Published in January 2019.
This module is a resource for lecturers
This section contains material that is meant to support lecturers and provide ideas for interactive discussions and case-based analysis of the topic under consideration.
Exercise 1: Case n. 7472/15 R.N. G.I.P. - Glauco II
The smuggling ventures towards Italy are organized in various stages. Migrants are firstly collected and assembled in Libya. Gerhard Evek (high rank within the smuggling network) and his associates receive the migrants who - in some instances - have travelled for months to reach Libya. They are kept usually in Zuwhara (Libya), where Gustave Ansor has control over houses in which he can accommodate the migrants until the day of departure. Migrants are usually monitored under the threat of weapons.
Migrants following the so-called terrestrial route (from several African countries towards Libya) are submitted to aggravated violence (including kidnapping) during the trip, of which Gerhard Evek and his associates are aware and accomplices. Migrants must pay smugglers for this trip and are sometimes held and forced to work as a form of payment. Gerhard Evek attributes a number to each 'client' to better organize the work as well as to manage those who have already paid. These records unveil that the network manages hundreds of millions of USD just in respect of 'African smuggling'. To such values must be added the amounts paid in the EU.
The migrants are then embarked into always more precarious vessels, usually in direction to Italy. Relying on the Operation Mare Nostrum a military and humanitarian operation carried out by the Italian Government from 18 October 2013 to 31 October 2014 and aimed at tackling the humanitarian emergency in the Strait of Sicily, due to the dramatic increase in migration flows, smugglers abandon these boats - often in very precarious conditions - in international waters, after launching a request for help to authorities. This part of the smuggling venture (i.e., by sea) is also subject to payment.
Once in Italian soil, migrants are again 'recruited' by members of the organized criminal group operating in Italy, with the promise of facilitating their further movements, always upon payment. Migrants are demanded different amounts: first, to reach Rome (Italy) or Milan (Italy); second, to go from there to their final destination (Switzerland, Germany, France, United Kingdom, Norway). The trip to Rome or Milan usually occurs by public bus or private vehicles (driven by members or associates of the organized criminal group). The bus is currently a popular and preferred means for smugglers insofar as there is no need to exhibit an identification document to buy the ticket or travel. Furthermore, buses are often not subject to search and control operations by authorities (as, e.g., trains and private vehicles). The 'prices' vary. Usually migrants are requested 200-400 Euro for one or two days of accommodation in Sicily (Italy) plus the ticket to the North of Italy. Then, they have to pay 1000-2000 Euro to continue the trip towards their final destination. The real 'price' will, however, vary according to the economic power of the migrant, which will also determine the 'quality' and extent of the 'services' provided by the organized criminal group (e.g., for the proper 'price', the migrant may be accompanied and accommodated until the final destination).
To this effect, the" agreement" with the migrant to continue relying on the network after entry in Italy is crucial. Sometimes, the "agreement" is reached by telephone. The network assists the migrant in escaping the reception center/structure and provides the necessary logistical support (e.g., accommodation) until the trip to the North of Italy. Different methodologies are used to 'attract clients': (i) collaboration of migrants living in the reception centers/structures; (ii) contacts through relatives, whereby the later contact the smugglers and these ask for the phone number of the potential 'client' in order to formalize details; (iii) direct engagement, whereby smugglers go to the points of entry of migrants and carefully 'advertise' the available services. Again, all services are dependent on payment.
Payments are usually done in advance, without which no 'service' will be made available by the organized criminal group. Payments take place through different systems, legal and otherwise: (i) directly in cash; (ii) 'Hawala ' banking system (based on trust, this modality of payment requires neither the movement of cash by the sender and receiver nor formal registration, thus escaping the scrutiny of authorities and anti-laundry regulations); (iii) through financial services providers that allow a quick and smooth movement of cash, such as Western Union, MoneyGram, and, in Italy, Post-pay.
The organized criminal group also procures fraudulent documents to allow migrants to continue their travel abroad undetected by authorities. There is likewise reference to sham marriages as a means of procuring and or enabling illegal entry, transit and stay.
