Article 5 of the Protocol against the Smuggling of Migrants prohibits the prosecution of smuggled migrants as accomplices in their own smuggling. However, they are witnesses to the smuggling venture and may sometimes also be victims of aggravated smuggling. Several provisions of UNTOC and other measures listed below may incentivize smuggled migrants to cooperate with justice.
In addition to the protections already assessed that are afforded to smuggled migrants (including, inter alia, the right to life and protection against violence resulting from having been smuggled), it is important to note that smuggled migrants may require additional protection if they intend to cooperate with criminal justice authorities and/or were victims of crime (particularly in relation to aggravated cases of smuggling). Specifically, smuggled migrants are likely to have unique insight into the smuggling venture and are often critical for investigation and successful prosecution of migrant smugglers. Even if they do not intend to cooperate with authorities, smugglers may coerce or threaten migrants to prevent them from doing so.
Smuggled migrants should be able to report any criminal victimization and see their claims properly investigated and prosecuted. Importantly, in order to protect migrants, States may need to adapt their laws. They should, for example, extend jurisdiction over crimes committed against foreign nationals, by foreigners and/or abroad (see Module 1). If such steps are not taken, States effectively leave spaces where migrant smugglers may act with impunity against smuggled migrants. Unless States implement measures to build trust with smuggled migrants and protect them from retaliation, smuggled migrants are unlikely to be willing to cooperate in investigations. This can lead to loss of critical opportunities to gather evidence and intelligence.
In keeping with this view, the United Nations Convention on Transnational Organized Crime (UNTOC) stipulates:
Article 24 UNTOC
1. Each State Party shall take appropriate measures within its means to provide effective protection from potential retaliation or intimidation for witnesses in criminal proceedings who give testimony concerning offences covered by this Convention and, as appropriate, for their relatives and other persons close to them.
2. The measures envisaged in paragraph 1 of this article may include, inter alia, without prejudice to the rights of the defendant, including the right to due process:
a) Establishing procedures for the physical protection of such persons, such as, to the extent necessary and feasible, relocating them and permitting, where appropriate, non-disclosure or limitations on the disclosure of information concerning the identity and whereabouts of such persons;
b) Providing evidentiary rules to permit witness testimony to be given in a manner that ensures the safety of the witness, such as permitting testimony to be given through the use of communications technology such as video links or other adequate means.
3. States Parties shall consider entering into agreements or arrangements with other States for the relocation of persons referred to in paragraph 1 of this article.
4. The provisions of this article shall also apply to victims insofar as they are witnesses.
It should be noted that the protective measures set out in article 24 extend, as appropriate, to relatives and other persons close to smuggled migrants (para. 1). Where child witnesses of crime are involved, they should be treated in a caring and sensitive manner that is respectful of their dignity throughout any legal proceedings. Their personal situation and immediate and special needs, age, gender, disabilities if any and level of maturity must also be taken into account (UNODC, Guidelines on Justice in Matters involving Child Victims and Witnesses of Crime).
Protection measures in this context may vary considerably, but may include (i) assistance before and during trials, which enables migrants to cope with the psychological stress and practical difficulties of testifying in a court of law; (ii) providing police escort to the courtroom; (iii) offering temporary residence during legal proceedings; (iv) using closed-circuit television (CCTV) or video conference to hear testimony, facilitating witness anonymity; (v) resettlement of witnesses under new identities in their own or another country. For further guidance on this issue, see also the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power.
Another available avenue is the granting of residence permits to smuggled migrants who cooperate with criminal investigations and proceedings. This has been the path followed in the European Union.
European Commission Council Directive 2004/81/EC of 29 April 2004
This Directive introduces a residence permit intended for victims of trafficking in human beings or, if a Member State decides to extend the scope of this Directive, to third-country nationals who have been the subject of an action to facilitate illegal immigration to whom the residence permit offers a sufficient incentive to cooperate with the competent authorities while including certain conditions to safeguard against abuse.
COUNCIL DIRECTIVE 2004/81/EC of 29 April 2004 on the residence permit issued to third-country nationals who are victims of trafficking in human beings or who have been the subject of an action to facilitate illegal immigration, who cooperate with the competent authorities, Preambular para. 9
States could consider, in appropriate cases, issuing residence permits to smuggled migrants who give testimony. This approach has been followed by Belgium in some circumstances. If such measures are adopted, they should be accompanied by safeguards aimed at ensuring the system is not abused nor taken advantage of by smugglers. Foreseeably, absent appropriate safeguards, smugglers could co-opt the provision of such residence permits as a method of facilitating stay of smuggled migrants and hampering criminal justice proceedings.
In addition to obligations concerning witnesses of crime, article 25 of UNTOC sets out assistance and protection measures for victims of crime.
Article 25 UNTOC
1. Each State Party shall take appropriate measures within its means to provide assistance and protection to victims of offences covered by this Convention, in particular in cases of threat of retaliation or intimidation.
2. Each State Party shall establish appropriate procedures to provide access to compensation and restitution for victims of offences covered by this Convention.
3. Each State Party shall, subject to its domestic law, enable views and concerns of victims to be presented and considered at appropriate stages of criminal proceedings against offenders in a manner not prejudicial to the rights of the defence.
As explained in Module 1, smuggled migrants are not considered victims under the Protocol against the Smuggling of Migrants. However, they might be victims of other crimes, such as when violence is used against them or where they are subjected to degrading and inhumane treatment. Smuggled migrants might also withdraw their consent to being smuggled in view of conditions of transportation deemed too dangerous, yet still be forced to continue the smuggling process. Smuggled migrants may become victims of assault, kidnapping, extortion or sexual violence in the hands of smugglers. Some may become victims of trafficking in persons. Article 16(3) of the Protocol against the Smuggling of Migrants specifically addresses situations where smuggled migrants are at risk of victimization by smugglers, or where smuggled migrants have been transported in dangerous conditions (such as in locked shipping containers or lorries), which may result in violations of their physical and mental integrity.