Perspective on migration and migrant smuggling. The link between offender and victim.

Abstract

This article aims to provide insight into the migration phenomenon while also outlining the main concerns in regard to how migration can impact the judiciary system. Providing a perspective on the phenomenon, this paper brings forward notions connected to the crimes associated to the state frontier while also painting the link between an offender and a victim of migrant smuggling.

Concepts, answers and crimes

In the last decade, the European continent has been confronted with a matter of great importance, mainly having its origins in the human perception of the state of war and how it impacts the livelihood of individuals. While some offenders end up with a conviction that entails definite solitary confinement, some offenders, a significant number of them immigrants themselves, are convicted with a suspension of the execution of the sentence. As a result, the coordination of compliance with the measures and enforcement of the obligations laid down by the court is required by the probation system. I consider the subject of migration and specifically, the migration that impacts judicial procedures a priority, taking into consideration the need in understanding the phenomenon. This article aims to accentuate the urgency in understanding both sides involved when a crime regarding migration is committed- the offender vs. the immigrant victim. More so, I intend to outline my field of vision on this imperative matter that has been the key topic of the global dialogue.

As a part of the judiciary system, the probation services contribute to the attainment of the act of justice, devote to maintaining the security of the community, integrating the felons, and diminishing the risk of relapse in the offenders. While every country’s probation system differs, the institution aims to carry out sentences that don’t require the implication of penitentiaries, with a key focus on the reintegration of the offender into society.

It may come as a surprise, but as I delved into the research, I came face to face with the truth that despite migration taking a stand in the last years as a known extensive phenomenon, the origins of the crimes relating to it go way back into the past. Immigrant trafficking is a widespread crime that originated way before it became a global dispute as a result of it being perpetuated to a greater extent in the last few years. The organisations and networks that take advantage of vulnerable people that are desperately trying to flee their state of origin due to economic downfalls, war or crimes are numerous, presenting an image of despair and heartache in the social realms.

While immigrants are trying to flee their countries of birth, the occurrence of trafficking and smuggling takes over. This type of crime is part of a bigger and greater phenomenon called human trafficking, taking variations in regards to different types of people, e.g. immigrant trafficking or trafficking of minors. These variations are in definite connection with the perception of the societies and how certain events taking place in different states influence the citizens. People react differently in extreme situations; one of the better examples, in this case, is how citizens view the state of war in their country. Numerous extent of people abandon their homes in order to protect their families, taking, at times, a leap of faith in their pursuit of a better life. The others remain in countries deeply inflicted by war, famine and death, either trying to protect their homes or simply not wanting to leave their birthplace.

As a result, criminal organisations take advantage of the downfall of the countries, profiting off the vulnerable people. The statistical analyses show that citizens from countries at war tend to look to the Occident when leaving their respective homes. This perception has its origins in the theory that immigrants choose Occidentalism as a result of their dependability on spatial and economic conditions.[2] Europe is a continent that can provide the security and stability immigrants need, especially in the Western part of the continent. One example to support this can be seen by viewing the current warzones on the planet that impacted the phenomenon of migration. The ongoing Syrian civil war and the Ukrainian war are relevant in this matter as they provide data in regard to the choices immigrants make when fleeing conflict. A big number of Syrian citizens traveled to the Occidental countries, especially due to the state’s reassurance of safe havens for those in need. As a result, the number of crimes related to immigrants, especially immigrant trafficking has risen drastically in the last decade. As every country has its own legislation, the methods and process of conviction differ. As an example, Romanian legislation incriminates immigrant trafficking distinctively from human trafficking. This comes as a reaction to the vast crimes committed on the territory, the high number of immigrants that have fallen victims to the networks of trafficking issuing the need for a distinct charge.

As the number of crimes has risen, the number of convictions became important in identifying the decisions made by the national courts in regard to immigrant trafficking. Romania confronts with a significant number of convictions for the crime of immigrant trafficking, being a country in Europa that is used as a transit point for the immigrants that travel to the Western parts of Europe. Because of this, the convictions for immigrant trafficking and of immigrants have risen in the last years. There is a correlation to the increased number of offenders, mainly because in the last decade, the European continent has met with an increase in the flow of the population, and as a result, the number of offenders increased.

