"Washing your dirty laundry with the family" takes on its full meaning in the criminal justice system. Apart from the facts of domestic violence, criminal law is not intended to bring order between the members of a family, nor to create a climate of suspicion.
Since antiquity, family immunities have prevented members of a family from bringing complaints against each other or from denouncing themselves in court.
We can therefore steal, swindle, blackmail his parents, his children, his spouse or his grandparents without being criminally prosecuted: this is family immunity (article 311-12 of the penal code).
Taking his parents 'car for a trip, moving half of his grandparents' furniture to put it in at home (or reselling it), or taking money hidden under a mattress… cannot be prosecuted for theft.
A child who blackmailed his dating father ... will not be prosecuted for extortion in court. Just as one cannot force a spouse to confess to a crime committed by his spouse or to testify against him ...
Who is affected by family immunity?
Immunity will work in favor
- Ascendants: parents, grandparents
- Descendants: children, grandchildren. Including for adopted, natural or recognized children
- Spouses who are married, in civil partnership, or living in a notorious cohabitation (for more than a year).
- Allies: Those who join a family by marriage (mother-in-law, father-in-law, daughter-in-law, son-in-law, etc.)
- Collateral: between brothers and sisters
- Members of a family exercising tutorship or curatorship
Namely: Immunity ceases if the spouses are authorized by a court decision to reside separately (legal separation, divorce, etc.), or if the theft relates to documents essential to daily life. These acts will be prosecuted for theft between spouses (article 311-12 paragraph 2 of the penal code).
Regarding foreigners, Law 2012-1560 of December 31, 2012, grants immunity to couples even if they do not live together as well as to brothers and sisters of the foreigner or of the spouse who lives with the foreigner.
Offenses excluded from the repressive field
Immunities prevent any prosecution for acts of:
- Theft (311-12 of the penal code)
- Extortion (312-9 paragraph 2 of the penal code)
- Blackmail (312-12 paragraph 2 of the penal code)
- Fraudulent (313-3 paragraph 2 of the penal code)
- Breach of trust (314-4 of the penal code)
- Assistance with the entry and illegal stay of a foreigner (L.611.22-4 of the CESEDA
Exception to the principle of immunity
The cases where the aggravation is retained for a separate offense.
This is the hypothesis where during the theft, the victim parent (father, child, spouse, etc.) struggles, falls down the stairs and dies by accident. The parent who commits the act will not be prosecuted for the theft, but will be prosecuted for the manslaughter (intentional or involuntary) which followed the theft.
To know: The immunity will only play for the members of the family and not for the accomplices or the co-perpetrators.
Example: If a parent (son or grandson…) receives help from a friend to rob his grandparents' house. This parent will not be prosecuted for theft, but this friend (co-author or accomplice) will be and will be tried alone in court.
The inability to have a parent testify in court
In criminal matters any person having witnessed an offense, or a crime, has the obligation to appear to take an oath to tell the truth and to testify in front of the court under penalty of sanction. (Articles 326 of the Criminal Procedure Code before the Assize Court and 438 of the Criminal Procedure Code before the Correctional Chamber)
But this oath, and therefore the obligation to tell the truth (the whole truth) on the witness stand will not work against the ascendants, descendants, brothers and sisters, allies, spouses.
To note : In matters of testimony, family immunity is extended to brothers, sisters, allies and spouses even after divorce.
The inability to report a parent to justice
A parent who has knowledge of a crime or misdemeanor committed by a family member is not required to report it to justice, even if an innocent person is involved.
Immunity will also play for
- Failure to testify even in favor of an innocent person (Art. 434-11 of the penal code)
- Of crimes (Art. 434-1,1 ° of the penal code)
Except in the case of crimes committed on minors under 15 years old
- Of concealment of criminals (Art. 434-6 of the penal code).
It is the hypothesis where one hides a child, small child, or a husband who has just committed a crime to avoid justice.
To note : In matters of non-denunciation, the family is considered in the narrow sense. Only spouses benefit from immunity, not cohabiting partners, civil partnerships… (Cass. Crim., Of May 25, 2011, n ° 10.86-229 and CEDH Van der Hetjden c / pays bas April 3, 2012 req n ° 428 57/05 ).
This immunity does not prevent a family member from being summoned to a trial to be heard. It is up to him to be silent, or not. The principle is that they cannot be prosecuted if they lie or say nothing (except for terrorist acts), as the law allows for any other witness.
Law n ° 2016-731 of June 3, 2016 suppressed family immunity for non-denunciation of terrorist crimes or crimes against the interests of the nation.
This makes it possible to prosecute the members of the family of a person suspected or guilty of acts of terrorism. If they withhold information, they risk 5 years in prison and a fine of 75 euros (Article 000-434 of the penal code).
The ban on pronouncing certain sentences to preserve families
Apart from the “infamous” nature, a criminal conviction always has an impact on the family in the event of a fine, confiscation, etc.
To preserve family ties, it will not be possible to pronounce an inadmissibility (definitive or 10 years) for an accused who has a stable family life.
To benefit from it, Articles 8 CEDH and 131-30-2 of the penal code set the criteria in the sense of constant severity.
To benefit from it, you must in particular:
Reside regularly in France for +10 years, not be a polygamist, have a marital life established for 4 years and prior to the alleged acts, the community of life has not ceased (if divorce proceedings are in progress, immunity will not play), the facts must not have been committed against the spouse, the children.