Participation in an organized criminal group

Offences

• Agreement to commit a serious crime (conspiracy)
• Participation in criminal activities of organized criminal group

Degree of Involvement

• Knowledge of aim or activities of the organized criminal group or its intention to commit the crimes in question

Keywords

• conspiracy
• criminal association

Smuggling of migrants

Offences

• Enabling illegal stay

Jugement Or1770

UNODC No.:
FRAh038

Fact Summary

The defendants were prosecuted for integrating an organised criminal group, which facilitated to Tunisian national the illegal entry, transit and stay in Europe. Specifically, it engaged in and developed a consolidated practice of false marriages, whereby Tunisian nationals would marry EU citizens so as to obtain a “E.U. residence permit” in Spain; that is, administrative documentation that would allow them to reside in any EU country, including France. The individuals involved in this scheme held family links or were original from the same Tunisian region as the defendants. Indeed, 52 people were heard in this context. The majority were women irregularly staying in France, who had gone to Spain to undergo a sham marriage so as to obtain Spanish valid residence documentation. The organised criminal group further procured false documents as necessary to follow up on application procedures in Spain.
 
The organised criminal group counted with several associates with specific roles. For instance, (i) passeurs, (ii) intermediaries, whose task was to receive the Tunisian irregular migrants in France and install/accommodate them in Toulouse (France), accompany them to Spain, procure them “wives”, etc. The defendants were identified as intermediaries of the organised criminal group based – and operating mostly in – France.
 
N.A. was identified by all concerned individuals as the person that received irregular migrants in Spain and accompanied them in all the administrative steps before Spanish authorities. He was also the one procuring the necessary false documents to initiate the aimed administrative procedures. He charged 6 000 Euro for individual case. A total profit of approximately 330 000 Euro was ascertained for the period 2007-2011.
 
The organised criminal group managed to recruit individuals, especially in the area of Toulouse, by taking advantage of their particular state of need and or vulnerability. Investigations unveiled the identity of other protagonists in the activities of the organised criminal group; however, it was not possible to ascertain they had received any financial or other material benefit for their respective contributions.
 
Investigations were initiated following the sharing of information by a Liaison Officer deployed in France addressed to POCRIEST (Office on the Fight against Irregular Migration), on 4 February 2010. Public servants at the Migrants Office of Gérone (Spain) had intercepted ten applications for “EU residence permit”, which were accompanied by marriage certificates apparently issued by the Municipality of Lamastre, in Ardèche (France). The documents had been translated into Spanish. In addition, the respective dossiers included copies of ten identity cards (nine men and one woman) and copies of ten Tunisian passports (nine men and one woman). The applications had been submitted in Spain in March 2009. Following this information, POCRIEST liaised with the Municipality of Lamastre. The latter informed that no such marriages had been registered in the municipality, thus confirming the falsified nature of the marriage certificates.
Spanish authorities informed French authorities of the existence of eight other suspicious applications (submitted in the period 2009-2010) They referred to Tunisian men who had “married” French women. The scheme presented the following main features: (i) the French “wife” registered in the Office of Foreigners in Spain, (ii) the “husband”, in a second stage, addressed Spanish authorities and, on the basis of a false marriage certificate, requested the issuing of an administrative document allowing him to regularly reside in Spain. In this manner, the “husband” would have several rights within the EU space.
Thirty-five (35) French individuals “lent” their name to facilitate the operations of the organised criminal group in the fashion explained.
 
Upon being questioned, despite attempting to minimise his role, K.M. admitted his involvement in the criminal venture as an intermediary. He admitted to have given assistance in respect of six couples. He received between 500 and 650 Euros per couple (as opposed to 1500 Euro as initially agreed).
 
A.A. also recognised his role of intermediary in the activities of the organised criminal group.
 
M.A. was accused of being involved in five false marriages. He denied the charges, arguing to have merely put certain persons (i.e. irregular migrants) in contact with others (specifically, the leaders of the organised criminal group). He confirmed to have served as “intermediary” in four marriages, in the context of which his role was simply that of transporting individuals to Spain. He stated to have only perceived compensation for the expenses of the travel (by road). He could not convincingly explain the reason why he accompanied and remained with the couples in Spain. Nor could he explain the opposing declarations of his wife regarding the payments he perceived for his activities in the framework of the organised criminal group.
 
In ascertaining the facts, authorities relied inter alia on testimonial evidence, searches and seizures, electronic surveillance (notably, the mobile phones of the defendants). Searches to the properties rented by the leaders of the organised criminal group in Spain permitted to seize several false documents, official stamps from both Spanish and French civil/administrative authorities, and I.D. documents.
 
 
Legal findings:
The Court of First Instance of Bordeaux (France) convicted the appellants of migrant smuggling.
 
For further details see “History of Proceedings” and “Commentary”. 

