Humanitär hjälp och människosmuggling - Straffbar humanitet i utlänningslagen?
Humanitarian aid and human smuggling - Criminal humanity in the Aliens Act?
Author
Summary, in English
The current conflict in Syria has resulted in a major refugee disaster. The lack of legal refugee routes to Europe is forcing refugees to hire smugglers to escape war in their homeland. They are often forced to pay large sums of money for the hazardous journey across the Mediterranean Sea and further through Europe. These journeys are often far stretched and not many are successful. Due to the war in Syria, the number of suspected cases of human smuggling has increased significantly in Europe.
Human smuggling is usually associated with criminal organizations that generate a significant amount of income by engaging in the illegal movement of people across national borders. However, during the past year the media has described other individuals who have assisted with giving humanitarian aid by driving the refugees across borders. Without looking for a profit these individuals truly look to help refugees who want to seek asylum in Sweden.
This thesis discusses if there is a criminal humanity (straffbar humanitet) in the legal provision of human smuggling in the Aliens Act in Swedish law. Through a legal case study, I have analysed and investigated how the courts apply and interpret the humanitarian exception at an internal and external border of Sweden. In light of this study, my conclusion is that it’s not a criminal act when passing through an external border to assist a refugee to Sweden who immediately upon arrival, i.e. in connection with customs control, seeks asylum. Regarding the smuggling through an internal border, the Supreme Court says it generally can not be considered a strong need to assist foreigners from a neighbouring country to Sweden via an internal border. As a result, it cannot be a legal base for the humanitarian exception from the criminal area in chapter 20, section 8, Aliens Act.
In the judgement, NJA 2009 s.424, the Supreme Court announced that there might be cases where the circumstances warrant a humanitarian exception, even though an individual has been helping an asylum seeker enter Sweden via an internal border. In my view, there are deficiencies in the application of the humanitarian exception. In the legal case study it has emerged that a number of cases of human smuggling have been deemed as petty offences for humanitarian reasons, rather than an acquittal. In my opinion, these cases should have warranted an application of the humanitarian exception due to special circumstances. If the humanitarian smuggling has occurred without compensations, due to friendship or of children or close relatives who had the intention to seek asylum in Sweden, then their actions should reasonably constitute to an acquittal instead of a punishment according to the provision of human smuggling.
After finding that there are deficiencies in the application of the humanitarian exception, my next question was whether there will be a real possibility at all to apply the humanitarian exception at an internal border under Swedish law. My opinion is that the humanitarian exception in the Aliens Act requires a clarification. In order to ensure legal certainty and predictability, a clarification is required regarding in what situations and under what circumstances the humanitarian exception may be applicable. Considering several deficiencies in the assessment criteria, it also requires a clarification if there should be a difference to provide humanitarian aid to an internal or external border of Sweden.
Following a fundamental review of the existing law in this area, my opinion is that a change of the existing legislation or case law is required to correspond the problems in the society with increased refugee flows. The society has seen a big change and new conflicting interests have emerged, which are worth protecting. The criminalization of humanitarian aid does not meet the basic requirements and criteria for a criminalization. The reasons cited in the support of the criminalization of human smuggling does not seem to justify a criminalization of humanitarian aid to refugees, neither to an internal or external border of Sweden.
My final conclusion is that the humanitarian exception of the provision on human smuggling should include humanitarian aid given to an internal border of Sweden, but only if the help is given no further than the Swedish country border. This way, the acceptable protection interest (godtagbart skyddsintresse) can be maintained and a regulated immigration system can still be guaranteed. If the court continues to punish humanitarian acts in the way that it’s done today, a criminal humanity will become a reality. Humanitarian aid given to refugees is an act that should be protected and encouraged in today’s problems with refugees, rather than condemn and punish the behaviour with a fine or imprisonment.
Human smuggling is usually associated with criminal organizations that generate a significant amount of income by engaging in the illegal movement of people across national borders. However, during the past year the media has described other individuals who have assisted with giving humanitarian aid by driving the refugees across borders. Without looking for a profit these individuals truly look to help refugees who want to seek asylum in Sweden.
This thesis discusses if there is a criminal humanity (straffbar humanitet) in the legal provision of human smuggling in the Aliens Act in Swedish law. Through a legal case study, I have analysed and investigated how the courts apply and interpret the humanitarian exception at an internal and external border of Sweden. In light of this study, my conclusion is that it’s not a criminal act when passing through an external border to assist a refugee to Sweden who immediately upon arrival, i.e. in connection with customs control, seeks asylum. Regarding the smuggling through an internal border, the Supreme Court says it generally can not be considered a strong need to assist foreigners from a neighbouring country to Sweden via an internal border. As a result, it cannot be a legal base for the humanitarian exception from the criminal area in chapter 20, section 8, Aliens Act.
In the judgement, NJA 2009 s.424, the Supreme Court announced that there might be cases where the circumstances warrant a humanitarian exception, even though an individual has been helping an asylum seeker enter Sweden via an internal border. In my view, there are deficiencies in the application of the humanitarian exception. In the legal case study it has emerged that a number of cases of human smuggling have been deemed as petty offences for humanitarian reasons, rather than an acquittal. In my opinion, these cases should have warranted an application of the humanitarian exception due to special circumstances. If the humanitarian smuggling has occurred without compensations, due to friendship or of children or close relatives who had the intention to seek asylum in Sweden, then their actions should reasonably constitute to an acquittal instead of a punishment according to the provision of human smuggling.
After finding that there are deficiencies in the application of the humanitarian exception, my next question was whether there will be a real possibility at all to apply the humanitarian exception at an internal border under Swedish law. My opinion is that the humanitarian exception in the Aliens Act requires a clarification. In order to ensure legal certainty and predictability, a clarification is required regarding in what situations and under what circumstances the humanitarian exception may be applicable. Considering several deficiencies in the assessment criteria, it also requires a clarification if there should be a difference to provide humanitarian aid to an internal or external border of Sweden.
Following a fundamental review of the existing law in this area, my opinion is that a change of the existing legislation or case law is required to correspond the problems in the society with increased refugee flows. The society has seen a big change and new conflicting interests have emerged, which are worth protecting. The criminalization of humanitarian aid does not meet the basic requirements and criteria for a criminalization. The reasons cited in the support of the criminalization of human smuggling does not seem to justify a criminalization of humanitarian aid to refugees, neither to an internal or external border of Sweden.
My final conclusion is that the humanitarian exception of the provision on human smuggling should include humanitarian aid given to an internal border of Sweden, but only if the help is given no further than the Swedish country border. This way, the acceptable protection interest (godtagbart skyddsintresse) can be maintained and a regulated immigration system can still be guaranteed. If the court continues to punish humanitarian acts in the way that it’s done today, a criminal humanity will become a reality. Humanitarian aid given to refugees is an act that should be protected and encouraged in today’s problems with refugees, rather than condemn and punish the behaviour with a fine or imprisonment.
Department/s
Publishing year
2016
Language
Swedish
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Document type
Student publication for professional degree (Master's level)
Topic
- Law and Political Science
Keywords
- straffrätt
- människosmuggling
- straffbar humanitet
- humanitär hjälp
- utlänningslagen
Supervisor
- Karol Nowak