Smuggling of migrants

Offences

• Enabling illegal entry
• Enabling illegal stay

Trafficking in persons

Offences

• Trafficking in persons (adults)

Acts Involved

• Recruitment/Hiring
• Harbouring

Means Used

• Deception
• Abuse of power or a position of vulnerability

Exploitative Purposes

• Forced labour or services

Keywords

• Exploitation
• Forced labour or services
• Transnational trafficking

Appeal Nº 15-80270

UNODC No.:
FRAh005

Fact Summary

Defendants A. and Z. (a couple) assisted in the irregular entry and stay of two foreign women in France. During a trip to Senegal, A. recruited Y. (her cousin) to go to France, take care of the house and her three children. A. instructed Y. to procure a false passport to enter France. She then seized Y.’s true identity documents. Y. worked for the couple of defendants for 150 Euro per month, which A. automatically transferred to Y’s aunt in Senegal. Y. never perceived any remuneration for her work. The defendants did not make the necessary declarations to social security. Y. slept and ate at the defendants residence. With the support of a compatriot, Y. addressed and received support from the Committee against Modern Slavery. Taking advantage of A.’s absence during one of her trips to Senegal, Y. escaped from the residence of the defendants. She presented a complaint to police in August 2009.
In October 2009, the Committee against Modern Slavery informed the police that another woman (X.) lived in the residence of A. and Z. in similar conditions as those undergone by Y.
 
X. and Y. constituted themselves civil parties in the proceedings against the defendants. They requested compensation for the damages and grievances suffered.
 
In ascertaining the facts, authorities relied inter alia on searches and seizures and testimonial evidence.
 
 
Legal findings:
The Court of Appeal of Cayennes (France)convicted the defendants for “aggravated assistance to the irregular entry, transit or stay of a foreigner in Franceas well as concealed work and employing workers without a work permit. It thus convicted the defendants to the payment of 3000 Euro in compensation to X. and 9000 Euro in compensation to Y. The civil parties appealed the legal qualification of the facts and the amount of compensation.  On appeal, the Court of Cassation confirmed the decision.
For further details see “Commentary”. 

Commentary and Significant Features

The Court of Cassation determined as follows:
  • The circumstances of the case and the facts deemed proved indeed point to a situation of trafficking in human beings.
  • Article 4 European Convention on Human Rights establishes States obligation to take the necessary measures to prevent, punish and suppress slavery and forced labour. By not re-qualifying the facts, the Court of Appeal is likely to have mis-interpreted the law.
  • However, the compensation issue is established within a criminal judgment. Accordingly, the claims of the civil parties cannot but be framed within the terms and limits of the material facts entailed in the prosecution. This is to say, the decision of the Court of Appeal had already acquired the quality of res iudicatain the instant case. Thus, the Court of Cassation could not revisit the legal determinations deriving therefrom. It could not hence proceed to the legal requalification of the facts.
 
Against this background, the Court of Cassation dismissed the appeal.
 
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:
2016-06-21

Cross Cutting

Liability

... for

• completed offence

... based on

• criminal intention

... as involves

• principal offender(s)
• organiser/director

Application of the Convention

Details

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

Involved Countries

France

Senegal

Investigation

Involved Agencies

• Criminal Police
• Public Prosecutor

• Gender Dimension

Procedural Information

Legal System:
Civil Law
Latest Court Ruling:
Supreme Court
Type of Proceeding:
Criminal
 
On 9 December 2014, the Court of Appeal of Paris (France) convicted the defendants of migrant smuggling as well as concealed work and employing workers without a work permit. Victims constituted themselves civil parties in the proceedings against the defendants. The Court of Appeal convicted the defendants to the payment of 3000 Euro in compensation to X. and 9000 Euro in compensation to Y. The civil parties appealed the legal qualification of the facts and the amount of compensation.
Specifically, the civil parties requested the legal requalification of the facts into trafficking in human beings, aggravated by (i) having been committed against several individuals, (ii) taking advantage of persons in a situation of dependence and vulnerability, (iii) submitting the victims to inhuman and degrading conditions. They further asked the increase of the compensation amount, notably 15 000 Euro to Y. and 10 000 Euro to X. The appeal was based on inter alia domestic legal provisions, Articles 4, 6, 7 and 13 European Convention on Human Rights, International Labour Organisation Forced Labour Convention of 28 June 1930. They argued that by refusing the requalification of the facts on grounds that the constitutive elements of “trafficking in human beings” differ from the facts deemed proved by the judge for preliminary investigations, the Court had made an error in law.
Against this background, the Court of Cassation was seized only in respect of the torts law determinations issued in the course of the criminal judgment.
 
 

Migrants

Migrant:
Nationality:
Senegalese
At least one Senegalese, cousin of the female defendant.
Both migrants joined the criminal proceedings as civil parties and were award compensation: 9000 Euros to civil party Y. and 3000 Euro to civil party X.

Defendants / Respondents in the first instance

Defendant:
A.N.
Gender:
Female

Also charged and convicted for concealed work and employing a foreigner with no work permit.

Defendant:
Z.A.
Gender:
Male
Ibid. Defendant 1

Charges / Claims / Decisions

Defendant:
A.N.
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 622-3 Assisting the irregular entry, transit or stay of a foreigner in France Guilty
Defendant:
Z.A.

Court

Court of Cassation

Sources / Citations

Cour de cassation

chambre criminelle

Audience publique du mardi 21 juin 2016

Numéro de pourvoi N° de pourvoi: 15-80270 

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