Commentary and Significant Features

The Court of First Instance of Bordeaux convicted the defendants. In so doing it highlighted:
  • By taking on the role of intermediaries in the criminal venture (false marriages aimed at obtaining Spanish residence permits that would entitle foreigners to residence rights in the EU space), the defendants incurred in the crime of migrant smuggling in its modalities of facilitation to illegal entry, transit and stay of foreigners in France or in a State of the Schengen Space.
  • Receiving foreigners in France, providing or arranging accommodation for these individuals, transporting them to Spain, accompanying them in their “demarches” in Spain, recruiting willing “wives”, constitute crucial contributions to the success of the criminal venture.
  • The crime was committed in the context of an organised criminal group. The existence of an organised criminal group dedicated to the smuggling of migrant is supported inter alia by the establishment of a robust network of associates, with specific and complementary tasks, from passeurs and intermediaries to the main organisers.
  • With the reform of 31 December 2012, the Legislator established a true “humanitarian immunity”, which exempts from criminal prosecution those that provide assistance to migrants irregularly staying in country without perceiving any financial or other material benefit and acting upon feelings of solidarity and humanity (Article L 622-4 Code of entry and stay of foreigners and right of asylum (CESEDA). Accordingly, only individuals who gathered a material benefit from facilitating illegal stay in the country were – and may be - subject to criminal trial for migrant smuggling in its modality of facilitation of illegal stay.
  • The defendants perceived financial or other material benefit for their participation in the criminal enterprise.
The Court of First Instance of Bordeaux acquitted K.M. of procuring false documents. It convicted A.M. of the same crime.
A.A. was convicted of complicity in procuring false documents. He was further convicted of obtaining false administrative documents establishing a right, quality or authorisation. The Court noted that these activities might amount to a material act of migrant smuggling.
 
It is worth noting this case unveils the benefits of effective international police and judicial cooperation. It was the initial proactive approach of Spanish law enforcement that alerted French authorities and led to the opening of investigations. Conversely, judicial cooperation between both countries’ authorities permitted the gathering of important evidence and the advancement of criminal proceedings. By proceeding with parallel investigations, Spain made sure that the members of the organised criminal group under its jurisdiction would not escape the scrutiny of law.
 
NOTE: As per French national law, the purpose of obtaining a financial or other material benefit is not a constitutive element of the crime but rather an aggravating circumstance (see SHERLOC Database on Legislation – France).
Sentence Date:
2013-11-05

Cross Cutting

Liability

... for

• completed offence

... based on

• criminal intention

... as involves

• principal offender(s)

Application of the Convention

Details

• involved an organized criminal group (Article 2(a) CTOC)
• occurred across one (or more) international borders (transnationally)

Involved Countries

France

Spain

Investigation

Involved Agencies

• Criminal Police
• Public Prosecutor

Details

• electronic or other forms of surveillance

International Cooperation

Involved Countries

France

Spain

Measures

• Mutual legal assistance
• International law enforcement cooperation (including INTERPOL)
Outline:
International police cooperation (including joint police operations to search the residence of the leaders of the organised criminal group, who resided in Barcelona, Spain) as well as international judicial cooperation (e.g. letters rogatory for the surveillance of telecommunications between / of defendants). Spanish authorities opened parallel investigations regarding the members of the organised criminal group (notably, the leaders) who resided in the country. Judicial proceedings also ensued.
 

Procedural Information

Legal System:
Civil Law
Latest Court Ruling:
Appellate Court
Type of Proceeding:
Criminal
 

Investigations were initiated following the sharing of information by a Liaison Officer deployed in France addressed to POCRIEST (Office on the Fight against Irregular Migration), on 4 February 2010. Public servants at the Migrants Office of Gérone (Spain) had intercepted ten applications for “EU residence permit”, which were accompanied by marriage certificates issued by the Municipality of Lamastre, in Ardèche (France). The documents had been translated into Spainish. In addition, the respective dossiers included copies of ten identity cards (nine men and one woman) and copies of ten Tunisian passports (nine men and one woman). The applications had been submitted in Spain in March 2009.

On 30 August 2013, the Judge for Preliminary Investigations determined the case against the defendants should proceed to the Court of First Instance of Bordeaux.

 
 

Migrants

Migrant:
Several irregular migrants, mostly Tunisian

Defendants / Respondents in the first instance

Defendant:
A.M.
Gender:
Male

Absent from trial but legally represented.

Irregularly obtained Spanish residence permit.
Defendant:
M.K.
Gender:
Male
Nationality:
Tunisian
Age:
37
Born:
1976
Present in trial.
Holder of a Spanish residence permit, which did not entitle him to work in France. Investigations revealed the contrary, however.
Defendant:
A.A.
Gender:
Male
Nationality:
Tunisian
Age:
32
Born:
1981
Absent from trial but legally represented.
Entered France irregularly and was supported by a member of the organised criminal group. Illegally obtained Spanish residence permit.

Charges / Claims / Decisions

Defendant:
A.M.
Verdict:
Guilty
Statute:
Code of entry and stay of foreigners and right of asylum - “Code de l'entrée et du séjour des étrangers et du droit d'asile (CESEDA)” Articles L 622-1 and L 622-5 Assisting the irregular entry, transit or stay of a foreigner in France Guilty
Verdict:
Guilty
Statute:
Criminal Code Article 132-71 Participation in an organised criminal group Guilty
Term of Imprisonment:
2 years
 
Probation
Defendant:
M.K.
Charge / Claim:
Ibid. Defendant 1
Term of Imprisonment:
2 years
 
Benefiting of suspension of the execution of the penalty for a period of six months
Defendant:
A.A.
Verdict:
Other
Charge / Claim:
Ibid. Defendant 1
Term of Imprisonment:
 3 Months
 
Probation

Court

Court of Appeal of Bordeaux

Sources / Citations

Cour de Grande Instancel de Bordeaux
Jugement Or1770
5 November 2013
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