The popularity of crimes related to immigration has been a result of the benefits the offenders tend to view as just. As the number of immigrants rises, so does the number of people that profit from this social phenomenon. When fleeing a country at war, citizens have only one thing on their minds: ensuring safety for themselves and their families. Because of this, many immigrants agree to pay a large sum of money (at times forcing the family that remains in the country to vouch and pay off their debt) in order to ensure transportation to the Occident. The means of transport are often unsafe for the immigrants, varying from them being carried in freezer trucks, to embarking on rusty ships that are often lost at sea, and even being carried in small compartments of cars, specifically designed to hide people in order

r to pass a border without detection. As a result, the number of deaths in accordance with the crime is high, but mostly it is not associated with it because the smugglers tend to minimalize the gravity of their crime by discarding the immigrants to avoid liability.

Another issue referring to foreigners is the socio-cultural concern. Immigrants tend to have a distinct culture than the Europeans, and the views and principles on which the Occidentals guide are distinctive. While the Occident tends to accept promiscuity and a more libertine mindset, for foreigners this comes as a requirement and ‘a breath of fresh air’ as most of the Middle-East countries promote opposite values. Nevertheless, even if immigrants take the journey and settle in an Occidental nation, the values and culture that was embedded in their mindset from birth are hard to abandon. As a result, the citizens may feel like their own social and cultural values are not respected, thus the topic of social rejection occurs. More so, in extreme cases, hate crimes due to the social and cultural differences may force the communities apart and solidify the difficulty of integration into the society.

Why do immigrants pursue other constituents?

To further intensify the rise of this specific offence, the answers to the question of why vary but at the same time, there is a specific common ground in regards to the crime: money. The specification for this crime, in accordance with the smugglers, refers to a higher chance of financial improvement that comes fast and without much trouble. As for the immigrants, the chance of a new life far away from the country of origin that usually depicts a scenery of war and famine is viewed as a necessity. Even if the risks they take in order to ensure their safe arrival to a country of economic and political stability are grave, the prospects of the country of origin are null and therefore improper for living. In a relevant study, it was concluded that the cause of fleeing from a country may vary, the common conception being that immigrants leave their birth country because it became too dangerous or too difficult to stay in.[3] However, in my opinion, thinking that the sole reason why immigrants leave their country is due to armed conflict is a misconception.

There are numerous reasons why the migrants flee their country, and even as the occidental media portrays an image of war, at times it is not true. With certainty, a high number of people leave because of political changes that pertain to warfare, but a definite amount of individuals escape their community because of the costs of living or the need to improve both economically and socially. As a result, the need for a better quality of life[4] overcomes the fear and uncertainty of a new world. This situation usually varies depending on the country of origin. Immigrants come from various ethnical and cultural backgrounds, and it is not a certainty that all people come from an oriental background, despite the media and the western countries promoting this misconception. It is my firm belief, as a person coming from a European background that the countries that offer refuge tend to only focus on the immigrants that have no other option but to seek help from a different nation. The rise of immigrants comes with uncertainty and fear to the citizen and in a way, their apprehension is justifiable. Although, I believe, as a whole, the outcome it provides is a sense of rejection that doesn’t benefit anyone. It also comes with an increase in problems relating to welcoming refugees and trying to coexist in an ever-changing culture. Additionally, there are many people that, despite the instability of their countries, opt on improving themselves and explore opportunities in western nations. Furthermore, the media platform contributes greatly to the delusion of why immigrants seek other opportunities. Focusing on war, instability and cultural differences, the citizens tend to be misinformed and paint an opinion of mistrust both in the system that ultimately cares for them, as well as the people in it. But, in reality, the individuals that suffer are eventually the foreigners that can’t feel integrated in the community, a community that abandons and views them as outsiders, despite contributing equally or more to society.

Why do the offenders commit the crime?

