Smuggling of migrants

Offences

• Enabling illegal stay

Mode

• land

Nº Parquet 16293000004

UNODC No.:
FRAh59

Fact Summary


The defendant was accused of facilitating the illegal transit and stay of three Eritrean female migrants (including a minor), who he knew were in France irregularly. The facts occurred on 18 October 2016, between Tende (France) and Nice (France), via La Turbie (Alpes Maritimes, France). The defendant provided transportation and accommodation in his residence to the three irregular migrants.

On the afore-mentioned date, the police carried out a traffic control operation in highway A8, close to la Turbie, between 01.00 and 07.00. The defendant was ordered to pull over at approximately 04.45. Authorities realised the defendant was transporting three women, who attempted to hide their faces.

The defendant was placed under custody. The search of the vehicle did not reveal anything pertinent to investigations. Later, authorities searched the residence of the defendant, where they found three matrasses placed on the floor and, in the kitchen, nine glasses and bowls as well as a pot with food.

Two of the migrants were heard by authorities. One, declared to have fled Eritrea, via the Sahara desert. She went to Sudan and, then, Libya. From there, she left to Italy, by sea, with the assistance of migrant smugglers to whom she paid 3600 USD. She would

be attempting to arrive to Germany, where relatives of her resided. She stated to have encountered the defendant by chance, while she and her compatriots where walking towards France. The defendant would have stopped and, realising their tiredness, invited them into the vehicle, without charging them any fees or requesting any advantage in return.

The other migrant confirmed the statement of her compatriot. She declared to have paid 3500 USD to be smuggled from Libya into Italy. She would have attempted before to walk towards Germany, in the company of her cousin. However, the latter would have been ran over by a truck and died. On her second attempt, she walked for several days, through the mountains, with her two compatriots. They would be in the process of walking when a vehicle stopped close to them. They asked the driver for help. The defendant accepted to give them a ride without asking any payment or benefit in return.

The defendant, in turn, contested the version given by the migrants.  According to him, he had taken charge of the three women in Saint-Dalmas-de-Tende (France), upon finding them in an abandoned building close to associations that aimed to provide humanitarian assistance to irregular migrants. He further explained to usually associate with members of such associations/organisations, particularly those intending to supply food and accommodation to migrants in need. He admitted to have witnessed several conversations without ever directly providing humanitarian assistance himself. However, two days before, while he was going to La Brigue to attend a popular celebration with his 12-year old daughter, he notice four young individuals, appearing to be African, and in inappropriate attire in view of the current season. He decided to stop, namely to sensitise his daughter to the difficulties endured by irregular migrants. He ended up conversing with the four young individuals (allegedly from Darfur), who declared to wish to travel to the coast. However, they were heading to the mountains. The defendant agreed to return at approximately 18.00 and help them. He did as agreed. He took the young men to his residence and gave them food and accommodation for the night. The next day, he gave them a ride to the station of Arcs (France) and paid them a train ticket to the station of Carnoules (France). Following these events, he went to work. At the end of the day, he joined some friends in Saint-Dalmas-de-Tende (France). One of his friends informed him that a number of associations providing humanitarian assistance to irregular migrants intended to invest on a squat in order to ensure accommodation to those in need. This friend would have told the defendant that he would be helping in this endeavour. The defendant decided to accompany his friend to the site at approximately 01.00. After a while, given the late hour, the defendant manifested his intent to return home. One of the individuals on site, proposed that he took the three Eritrean women to his house and, the following day, gave them a ride to the station of Cagnes-Sur-Mer (France). There, they would take the train to Marseille (France) where they would be expected by doctors and other humanitarian workers. With some hesitation, the defendant accepted. He declared to be fully aware of the irregular situation of the women in France. Yet, he acted out of solidarity in view of their dramatic circumstances. He described that, when he met the women, they were tired, fearful and ‘frozen’. They presented apparent wounds and bandages. One of the three Eritrean women was again questioned, this time confirming the version of events reported by the defendant. The latter’s declarations were also corroborated by the analysis of his phone records. On the one hand, many of the defendant’s contacts were indeed individuals well known for their humanitarian work/involvement. On the other hand, a number of messages were illustrative of the defendant’s intent to help migrants in need, in the sense explained by him during questioning. They further supported the facts reported by the defendant.

 

In ascertaining the facts, authorities relied much on testimonial evidence as well as the outcome of search and seizure operations. Expert evidence was also considered. Notably, a physician working with Médecins du Monde attested to the debilitating health conditions of the three Eritrean migrants: (i) they presented contusions, wounds, and sprains due to long hours walking; (ii) most concerning, their psychological state was particularly worrying. The expert further noted to be familiar with the squat in Saint-Dalmas-de-Tende, declaring it to be impossible to deny help, food, clothing and accommodation to the migrants settling therein. In addition, the Defence submitted an affidavit from President of the Ligue des droits de l’Homme(who was not heard in court due to time constrains), according to which the actions of the defendant were defined as “gestures of humanity and solidarity towards human beings in situation of total precariousness”. 

Legal findings:

In responding to the humanitarian justification invoked by the Defence, the Public Prosecutor underlined the difference between ‘rescue’ and ‘aide’. The former implies an immediate danger and it is, hence, a duty. The actions of the defendant were to be integrated, instead, within a more organised help/assistance, which was not connected to a real and imminent danger to the life or safety of others. It thus maintained its argument for the conviction of the defendant for facilitation of illegal transit and stay of irregular migrants in France.

