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Today’s issue is directly linked to Malta’s strategic location as a transhipment point for illegal immigrants. We asked a leading defence lawyer to ponder the issue and discuss the punishments meted out by our courts, when people are caught trafficking illegal immigrants.

Clandestine offences

By Dr Joseph Giglio

Life imprisonment has always been the punishment meted out to the most serious crimes, namely wilful homicide and serious offences committed by members of the Armed Forces. This is the position not only in Malta but also in most legal systems.

The ferrying of illegal immigrants has never been considered a serious offence, which deserves to be punished with a sentence of life imprisonment.

The severity of offences is determined by how grave society considers that offence to be and to what extent it feels that it ought to protect itself by imposing those punishments, which it believes adequately cater to serve as a deterrent to committing such offences.

Hence, it is clear that all criminal law provisions would lay down more severe punishments for offences related to drug trafficking, rather than violation of copyright provisions. Similarly, all societies feel that stiffer penalties should be imposed on a rapist, or a paedophile than on a person who punches another in the face. All along, the underlying consideration is the harm that such an offence is perceived to cause to society in general.

According to our immigration laws the ferrying of illegal immigrants is punishable with a maximum penalty of up to six months’ imprisonment. It is interesting to point out that the immigrants themselves are also liable to the same punishment. Thus, the legislation in force at the moment places both the person who ferries and his passengers on a par.

There is no doubt that these punishments do not adequately cater for present day realities. In the past years, there has been a surge of these types of offences. The number of persons who wanted to flee their country and seek, illegally, better possibilities elsewhere has increased dramatically. And Malta, due to its geographical position, is bang in the centre of all this activity.

On the basis of elementary principles of economics, the increase in demand led to an increase in the prices charged for such illegal activities. Current prices for a trip from Malta to Ragusa range from USD 500 to 700 per person. Considering a high-powered speedboat could carry between 15-20 persons per trip, the gross income amounts to an average of circa USD 10,500. With petrol expenses amounting to around USD 2,000, the net result is a gain of circa USD 8,500 in 40 minutes! For a maximum of six months imprisonment, if apprehended, the risk involved is relatively insignificant.

Hence, it was felt that legislative measures ought to be introduced to serve as a deterrent for the commission of such an offence. In fact, the amendments, which will be introduced to our Criminal Code, propose a maximum punishment of up to three years’ imprisonment. The punishment for the passengers remains unchanged - that is a maximum of 6 months.

Thus, one can realise that not even the proposed amendments postulate a sentence of life imprisonment. It is true that the act of organising such illegal immigration is to a certain extent an exploitation of the weakness of others. On the other hand, one must also keep in mind that the immigrants themselves are voluntarily committing an offence. Equating the trafficking of illegal immigrants with offences such as wilful homicide would, however, not make legal sense.

Dr Giglio is a criminal defence lawyer