Smuggling of migrants

Offences

• Enabling illegal stay

Case 01/00550

UNODC No.:
FRAh026

Fact Summary

The appellant (X.) had been accused of migrant smuggling. Specifically, on 26 February 2000, the police at the border control of Roissy Charles de Gaulle, Paris (France), detected a passenger - the appellant – in provenance from Douala (Cameroon) -  with a plane ticket Douala-Paris-Douala. She was travelling with three children with plane tickets Douala-Paris. All four individuals were travelling under the Cameroonian passport of X, which had attached the photos of the three minors. X. declared the minors were her children. However, through investigations, it appeared the children had joined her only in Douala.
X. admitted not having initiated the procedure of familial reunification as applicable under French law because (i) her situation in the country was not stabilised, (ii) she did not have the means to provide for the children in the long term, (iii) her apartment in France was not sufficiently spacious to accommodate the children.
 
Authorities refused entry in France to the three children. They were flown back to Douala on 26 February 2000.
 
The appellant provided the birth certificates of the children whereby she appeared as their mother.
 
The appellant initiated the administrative procedure of familial reunification. The request was refused on 17 May 2001 given the precarious financial conditions of the appellant. She presented an appeal in relation thereto.
 
In ascertaining the facts, authorities relied on testimonial and documental evidence.
 
Legal findings:
The Tribunal de grande instance de Bobigny (France) convicted the appellant of “assisting the irregular entry, transit and stay of a foreigner in France. The Court of Appeal of Paris reversed the decision.
 
For further details see “History of Proceedings” and “Commentary”. 

Commentary and Significant Features

The Court of Appeal of Paris reversed the decision of the Court of First Instance of Bobigny. Specifically, it considered that no proof had been presented that the birth certificates of the children were false and, consequently, that the appellant was not the children’s mother. The Court also noted that entry in France had been refused to the children, thus the crime of facilitating illegal entry, transit and stay in France could not be attributed to X because the constitutive elements thereof had not been verified.
 
It is worth noting in this respect that Article L 622-4 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)” determines that certain persons are exempted from criminal prosecution re migrant smuggling in view of the special and close relationship with the irregular migrant in question. Within that cluster of persons are the ascendants.
 
 
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:
2001-06-25

Cross Cutting

Liability

... for

• completed offence

... based on

• criminal intention

... as involves

• principal offender(s)

Offending

Details

• occurred across one (or more) international borders (transnationally)

Involved Countries

France

Cameroon

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• Criminal Police
• Public Prosecutor

• Gender Dimension

Procedural Information

Legal System:
Civil Law
Latest Court Ruling:
Appellate Court
Type of Proceeding:
Criminal
 
The appellant was accused of migrant smuggling. On 13 October 2000, the Court of First Instance of Bobigny (France) convicted the appellant. The Defence lodged an appeal on 23 October 2000.
 
 

Defendants / Respondents in the first instance

Defendant:
X.
Gender:
Female
Nationality:
Cameroonian
No previous convictions.

Charges / Claims / Decisions

Defendant:
X.
Verdict:
Not Guilty
Statute:
Ordonnance 45-2658 of 2 November 1945 Article 21 Assisting the irregular entry, transit or stay of a foreigner in France Not Guilty

Court

Court of Appeal of Paris

Sources / Citations

Cour d'Appel de Paris
Dossier Nº 01/00550
25 June 2001
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