Human smuggling is the illegal helping of people to cross a border, often for a fee, where those involved do not have valid travel documents or residence permits. This is usually done with the intention of giving them access to a country where they otherwise have no legal right to enter. Human smuggling is considered a serious criminal offense in the Netherlands.
The smuggler and the person being smuggled are both aware of the illegal nature of the journey. The focus is on facilitating the illegal entry of persons into another country, and the smuggling usually ends once the border is crossed. Human smuggling should not be confused with human trafficking, which involves exploitation of the person, such as forced labor or sexual exploitation.
Human smuggling is defined in the Netherlands as the unlawful and organized accompaniment or transportation of people to another country. In principle, human smuggling carries a maximum prison sentence of up to six years or a fifth category fine (€103,000). Under special circumstances, the maximum prison sentence can rise to eighteen years.
Human trafficking is not same as human trafficking. Human trafficking involves the illegal transfer of people across borders, often with their knowledge, usually for financial gain of the smugglers. Human trafficking involves forcing or deceiving people to exploit them for labor or sexual purposes, often using force or threat.
What does the law article say about human smuggling?
The law article criminalizing human smuggling, Section 197a of the Penal Code, reads as follows:
'He who assists another person to enter or transit through the Netherlands, another Member State of the European Union, Iceland, Norway or a State which has acceded to the Protocol against the Smuggling of Migrants by Land, Sea and Air, done at New York on 15 November 2000, supplementing the Convention against Transnational Organized Crime, done at New York on November 15, 2000, or gives him the opportunity, means or information to do so, while he knows or has serious reason to suspect that such entry or transit is unlawful, shall be punished as guilty of smuggling of human beings by imprisonment for a term not exceeding six years or a fifth category fine.
He who for gainful gain assists another person in procuring residence in the Netherlands, another member state of the European Union, Iceland, Norway or a state that has acceded to the protocol referred to in the first paragraph, or provides him with opportunity, means or information for that purpose, while he knows or has serious reason to suspect that such residence is unlawful, shall be punished with imprisonment for a term not exceeding six years or a fifth category fine.
If any of the offenses described in paragraphs 1 and 2 is committed in the exercise of any office or profession, imprisonment for not more than eight years or a fine of the fifth category shall be imposed, and disqualification from holding office or exercising the profession may be pronounced, and the court may order publication of its judgment.
If any of the offenses described in paragraphs 1 and 2 is committed by a person who makes a profession or habit of doing so or is committed in association by several persons, imprisonment of up to ten years or a fine of the fifth category shall be imposed.
If any of the offenses described in paragraphs 1 and 2 results in serious bodily injury or threatens another person's life, imprisonment of up to fifteen years or a fifth category fine shall be imposed.
If any of the acts described in paragraphs 1 and 2 result in death, the penalty shall be imprisonment for not more than 18 years or a fine of the fifth category.
If any of the offenses described in paragraphs 1 and 2 are committed with the intent to prepare or facilitate a terrorist crime, the imprisonment penalty imposed on the offense shall be increased by one-third.
For the purposes of this article, the Netherlands shall include the public entities of Bonaire, St. Eustatius and Saba.'
What penalties can be imposed in human trafficking cases?
It is up to the judge to judge whether a criminal offense has been committed. If this is found to be the case, the judge will consider all the circumstances of the case in determining what punishment is appropriate and necessary. A defendant's personal circumstances are also important. The attorneys at Kötter, L'Homme & Plasman Lawyers will ensure that these circumstances are properly presented to the judge. The maximum prison sentence that can be imposed for human trafficking is eighteen years. However, the maximum prison sentence is by no means always imposed.
An attorney at Kötter, L'Homme & Plasman Attorneys at Law can play an important role in a suspected human trafficking case. For example, one of our lawyers can point out to the judge that there is too little evidence. In that case, acquittal should follow. Sometimes it happens that a suspect has confessed to a criminal offense. In that case, a lawyer from Kötter, L'Homme & Plasman Advocaten can provide circumstances why a low(er) sentence should follow.
Is attempted human smuggling punishable?
Attempting this crime is not punishable.
Exoneration for human smuggling?
With regularity, suspects are acquitted of this crime. An example is shown below.
A suspect was charged with human smuggling for having rented a boat on which eight Albanians were later found. The defendant claimed that he had rented the boat without knowing that the Albanians were on board and that it had been used by another person. The court found that there was insufficient evidence that the defendant knew of the presence of the Albanians or that he was involved in the smuggling. Therefore, the defendant was acquitted of all charges.
What is the difference between human trafficking and human smuggling?
Human trafficking and human trafficking are both forms of illegal people movement, but differ in their nature and purpose.
Human smuggling involves the illegal transfer of people across borders, often with their knowledge, and aims at financial gain for the smugglers.
Human Trafficking on the other hand, involves the exploitation of persons through coercion, deceit or deception, such as for sexual work or forced labor.
The purpose of human trafficking is to exploit and exploit the victims, often under unlawful and inhumane conditions. While human trafficking focuses primarily on the physical movement of people, human trafficking focuses on their exploitation.
Need a lawyer for human trafficking?
The attorneys at Kötter, L'Homme & Plasman Lawyers are experienced criminal law specialists and can assist you the moment you are suspected of human trafficking. Our lawyers will discuss with you the criminal case file and together with you determine a strategy that can achieve your desired success. However, it is good for you to know that our lawyers do not bake sweet cakes; we give sound, honest and sincere advice. Should you have to appear in court, they will carefully prepare you for the hearing. The attorneys at Kötter, L'Homme & Plasman Advocaten will ensure that you are represented in the best possible way during the hearing.
If you have any questions about this, please feel free to contact our office. You can send an e-mail to info@klpadvocaten.nl or (during office hours) call 020-6731548. In case of emergency (you or someone you know may soon be arrested), please contact us at our emergency phone number 06-24428734.
