Aid to migrants: the Constitutional Council devotes the "principle of fraternity"

Paris – Fraternity was a motto, it became one of the great principles of French law: the Constitutional Council said Friday that disinterested aid to the "illegal stay" of foreigners can not be prosecuted in the name of this principle , which will now impose itself on the legislator.
  

" Like freedom and equality, which are the other two terms of the motto of our Republic, fraternity will have to be respected as a constitutional principle by the legislator and may be invoked before the courts. jurisdictions ", reacted with AFP the President of the Council, Laurent Fabius.

This decision, which promises to sound like a thunderclap in a European political context tense on the migratory issue, responds to a request by Cédric Herrou, a farmer who has become the symbol of aid to migrants at the French border. Italian and who demanded the abolition of " crime of solidarity ". His lawyer, Patrice Spinosi, immediately congratulated on a " immense victory ".

Interior Minister Gérard Collomb also welcomed this decision, while considering that it would be disproportionate to extend the existing exemptions " to the irregular entry on the French territory ". The Constitutional Council plans to maintain the sanctions in this case.

For the first time, the Constitutional Council devotes the " principle of fraternity ", recalling that " the motto of the Republic is + Liberty, Equality, Fraternity + " and that the basic law refers to this " common ideal ".

– " Freedom to Help Others " –

" It follows from the principle of fraternity the freedom to help others, for humanitarian purposes, regardless of the regularity of his stay on the national territory ", according to the decision.

In order to allow the legislator to remedy the unconstitutionality found, the Council postpones to 1 December 2018 the date of repeal of the impugned provisions.

The general principles of law were for the most part fixed after the Second World War and it is extremely rare that new ones are enunciated.

Before the Constitutional Council, Cédric Herrou and another activist in the Roya Valley, both sentenced for illegal residence, had attacked two articles of the Code of Entry and Stay of Foreigners.

They aimed at Article 622-1, which punishes the aid for entry, circulation and illegal stay of five years imprisonment and 30,000 euros fine, and Article 622-4, which specifies that this aid can not give place to prosecution when it is the fact of the family or " of any natural or legal person, when the act reproché gave rise to no direct or indirect counterpart . "

The text goes on to say that this authorized aid includes " providing legal advice or catering, accommodation or medical care (…) or any other badistance to preserve the dignity or physical integrity ".

A text " too vague " for the defenders of the militants, which allowed to sanction the humanitarian aid in the same way as organized crime of the sectors of smugglers.

" By repressing any badistance given to the circulation of the alien in an irregular situation ", the Constitutional Council considers that the legislator did not respect the balance between " principle of fraternity "and" safeguarding public order ".

It therefore partially censors Article L 622-4, leaving the field of prosecution any humanitarian aid to " stay " as to the " circulation " of migrants. On the other hand, " the aid to irregular entry " remains sanctioned.

– Very tense political context –

Concerning the conditions of immunity listed in this same article, the Council issues a "19459005" reservation of interpretation ", that is to say that it specifies the meaning that must be given to the text: thus, the immunity should apply to the situations listed (legal advice, medical care …) but also " to any other act of help brought in a humanitarian purpose ".

This decision comes in a very tense political context on the migratory issue.

Last Friday, after weeks of acid exchanges against the backdrop of rescuing wandering boats in the Mediterranean, European Union leaders reached a compromise that proposes the creation of " landing platforms "migrants outside the EU to deter crossings.

In France, voices were raised even in the majority to criticize the fact that the government did not offer to host the Aquarius, a ship rejected by Italy and then sailing with 630 migrants in distress.

In Parliament, deputies and senators were unable to agree on the bill " asylum and immigration ": at the end of June, the senators hardened the text adopted in April by the National Assembly, which had precisely relaxed " the crime of solidarity ". A new writing of the text will have to take into account the decision of the Constitutional Council.