Final exclusion order from French territory in the Court of Assizes of Appeal: a penalty still under debate

In Thionville, a man convicted of aggravated assault sees his penalty of final exclusion from French territory confirmed on appeal. He considered that the Court of Assizes of Appeal had not sufficiently debated this measure. But the Court of Cassation responds: since this penalty was already present at first instance, it was necessarily part of the debate. The accused cannot complain if he did not himself request the application of the exception provided for by Article 131-30-2 of the Criminal Code. What does this decision mean for litigants? How can one protect oneself against such an additional penalty? This article deciphers for you the stakes of this judgment.

The facts: a story like many that happen every day

Mr. X, a foreign national living in France for several years, is prosecuted before the Moselle Assize Court for acts of violence resulting in total incapacity for work exceeding eight days, with premeditation. On 12 March 2014, the first-instance Assize Court declares him guilty and sentences him to eight years' criminal imprisonment, together with a final exclusion from French territory (IDTF).

Mr. X appeals. Before the Metz Court of Assizes of Appeal, on 18 November 2014, the court confirms the guilt and the prison sentence, but also imposes again the final exclusion from French territory. The accused then appeals to the Court of Cassation. He argues that the Court of Assizes of Appeal did not include the additional penalty in the debate, since no specific debate took place on this point, and that the audio recording of the proceedings was not made due to a material impossibility, which should render the proceedings void.

The Court of Cassation dismisses the appeal. It holds that the final exclusion from French territory, having been imposed at first instance, was necessarily part of the debate before the Court of Appeal. It was for the accused, if he considered himself entitled to the exception provided for in Article 131-30-2 of the Criminal Code (which allows this penalty to be avoided in certain cases, in particular for foreigners demonstrating strong family ties in France), to claim it. As for the absence of audio recording, the Court notes that the material impossibility is established and that the accused has not shown how this absence caused him any prejudice.

The reasoning of the court — dissected

The decision rests on two legal pillars: Article 131-30 of the Criminal Code, which provides for the additional penalty of exclusion from French territory, and Article 131-30-2 of the same Code, which allows its exclusion for certain foreigners demonstrating habitual residence in France, family ties, or the impossibility of returning to their country of origin.

The Court of Cassation recalls a fundamental principle: in matters of the Court of Assizes of Appeal, the debate covers all penalties imposed at first instance, including additional penalties. The accused cannot criticise the Court of Appeal for imposing a penalty that was already part of the debate, unless he demonstrates that he was prevented from presenting his observations. In this case, Mr. X did not request the benefit of Article 131-30-2. He could have, for example, invoked his family life in France (marriage, children in school, stable employment) to ask the court to exclude the exclusion order. Not having done so, he cannot complain that the court did not debate an exception he did not raise.

On the audio recording: the law requires, on pain of nullity, that the proceedings of the Assize Court be recorded. But the Court of Cassation accepts that material impossibility (here, a breakdown of the recording equipment) may justify the absence of recording, provided that the accused does not demonstrate a concrete prejudice. In this case, Mr. X did not prove that the absence of recording prevented him from asserting his rights or exercising a remedy. Nullity is therefore not incurred.

This decision is part of a consistent line of case law: additional penalties imposed at first instance are presumed to be part of the appeal debate. It also confirms the strictness of the Court of Cassation regarding the burden of proving prejudice in the event of absence of recording.

What this changes for you — concretely

If you are a foreigner prosecuted before an Assize Court, this decision directly concerns you. The final exclusion from French territory is a formidable additional penalty: it forces you to leave France permanently, with no possibility of return. You may be deported after serving your prison sentence.

Concrete example: a resident of Forbach, father of two children born in France, employed by a local company for 10 years, could invoke Article 131-30-2 to ask the Assize Court to exclude the exclusion order. But beware: he must do so at first instance or, failing that, before the Court of Appeal. If he does not, the Court of Appeal is not obliged to raise this exception of its own motion. The decision of 22 June 2016 firmly reminds us of this.

For victims: this decision does not directly affect your rights. You can still claim damages. But it shows that the Court of Assizes of Appeal can confirm additional penalties without a new debate, which may speed up the procedure.

For lawyers: it is crucial to prepare all grounds of defence from the first instance, including against additional penalties. Do not wait for the appeal to invoke the exception under Article 131-30-2.

Four tips to avoid this type of dispute

• Invoke exceptions immediately: If you are a foreigner and risk exclusion from the territory, prepare a solid file from the first appearance: proof of residence, family ties, professional integration. Present them at the hearing or in writing.
• Do not rely on the Court of Appeal: Do not assume that the Court of Appeal will reopen the debate on each penalty. If you did not raise the exception at first instance, do so absolutely on appeal, as soon as you instruct a lawyer.
• Check the recording of proceedings: If you notice an absence of recording, immediately ask for it to be noted in the minutes. Record your objection. Without this, you risk not being able to invoke nullity.
• Document the material impossibility: If the recording did not take place, the administration must prove the material impossibility. Demand a written report. You can then challenge it if the proof is not provided.

Further reading: related case law and developments

The Court of Cassation has delivered several judgments on exclusion from the territory. In a judgment of 12 February 2014 (No. 13-84.215), it had already held that the Court of Assizes of Appeal was not required to specifically state reasons for imposing this penalty if it appeared in the first-instance decision. The decision of 22 June 2016 confirms this line.

On the other hand, the Court has recently strengthened the rights of foreigners in other areas: in a judgment of 8 July 2020 (No. 19-84.123), it annulled an exclusion order for lack of adversarial debate on the personal situation. But that decision concerned a first instance, not an appeal. The trend is therefore towards a certain procedural strictness at first instance, but a presumption of regularity on appeal.

In the future, the question of audio recording may evolve with the generalisation of digital equipment. But for now, material impossibility remains a valid excuse, as this judgment reminds us.

In practice: what to do

FAQ:

• Can I challenge an exclusion order imposed on appeal if I did not challenge it at first instance? Yes, but you must do so on appeal. If you do not, the Court of Appeal may confirm it without a new debate.
• What should I do if the proceedings were not recorded? Immediately report it to the President of the Assize Court. Ask for the incident to be recorded. If you can prove prejudice (for example, inability to prove a statement), you may obtain nullity.
• What are the time limits for invoking the exception under Article 131-30-2? Ideally at the first instance hearing. Otherwise, in your appeal submissions, before the hearing.
• Can the final exclusion from the territory be lifted afterwards? No, it is a final penalty. Only a presidential pardon or a retrial could annul it.

If you are facing proceedings before an Assize Court and risk exclusion from the territory, do not wait. A quick consultation with a specialist lawyer can make all the difference.

Are you in a similar situation? A first 30-minute consultation with Maître Zakine (€45) can save you months of proceedings — and often much more. Book an appointment →