The extensive causes of this crime provided the doctrine with a large number of cases relating to migrants smuggling and people trafficking, the latter being occasionally an extent of the antecedent. For centuries, individuals have been abandoning their homes in search of better lives and more opportunities. As researched by the International Criminal Police Organization, in the last decade, the process of globalization has caused an unprecedented amount of migration from the least developed countries of Asia, Africa, Latin America and Eastern Europe to Western Europe, Australia and North America. With this, we have seen an increase in the activities of organized criminal networks which facilitate irregular migration. By providing fake identification documents, organizing transport, and bypassing official border controls, criminals are making huge profits.[5]

The crime related to migrant smuggling varies depending on the legislation of the nation that pursues the conviction of the offenders. Even if the main act of smuggling has a general definition, there are other factors to be taken into account, such as territorial jurisdiction. For example, in the United States of America, there are 3 main offences that are viewed as smuggling illegal immigrants:

• Smuggling: including the physical act of smuggling or running a business to arrange for others to smuggle people into the U.S;
• Harboring illegal immigrants: keeping and/or protecting people illegally present in the U.S;
• Transporting: the physical act of crossing the border;

In addition to this, there are other offences viewed as less obvious than the main act of smuggling, respectively:

• Hiring an illegal immigrant, knowing they are not legally in the U.S.
• Committing marriage fraud
• Encouraging immigrants to illegally enter the United States[6].

As for the legislation concerning the Romanian territory, The Romanian Criminal Code incriminates in its codex Title III Crimes relating to authority and state frontier, Chapter II Crimes associated to the state frontier, a number of four articles that describe the offences relating to immigrants. The recurrent article, art. 263, pursues the conviction of individuals that commit migrant trafficking and the statistics and praxis show that it is the most frequent crime in regards to migrant smuggling in Romania.[7]

In the context of my activity as a probation officer in Romania, there have been cases when individuals that committed migrant smuggling in correlation to the Romanian legislation[8] were convicted under the supervision of the Probation Service. Despite the high risk of the crime and the repercussion that comes with the offence, the legislator tends to be more lenient with those offenders that show remorse and a greater capability of social rehabilitation. The concept of social rehabilitation is interpreted differently[9], mostly in accordance with national legislation.

In my practice, I came face to face with an intriguing case regarding an offender convicted of migrant smuggling. The citizen was a well-mannered, agile man in his forty’s that had no prior criminal record. As I came to know the man whose supervision was assigned to me, I learned a great deal about his upbringing and his life. The man had previously lived in Spain and decided to return to Romania because of familial problems, leaving his former wife and child in the western country. As the complications with his family intensified, his need for economic aid increased, resulting in a moral dilemma that he felt he couldn’t overcome. He needed money in order to care for his sick mother and the financial gains from his job were not sufficient.

This case became engrossing to me when I learned that the man’s job revolved around the department of providing transportation services to people in need-taxi services per se. As a result, the offender was well aware of the law and the specifications that imply violating the legal rules on the road. Regardless of this knowledge, the man accepted to transport 10 people of different origins to a Romanian city near the border with Serbia. Despite him knowing that what he was doing was against the law, he viewed that by doing this singular task, he would acquire pecuniary gain as well as a sense of satisfaction because he was offering help to those in need.

When I conducted the interview, the offender was adamant in expressing regret for what he did, as well as reiterating that his sole purpose was to help those in need. As I painted the entire scene, I came to the conclusion that the need for money was the real reason that boosted the decision to commit the crime and the sense of achievement which came from offering help was just a secondary reaction.

In light of this, I have drawn my own conclusions relevant to the link between a crime and an offender. As economic instability increases, so do the crimes relating to migrant smuggling. People feel that in order to satisfy their financial needs, easy access to money is the fastest and most rewarding way to accomplish it, usually forgetting the actual implications that result from committing criminal offences. This comes either from lack of research, ignorance or group pressure generally offering a simple alternative that most of the time bypasses the need of alerting the people about the ramifications of committing a crime. Even if every individual is advised to do their own research about the legislation, most of the time, they don’t.

Path of smuggling and conclusions

Migrant smuggling is the facilitation, for financial or other material gains, of irregular entry into a country where the migrant is not a national or resident. The criminals behind this highly profitable business seize the opportunity created by the need or desire of people to escape not just poverty and lack of employment opportunities but also natural disaster, conflict or persecution.[10] The process is long and dangerous; migrants flee their countries in desperate need of safety and a better life, while smugglers arrange entry into a country, usually providing the immigrants with false documents in exchange for pecuniary gain. Most of the time, smugglers are individuals involved in criminal organisations, people that gain on a regular basis from committing crimes. The criminals arrange the means of transportation for the migrants, the conditions usually being improper and life-threatening. The journey concludes with no guarantee of the mere reasons the migrants seek help-better life and safety.

