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France: Foreign Nationals Cannot Be Placed in Police Custody for Lack of Documentation

(June 15, 2012) In an opinion rendered on June 5, 2012, the Criminal Chamber of the Cour de Cassation, France's Supreme Court for civil and criminal matters, found that foreign nationals cannot be placed in police custody (garde à vue) for the sole reason that they are undocumented. (Avis n° 9002 du 5 juin 2012 de la Chambre criminelle, Cour de Cassation website.)

The Court stated that under article 62-2 of the Code of Criminal Procedure, which was recently added to the Code by Law 2011-392 of April 14, 2011, on Police Custody, a person can only be placed in police custody when there is probable cause to suspect that the person has committed or attempted to commit a crime or délit punishable by imprisonment. (Code de Procédure Pénale, (CPP) art. 62-2, LEGIFRANCE (last visited June 12, 2012).)

French criminal law distinguishes three categories of criminal offenses: crimes, délits, and contraventions. In broad terms, crimes are a small category of very serious offenses (e.g., murder, rape, treason, espionage), délits are less serious offenses (e.g., theft, fraud, assault), while contraventions include a broad range of regulatory offenses, sometimes of strict liability.

The Court further stated that, in addition, police custody must meet one of the objectives listed in article 62-2. (Avis n° 9002 du 5 juin 2012 de la Chambre criminelle, supra.) These objectives are: to allow the authorities to pursue investigations that require the presence or participation of the person in custody; to guarantee that the person can be brought before the Public Prosecutor, so that that official can decide how the investigation should proceed; to preserve evidence; to stop pressure being placed on a victim or witness; to avoid communication between the suspects and their accomplices; and to put an end to the crime or prevent its repetition. (CPP art. 62-2.)

The Court also referred to two judgments of the European Court of Justice (ECJ), rendered respectively on April 28, 2011 (Hassen El Dridi, Opinion C-61/11, INFOCURIA (ECJ case-law database)) and December 6, 2011 (Alexandre Achughbabian v. Préfet du Val-de-Marne, Case C-329/11, INFOCURIA). Both cases deal with the interpretation of Directive 2008/115/EC, known as the “return directive.” (Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on Common Standards and Procedures in Member States for Returning Illegally Staying Third-Country Nationals, OFFICIAL JOURNAL OF THE EUROPEAN UNION L 348/98 (Dec. 24, 2008), EUR-LEX.)

In the El Dridi case, the ECJ ruled that:

Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals, in particular Articles 15 and 16 thereof, must be interpreted as precluding a Member State's legislation, such as that at issue in the main proceedings, which provides for a sentence of imprisonment to be imposed on an illegally staying third-country national on the sole ground that he remains, without valid grounds, on the territory of that State, contrary to an order to leave that territory within a given period. (Hassen El Dridi, supra.)

In the Achughbabian case, the Paris Appeal Court, using the preliminary ruling procedure, asked the ECJ whether the return directive precludes a French provision that punishes a third-country national who illegally stays in France, beyond three months without the required documents and visas, with a one-year sentence of imprisonment and a fine of €3,750 (about US$4,680). The ECJ ruled that Directive 2008/115 must be interpreted as:

— precluding legislation of a Member State repressing illegal stays by criminal sanctions, in so far as that legislation permits the imprisonment of a third-country national who, though staying illegally in the territory of the said Member State and not being willing to leave that territory voluntarily, has not been subject to the coercive measures referred to in Article 8 of that directive and has not, in the event of placing in detention with a view to the preparation and implementation of his removal, reached the expiry of the maximum duration of that detention; and

— not precluding such legislation in so far as the latter permits the imprisonment of a third-country national to whom the return procedure established by the said directive has been applied and who is staying illegally in that territory with no justified ground for non-return. (Alexandre Achughbabian v. Préfet du Val-de-Marne, supra.)