“Crimes against the rights of the foreign citizens”, is how is entitled the Title XV bis of the Book II, of the Spanish Penal Code (CP). It is a title made up of only one article, the article 318 bis, whose current wording is due to the reform of the CP carried out by the Organic Law 1/2015. Let us see the motive of those changes in the wording, thanks to the exposition of motives of the aforementioned law: “On the other hand, it is also necessary to review the regulation of the crimes of illegal immigration classified in the article 318 bis. These crimes were introduced before the crime of human trafficking was included in the CP, thereby they offered penal reply to the graver behaviors which currently punishes the article 177 bis. However, after the separate introduction of the crime of human trafficking was maintained the same punishments extraordinarily aggravated and, in many cases, disproportionate, for all the cases of crimes of illegal immigration. Thus, it was necessary to review the regulation of the article 318 bis with a double aim: on the one hand, to define with clarity the behaviors which constitute illegal immigration according to the criterion of the European Union regulation, in other words, in a differentiated way to the human trafficking, like the Directive 2002/90/CE establishes; and, on the other hand, to adjust the punishments according to the established in the Framework Decision 2002/946/JAI, which only regulates for the basic cases the imposition of maximum punishments of a minimum duration of a year of imprisonment, reserving the graver punishments for the cases of organized criminality and of put in danger of either the life or integrity of the immigrant. In this way, it is delimited with precision the ambit of the punishable behaviors, and the obligatory imposition of punishments of imprisonment is reserved for the cases especially grave. In any case, it is excluded the penal punishment in the cases of actions oriented by humanitarian motives.”
– Article 318 bis:
After the brief introduction of the beginning, we know something more, for example, that the crime of illegal immigration was introduced in the CP before the crime of human trafficking, this implies that what now is punished as human trafficking (art. 177 bis), before it was punished as illegal immigration (art. 318 bis). It is evident that, there exists a great proximity between both crimes, since the punish very similar behaviors, however, as it is logical, there are also important differences between them, which has justified their introduction as different crimes in separate precepts of the CP. But here we should stop with this subject, we are not going to compare both crimes, when we have not studied yet the crime of illegal immigration, thus I propose you an agreement, first we are going to analyze the article 318 bis, and subsequently we are going to study its differences with the article 177 bis. The article 318 says:
“Article 318 bis.
1. Whoever intentionally helps a person who is not a citizen of a member State of the European Union to enter into Spanish territory or transit throughout it in a way which infringes the legislation about entry or transit of foreigners, shall be punished with the punishment of fine from three to twelve months or imprisonment from three months to one year.
The facts shall not be punishable when the aim pursued by the author is only to provide humanitarian help to the foreigner.
If the facts have been committed with profit intention the punishment shall be imposed in its superior half.
2. Whoever intentionally helps, with profit intention, a person who is not a citizen of a member State of the European Union to stay in Spain, infringing the legislation about stay of foreigners shall be punished with a punishment from three to twelve months or imprisonment from three months to one year.
3. The facts to which is referred the point one of this article shall be punished with the punishment of imprisonment from four to eight years when any of the following circumstances concur:
a) When the facts have been committed within an organization whose aim is the realization of such activities. When they are the bosses, administrators or persons in charge of such organizations or associations, shall be applied to them the punishment in its superior half, which can be heightened to its immediately superior in degree.
b) When the life of the persons object of the infringement has been put into danger, or the danger of causing grave injuries has been created.
4. In the same punishments of the previous paragraph and besides in the absolute disqualification from six to twelve years, shall incur those who carry out the facts making use of their condition of authority, agent of this or public servant.
5. When according to the established in the article 31 bis a legal person is liable of the crimes established in this Title, shall be imposed to it the punishment of fine from two to five years, or from the triple to the quintuple of the benefit obtained if the resulting quantity is greater.
Attending to the rules established in the article 66 bis, the judge and courts may impose too the punishments established from the letters b) to g) of the point 7 of the article 33.
6. The courts, taking into account the gravity of the fact and its circumstances, the conditions fo the culprit and the aim pursued by this, may impose the punishment inferior in degree to the respectively established.”
