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Protocol against the Smuggling of Migrants by Land, Air and Sea

This Protocol aims to prevent and combat this type of smuggling, and also to promote cooperation between the signatory States and to protect the rights of victims. It has been added to the United Nations’ Convention against organised crime in order to provide an international instrument against the smuggling of migrants.

ACT

Council Decisions 2006/616/EC and 2006/617/EC of 24 July 2006 on the conclusion of the Protocol against the Smuggling of Migrants by Land, Air and Sea, supplementing the United Nations Convention against Transnational Organised Crime.

SUMMARY

The purpose of this Protocol to the United Nations Convention against organised crime is to prevent and combat the smuggling of migrants, and to promote cooperation between States in this area.

The signatory States must establish the following acts as criminal offences when committed with the aim of obtaining a financial or material benefit:

  • the smuggling of migrants, that is, procuring the illegal entry of a person into a State of which he is not a national or a permanent resident;
  • producing fraudulent travel or identity documents;
  • the use of a document by a person other than the rightful holder;
  • procuring, providing or possessing fraudulent documents;
  • enabling a person to remain in a country without complying with the necessary requirements.

Endangering the lives or safety of migrants, and inflicting inhuman or degrading treatment must be considered as aggravating circumstances. In addition, victims of the smuggling of migrants shall not be liable to criminal prosecution.

The Protocol shall apply to the prevention, investigation and prosecution of these offences where they are transnational in nature and where an organised criminal group is involved, as well as to the protection of the rights of the victims of these offences.

Measures against the smuggling of migrants by sea

If a State suspects that a ship without nationality is smuggling migrants, it can board and search the vessel.

If a State suspects that a ship with a foreign registration is smuggling migrants, it notifies the flag State and requests confirmation of registry and authorisation to take appropriate measures. The flag State must respond promptly to such a request. If the suspicions prove to be justified, the requesting State can board and search the vessel, and then take appropriate measures with respect to the vessel and the persons and cargo on board. They must also check the safety and the humane treatment of the persons on board. If no imminent danger is found, no additional measures can be taken without the express authorisation of the flag State.

Only ships clearly marked as being on government service are authorised to board and search vessels.

International cooperation

The States Parties will work towards strengthening their borders and are entitled to deny entry to persons implicated in the smuggling of migrants.

Countries with common borders or lying on routes used by criminal groups are required to exchange certain information such as that relating to the embarkation and destination points used by the traffickers, the routes and modes of transportation used and the methods of concealment of migrants, etc.

Immigration officials and other competent agents shall be trained in preventing the smuggling of migrants, in the humane treatment of such persons and in protecting their rights. To this end, the States shall cooperate with each other and with international organisations, non-governmental organisations and other competent organisations, as well as with other elements of civil society to ensure that there is adequate personnel training.

Furthermore, States with relevant expertise and appropriate technical resources should help States that are frequently countries of origin or transit for migrants.

Prevention, protection, assistance and return

The States will provide public awareness-raising campaigns and promote development programmes and cooperation on the regional, national and international level to combat the root socio-economic causes of this traffic, notably poverty and underdevelopment.

Furthermore, the States must take measures to protect the rights of migrants who are victims of smuggling, taking into account the special needs of women and children. They must provide appropriate protection against violence that may be inflicted upon them and appropriate assistance to migrants whose lives or safety are endangered by the fact that they have been the object of smuggling.

Lastly, and without prejudice to any right afforded to persons who have been the object of smuggling by any domestic law of the receiving State, the States party to the Protocol agree to facilitate the return of their citizens and persons who have the right of permanent residence in its territory and who have been the object of smuggling. The States shall take all appropriate measures to carry out the return in an orderly manner and with due regard for the safety and dignity of the person.

REFERENCES

ActEntry into forceDeadline for transposition in the Member StatesOfficial Journal

Decisions 2006/616/EC and 2006/617/EC

24.7.2006

-

OJ L 262 of 22.9.2006

RELATED ACTS

Council Decisions 2006/618/EC and 2006/619/EC of 24 July 2006 on the conclusion, on behalf of the European Community, of the Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children, supplementing the United Nations Convention against Transnational Organised Crime [Official Journal L 262 of 22.9.2006].
This Protocol aims at preventing and combating trafficking in persons, especially women and children, and at protecting and helping the victims. It promotes international cooperation in order to achieve these aims.

Council Directive 2004/81/EC of 29 April 2004 on the residence permit issued to third-country nationals who are victims of trafficking in human beings or who have been the subject of an action to facilitate illegal immigration, who cooperate with the competent authorities [Official Journal L 261 of 6.8.2004].

Council Directive 2002/90/EC of 28 November 2002 defining the facilitation of unauthorised entry, transit and residence [Official Journal L 328 of 05.12.02].

Council Framework Decision 2002/946/JHA of 28 November 2002 on the strengthening of the penal framework to prevent the facilitation of unauthorised entry, transit and residence [Official Journal L 328 of 05.12.02].

Last updated: 22.12.2011
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