The Assembly recommends that an instrument on the smuggling
of migrants be prepared and adopted by the Committee of Ministers,
which will ensure as much consistency as possible in the understanding
and interpretation of this crime, and which:
3.2 recalls that the “procurement” of illegal entry is not
tantamount to crossing a border irregularly and that the crime of
migrant smuggling necessarily implies that the smuggler is making
a material or non-material profit;
3.3 expressly states that migrants are not the perpetrators
of the crime of smuggling and that reducing or waiving the smuggling
fee in return for facilitating the unauthorised crossing of a border should
not be considered as a criminal act committed by the smuggled migrant
if this was done under coercion or threat, or if they are found
to be in need of a form of protection (refugee, person in need of humanitarian
protection, person at risk of being a victim of trafficking or victim
of trafficking);
3.4 clarifies that people in need of protection should not
be criminalised or administratively sanctioned for crossing a border
unauthorised pursuant to Article 31 of the United Nations Convention relating
to the Status of Refugees and pursuant to Article 26 of the Council
of Europe Convention on Action against Trafficking in Human Beings
(CETS No. 197);
3.5 explicitly exempts humanitarian assistance and any support
to migrants in accessing their fundamental rights from any form
of criminal liability, when such acts are conducted without seeking
any financial or material benefit;
3.6 clarifies that member States which have ratified the International
Covenant on Civil and Political Rights and Protocol No. 4 to the
Convention for the Protection of Human Rights and Fundamental Freedoms,
securing certain rights and freedoms other than those already included
in the Convention and in the first protocol thereto (ETS No. 46)
are legally bound by the obligation to protect and safeguard the right
to leave any country, including one’s own, and that restrictions
on such fundamental right should always be lawful and proportionate,
in line with the conditions enounced in Article 2 of this protocol.
