Published in January 2019.

 

 
   This module is a resource for lecturers   

 

Aggravating circumstances

 
Box 13

Article 6 Protocol against the Smuggling of Migrants

(…) 3. Each State Party shall adopt such legislative and other measures as may be necessary to establish as aggravating circumstances to the offences established in accordance with paragraph 1 (a), (b) (i) and (c) of this article and, subject to the basic concepts of its legal system, to the offences established in accordance with paragraph 2 (b) and (c) of this article, circumstances:

(a) That endanger, or are likely to endanger, the lives or safety of the migrants concerned; or

(b) That entail inhuman or degrading treatment, including for exploitation, of such migrants. (…)

According to article 6(3) of the Protocol against the Smuggling of Migrants, the following are to be established as aggravating circumstances requiring an increased penalty:

  • Circumstances that endanger, or are likely to endanger, the lives or safety of the migrants concerned;
  • Inhuman or degrading treatment, including for exploitation, of such migrants.

In respect of the first aggravating circumstance, examples of conduct that endangers or is likely to endanger the life or safety of migrants include: migrants being transported in (i) unseaworthy vessels where there is a significant risk of death by drowning, and (ii) sealed containers (such as shipping containers and lorries) where there is insufficient oxygen or the migrants are exposed to extreme temperatures. There are documented examples of smuggled migrants being abandoned at sea, in the desert or in freezing conditions, where they have a limited chance of survival. States parties are free to include additional aggravating circumstances in their legislation. While the Protocol against the Smuggling of Migrants does not call for it, it might be useful for States to consider extending the scope of this provision to include acts that cause danger to the life or safety of third parties (rather than only smuggled migrants), such as public officials or fishermen attempting to rescue migrants at sea.

In respect of the second aggravating circumstance, the term "inhuman or degrading treatment", while included in various international instruments (for example, the Universal Declaration on Human Rights, International Covenant on Civil and Political Rights, Statute of Rome of the International Criminal Court), is not defined therein. However, jurisprudence and commentaries are illustrative in this respect. Inhuman or degrading treatment:

  • Might be both physical and psychological;
  • Is different from torture because it lacks the main characteristics of the latter, that is infliction by a public official with the purpose of achieving the specific goal of gathering information or obtaining confessions;
  • Must meet a certain level of severity; and
  • May include treatment inflicted for the purpose of some form of exploitation (in this case, it is important to assess whether the crime of trafficking in persons has been committed - see Module 11).
Box 14

Treatment is inhuman where it was premeditated, applied for hours at a time and caused either actual bodily injury or intense physical and mental suffering. Treatment has been held to be degrading because it was such as to arouse in the victims feelings of fear, anguish and inferiority capable of humiliating and debasing them.

UNODC Model Law against the Smuggling of Migrants, p.43

States have often added to the list of aggravating circumstances, for instance:

  • Knowingly committing the offence as a member, or in furtherance of the activities, of an organized criminal group;
  • Causing death or serious bodily or mental injury because of the commission of the offence;
  • Knowing, or having reasons to believe, that the subject of the offence was, or was intended to be, the object of exploitation;
  • Taking advantage of the vulnerable situation of the subject of the offence or a person involved in the commission thereof, such as a mental or physical disability;
  • Causing the smuggled migrant, or another person involved in the commission of the crime, to take, inhale or be affected by a narcotic drug, alcohol or another intoxicating substance, with the purpose of facilitating the perpetration of the offence;
  • Using a child as an accomplice or participant in the commission of the crime;
  • Resorting to ingenious deception or instrumentalization of public authorities in the perpetration of the offence (e.g. instrumentalizing authorities - see infra under 'Jurisdiction');
  • Committing the offence, or assisting in the commission thereof, in the exercise, or taking advantage, of the perpetrator's public functions or position of authority.

For examples of provisions on migrant smuggling from different jurisdictions see SHERLOC Database of Legislation - Smuggling of Migrants .

Two other examples of aggravating circumstances include:

Committing SOM-related offences as member, or in furtherance of the activities, of an organized criminal group

As noted earlier, while UNTOC and the Protocol against the Smuggling of Migrants focus on organized crime, membership of an organized criminal group is not a constitutive element of the SOM-related offences. Often, it constitutes an aggravating circumstance. It may also be a separate offence. The expression 'in furtherance' intends to encompass the contribution of persons that are not necessarily members of an organized criminal group. Document forgers, for instance, often work as 'contractors' rather than as a fixed part of the smuggling group.

Perpetrating SOM-related offences in the exercise, or taking advantage, of one's public functions or position of authority

Abuse of public office as a crime is usually enshrined, in one way or another, in national legislation. It may also be an aggravating circumstance in the definition of certain crimes. In Egypt, for instance, it is specifically enshrined as an aggravating circumstance of SOM-related offences. In Australia, abuse of public office is a criminal offence.

Addressing this conduct is helpful in combatting corruption related to SOM (for example, border officials knowingly accepting fraudulent documents or embassy officials issuing visas). Public officials who intentionally and knowingly accept fraudulent documents for the purpose of entry or stay in the country should be held responsible for the basic criminal offence. Conduct of persons such as lawyers, physicians and security staff at airports might also be considered. A typical example would be that of physicians issuing fraudulent medical certificates required to obtain work permits in the country of destination.

Box 15

Sentencia 31357 of 2010

In February, August and October 2005, the defendant acted as the Consul of Colombia in Tulcán, Ecuador. An application for visa, dated 13 July 2005, signed by the defendant, was addressed to the coordinator of visas and immigration of the Ministry of Foreign Relations of Colombia. Therewith, the defendant endorsed the request of the applicant (Chinese foreigner), ascertaining he had personally interviewed him at the Consulate of Colombia in Tulcán. The defendant noted in his observations that the alleged interviewee had "manifested his intent of staying legally in Colombia, with his family". Yet, it was proven that said individual had never left his home country, China (confirmation by the Administrative Security Services (Departamento Administrativo de Seguridad)). Similar proceedings, in similar circumstances, were followed in respect of a Chinese female foreigner. The visa application was dated 15 September 2005. Other five equivalent instances of facilitation of illegal entry and stay of Chinese nationals were determined. The documents issued by the defendant informed the authorization later issued by the public officer in charge for the issuing of visas in the Ministry of Foreign Relations of Colombia. The seven Chinese nationals entered Colombia illegally by failing to comply with the legal requisites determined by law to the effect.

[The defendant was convicted, inter alia, of migrant smuggling]. In the instant case, the applicable penalty for migrant smuggling (i.e. six to eight years' imprisonment) [was] increased in view of the occurrence of the aggravating factor enshrined in article 188B (4) Criminal Code, that is perpetration of the crime by public officer. 

SHERLOC Case Law Database on the Smuggling of Migrants - Colombia
 
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