This module is a resource for lecturers

Non-criminalization of smuggled migrants

Box 19

Article 5 Protocol against the Smuggling of Migrants

Migrants shall not become liable to criminal prosecution under this Protocol for the fact of having been the object of conduct set forth in article 6 of this Protocol.

The Protocol against the Smuggling of Migrants provides that smuggled migrants must not be prosecuted for having been smuggled. This means, for example, that they cannot be prosecuted as accomplices of those who procured their illegal entry into another country. Indeed, smuggled migrants play a crucial role in investigations and prosecutions, as they hold unique information on the smuggling venture and should be encouraged to cooperate with justice, for example by providing testimonial evidence (See Module 3).

Yet, while smuggled migrants are not subject to criminal liability as objects of smuggling offences, nothing in the Protocol prevents their prosecution for other criminal offences under national law, for example document fraud or illegal entry offences.

Detailed information can be found in the following sections:

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