Answer: No, it cannot.
According to Article 22 and Article 32 of Federal Decree-Law No. 29 of 2021 on the Entry and Residence of Foreigners, in cases of illegal smuggling or attempted smuggling of a foreigner into the country:
- the prescribed penalty is temporary imprisonment, and
- the provisions on conditional release, substitution of punishment, or judicial pardon set out in the Penal Code do not apply.
In Criminal Appeal Case No. 206 of 2024 (hearing of 10 February 2025), the court of first instance sentenced the defendant to 1 year of imprisonment followed by deportation, applying leniency under Article 99 of the Penal Code.
However, the Federal Supreme Court held that:
- applying the mitigating provisions of the Penal Code contradicts the express prohibition under Article 32 of Decree-Law No. 29 of 2021,
- reducing the penalty below the statutory minimum constitutes a misapplication of the law, and
- the defendant should have been sentenced to a minimum of 3 years’ imprisonmen...