Gerhard Evek, Michel Mas Young (in North Africa) and Gustave Ansor (in Italy) are at this stage identified as the mainleaders of the network, directing operations and or men. However, evidence was gathered showing the essential contribution of all suspects to the smuggling of migrants and related offences carried out by the network. They had precise yet varied roles within the organized criminal group, e.g. migrants' receiver and or collector, driver, hawaladar.
The investigation individualized several specific episodes/businesses, mostly in relation to the disembarkment of hundreds of migrants in 2014 and 2015 in Sicily.
Proposed questions for discussion/activities:
- Please discuss if the network referred to in the excerpt above should be classified as an organized criminal group, both under UNTOC and your national legal system? Justify your answer, namely by identifying elements/indicators you deem relevant for classifying (or not) the smuggling network as an organized criminal group.
- Identify the distinct/separate phases/steps of the smuggling process, providing a chronology of migrant smuggling.
- From the viewpoint of the Protocol against the Smuggling of Migrants, what SOM-related offences can you identify in the excerpt? Justify your answer. Amongst the identified conduct, which would also constitute a criminal offence under your national law? Please explain.
Exercise 2: Nº Parquet 16293000004
The defendant was accused of enabling the illegal transit and stay of three Eritrean female migrants (including a minor), who he knew were in France irregularly. Specifically, the facts occurred on 18 October 2016, between Tende (France) and Nice (France), via La Turbie (Alpes Maritimes, France). The defendant provided transportation and accommodation in his residence to the three irregular migrants.
On the afore-mentioned date, the defendant took charge of the three women upon finding them in an abandoned building close to associations that aimed to provide humanitarian assistance to irregular migrants. He further explained to usually associate with members of such associations/organizations, particularly those intending to supply food and accommodation to migrants in need. On the day of the events, he had accompanied a friend to one of the humanitarian agencies. Late in the evening, when he was returning home, someone proposed that he took the three Eritrean women to his house and, the following day, gave them a ride to the train station so that they could continue their journey to Germany where they had relatives and friends. They would first stop at Marseille, where they would be expected by doctors and other humanitarian workers. The defendant accepted. He was fully aware of the irregular situation of the women in France. Yet, he acted out of solidarity in view of their dramatic circumstances. He described that, when he met the women, they were tired, fearful and 'frozen'. They presented visible wounds and bandages. During trial, a physician working with Médecins du Monde attested to the debilitating health of the three Eritrean migrants: (i) they presented contusions, wounds, and sprains due to long hours walking; (ii) most concerning, their psychological state was particularly worrying. The expert further noted to be familiar with the squat where the women were staying prior to meeting the defendant, declaring it to be impossible to deny help, food, clothing and accommodation to the migrants settling therein. In addition, the Defence submitted an affidavit from President of the Ligue des droits de l'Homme, according to which the actions of the defendant were defined as "gestures of humanity and solidarity towards human beings in situation of total precariousness".
The Defendant was acquitted. In brief, the Court noted that, in France, only enabling of illegal stay is subject to humanitarian exemption. While facilitation of illegal transit is not covered by immunity from prosecution, the Court deemed that transportation in the instant case was indispensable to provide food and shelter, a kind of assistance that is indeed covered by the humanitarian exemption. Facilitation of illegal transit in this case was a necessary means to ensure a safe night to the smuggled migrants, in line with the right to security as enshrined in article 5 European Convention on Human Rights. Convicting the defendant of facilitation of illegal transit would be neither just nor proportional.
Proposed questions for discussion/activities:
- What were the main arguments of the Court in reaching its verdict? Do you agree with it? Justify your answer.
- Imagine that the facts described above had occurred in your country. As per your national law and jurisprudence, would domestic courts have reached a similar decision? Please explain.
- In light of the Protocol against the Smuggling of Migrants, would the conduct of the defendant amount to an SOM-related offence? Justify your answer.
- Are the three Eritrean migrants subject to criminal liability under the Protocol against the Smuggling of Migrants? And in accordance with your national legal system? Please explain.
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