Prosecutors charge drug traffickers with piracy after Supreme Court ruling
The death of customs officer Carlos Esquembri in 2023 opens a new legal avenue to increase sentences for narcos who attack agents at sea.
Piracy charge enters the legal arsenal against sea drug traffickers
The death of customs surveillance officer Carlos Esquembri, which occurred on 18 March 2023 during a boarding in international waters more than one thousand kilometres west of the Canary Islands, has become the trigger for a new judicial strategy. According to El País, the Anti-Drug Prosecution has begun instructing the Guardia Civil and National Police to document in detail the attacks by drug boats, with the aim of charging those responsible also with piracy.
Esquembri, a 58-year-old from Melilla, died when the 25-metre drug sailing vessel flying a Maltese flag that his unit was attempting to board executed a sharp manoeuvre and rammed the police launch, causing it to capsize. The seven officers fell into the water and became trapped beneath the hull. All managed to escape alive except Esquembri. The drug traffickers also set the sailing vessel on fire in an attempt to destroy evidence.
From 27 to 37 years: the effect of the piracy charge
The Anti-Drug Prosecution charged the person responsible for the manoeuvre with a list of offences that included drug trafficking, assault on an officer, homicide and arson. For the first time in its history, it also added the piracy charge, relying on Article 616 ter of the Criminal Code, introduced by the 2010 reform. That provision punishes with between 10 and 15 years' imprisonment anyone who, "with violence, intimidation or deception, takes possession of, damages or destroys a vessel at sea, or attacks the persons, cargo or goods on board".
In first instance, the Criminal Division of the National Court rejected the piracy charge and convicted on the remaining offences. The Prosecution appealed, and the Appeals Division of the same court upheld its argument, adding ten years to the sentence. The total sentence increased from 27 to 37 years. The drug traffickers appealed to the Supreme Court, which last April upheld the second ruling in a decision that sources from the Prosecution consulted by El País describe as a "pioneering judgment".
The legal obstacle that the Supreme Court cleared
The main legal hurdle was the definition of piracy contained in Article 101 of the 1982 Montego Bay Convention, the reference text in international maritime law, which requires a "personal purpose" — understood by legal scholars as profit motive — and limits the offence to acts committed in international waters between private vessels.
The Supreme Court resolved that obstacle by concluding that the Spanish legislator had designed an "autonomous" offence, separate from the classic Montego Bay model and closer to the 1988 SUA Convention, whose objective is to combat any illegal activity that threatens "the safety of maritime navigation". The high court noted that it is not for Spanish courts to add requirements that the legislator sought to eliminate for reasons of criminal policy. Consequently, it held that it is sufficient to establish "a violent conduct, directed against a vessel at sea or against persons on board it, suitable to seriously compromise the safety of navigation in an international context".
A rising phenomenon that the justice system has not contained
The Anti-Drug Prosecution has long been observing with concern how violence against officers in maritime operations has grown without the judicial response proving sufficiently deterrent. Operations at sea are increasingly frequent: police bodies intercept cargo ships and fishing vessels before the drug is transferred to speedboats, because pursuit multiplies risk and dispersal of the shipment makes its seizure difficult.
The most serious cases of recent years illustrate the scale of the problem. In February 2024, two Guardia Civil officers died in Barbate after being rammed by a drug boat during a pursuit in the Cádiz town. In May last year, another two officer deaths in Huelva, in similar circumstances, again highlighted just how far drug traffickers are willing to go to attack officers to escape.
Instructions to the police forces
Following the Supreme Court ruling, the Anti-Drug Prosecution has given formal instructions to the Guardia Civil and National Police to ensure their reports capture with precision the details of the attacks perpetrated by drug boats, so that prosecutors have sufficient basis to sustain piracy charges in future proceedings.
The public prosecutor is aware, however, that the high court's ruling opens an avenue but does not completely clear the path. Spanish courts remain to rule on the concrete application of this doctrine in future cases, which will leave a margin of legal uncertainty for some time. The new strategy nonetheless represents a significant change in direction: until the Esquembri case, the Prosecution had never considered it necessary to resort to the piracy offence in the context of maritime drug trafficking.
Source: El País