Help for migrants: “brotherhood” and public order

Entrance to the interception council, paris. Photo: mbzt.0

The french constitutional council advocates the freedom to "freedom to help others, with a humanitarian objective, if this is done without reciprocation", regardless of whether the stay in the country is irregular or not

The irritation that arises when the terms "aid" and "migrants" is, as pars pro toto the telepolis-forum on the interview with jana ciernioch from the association sos mediterranee documents today, remarkable.

The partly theatrical charging of the tensions, which is indicated, for example, by the fact that commentaries express their objections with "fie" is a europe-wide phenomenon; it is part of a cultural struggle that can also be observed in france. There is also a discussion in a testy tone there.

It will therefore be interesting to see what consequences a decision by the french constitutional council on the complex of "help for illegal migrants" will have, which was published last friday.

The rank of "brotherhood"

In a nutshell, the conseil’s decision reinforces the mandatory status of migrant aid. And this regardless of whether the migrants have entered illegally. It is important that the assistance – in distinction to the tugboat – or smuggler activity – takes place without consideration. The relevant concluding passage in the verfangswachter’s decision reads:

For the first time, the constitutional council has ruled that brotherhood is a principle of constitutional value. For this he refers to the article 2 of the treaty: the motto of the republic is: "liberte, egalite, fraternite". The treaty also mentions the common ideal of liberty, equality, fraternity in the preface and in article 72-3. From this principle, the verfangsrat derives the freedom to help another with a humanitarian purpose, without considering the regularity of the other’s stay on the national territory.

Press release of the conseil constitutionnel

The concrete consequence of this decision is that from a law on the "assistance to the entry and illegal stay" the expression "illegal stay" is to be deleted. It concerns the laws l622-1 and l622-4, which deal with the assistance to entry and illegal stay.

Laws against smuggling and exceptions to punishments

The former art. L.622-1 authorizes robust penalties for persons, "who, by direct or indirect assistance, facilitates or attempts to facilitate the illegal entry, illegal transport (‘circulation’) or illegal stay of a foreign person in france, shall be punished by a term of imprisonment of up to 5 years or by a fine of up to 30,000 euros" (translation: blog.Nccr).

The second type.L622-4 lists the exceptions to the punishment: for example, when it comes to family members, but also when it comes to the "alleged act gives neither a direct nor an indirect counterpart and it (the alleged act, importation. D.A.) consists in giving legal advice, assistance with accommodation and food, or medical assistance aimed at enabling the alien to live a full life, or other assistance aimed at preserving the alien’s dignity and physical integrity" (translation d. A.).

Call for stronger legal support for the "solidarity"

Various aid organizations had objected to the legislation before the constitutional council because, as le monde quotes them, it would "many forms of solidarity were excluded" were.

The term of contention for this is "solidarity offense" and contains the accusation that the legislator punishes a behavior that is ultimately based on solidarity. The term is said to have been coined in 1995 by a group that supports migrants: groupe d’information et de soutien des immigres (gisti).

In may 2003, there was a manifesto on the subject, declaring that they had helped strangers residing illegally in france and that they were determined to continue this assistance. At the end comes the final sentence, which leads to the polemical term "crime of solidarity" for activities that are seen as aid by one side and as a crime by the state: "if solidarity is an offense, then i demand to be prosecuted for this offense", he states in the manifeste des delinquants de la solidarite.

From the point of view of the civil organizations and people who have joined or are close to this manifesto, the decision of the custodians means a lot of wind of change, because the solidarity is very highly valued over the recourse to the traditional concept of brotherhood from the french revolution and the first republic. How this will play out in the dispute over when ngos or other aid organizations should start collaborating with the criminal smuggling business remains to be seen.

For the legislator the modes of interception have made the condition indicated above, until the 1. December of this year to amend the law, which will be put into effect as of that date in its present form.

Council of ministers: no support for illegal entry of migrants

However, the constitutional council also emphasizes that its decision is not intended to support the illegal entry of migrants, nor does it intend to or can it interfere with the powers of the legislature.

"The fight against illegal immigration is part of the maintenance of public order, it is an objective of constitutional importance, the constitutional council judged that it is incumbent on the legislator to ensure the appropriate balance between the principle of fraternity and the maintenance of public order."

The decision of the constitutional council was initiated by civil organizations and cedric herrou, who helps migrants from italy who crossed the border irregularly near the french-italian border, for which he has already been convicted.

How the punishment for helping illegal migrants will be regulated after the decision of the constitutional council is still open.

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