Prohibited crossing of the state border or territory (smuggling of people) Exacerbation of the threatened penalty for the criminal offense of "prohibited crossing of the state border or territory" under Article 308 of the Criminal Code The modern globalized world is marked by the development of communication and infrastructural means and at the same time the growing differences between the developed and the underdeveloped world. The combination of both leads to an increase in the rate of migration, including illegal ones. The statistical report of the Police on illegal migration in the territory of the Republic of Slovenia shows that in the period from 1 January to 31 August 2020, police officers dealt with 10,223 illegal crossings of the state border in Slovenia, which is 3.3 percent more than in the same period. period last year. The report cites the growing trend of illegal crossings due to increased mobility, except at air borders, first due to the bankruptcy of our airline, and then also due to air traffic restrictions due to the limitation of the COVID-19 epidemic. Measures to reduce the effects of the epidemic are also the reason for a significant reduction in the number of foreigners treated due to illegal residence. Illegal migration has undoubtedly become one of the most important aspects of migration policies in recent years, which has also left its mark on legislation. In May 2015, the European Commission adopted an action plan to combat the smuggling of migrants, which aims to change smuggling from high-profit and low-risk activities, while ensuring full respect for and protection of the human rights of migrants. Smugglers often expose migrants to life-threatening and violent risks. The European Union also urges Member States to strengthen the criminal framework for these crimes. In the Republic of Slovenia, crossing the border or territory of the state is prohibited and is a criminal offense regulated in paragraph 3 of Article 308 of the Criminal Code (hereinafter KZ-1). The criminal offense is committed by anyone who illegally smuggles aliens who do not have a permit to enter or reside in the Republic of Slovenia, transports them or helps them to hide, or by anyone who pays one or more such aliens for payment. illegally smuggles across the border or territory of a country or allows illegal residence there. Legal signs are defined alternatively, which means that the cumulative implementation of all legal signs is not a necessary precondition for the existence of a criminal offense, which was also confirmed by the Supreme Court of the Republic of Slovenia in judgment XI Ips 65269/2019 of 23 January 2020. it is considered that according to the wording of the provision of the third paragraph of Article 308 of KZ-1, it is also punishable only to smuggle two or more aliens who do not have a permit across the border or the territory of the state. Due to the increase in the problem of smuggling people across the border, in June 2020 the National Assembly adopted the amendment KZ-1G, which greatly increased the penalties, which should, in accordance with the principle of general prevention, reduce the motivation of potential perpetrators to commit such crimes. The amended third paragraph of Article 308 of KZ-1 now provides for a prison sentence of three to ten years in prison (before the change, a prison sentence of up to five years was threatened) and introduced a mandatory fine. In criminal proceedings, the defendant has the right to a professional formal defense, which is provided to him in such a way that he can choose a lawyer who, as a legal expert, ensures that “equality of arms” is ensured in criminal proceedings. In addition, in some cases, mandatory formal defense is prescribed in criminal proceedings. For example, when serving an indictment, the defendant must have a defense counsel in regular criminal proceedings in the case of criminal offenses punishable by more than 8 years' imprisonment, which is also relevant in the criminal offense of "prohibited crossing of the state border or territory" after Article 308.

 

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