At first sight, we see that the article 318 bis is made up of six points, in the first two we find what can be considered two basic types, in the third an aggravated subtype of the first, in the fourth a specific punishment for the cases in which the facts have been carried out by a public servant, in the fifth the punishments which shall be imposed to a legal person when it is liable of the facts, and in the sixth an attenuated subtype which seems applicable to the basic types of the first and second point. Let us study them in order:
Art. 318.1 bis:
Reading the precept, the first doubt that arises and which we must solve, is whether this is a common crime, in the sense that it can be committed by anyone, or a special own crime, which can only be committed by authors with specific features. The answer to this question looks easy, due to the typical behavior, and the fact that is not required any additional requisite by the type, it is evident that this is a common crime which can be committed by anyone.
The next thing that attracts our attention, is the clarity with which the type demands a malicious behavior by the active subject. It says expressly “intentionally”, something that is not usual in other malicious crimes like this, thus, we must discard its culpable character, and consequently, its commission by imprudence. More problematic may be, to determine whether the malice required by type includes the cases of eventual malice. In my opinion, the answer should be affirmative, for, after all, in these cases the author of the facts knows the high probability that his behavior is illicit, someone who is not very different from who knows that it is.
Leaving behind the subjective elements of the type, the typical behavior consists in helping “a person who is not a citizen of a member State of the European Union to enter into Spanish territory or transit throughout it in a way which infringes the legislation about entry or transit of foreigners”. The Dictionary of the Spanish Royal Academy of Language (DRAE) says that, to help means: “To provide cooperation.” Mainly, the regulation regarding the entry and transit of foreigners throughout Spanish territory is in the Organic Law 4/2000, of 11 January, about the rights and freedoms of foreigners in Spain and the social integration (LO 4/2000), in its article 25 and following. For example, in the article 25.1 of this law is established that: “1. The foreigner who intends to enter into Spain shall do it through the places habilitated for that purpose, with passport or travel document which proves his identity, that is considered valid for that aim by virtue of international covenants subscribed by Spain and not be subjected to express prohibitions. Likewise, he shall present the documents determined in accordance with the regulations which justify the object and conditions of the stay, and to guarantee enough livelihood for the time he intends to be in Spain, or being in conditions of legally obtaining such livelihoods.” From this reference that the type makes to the legislation about entry and transit of foreigners, we deduce that this is a blank penal norm, to put it differently, which must be completed with other legal norms, which will be the ones determining who enters or transits illegally throughout Spanish territory.
From the above we also draw that this is a crime of mere activity, which is going to be consummated as soon as the action described in the type is carried out, without mattering whether the displacement takes place.
Pay attention to the fact that, when we are referring in this writing to foreigners, this term comprehends all those who are not citizens of a member State of the European Union, since this is the criterion of the own precept. This is because, the member States of the European Union must respect the right of freedom of transit and residence of all the citizens which pertain to one of these States, a right recognized by the article 45 of the Charter of Fundamental Rights of the European Union.
Another important aspect which we are obliged to comment, is the great similarity which exists between the penal illicit of the article 318.1 bis, and the administrative infringement of the article 54.1.b) of the LO 4/2000, which considers a very grave infringement, “b) To induce, promote, favor or facilitate with profit intention, individually or being part of an organization, the clandestine immigration of persons in transit or having as destination Spanish territory or their stay in it, whenever the fact is not a crime.” We can observe, how the criterion chosen by the administrative law is its subsidiarity with respect to the penal law, for it only punishes the facts which cannot be regarded as a crime, this implies that never the same facts can be punished two times, in the administrative order and the penal order. However, despite its subsidiarity, we continue having the same problem, to distinguish whether a case should be punished administratively or penally. A criterion which might help to distinguish among both, is the gravity of the infringing behavior, for instance, there should be no doubts about the penal relevance of some facts when the life or physical integrity of the immigrants have been put into risk. Though, sincerely, I think that in the rest of the cases the facts should be carefully analyzed, for I repeat, the behavior described in the administrative norm and in the penal norm are almost identical. Pay attention to this excerpt from the Spanish Provincial Court of Burgos´s sentence number 882/2023: “In any case, the new restriction of the legal good which protects the article 816 bis is going to provoke, like the doctrine has underlined, problems of delimitation with the mere administrative infringement contemplated in the article 54.1.b) of the LO 4/2000, of 11 January, since the limits of application of both norms are blurred, having to attend to concepts and criterions which are not precise distinguishing between the penal illicit and the administrative infringement according to the gravity of the affectation of the legal goods in principle substantially assimilable.”