For the people that take their chances and choose to seek a better life, there is no guarantee. As for the smugglers, whether they have no criminal record or are known offenders, the risks are high and the chances of being caught and convicted should alert them of the ramifications of the crime. Despite lacking in some aspects, the procedures that entail border controls are rigorous and most of the time largely effective. The rising number of crimes makes it difficult for regulated organisations to be meticulous and efficient, but somehow, viewing the high number of convictions for this crime, there is evidence of an extension in border control regulations, as well as the workforce.

Analysing the perspectives of both citizens of nations that offer refuge, and also the immigrants that seek help in order to better their lives, the restrained mind-set comes as no surprise. But at the same time, when opening a door for individuals that flee poverty, natural disasters or war, there should be a firm outlook that, even if the people enter a country with different cultures and rules, by choosing that certain community, immigrants abide to the rules of the nation. The residents should not fear change, as it is inevitable, while also trying to better themselves through actual information about the reality, not the fabricated views promoted by a part of the media or other people. In addition to this, I feel the need to outline the fact that some of the immigrants come with openness to labour, and it is a known fact that a number of western countries benefit greatly from the employment of immigrants in their nation- people that are the infrastructure of industries that the countries own residents turn down. Thus, a heavy question persists: is the system fully rotten or are the people in it unable to accept the course of change?

Article written by: Corina-Ioana CHAMBRE, Probation Officer, Timis Probation Service.  (e-mail: corina.chambre@just.ro)

References

1. SAPIENS Journal, Vol. 6/n1- Resilient cities, Perspectives, Viewing immigrants’ neighbourhood and housing;
2. Fergus McNeill and Kristel Beyens (2013), Offender supervision in Europe, pg. 145;
3. Romanian Criminal Code and Criminal Procedure Code, Edition 24 updated on 7 March 2022, cared by Petruţ Ciobanu, published by Rosetti International, Bucharest, 2021;
4. Scott D. Pollock & Associates PC, Consequences for Smuggling Undocumented Immigrants, https://www.lawfirm1.com/removal-proceedings/immigrant-smuggling/, visited in December 2022;
5. Amnesty International, Refugees, Asylum Seekers and Migrants, www.amnesty.org, visited in December 2022;
6. Indaco Lege 5, https://lege5.ro/Gratuit/gezdmnrzgi/infractiuni-privind-frontiera-de-stat-codul-penal-partea-speciala-titlul-iii-infractiuni-privind-autoritatea-si-frontiera-de-stat?dp=gqytsojvge3dc, visited in December 2022
7. Interpol, People smuggling, visited in December 2022;
8. United Nations Office on Drugs and Crime, Migrant smugglings, visited in December 2022.

Footnotes

[2] SAPIENS Journal, Vol. 6/n1- Resilient cities, Perspectives, Viewing immigrants’ neighbourhood and housing that can be accessed at: https://journals.openedition.org/sapiens/1516?gathStatIcon=true&lang=fr

[3]The document can be accessed online at Amnesty International, Refugees, Asylum Seekers and Migrants, www.amnesty.org, visited in December 2022

[4] The document can be accessed online at: https://www.lawfirm1.com/removal-proceedings/immigrant-smuggling/

[5]The document can be accessed online at: https://www.interpol.int/Crimes/People-smuggling/People-smuggling-the-issues

[6]The document can be accessed online at:  https://www.lawfirm1.com/removal-proceedings/immigrant-smuggling/

[7] The document can be accessed online at: https://lege5.ro/Gratuit/gezdmnrzgi/infractiuni-privind-frontiera-de-stat-codul-penal-partea-speciala-titlul-iii-infractiuni-privind-autoritatea-si-frontiera-de-stat?dp=gqytsojvge3dc

[8] Art. 263 from the Romanian Criminal Code refers to the conviction of individuals who commit offences regarding  the state frontier

[9] Fergus McNeill and Kristel Beyens (2013), Offender supervision in Europe,  pg. 145,

[10] The document can be accessed at: https://www.unodc.org/unodc/en/human-trafficking/migrant-smuggling/migrant-smuggling.html