Aggravated Migrant Smuggling in a Transit Migration Context, Criminal Victimization under ECtHR Positive Obligations Case Law

Authors : Roxane DE MASSOL DE REBETZ, Pınar ÖLÇER

Pages : 413-480

Doi:10.26650/annales.2022.71.0009

View : 16 | Download : 12

Publication Date : 2022-12-31

Article Type : Research Paper

Abstract :The legal dichotomy established between migrant smuggling and human trafficking has often been criticized, including from the perspective of associated distinctions arising in human rights protection. This contribution focuses on the specific profile of transiting smuggled migrants in the Intra-Schengen mobility context. Building on empirical research conducted by the first author on the Belgian legal framework and its functioning in practice, it is argued that differentiated protection can be crafted for this profile within criminal justice related positive obligations ensuing from the ECHR in a manner similar to that which has been developed by the ECtHR for trafficking victims. As other insert ignore into journalissuearticles values(inter);national law sources do not drive towards protective duties in this sense for migrant smuggling, the ECtHR cannot feed from them in the manner it has done in the trafficking context. It is argued that the Court however can legitimately find an alternate basis in empirical evidence pointing to similar human rights needs, meaning that the ECtHR can craft protection through evidence-based decision-making, including through the deployment of insert ignore into journalissuearticles values(particular); vulnerability paradigms.
Keywords : ECHR, Criminal Justice Related Positive Obligations, Migrant Smuggling, Migrants in Transit, Human trafficking, Evidence based Adjudication, Vulnerability