In the abstract, what distinguishes the administrative infringement from the penal illicit, is the affectation of the legal good protected by the norm, which undoubtedly will take place, like we pointed out before, in the gravest cases. The Spanish Provincial Court of Burgos´s sentence number 882/2023 says: “Regarding the legal good protected by the article 318 of the CP, this Chamber has fixed it in the social interest of controlling the migratory flows and the freedom, the security and the dignity of the immigrants moved to Spain (Spanish Supreme Court´s sentences 569/2006, of 19 May; 153/2007, of 28 February; 770/2007, of 19 September; 801/2007, of 29 September; and 823/2007, of 15 October).” Therefore, in all these cases, in which not only has been put in danger the social interest of controlling the migratory flows, the legal good protected by the administrative norm, but also the freedom, security and dignity of the immigrants moved to Spain, the illicit behavior should be punished by the article 318 bis. The aforementioned sentence continues: “This First Section of the Provincial Court of Burgos, among many others in sentence of 13 June 2014 (Court Record number 31/13), recall that “our Supreme Court, in sentence number 17/14 of 28 January, establishes that “regarding the commission of the crime established and punished by the article 318 bis, 1, in sentences number 1029/09, of 11 December, nor is it only constituted by the immigration flows, attracting to the internal law the European norms about such extremes, but we have to go further in that interpretation –which would suppose to consider a penal illicit the simple infringement of administrative norms–, but especially aimed to the care and respect of the rights of foreigners and their dignity as human beings, avoiding through such crime of abstract danger that they are treated as objects, clandestine and lucratively, with a clear damage to their moral integrity. In the end, the legal good recognized has to be interpreted beyond all that, in order to offer protection to the immigrant in situation of search of a social integration with total exercise of the public freedoms, thus it is indifferent the aim of labor occupation –which express protection is obtained by the article 313.1 of the CP—and explains in this way the grave increase of the punishment of the article 318 bis in comparison with the article 313.1 of the CP.” In a similar sense, the sentences of the Supreme Court number 569/06, 19 May; 569/06, of 19 May; and 153/07, of 28 February.”
Something that the precept does not say, and to which we have not paid attention until now, is what happens with the own immigrant who is the object of the crime, since it is evident that he cannot be the active subject. In his case, his behavior is going to be punished as a mere administrative infringement, considered as grave by the LO 4/2000 in its article 53.
Lastly, this first point ends with an exemption of liability and an aggravating factor. Regarding the first, the facts cannot be punished when their author was moved by humanitarian motives, like for instance, when the immigrants are in high sea. Regarding the second, the facts are going to be punished with the punishment in its superior half, in other words, from seven months and sixteen days to twelve months of fine or imprisonment, when it is proven the profit intention of the active subject. Moreover, this profit intention has to be considered a subjective element of the type, what transforms the type into a crime of tendency.
Art. 318.2 bis:
Shortly after reading this point, we have a doubt, why the legislator has not included the cases of stay along those of entry and transit of the first point? But, reading this a second time, we realize that there is an important different between both. To help a foreigner to enter or transit within Spanish territory is always punished, the profit intention only is going to suppose an increase in the punishment, since it has to be in its superior half. On the contrary, to help a foreigner to stay in Spain infringing the law, is only punished in the cases in which there has been profit intention. This means that, the legislator considers a graver behavior former, for it is punished in any case.
Beyond that, the types are identical, thus we are not going to repeat again the same, instead we are going to sum up what we already said:
– It is a common crime, anyone can be the active subject.
– The use of the word “intentionally” by the type, clearly indicates that this is a malicious crime, which should be possible to commit through eventual malice, but not by imprudence.
– The active subject has to have profit intention, what, on the other hand, has to be considered a subjective element of the type, and therefore, the crime as a crime of tendency.
– The typical behavior consists in helping a foreigner to stay in Spain infringing the legislation, which basically is the LO 4/2000.
– It is a crime of mere activity, being enough with carrying out the typical behavior for understanding consummated the type, thus, it is not necessary that the foreigner has to stay in Spain.
– The foreigner who stays in Spain infringing the law commits an administrative infringement (art. 53 LO 4/2000).
– The legal good is the social interest of controlling the migratory flows and the freedom, security and dignity of the immigrants.
