It’s a sea serpent that resurfaces with each tragic news item: the double punishment. Sunday on the LCI set, the new Minister of the Interior, Bruno Retailleau, said he was in favor of the expulsion of convicted foreigners when they have finished serving their sentence. “When we welcome a foreigner, and this foreigner is condemned, he no longer has anything to do on French territory,” he insisted. A proposal that the spokesperson for the National Rally, Laurent Jacobelli, was quick to applaud with “both hands”. It must be said that two days earlier, his party announced its intention to submit a bill to this effect.
Except that… the device, created in 1945, has never been removed. The number of ban sentences from French territory – what is commonly called double jeopardy – has even increased by almost 40% since 2019. According to figures from the Ministry of Justice, the courts handed down 6,298 in 2023, compared to 4,579 four years earlier.
An additional sentence
To understand the controversy, a short law course is necessary. According to article 131-30 of the Penal Code, the sentence of exclusion from the territory can be pronounced, either permanently or for a period of up to ten years, against a foreigner “guilty of crime or misdemeanor punishable by imprisonment for a term greater than or equal to three years. » “This is an additional penalty which can only be incurred for certain offenses,” specifies a judicial source. This concerns all crimes, but also sexual assault, serious violence, drug trafficking, the use of false documents, marriage fraud, etc. On the other hand, a foreigner convicted, for example, of refusing to comply or violence with a weapon which does not result in incapacity cannot be inflicted with such a sentence.
This is the heart of the debate. When politicians call for the return of double jeopardy, they actually want its expansion. In short: that they apply to more crimes but also to all foreigners. Because since the creation of this penalty, this provision has been the subject of several reforms aimed at regulating it. Among the most important, that initiated in 2003 by Nicolas Sarkozy, then Minister of the Interior: he reduced its scope by broadening the categories of “protected citizens”.
The penalty of exclusion from French territory cannot be imposed against a foreigner who arrived in France before the age of 13 or has lived in the territory for more than twenty years, against a foreigner married for more than four years to a French person. or having French children… The only exceptions: if the latter have been convicted of acts of terrorism, cases affecting the “fundamental interests of the Nation” or crimes or offenses committed within the family unit.
Multiple exceptions
But this framework has been significantly affected by the latest immigration law, which came into force in January. If these categories of protected citizens still exist, they are increasingly theoretical as the exceptions have multiplied. They can no longer apply to foreigners convicted of a crime or misdemeanor punishable by at least five years in prison, or even three years if it was committed in a repeat situation. “Concretely, this drastically reduces the number of people who can enter the protected categories,” insists a judicial source.
However, this does not mean that all convicted foreigners will be sentenced to inadmissibility. The Penal Code specifies that the court must take into account “the duration of the foreigner’s presence on French territory as well as the nature, seniority and intensity of his links with France to decide to pronounce the ban on French territory. This is the principle of individualization of punishment, the keystone of the judicial system.
Administrative relay
Finally, since all these debates arise from the murder of the young Filipino in the Bois de Boulogne on September 20, one clarification and not the least: minors, whatever their crimes or misdemeanors, cannot be sentenced to a sentence of prohibition of territory. However, at the time of his first conviction for rape, the main suspect was 17 years old.
On the other hand, and this was the case in this case, even if such a sentence is not pronounced by the courts, the prefect can take over and request the expulsion of the convicted person by issuing an order to leave the territory. French, the famous OQTF.