Spain. Notably:

• Article 6 Protocol against the Smuggling of Migrants determines States’ obligation in adopting “legislative and other measures” to criminalise the smuggling of migrants.
• In a similar sense, Article 5 UNTOC determines the adoption of “legislative and other measures” to ensure the criminalisation of membership in an organised criminal group, under different nuances.
• Article 8 Protocol against the Smuggling of Migrants allows States to board and search a vessel that is without a flag or flying a flag of convenience as long as there are reasonable grounds to suspect that it is engaged in the smuggling of migrants by sea. If suspicions are confirmed, the State shall take the appropriate measures, in line with national and international law.
• Article 11 (2) Protocol against the Smuggling of Migrants invokes States’ exercise of their discretionary legal powers to ensure the effectiveness of the law and criminal prosecutions.
• Article 15 (2) (c) Protocol against the Smuggling of Migrants enshrines States’ right to assert jurisdiction over crimes committed through an organised criminal group abroad, when the criminal conduct is intended to produce its results in the territory of the adjudicating State.

 

This judgment illustrates the practical and positive impact the UNTOC and Protocol against the Smuggling of Migrants might have in the prosecution of smuggling of migrants, especially in monist systems.

 

The Court further resorts to the principle of territoriality and the principle of ubiquity (“principio de ubicuidad), as developed by the Spanish jurisprudence. Specifically, the crime is perpetrated in all places where the underlying conduct takes place as well as where the natural result thereof occurs. In the event of interruption of the criminal conduct (as in the case under analysis), the place where the result or the damage should (have) occur(red) emerges as effective criteria for asserting jurisdiction. This interpretation is in line with Article 15 (2) UNTOC, which refers to the intent of perpetrating a serious crime in the territory of the (adjudicating) State. Alternatively, one should apply the principles resorted to in the evaluation of criminal attempts, and consider the offence finalised by the causally adequate and favourable behaviour of the author.

 

To the decision of the Supreme Court was appended a dissenting opinion. To be precise:

• It would be wrong to assert Spanish jurisdiction on grounds of the Protocol against the Smuggling of Migrants and the UNTOC. Rather, this must occur by application of the principle of territoriality and the theory of obicuidad.
• In order to apply the Protocol against the Smuggling of Migrants and the UNTOC, membership in an organised criminal group is conditio sine qua non and needs to be sufficiently proven. In the current case, this seems to be neither sufficiently asserted nor detailed in the proceedings.
• The Protocol against the Smuggling of Migrants does not contain any provision on the attribution of jurisdiction.
• The exercise of jurisdiction (especially executive jurisdiction) cannot be derived from the right of visit (board and search the vessel).

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).