Art. 318.3 bis:
What we find in the third point of the article 318 bis, is an aggravated subtype of the behavior described in its first point. The punishment is of imprisonment from 4 to 8 years when:
“a) When the facts have been committed within an organization whose aim is the realization of such activities. When they are the bosses, administrators or persons in charge of such organizations or associations, shall be applied to them the punishment in its superior half, which can be heightened to its immediately superior in degree.
b) When the life of the persons object of the infringement has been put into danger, or the danger of causing grave injuries has been created.”
In this case, there should be no problem punishing the behavior with the punishment in its superior half, in other words, from six years and one day to eight years of imprisonment, when there has been profit intention.
But there is another more important issue, for the membership in a criminal organization is already punished by the CP separately, in the articles 570 bis and 570 ter. We find the solution to this problem in the article 570 quarter, which establishes that, in any case, when the behaviors punished in those articles are also comprehended in other precept of this Code shall be of application the fourth rule of the article 8. Therefore, we have to compare, on the one hand, what would be the punishment if was appreciated the membership to a criminal group as an aggravating factor of the article 318 bis, and on the other, what would be the punishment, if was punished the basic type of the article 318 bis (although can be affected but another aggravating factor whenever it is not the membership to a criminal group), along the membership in a criminal organization of the article 570 bis or 570 ter, existing between both crimes a relation of a real or ideal concurrence of crimes, depending on the circumstances of the case.
Concerning the second of the aggravating factors, it transforms the type into a crime of concrete danger, since it requires the putting into danger of the lives of the persons object of the infringement, or the creation of a danger of causing grave injuries. We can also consider the type, as a crime of result, since it is required a result, the creation of a risk for the life or physical integrity of the immigrants. Let us see an example of its application with the Spanish Supreme Court´s resolution number 315/2024: “The Superior Court of Justice ratified the assessment carried out by the Provincial Court considering that the concrete danger which the immigrants who were transported suffered is based not only in the boat journey but, especially, in the important overload of the bout — 19 people on board in a bout for 10, besides the burden of the fuel–.
Likewise, the sentence took into account the long duration of the journey, that the swell flooded the bout -, precisely, as consequence of its overcrowding-, and that there were no suitable measures of security for affronting eventualities which could have been transformed into a tragedy if the swell and the flooding of the bout had been more intense.
This Chamber must confirm the reasonings made by the Superior Court of Justice regarding the determination of the concurrence in the tried facts of the concrete danger that contemplates the penal type applied, in consequence of the application of the aggravated type contemplated in the article 318 bis letter 3 b) of the Penal Code.
Departing from the absolute respect to the proven facts, from the practiced proof result facts which allow to notice the concrete danger for the life or physical integrity of the persons object of the infringement:
– The long duration of the journey, from Casablanca to the Spanish shores -almost two days and half-, carried out in adverse climatological conditions since it was in winter -in February- and aboard a small bout. The state of the sea and the instability of the bout provoked the entry of water within it, which despite the efforts of the passengers bailing out water, it did not avoid the wetting of their clothes.
– The bout did not have the minimum conditions for the journey, either for its technical characteristics or the number of passengers. This is about of fiber of 6 meters of length and 2 meters of breadth, with a motor of 40 horses, not suitable for long journeys. Within it traveled 19 persons, exceeding the maximum capacity of 10, what increased the instability of the bout. The motor of 40 horses and the overcrowding entailed greater difficulties to maneuver.
– The minimum conditions of security lacked either in the bout or in the individual security of the passengers. The bout did not have navigational lights, signal flares or fall prevention systems. The accused did not offer life jackets to the passengers and only four of five of them had it, and because they had bought it by their own means.
– The passengers were in precarious conditions, without food -just some nuts- and with little vital space due to the overcrowding.”
Art. 318.4 bis:
Through the fourth point of the article 318.4 bis, it is imposed the punishment of absolute disqualification from six to twelve months, besides the expressly established by the type, to all authority, agent of this or public servant, when the facts described in the third point have been committed with abuse of such condition.
Art. 318.5 bis:
Thanks to this point, it is possible to punish the legal persons, when according to the article 31 bis of the CP, some of them is liable of the facts.
Art. 318.6 bis:
The sixth point allows to the courts, attending to the gravity of the facts and their circumstances, as well as to the conditions of the culprit and the aim pursued by this, to impose the punishment inferior in degree to the respectively established in the first and second point.
