Standing of family members of the accused subject to a criminal expulsion measure

Facts

By judgment of 8 October 2018, the Criminal Court of the Republic and Canton of Geneva ordered the expulsion of X. from Swiss territory for a period of three years.

By judgment of 1 February 2019, the Criminal Appeals and Review Chamber of the Geneva Court of Justice declared inadmissible the appeal lodged by [A.] and [B.] against this judgment. The two named individuals, respectively the partner and the son of X., could not be recognised as having standing in the proceedings.

X. appealed against the judgment of 8 October 2018, which was dealt with separately. [A.] and [B.] then lodged an appeal in criminal matters with the Federal Supreme Court against the judgment of 1 February 2019. They sought the annulment of that judgment, recognition of their standing in the cantonal appeal proceedings, and a rehearing of the appeal proceedings in their favour. They also applied for legal aid.

Considerations

The Federal Supreme Court recalls that, pursuant to Art. 382 para. 1 CrimPC, only a party with a legally protected interest in the annulment or modification of a decision has standing to appeal. A legally protected interest presupposes a direct and immediate infringement of the appellant’s own rights, not merely a reflex effect. Standing must be understood in the sense of Art. 105 para. 2 CrimPC, which requires a direct, immediate and personal infringement of the participant’s procedural rights.

In the present case, the appellants (X.’s partner and son) claim that the judgment ordering X.’s expulsion infringes their right to respect for family life within the meaning of Art. 8 ECHR. However, the Federal Supreme Court considers that their relationship with X. cannot be equated with a stable marital union and that X. does not have custody of his son. Even assuming that the appellants could invoke a right to respect for family life, their standing and their right to appeal must be denied, since X.’s expulsion affects them only indirectly.

The Federal Supreme Court emphasises that, unlike aliens law, criminal procedure primarily aims to punish or prevent offences, not to regulate the living situation of those concerned. Criminal expulsion is ordered on the basis of specific criteria (Art. 66a et seq. SCC) and cannot be contested by the accused’s family members, as this would risk disrupting criminal proceedings. Indeed, the interests of the accused and those of his family do not necessarily…