The procedural legal status of migrants transported by smugglers in European jurisprudence

Abstract

In this paper, we present the approach of criminology and criminal procedure law to migrant smuggling, a phenomenon that is also significant at the European level. The characteristics of migrant smuggling as defined by the UN Protocol are presented, followed by the responses at the European level and the most recent statistics. The procedural status of smuggled persons, their status as victims, witnesses or perpetrators (suspected or accused), and the approach taken by the different branches of law are also discussed. After that, we summarize the results of our research conducted in the spring of 2024 with the cooperation of EUROJUST and Legicoop members. The following research questions were formulated, concerning the procedural status of migrants transported by smugglers in their countries  In criminal cases of migrant smuggling, what is the procedural position of the person transported by the migrant smuggler? (victim, witness, instigator, abettor) Are there any individual criminal proceedings or other (i.e. administrative, misdemeanour) procedures against the person transported by the migrant smuggler?In most European countries, migrants are considered victims of migrant smuggling and in the criminal proceedings that have been initiated, they take the position of victims: at most they are questioned as witnesses. Due to illegal border crossing, no separate criminal proceedings are usually initiated against them, most of the time these cases are resolved within the framework of public administrative proceedings.