The article 70 CP says: “The punishment inferior in degree is formed departing from the minimum number established for the crime and deducting from this the half of its amount, constituting the result of such deduction it minimum limit. The maximum limit of the punishment inferior in degree shall be the minimum of the punishment established by the law for the crime, reduced in one day or in one day of fine depending on the nature of the punishment to be imposed.”
For example, in the case of the typical behavior of the first point which is punished with the punishment of fine from three to twelve months or of imprisonment from three months to one year, the punishment to be imposed would be from one month and fifteen days to three months less one day, of imprisonment or fine.
– Differences between the crime of human trafficking (art. 177 bis) and the crime of illegal immigration (art. 318 bis):
The promised is debt, now I am going to try to settle mine with you. We already saw that, until the reform of the Penal Code by the Organic Law 5/2010, of 22 June, the crime of human trafficking and illegal immigration were regulated in the same precept. They share their basis, the protection of the dignity and physical and mental health of the immigrants in Spanish soil. Thus, sometimes it may be difficult to distinguish between them, here you have the key features to do it, all drawn from the Spanish Provincial Court of Burgos´s sentence number 882/2023:
– “Both behaviors entail the moving of human beings, often to obtain a benefit. However, in the case of the human trafficking there have to be two additional elements with respect to the illegal immigration (before called illicit trafficking, what increased the confusion): a way of undue recruitment, with violence, intimidation, deception, abuse of power or payment of price; and a purpose of exploitation, mainly sexual.”
– “In the case of human trafficking, the main source of income for the criminals and the economical motive of the crime is the product obtained with the exploitation of the victims of prostitution, forced labor, extraction of organs or other ways of abuse; while in the illegal immigration, the price paid by the illicit immigrant, when it is the aggravated subtype of profit intention, is the origin of the income, and it does not usually maintain a persistent relation between criminal and immigrant once the latter has reached his destination.”
– “The second great basic difference between the illegal immigration and the human trafficking is that, the former has always transnational character, having as object a foreigner alien to the European Union, even when it does not necessarily require the cooperation in the crossing of frontiers, while the human trafficking may have a transnational character or not, since the victims may be European or Spanish citizens. Generally, the victims of human trafficking begin consenting in being moved illicitly from one State to another for carrying out a licit work (illegal immigration), but later they are forced to endure situations of exploitation, being, then, victims of a crime of human trafficking.”
– “And a third difference -according the cited Sentence 214/2017- is in the nature of the crime of illegal immigration as a crime necessitated in any case of an administrative hetero-integration. According to the established in the article 318 bis, this crime, which in reality protects the policy of immigration, without prejudice of protecting too the rights of the foreign citizens in a more collateral way, requires in any case the infringement of the regulation about entry, stay or transit of foreigners. While the crime of human trafficking this infringement is not shaped as a typical element, being the relevant elements the affectation of the consent and the purpose of exploitation.”
Then, if they are different behaviors, what is the relation between them when some facts can fit within both precepts? According to the Spanish Supreme Court´s sentence number 430/2019, of 27 September, there is a real concurrence of crimes. The Spanish Provincial Court of Santander´s sentence number 923/2022 says: “a) About the existence of a real concurrence of crimes between the crime of illegal immigration with the corresponding of human trafficking, departing from the fact that for the human trafficking is not necessary the previous infringement of the immigration controls, in a fraudulent way… Our Spanish Supreme Court´s sentence number 430/2019, of 27 September, already established the possibility of a real concurrence of crimes between the crimes of illegal immigration and human trafficking with the purpose of sexual exploitation committed by organization or association, and in a medial concurrence of crimes with a crime of coercive prostitution.
The same we have declared in the Spanish Supreme Court´s sentence number 396/2019, of 24 July.
The Spanish Supreme Court´s sentence number 861/2015 of 20 December, declares that the usual relation between the human trafficking and the crime of prostitution, is of medial concurrence of crimes. This is also drawn from the point 9 of the article 177 bis of the Penal Code, for the punishments established in such article has to be imposed without prejudice of those which correspond, in the case, for the crime of the article 318 bis of this Code and other crimes effectively committed, included those of the corresponding exploitation…”
Víctor López Camacho.
Twitter: @victorsuperlope.
More on my website: www.victorlopezcamacho.com