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NEW SPANISH FOREIGN LAW. HOW DOES IT AFFECT STOWAWAYS’ CASES?

Following strong government discussions, the new Spanish Statutory law number 4/2000 on the status of a foreigner came into force last 1.02.00. This new law adapts to the postulates of the Amsterdam treaty and regulates the rights and liberties of foreigners in Spain and their social integration. The Government -right wing- has six months from this date to approve the Regulation of this Statutory rule.

What is interesting about this new law is the recognition of the rights and social integration of foreigners. Spain is therefore now one of the chosen goals for stowaways. However, the title of Expels and Sanctions of this new law is quite strict.

INFRACTIONS AND FINES. Article 50 determines the severe infractions (“INFRACCIONES GRAVES”). According to art. 50.c) it is a severe infraction: “TO INDUCE, PROMOTE, FAVOUR OR FACILITATE, FORMING PART OF A PROFIT-MAKING ORGANIZATION, THE ILLICIT INTEGRATION OF PEOPLE IN TRANSIT OR WITH DESTINATION TO SPANISH TERRITORY”.

Article 51 sanctions the previous infraction with a fine of from one million to ten million pesetas.

Furthermore, the law 4/2000 modifies the Spanish Penal Code introducing a new Title: Title XV bis. Its new article 318 bis says: “THOSE WHO PROMOTE, FAVOUR OR FACILITATE THE ILLEGAL TRAFFIC OF PEOPLE IN TRANSIT OR WITH DESTINATION TO SPANISH TERRITORY WILL BE PUNISHED WITH JAIL FROM SIX MONTHS TO THREE YEARS AND A FINE OF FROM SIX TO TWELVE MONTHS, OR WITH JAIL FROM TWO TO FOUR YEARS AND A FINE OF FROM TWELVE TO TWENTY FOUR MONTHS “.

Besides, article 55 of the law 4/2000 says that those foreigners who are illegally in Spain will not be expelled if they denounce the perpetrator of the illicit traffic of people, or if they provide relevant information to the Police. This could be dangerous if an illegal immigrant -whether stowaway escaped or not- decides to denounce a vessel in order not to be expelled -whether it is true or not that he arrived to Spain in the denounced vessel-.

Therefore, vessels calling at Spanish ports with stowaways on board should be very careful, as not only could they be arrested according to the 1992 Spanish law on Ports and Merchant Navy facing a fine of up to Ptas. 30,000,000 if the stowaway escapes or a fine of up to Ptas. 20,000,000 if a vessel calling to Spanish ports does not inform that there is a stowaway on board, but they could now also be facing a sanction of up to Ptas. 10,000,000 according to articles 50 and 51 of the 4/2000 new law if the vessel is understood to have facilitated the entry of illegal immigrants into Spain, forming part the vessel or crewmembers of a profit-making organization, and the Master could also be imprisoned according to new article 318 bis of the Spanish Penal Code.

RIGHT OF ASSISTANCE BY AN OFFICIAL LAWYER AND AN INTERPRETER. According to article 20, foreigners have the right to be assisted by an official lawyer appointed by the Bar Association and by an interpreter on the administrative proceedings that deny their entry into Spain, that expel them from Spain, or on asylum proceedings. In case of stowaways, this would mean no cost for the ship’s interests. While the Home Office understands that, according to this new law, the right of assistance by an official lawyer to foreigners whose entry in Spain is denied does not include those immigrants who try to enter illegally into Spain, the Deans of the Bar Associations of Barcelona and Madrid understand that the new law guarantees the assistance by an official lawyer in all cases.

EXCEPTIONAL REASONS OF ENTRANCE INTO SPAIN. According to article 23.4, to those foreigners who do not comply with the requirements of the law to enter into Spain, their entry can be authorized due to the following exceptional reasons: humanitarian, public interest or completion of compromises acquired by Spain. However a political will together with an appropriate approach to the authorities are needed to apply this article in order to try to obtain the disembarkation of the stowaway from the vessel.

MINORS. According to article 32, if the Police find a foreigner without documentation and it cannot be determined whether he is a minor or not, the Police will inform the Minor Courts in order to determine his identity, age and personal circumstances. This is important as up till now they were not obliged to inform and therefore some Port Police simply did not allow the minor stowaway’s disembarkation alleging that he was not a minor.

STOWAWAYS’ STATISTICS.- According to the Sub-delegate of the Government in Barcelona, the following number of stowaways arrived to the port of Barcelona:

1995      61 stowaways on board 25 vessels

1996    153 stowaways on board 54 vessels

1997    233 stowaways on board 72 vessels

1998    180 stowaways until October

In 1997 a total of 832 stowaways arrived to Spain, in 1998 a total of 936 and in the first half of 1999, 536 stowaways on board 207 vessels. 35% of the stowaways come from Morocco, 8.7% from Algeria, 8.7% from Liberia and 8.7% from Sierra Leona. The attitude of some Spanish Port Police is often not to collaborate nor to accept the repatriation of the stowaways unless they have identity documentation. However, if the stowaway escapes, the maximum fine is imposed on the Shipowner. Only in 1998 the Spanish Merchant Marine General Directorate obtained 800 million pesetas from fines to foreign flag vessels under the 1992 Spanish law on Ports and Merchant Navy. Therefore, and in order to best protect the vessel’s interests, all the necessary and relevant information/documentation should be obtained when the vessel is still in port. An appropriate approach to the authorities is also needed in order to find possible solutions that could satisfy all parties.