The area of Campo de Gibraltar (especially cities such as La línea de La Concepción) is an environment where the phenomenon of smuggling has a special impact. In this article, as a lawyer specializing in business law and customs, we will discuss what distinguishes a crime of smuggling in front of a administrative offence of smuggling, with special attention to our surroundings in La Línea de la Concepción and Campo de Gibraltar.

What is meant by smuggling

The contraband it consists in inserting or removing from the Spanish territory of goods which are subject to customs control, tax, or prohibition of trade without complying with the formalities required by the law. This figure is down-regulated in the Organic law 12/1995, Suppression of Smugglingthat difference between crime and administrative offence depending on the value of the goods, the nature of the goods and the existence or non-existence of a criminal organisation.

In the context of the smuggling Line and smuggling Gibraltar, the most common of which are tobacco products that cross the gate of irregular shape. The proximity of Gibraltar, where the tobacco is much cheaper, and the economic pressure on small carriers explain why this area has a high percentage of the interventions customs of Spain.

When the smuggling is considered to be a crime

According to article 2 of the Organic Law 12/1995, is considered crime of smuggling when certain requirements are met objectives. The main ones are:

• Value of goods: when the total value of the goods entered or illegally exported exceeds the € 150,000.
• Certain goods: if the goods are drugs, weapons, explosives, or property whose mere possession is criminal, it is a crime, regardless of the value.
• Organization or preconceived plan: if there is an organized structure or to several operations co-ordinated with the same purpose, the value can accumulate to reach the threshold criminal.

In these cases, the crime of smuggling carry penalties of imprisonment of one to five years and fines to both the séxtuplo of the value of the goods. In addition, it is enacted by the confiscation of the goods and the means employed (vehicles, boats, or real estate).

A typical example of smuggling on La Línea it would be a network that enters from Gibraltar thousands of cartons of tobacco worth more than 140,000 euros, using fast boats or vehicles with double bottoms. In these cases, the courts have considered that combine the elements of the criminal offence by the accumulated value and the existence of the organization.

How we can help you as advocates in cases of smuggling

Count with the support of attorneys that specialize in smuggling it is essential from the first moment you start a research intervention or customs. A law firm criminal with experience in the Campo de Gibraltar know in detail the performance of the Tax Agency, the Civil Guard and the courts of the area, and can make the difference between a administrative sanction and a criminal indictment.

The legal advice allows you to analyze the real value of the goods, determine whether there are grounds for exclusion of responsibility, and to negotiate with the Management to avoid criminal proceedings. In addition, attorneys may request the return of property wrongfully seized, draw penalties, and to prepare the defence at trial, or even to achieve the dismissal if it is demonstrated that the lack of profit or mistake in customs valuation.

In complex cases of smuggling on La Línea or smuggling in Gibraltarthe intervention of counsel is also key to protecting the rights of detainees and to ensure that the procedure is developed with all legal guarantees.

When the contraband is an administrative offence

Not all behavior of smuggling is a criminal offense. When the value of the goods does not meet the thresholds laid down in the Organic Law 12/1995 or do not attend the elements aggravating, it is considered administrative offence of smuggling.

These violations are the responsibility of the Customs Administration and can be classified as minor, serious or very serious depending on the value of the goods:

• Mildwhen the value does not exceed 37.500 euros.
• Serious, between 37.500 and 112.500 €.
• Very seriousabove 112.500 € but without reaching the limit criminal.

Sanctions usually consist of fines economic proportional, the confiscation of the goods and, sometimes, the suspension of the commercial activity. Do not involve imprisonment, but may have important consequences for the self-employed or transportation companies that operate in the border Gibraltar.

In practice, the majority of the cases detected in La Línea de la Concepción qualify as an administrative infringement. However, the reiteration of or participation in distribution networks can be converted to a violation on crime.

The border of La Línea and Gibraltar: focus smuggling in English

The smuggling Gibraltar has historically been a phenomenon of enormous economic importance and police. The physical proximity between the two territories, separated only by a fence, and a few meters, it facilitates the passage of small quantities of tobacco or fuel, accumulated, generated a volume millionaire.

The Spanish authorities and gibraltareñas have subscribed cooperation agreements to reduce the smuggling of tobacco and strengthen border controls. However, the smuggling Line remains a structural problem, not just tobacco, but also by the fuel, the counterfeit clothes or scrap metal.

For those who live or work in this area, it is important to understand that the line between the offence and the offence is very fine. The economic assessment, the commercial destination of the product and the repetition are the determining factors. Sometimes, all it takes is a small accounting error or excess goods to pass to an administrative penalty to a criminal indictment.

How to determine if it is a crime or offence

For legal purposes, the elements that differentiate a crime, a violation are the following:

• Value of goods: the customs office determines the value according to the maximum retail selling price, or the average value of the market.
• Nature of the goods: if you are goods, prohibited or subject to special control (tobacco, weapons, drugs, medical equipment).
• Number of operations and familiarity: if it detects a pattern of successive operations that pursue the same goal, can accumulate the value.
• Participation of several people or companies: the intervention of third parties or other companies can aggravate the rating.
• Media employees: use of fast boats, modified vehicles or routes that are difficult to access.

In the Campo de Gibraltar, the Civil Guard and the Tax Agency valued collectively these elements. If there is evidence of a crime, the record is referred to the criminal jurisdiction; if not, it is dealt with as a disciplinary proceeding before the Delegation of Customs.

Sanctions and penalties for smuggling

In the case of crime of smugglingthe consequences can be serious:

• Imprisonment of 1 to 5 years.
• Penalty to both the séxtuplo of the value of the goods.
• Confiscation of property and the means used.
• Closure of premises, or suspension of business activities.
• Criminal liability of legal personsaccording to the article 31 bis of the Criminal Code.

On the contrary, in the field administrativethe sanctions are limited to fines economic, the loss of goods and, in serious cases, the temporary ban to operate with goods subject to customs control.

What to do if you are investigating smuggling in La Línea or Gibraltar

If you are investigated for smuggling in the environment La Línea de la Concepción or Gibraltar, acting quickly is essential. These are the first steps that should be taken:

1. Request the assistance of a lawyer specializing in smuggling and customs law.
2. Review the real value of the goods to determine if it exceeds the limits of criminal charges.
3. Analyze the documentation (invoices, permits, licenses) that can justify the possession or transport.
4. Check to see if there are signs of organization or familiaritysince they can aggravate the charge.
5. Avoid any statements without the assistance of legal counselas the first due diligence are key.

A strong defense can get that a criminal indictment is reconduzca at the administrative level, thus avoiding a prison sentence.

Comparison between offence and administrative offence of smuggling

Importance of a specialized advocacy

The border between infringement and the crime may be diffuse. In the smuggling Gibraltar, frequently occur police actions mass with several detainees, of which only some have just charged criminally. The intervention of a specialized lawyer allows you to evaluate the elements of crimes, to prove the absence of profit or demonstrate that the real value of the goods do not reach the limits of the crime.

In addition, when the goods belongs to a company or to be transported inside commercial activity, you should review the protocols of compliance and prevention criminal to avoid liability of the legal person.

Conclusion

The smuggling in La Línea de la Concepcion and Gibraltar it is a complex phenomenon at the crossroads of economic interests, customs controls and criminal liability. The Law distinguishes accurately between offence and offense, but, in practice, the borders are fuzzy, and each case must be analyzed individually.

To know whether conduct constitutes a criminal offence or administrative penalty depends on the value of the goods, their nature and the context in which it is performed. Have a lawyer expert in smuggling it is the best guarantee to protect your rights and avoid serious consequences.

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