THE KINSA CASE

Spain

Facilitating unauthorised migration is regulated in Spain by Article 318 bis of the Criminal Code.

The first quantitative analysis of boat driver cases in Spain has been carried out by Canarian lawyer Daniel Arencibia. He analysed the sentences of trials against people accused of driving the boats ("patrones de embarcación" in Spanish) between 2018 and 2024, which involved 1300 people accused. All information related to the study is available here.

Diario de Lanzarote

These data are a preliminary estimate, and the number of people criminalised in Spain in this period is considered to be higher. Arecibia's study does not include all cases of criminalisation, given that the official data is not up to date (for example in the Canary Islands the last update is from mid-June 2023), the study does not include all the Autonomous Communities of the Spanish state and minors are not included.

Despite this, this study allows us to make some initial reflections on criminalisation practices in Spain, as Arencibia has shared in multiple interviews.

The information from Arencibia's database, as well as from published studies such as Novact and Iridia, has been collected in the report ‘The criminalisation of boat drivers in Spain and the Canary Islands’ published by the Patrones Project.

Spain:

- Spain: Since 2018, more than 1,000 people have been tried on charges of ‘facilitating unauthorised migration’, and 95% of them have been convicted. Since 2022, around 300 people have been yearly arrested

Canary islands:

- Only in the Canary islands around 100 people are arrested every year, and from the those accused between 2018 and 2024, almost 80% pleaded guilty!

- Difficulties in accessing an adequate defence, long periods of pre-trial detention (an average of 254 days in Las Palmas and 519 days in Tenerife), and the tactics of the prosecution explain the high percentage of those pleading guilty.

- If the accused pleads guilty prosecution often asks for 3 years of prison sentence, while if the accused decides to fight for his innocence they ask for 8 years. Therefore, the sentence reduction established for cases where the accused is himself a migrant, is only applied by prosecution when the accused pleads guilty.

- The accusations are often based only on the testimony of 1 or 2 people who travelled in the same boat, who become protected witnesses. These accusations are obtained under pressure, as police officers and Frontex offer the regularisation of the administrative situation if they accuse someone, and threat with deportations if they don't. In addition, this is against international law, as convicting a person on the evidence of a protected witness alone contravenes the jurisprudence of the European Court of Human Rights and was taken up by the Spanish Supreme Court.

- The most common sentence is 3 years of prison, as most of the accused plea guilty, but it's often higher, especially when people die during the journey.

Cases

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