The Court of Appeal started by noting that there was no ground to deem the appellants co-perpetrators since - despite the close relationship between them and the fact that the ateliers operated in adjacent estates – there was no evidence of coordination and organisation in the conduct for which they were being indicted. Rather, the ateliers functioned as independent working groups. This conclusion is particularly important in relation to appellant T.C.C., regarding who there was no evidence of having employed migrants. Instead, only himself and his wife operated his atelier.

 

The Court of Appeal proceeded to acknowledge that the remaining appellants indeed employed some irregular migrants. However, it concluded that the facts proven did not integrate the crime-type of migrant smuggling, in the modality of “facilitating illegal stay”. Specifically:

• Article 117 Law Nº 25871 introduced some confusion into the Argentinean legal system given the potential overlap with administrative offences. Thus, it is crucial to clearly distinguish the scope of application of Article 117 Law Nº 25871.
• Article 117 Law Nº 25871 will be triggered only when those facilitating irregular migration (namely by offering work) acted with the purpose of obtaining, directly or indirectly, a benefit. If this legal requirement is not verified, one will be facing an administrative offence. In this manner, the Court made clear that obtaining a benefit is a constitutive element of the crime of “facilitating irregular migration”.
• In casu, the Court found no evidence of the purpose of obtaining a benefit. In this respect, it underlined the customary and cultural practices of peoples original from the Bolivian highlands as the migrants were (including those in regular situation in Argentina). They usually live in large communal groups, sharing expenses and profits, as a cooperative of mutual assistance.
• No evidence indicated that the ateliers operated on the basis of a scheme dedicated to procuring or enabling irregular migration. Most of the workers were relatives or acquaintances of the appellants. Indeed, the majority of workers were in the country in regular situation.

 

The Court of Appeal also noted that the premises of the invoked aggravating circumstances were not verified. One of the arguments used by the Prosecution to uphold that illegal activities were carried out on a regular basis was the fact that, on 7 April 2006, during an inspection carried into the ateliers, the General Directorate for the Protection of Work (Dirección General para la Protección del Trabajo) identified several workers/migrants. The same individuals were also present and identified during searches made in the investigative phase of proceedings. However, they were regular migrants in Argentina.

 

In respect of the aggravating circumstance of endangering the life, health and integrity of migrants (as per Article 119 Law 25781), the Court of Appeal clarifies that it is a figure of “peligro concreto”, that is, it requires evidence that the subject of the action was placed in actual danger in the individual case under consideration. Again, the Court of Appeal did not find supporting evidence in this regard.

 

Accordingly, the Court of Appeal reversed the appealed decision and ordered the immediate release of the appellants.

NOTE: As per Argentinean national law, the purpose of obtaining a financial or other material benefit is a constitutive element of the crime (see Ley de Migraciones Nº 25871, Decreto 616/2010, Articles 116 et seq.).