El tenor literal del artículo 318 bis CP y su contribución a una mayor vulnerabilización de los extranjeros. Propuesta reinterpretativa

Abstract

The current wording of article 318 bis CP has led to part of the doctrine and even the Su- preme Court in some of its resolutions already con- cluding as indisputable that what is sanctioned in it is nothing more than intentional help, with and without intention of profit, to the violation by immigrants from outside the European Union, of the legal regula- tions governing their entry, transit and stay in Spanish territory, with the aim of reinforcing the control of migratory flows. In this paper, after an exhaustive analysis of the jurisprudence of the Supreme Court in recent years, I develop why such a conclusion is not sustainable, not only because it is incompatible with the limiting principles of Criminal law and with re- spect for the internal coherence of our legal system, but also because it would prevent compliance with the requirement that the reinforcement by Criminal law of our country's migration policy does not contribute to creating, exacerbating or “inadvertently” increas- ing the vulnerability of migrants.