The Tribunal de Grande Instance of Nice acquitted the defendant.

For further details see “Commentary”. 

 

Commentary and Significant Features

The Tribunal de Grande Instance de Nice (France) noted as follows:

  • According to Article L. 622-1 “Code de l'entrée et du séjour des étrangers et du droit d'asile (CESEDA)”, “Without prejudice to the exemptions established in Article L. 622-4, everyone who, directly or indirectly, facilitates or attempts to facilitate the irregular entry, transit or stay of a foreigner in France will be punished with five years’ imprisonment and 30 000 Euro fine”.
  • In the terms of Article L. 622-4 CESEDA, those facilitating the illegal stay of an irregular migrant in France are not subject to criminal prosecution: (i) no direct or indirect financial or other material benefit was received, and (ii) the facilitating act consisted of providing legal advice, nourishment, accommodation or health care necessary to ensure migrants’ physical integrity or dignifying living conditions.
  • With regard to the alleged facilitation of illegal stay, it should be highlighted: (i) while no physician examined the three migrant women upon being caught in the defendant’s car nor had the police taken any notes on their physical state, the physician from Médecins du Monde (witness) testified to the usual health conditions in which people in the squats are found; (ii) the abandoned building where the migrants settled before being assisted by the defendant had no electricity, water, or heating (in a period of the year where temperatures in the region are very low), which alone attested for the unsafe and unsanitary conditions the women found themselves in; t(iii) he three migrants had been walking for several days through highly challenging paths. One could not rebut to these facts that the women wilfully chose to be in this situation given it is well known the humanitarian difficulties faced by civilians in their country of origin. Against this background, the actions of the defendant were motivated by humanitarian and solidarity concerns, notably in view of the vulnerability of the women. He intended to provide accommodation and food that could meet dignifying human standards. Accordingly, the defendant’s actions fall under the scope of application of Article L. 622-4 CESEDA. It is irrelevant to determine whether his actions constituted an act of ‘rescue’ or ‘aide’ (as suggested by the Public Prosecutor) given that the afore-mentioned provision makes no such distinction.
  • In respect of the alleged facilitation of illegal transit, it should be stressed that – while the exemption from prosecution established in Article L. 622-4 CESEDA applies only to the facilitation of illegal stay – the kind of assistance the defendant intended to provide to the migrants in need required their transportation. In other words, the defendant intended to provide food and dignifying accommodation to the migrants, in his residence. To do so, he necessarily had to provide them transportation, which he did via his own vehicle. The defendant’s residence was located 70 Km away from the site where he met the irregular migrants. In casu, the facilitation of irregular transit was the conditio sine qua nonfor the facilitation of irregular stay on humanitarian grounds (comprised within the scope of the immunity from prosecution awarded under Article L. 622-4 CESEDA). Furthermore, the facilitation of irregular transit in the instant case was a necessary means to ensure a safe night to the three Eritrean women, in line with the right to security as enshrined in Article 5 European Convention on Human Rights. Convicting the defendant of facilitation of irregular transit would be neither just nor proportional.

 

Against this background, the Tribunal de Grande Instance of Nice acquitted the defendant and ordered the restitution of his vehicle. It considered the defendant’s actions fell in its entirety under the scope of application of the exemption from prosecution determined in Article L. 622-4 CESEDA.

 

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:
2017-01-06

Cross Cutting

Liability

... for

• completed offence

... based on

• criminal intention

... as involves

• principal offender(s)

Investigation

Involved Agencies

• Criminal Police
• Public Prosecutor

Confiscation & Seizure

Seized Property:
vehicle of the defendant
 

Procedural Information

Legal System:
Civil Law
Latest Court Ruling:
Court of 1st Instance
Type of Proceeding:
Criminal
 
 
Proceeding #1:
  • Stage:
    first trial
  • Is the decision appealable?:
    No
  • Details:
    Judgment
  • Official Case Reference:
    Nº Parquet 16293000004
  • Court

    Court Title:
    Court of First Instance of Nice
    Tribunal de Grande Instance de Nice
     

    Location

  • City/Town:
    Nice
  • Province:
    France
  • • Criminal
    Description:
    Court session occurred on 23 November 2016. The Defence requested an adjournment so as to better prepare. The Judgment was pronounced on 6 January 2017.
     

    Outcome

  • Verdict:
    Acquittal
  • Defendants / Respondents in the first instance

    Defendant:
    P.A
    Gender:
    Male
    Nationality:
    French

    No prior criminal record.

    Legal Reasoning:

    The Defence argued the defendant had acted exclusively out of concern for his peers, who he found hurt and debilitated. He had perceived no financial or other material benefit for his assistance. The defendant found himself bound to act in view of the values his parents had transmitted to him. In addition, he had first-aid training. His actions were prompted by humanitarian concerns and to allow him to be at peace with his conscience and his heart.


    The Defence requested the acquittal of the defendant and invoked the principle of proportionality in criminal law. Specifically, it held that any penalty would be disproportional to the humanitarian and solidarity aim pursued by through the defendant’s actions.

    Charges / Claims / Decisions

    Defendant:
    P.A
    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
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