21 November 2017
Eastern Partnership expert meeting on irregular migration: discussion paper and legal framework overview
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The importance of effective countering and preventive measures should be recognized by the governments of EaP states as well as the importance of cross border cooperation to ensure the fulfillment of the commitments regarding the operations to counter migrant smuggling according to the international criminal law and the commitments on protection of migrants and refugees, especially migrants in vulnerable situation."
From: Eastern Partnership Panel on Migration and Asylum: Discussion Paper for the Expert Meeting on Preventing Facilitation of Irregular Migration, 17-18 October 2017, Kiev, Ukraine(pdf):
"...the present paper was developed as a background and preparatory information basis for the meeting participants. This document covers the following issues: (i) an overview of the existing international legal and policy framework on preventing facilitation of irregular migration (migrant smuggling); (ii) definition of liability for facilitation of irregular migration in national legislation; (iii) role of cooperation at international and national level for effectively preventing facilitation of irregular migration.
The discussion paper is prepared based on the answers received from six EU Member States (MS) and five EaP countries to a questionnaire (Annex I) specifically designed for this purpose. The questionnaire sent to the participating states comprised seven questions aimed at finding out more on the policies and practices concerning preventing facilitation of irregular migration in the EU MS and EaP countries. Other sources of information on the EU policy and individual countries programmes were also used, where applicable, including regarding those countries who did not submit their inputs."
The answers to the questionnaire can be found in this document (pdf) prepared for the same meeting, covering the legal frameworks of Armenia, Azerbaijan, Georgia, Moldova and Ukraine (all the Eastern Partnership countries except Belarus), and Hungary, Latvia, Lithuania, the Netherlands, Poland and Portugal (EU Member States).
The following questions were included in the questionnaire:
1. Has your country ratified: a) the United Nations Convention against Transnational Organized Crime, b) the Protocol against the Smuggling of Migrants by Land, Sea and Air and c) the Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children?
2. Does your national legislation contain a specific definition of facilitation of irregular migration (hereafter the facilitation or migrant smuggling)? What activities are considered as facilitation?
3. What liability your legislation envisages for various types of criminal conducts, which could constitute facilitation (e.g. facilitation of illegal entry (border crossing), transit, or stay/residence, provision of forged documents, assistance in abuse of benefits system etc.)?
4. Do facilitators need to derive benefits to have committed an offence? Does your legislation allow sanctions to be waived if facilitation to irregular migrants is provided as humanitarian assistance?
5. In case your legislation provides for a criminal liability for facilitation of irregular migration, does it provide for aggravating circumstances, e.g. endangering migrants' life or entail inhuman or degrading treatment?
6. Does your legislation envisage a liability for smuggled migrants for irregular entry and stay/residence per se? Are there any special conditions for smuggled migrants who agree to cooperate with authorities?
7. Please provide available statistics for 2014 - 2016 on detected cases of migrant smuggling (detected smugglers). What was the rate of cases reached to the court and rate of judgements of conviction in these cases?
8. Please describe how your national law enforcement and judicial authorities cooperate to prevent, investigate and prosecute cases of migrant smuggling. Are any other authorities involved in this process, e.g. financial intelligence units tracking and investigating financial flows related to migrant smuggling?
9. Please provide recent examples of effective international cooperation and cross-border operations to detect facilitators/smugglers. Which authorities have been involved? What challenges did you face in coordinating with counterparts?
10. What initiatives exist in your country in the field of preventing facilitation of irregular migration? Are specific information campaigns conducted? Does your country implement or is it considering implementing programs of regular migration as a tool to prevent irregular migration?
11. Does your country apply two distinct legal frameworks to migrant smuggling and trafficking in human beings, in line with the international legal framework? How do you address the risks of smuggled migrants becoming victims of human trafficking? What challenges exist in the identification of smuggled persons and victims of human trafficking?
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