The expression 'criminal justice response' comprises the various phases that begin with crime prevention strategies, through to the process of identifying perpetrators, prosecuting them (including trial and appeal) and applying penalties. There are several actors/entities that may play a role in this context, including police, prosecutors, courts and prison authorities. The sections below will analyse some aspects in the operation of the criminal justice response that are, or are especially relevant, to migrant smuggling. However, they will not include an exhaustive analysis of the criminal justice response and its actors. For instance, the penitentiary system is not addressed since its operating rules and principles do not differ in respect of smugglers as compared to other types of offenders (see, for example, Basic Principles for the treatment of prisoners (1990) and United Nations Rules for the Treatment of Women Prisoners and Non-custodial Measures for Women Offenders ( the Bangkok Rules).
Importantly, this Module does not focus exclusively on the actions of police, prosecutors or courts (for more information on these see: Module 8 and Module 9 of the Teaching Module Series on Organized crime). It also provides an overview of the roles of other actors, who may assist criminal justice authorities in fulfilling their respective mandates.
While a criminal justice response is not in and of itself sufficient to effectively address migrant smuggling, it is unquestionably an integral part of addressing the phenomenon. Criminal law provides the means and specific tools required to neutralize immediate threats posed by smugglers, combat the crime and punish perpetrators. By the same token, it is through criminal law and procedure (together with other branches of law) that some of the rights of smuggled migrants, even if not immediately ensured, can be protected. Protection also extends to those suspected or convicted of smuggling of migrants. They are entitled to legal assistance, due process guarantees and, of course, human rights safeguards (see, for example, the United Nations Principles and Guidelines on Access to Legal Aid in Criminal Justice Systems). Criminal law can help operationalize human rights both for smugglers and those they smuggle.