Case Law Database

Smuggling of migrants

Offences

• Enabling illegal stay

Other Crimes

Details

Participation in criminal activities of organized criminal group

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

 

Arrêt nº 597 du 4 mars 2015

France

Fact Summary

The defendant admitted to have issued certificates of residence in France to several irregular migrants, allegedly without having perceived any financial or other material benefit. He acknowledged to have the same stated “legal residence” as an irregular migrant he assisted but was, nonetheless, unable to provide any information regarding the latter.

Upon a search to the defendant’s residence, authorities found his associate (M.Y.) as well as seven irregular migrants in situ. The electricity contract of the apartment was under the defendant’s name. During questioning, M.Y. was unable to explain the provenance of 6000 Euro found in his possession, simply stating the cash had been lent to him by friends so as to enable the purchase of a real estate.

 

In ascertaining the facts, authorities took into account inter alia testimonial evidence and the outcome search and seizure operations.

 

Legal findings:

The competent Investigative Judge deemed there to be sufficient evidence to hold the defendant and his associate prima facie responsible for “assisting the irregular entry, transit or stay of a foreigner in France”. Accordingly, it referred the case to the tribunal correctionnel. The defendant contested this decision. The Court of Appeal of Reims (France) dismissed the appeal.

The Court of Cassation partially reversed the decision of the Court of Appeal of Nancy.

For further details see “History of Proceedings” and “Commentary”. 

Commentary and Significant Features

The Court of Cassation determined as follows:

  • Under the following conditions, 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 (Article L. 622-4 “Code de l'entrée et du séjour des étrangers et du droit d'asile (CESEDA)”).
  • The contribution of the appellant to the criminal conduct appraised in the instant case was that of issuing certificates of residence. It was not proved that he perceived a financial or other material benefit in exchange thereof. The Court a quo did not thus justify how it had concluded for the individual criminal responsibility of the appellant. Accordingly, if nothing else, it had breached the principle of motivation of judicial decisions.
  • Furthermore, the Court a quo failed to demonstrate that the appellant had knowledge of the irregular situation of the migrants in France. Hence, it breached the principle of legality.

 

Against this background, the Court of Cassation upheld the appeal and annulled the decision of the Court of Appeal of Reims (France) regarding the appellant (and not his associate) as far as the application of Article L. 622 CESEDAis concerned. Accordingly, the Court of Cassation sent the case relating to the appellant back to the Court of Appeal of Nancy (Nancy) for review.

 

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:
2015-03-04

Cross-Cutting Issues

Liability

... for

• completed offence

... based on

• criminal intention

... as involves

• principal offender(s)

Offending

Details

• involved an organized criminal group (Article 2(a) CTOC)

Investigation Procedure

Involved Agencies

• Criminal Police
• Public Prosecutor

Procedural Information

Legal System:
Civil Law
Latest Court Ruling:
Supreme Court
Type of Proceeding:
Criminal
 
Proceeding #1:
  • Stage:
    appeal
  • Official Case Reference:
    Arrêt nº 597 du 4 mars 2015 (13-87.185)

    • Court

    Court Title

    Court of Cassation, Criminal Chamber
    Cour de Cassation, Chambre Criminelle
     

    Location

  • City/Town:
    Paris
  • Province:
    France

    • Description

    On 26 October 2011, the competent investigative judge sent the case against the defendant to the relevant court of first instance, deeming it to prima facie fulfil the constitutive element of the crime of facilitation of illegal stay in France, in the context of an organised criminal group. The defendant appealed against this decision. First, it contested the precautionary measure imposed to him/her on grounds that he/she had not been advised of the right to remain silent nor had he/she received the assistance of legal counsel. On 13 September 2013, the Court of Appeal of Reims (France) dismissed the appeal, noting that – since its jurisdiction had been triggered by the investigative judge – the defendant could no longer argue before the court flaws emanating from the procedure before the said investigative judge. Second, the defendant contested the application of Article L. 622 “Code de l'entrée et du séjour des étrangers et du droit d'asile (CESEDA)”, arguing a breach of the principle of legality. In this respect, the Court of Appeal of Reims deemed no error had occurred and the defendant (and his associated) could not benefit from the immunity from prosecution enshrined in Article L. 622-4 CESEDA. It followed the appeal herein under analysis
     

    Outcome

  • Verdict:
    Reversal

    • Other Outcome

    Appealed decision overturned and sent back for review to the Court of Appeal of Reims
     

    Defendants / Respondents in the first instance

    Defendant:
    M.X
    Nationality:
    Defendant is of bengali nationality
    Legal Reasoning:
    On appeal, the Defence argued inter alia a breach of the principle of legality re application of Articles L. 622-1, L. 622-3, L. 622-4 CESEDA.

    Charges / Claims / Decisions

    Defendant:
    M.X
    Charge:
    Assisting the irregular entry, transit or stay of a foreigner in France
    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

    Attachments