Crime against the rights of the foreign citizens

Commentary on the Tribunal Supremo of 9 march 2012

Abstract

If the behavior attributed to the active subject in the crimes against the rights of the foreign citizens goes unequivocally to trying to the foreign citizen a status that overcomes the charges that the administrative classification links to the illegal situation of the foreigner, it does not seem to be reasonable to think that that conduct damages the rights of the foreign citizen. In case of the penal sanction of certain behaviors, characterized for improving the status of the foreigner, it cannot be said that one directs to protect that juridical good that preaches the paragraph of the title in which there is fitted the article 318 bis. Very on the contrary, the intervention to sanction does not have another justification that her of protecting the regulation of the migratory flows. But it is doubtful that such a aim should be protected always for the penal code, not at least that is the purpose of the penal norm in any case. It is necessary to differentiate therefore two types of behavior as refer to the entry or traffic of the foreigner or it is a question of collaboration to support the permanency in the territory of the foreigner once already be in this one. It is not acceptable to interpret a penal rule of luck that should include in the same one, suppositions that they do not even deserve the concept of administrative sanction. Provided that the fact proved the appealed judgment, attributes a behavior that favors the permanency carried out by whom it is not imputed for having facilitated the entry in Spanish territory of the foreigner, one CP is not necessary to understand this fact as foreseen in the article 318 bis.