The Audiencia Provincial de Cádiz (Spain) noted as follows:

• The applicable regime to the entry, transit and stay of foreigner in Spain varies according to whether they are nationals – or relatives of nationals – of Member States of the European Union or Economic European Area (EEA), on the one hand, or third countries, on the other. This is so as per (i) Article 1 Real Decreto 240/2007, (ii) Articles 1 and 25 Ley Orgánica sobre los Derechos y Liberdades de los Extranjeros en España y su Integración Social, and (iii) Article 3 Regulation (EC) No 562/2006 of the European Parliament and of the Council of 15 March 2006 establishing a Community Code on the rules governing the movement of persons across borders (Schengen Borders Code).
• In line with Article 25 Ley Orgánica sobre los Derechos y Liberdades de los Extranjeros en España y su Integración Social, the entry in Spain of non-nationals of the European Union or EEA shall present the necessary valid documents to attest (i) their identity (notably, an authentic passport), (ii) the purpose and scope of the stay in the country, (iii) the fact that they possess means of subsistence while in Spain or are in the position to provide for them.
• The historical special relations between the Spanish autonomous city of Ceuta and Morocco have dictated a specific regime re the entry, circulation and stay of Moroccans therein. Thus, it is important to note that the facts under appraisal in the instant case regard the facilitation of illegal entry, transit and stay of an irregular Moroccan migrant in mainland Spain, independent of whether the same migrant was entitled or otherwise to enter, transit and stay in the territory of Ceuta.
• The version of Article 318 bis Criminal Code in force at the time of the events punished the conduct of those that “directly or indirectly, promote, favour or facilitate illegal trafficking or clandestine migration of individuals from, in transit or with destination to Spain, or with destination to another country of the European Union”. While the scope of the provision is very ample – and regardless the position one may adopt regarding its fairness – it definitely intended to contemplate those situations whereby someone resorted to deceiving mechanisms – including fraudulent documents – to elude border control authorities. There is, in such situations, an extra quidthat goes beyond the mere breach of migratory fluxes’ control. This is precisely what occurred in casu. One is, at least, in presence of a situation of facilitation of clandestine migration.
• Article 318 bis (5) establishes the attenuated crime-type of migrant smuggling, in consideration of the (i) minor gravity of the crime, (ii) specific personal circumstances of the defendant, and (iii) purpose pursued with the criminal conduct.
• The general attenuating circumstance provided for in Article 23 Criminal Code – familial bonds – is to be applied in the instant case because, if for nothing else, the Public Prosecutor invoked its application. The Provincial Court is thus bound by the prohibition of reformatio in pejus.

Against this background, the Provincial Court of Cádiz convicted the defendant of attenuated migrant smuggling and, as necessary accomplice, use of an authentic ID by unauthorised person. Importantly, the Court noted that while the legal reform of the Criminal Code (and Article 318 bis specifically) had established lighter penalties for migrant smuggling, the previous version of the incriminating norm allowed for the replacement of imprisonment penalties by fines. Accordingly, it resorted to the law most beneficial to the defendant – i.e. the law in force at the time of events - in agreement with the Public Prosecutor. Consequently, it determined the penalty of imprisonment should be replaced by a fine of 1436 Euro.

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).