Abstract

This paper analyzes the crime of smuggling of migrants from its elements, in order to establish differences with the crime of trafficking in persons and to verify if its inclusion in the criminal catalogue is justified, from submitting it to the proportionality test, so the constant typifications in the Criminal Codes of Chile, Spain and Ecuador are taken as references. Based on the principles and sub-principles of the proportionality test, it is argued that not all cases of smuggling of migrants must necessarily be registered in the protection of state ius puniendi, for which the functions of criminal law in the Constitutional State are used of law, the principle of proportionality and the need to combat and punish organized crime.