legislation, in particular Council framework Decision of 28 November 2002 on the
strengthening of the penal framework to prevent the facilitation of unauthorised
entry, transit and residence,
22 and Directive 2011/36/EU of the European Parliament
and of the Council of 5 April 2011 on preventing and combating trafficking in
human beings and protecting its victims, and replacing Council Framework Decision
2002/629/JHA.
23 Supplementary to them, it is to note Regulation (EU) No 514/2014
of the European Parliament and of the Council of 16 April 2014 laying down general
provisions on the Asylum, Migration and Integration Fund and on the instrument for
financial support for police cooperation, preventing and combating crime, and crisis
management.
24 In addition to this, the European Migrant Smuggling Centre (EMSC)
as a specific branch of Europol has been set up in 2016.
25
Strikingly, though, the abovementioned 2002 Council Framework Directive fails
to clearly lay down that financial gain is essential to qualify smuggling as a crime. In
other works, helping migrants if interpreted in broad terms may amount to committing a crime.
26 And this is what is happening in most EU member States which had
removed from the definition of human smuggling the financial gain element (van
Liempt 2016). Hence, humanitarian assistance is deemed illegal in many countries
that are, actually, prosecuting it as shown by the abovementioned cases. FRONTEX
has unfortunately started the fire by casting doubts on NGOs’ rescue efforts without
reliable evidence echoed by reputable media (Robinson 2016; Leggeri 2017).
Although most cases have been acquitted in the end, such an approach turns
criminal law into a powerful deterrent in distress situations (Gammeltoft-Hansen and
Tan 2018). The UN Refugee Agency along with others have raised their voice
against this situation. However, the evaluation of the Facilitation Package undertaken by the European Commission in 2017 has not led to any amendment as the
latter argues lack of sufficient data indicating “actual and repeated prosecution and
conviction of individuals or organisations facilitating irregular border crossings for
22 OJ [2002] L 328/1.
23 OJ [2011] L 101/1. More information is available at a dedicated webpage: https://ec.europa.eu/
home-affairs/what-we-do/policies/organized-crime-and-human-trafficking/trafficking-in-humanbeings_en. According to Article 3(a), “Trafficking in persons” shall mean the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other
forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of
vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person
having control over another person, for the purpose of exploitation. Exploitation shall include, at a
minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced
labour or services, slavery or practices similar to slavery, servitude or the removal of organs’.
24 OJ [2014] L 150/112.
25 See
https://www.europol.europa.eu/about-europol/european-migrant-smuggling-centreemsc#fndtn-tabs-0-bottom-1.
26 Commission Staff Working Document. REFIT Evaluation of the EU legal framework against
facilitation of unauthorised entry, transit and residence: the Facilitators Package (Directive 2002/90/
EC and Framework Decision 2002/946/JHA), Brussels, 22 March 2017 [SWD(2017) 117 final], at
pp. 8–9 suggests that the lack of definition is due to the difficulties in tracing financial flows in third
countries. This reason is however unconvincing as it leaves humanitarian smugglers unprotected.
Occupational Hazards in the Light of the Maritime Migration Challenge
87
strengthening of the penal framework to prevent the facilitation of unauthorised
entry, transit and residence,
22 and Directive 2011/36/EU of the European Parliament
and of the Council of 5 April 2011 on preventing and combating trafficking in
human beings and protecting its victims, and replacing Council Framework Decision
2002/629/JHA.
23 Supplementary to them, it is to note Regulation (EU) No 514/2014
of the European Parliament and of the Council of 16 April 2014 laying down general
provisions on the Asylum, Migration and Integration Fund and on the instrument for
financial support for police cooperation, preventing and combating crime, and crisis
management.
24 In addition to this, the European Migrant Smuggling Centre (EMSC)
as a specific branch of Europol has been set up in 2016.
25
Strikingly, though, the abovementioned 2002 Council Framework Directive fails
to clearly lay down that financial gain is essential to qualify smuggling as a crime. In
other works, helping migrants if interpreted in broad terms may amount to committing a crime.
26 And this is what is happening in most EU member States which had
removed from the definition of human smuggling the financial gain element (van
Liempt 2016). Hence, humanitarian assistance is deemed illegal in many countries
that are, actually, prosecuting it as shown by the abovementioned cases. FRONTEX
has unfortunately started the fire by casting doubts on NGOs’ rescue efforts without
reliable evidence echoed by reputable media (Robinson 2016; Leggeri 2017).
Although most cases have been acquitted in the end, such an approach turns
criminal law into a powerful deterrent in distress situations (Gammeltoft-Hansen and
Tan 2018). The UN Refugee Agency along with others have raised their voice
against this situation. However, the evaluation of the Facilitation Package undertaken by the European Commission in 2017 has not led to any amendment as the
latter argues lack of sufficient data indicating “actual and repeated prosecution and
conviction of individuals or organisations facilitating irregular border crossings for
22 OJ [2002] L 328/1.
23 OJ [2011] L 101/1. More information is available at a dedicated webpage: https://ec.europa.eu/
home-affairs/what-we-do/policies/organized-crime-and-human-trafficking/trafficking-in-humanbeings_en. According to Article 3(a), “Trafficking in persons” shall mean the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other
forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of
vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person
having control over another person, for the purpose of exploitation. Exploitation shall include, at a
minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced
labour or services, slavery or practices similar to slavery, servitude or the removal of organs’.
24 OJ [2014] L 150/112.
25 See
https://www.europol.europa.eu/about-europol/european-migrant-smuggling-centreemsc#fndtn-tabs-0-bottom-1.
26 Commission Staff Working Document. REFIT Evaluation of the EU legal framework against
facilitation of unauthorised entry, transit and residence: the Facilitators Package (Directive 2002/90/
EC and Framework Decision 2002/946/JHA), Brussels, 22 March 2017 [SWD(2017) 117 final], at
pp. 8–9 suggests that the lack of definition is due to the difficulties in tracing financial flows in third
countries. This reason is however unconvincing as it leaves humanitarian smugglers unprotected.
Occupational Hazards in the Light of the Maritime Migration Challenge
87