Judgement Or1770

FACTUAL EXCERPT TO BE DISSEMINATED AMONG STUDENTS

Three defendants were prosecuted as members of an organised criminal group, which assisted Tunisian nationals in securing illegal entry, transit and stay in Europe. Specifically, the OCG engaged in and developed a consolidated practice of fake marriages, whereby Tunisian nationals would marry EU citizens 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 originally 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 to obtain Spanish valid residence documentation (through a sham marriage with a Spanish citizen). The organised criminal group further procured fraudulent documents as necessary to follow up on application procedures in Spain. The organised criminal group counted with several members 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 fraudulent 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 organized criminal group managed to recruit individuals, especially around Toulouse, by taking advantage of their particular state of vulnerability. Investigations unveiled the identity of other protagonists in the activities of the organized criminal group; however, it was not possible to ascertain they had received any financial or other material benefit for their respective contributions. The scheme presented the following key features: (i) the French "wife" registered in the Office of Foreigners in Spain, (ii) the "husband", in a second stage, addressed Spanish authorities and, based on 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 organized criminal group in the fashion explained.

ADDITIONAL INFORMATION

Investigations were initiated following the sharing of information by a Liaison Officer deployed in France addressed to OCRIEST (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 applications had been submitted in Spain in March 2009. Following this information, OCRIEST 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.

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 organized criminal group in Spain permitted to seize several false documents, official stamps from both Spanish and French civil/administrative authorities, and I.D. documents. Furthermore, authorities relied on the assistance of INTERPOL and MLA. International police cooperation (including joint police operations to search the residence of the leaders of the organized criminal group, who resided in Barcelona, Spain) took place. Letters rogatory were submitted for the surveillance of telecommunications between / of defendants. Spanish authorities opened parallel investigations regarding the members of the organized criminal group (notably, the leaders) who resided in the country. Judicial proceedings also ensued culminating in the prosecution of the members of the organized criminal group under its jurisdiction.

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 organized criminal group. The existence of an organized 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 organizers.
• The purpose of obtaining a financial or other material benefit excluded the application of the humanitarian exemption.

NOTE: 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 the authorities of both countries 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 organized criminal group under its jurisdiction would not escape legal scrutiny.

SHERLOC Case Law Database on the Smuggling of Migrants - France