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Chronique juridique

Legal Weapons in Action at the French-Italian border

L’arme juridique en action aux confins de la France et de l’Italie
El arma legal en acción en la frontera de Francia y Italia
Oriana Philippe
Traduction de Katherine Booth et Alexandra Poméon O’Neill
Cet article est une traduction de :
L’arme juridique en action aux confins de la France et de l’Italie [fr]

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Notes de l’auteur

This column was written before the Cour de Cassation (Court of Cassation) handed down its judgment No. 33 of 26 February 2020, 19-81.561, which states that there is nothing to prevent humanitarian and therefore legal assistance from being part of the actions of associations and activists (para. 15).

Texte intégral

  • 1 Borders have been strengthened both legally (e.g. visa requirement, biometric identification system (...)
  • 2 Regulation (EU) 2016/399 of the European Parliament and of the Council of 9 March 2016 on a Union C (...)
  • 3 Circular IOCK1100748C of 6 April 2011 relative aux autorisations de séjour délivrées à des ressort (...)

1The establishment of the Schengen area has had a considerable impact on migratory flows to Europe, in particular due to the strengthening of the external borders of this area,1 which has led to it sometimes being labelled “Fortress Europe”. Conversely, internal border controls were abolished under Article 22 of the Schengen Borders Code,2 which states that: “Internal borders may be crossed at any point without a border check on persons, irrespective of their nationality, being carried out”. As a result, non-European nationals present on European territory benefit from the possibility to move freely, in accordance with life projects, attempts to find employment, the location of family members or friends, without being hindered by border checks. However, in a relatively short space of time this freedom of movement was curtailed, in particular at the French-Italian border. In 2011, during the “Arab revolution”, many people took to the sea in order to reach Europe. The Italian government decided to grant them residence permits on humanitarian grounds (ANAFE, 2019: 18). The French government, no doubt fearing that these people with regular status in Italy would then settle on French territory, decided by means of a circular3 to tighten the conditions of residence for non-EU nationals with a European residence permit. At the same time, controls were introduced on the conditions of residence for foreigners arriving from Italy. The government relied on Article 21 of the Schengen Borders Code 2006 (today corresponding to Article 23 of the SBC 2016), which provides for identity checks to be carried out within the territory. However, this provision sets out a framework for the use of such checks and does not authorise identity checks to be carried out in any event in a systematic manner, nor does it permit them to have the objective or equivalent effect of border controls, which seems to have been the case (ANAFE, 2011). Since the establishment of the Schengen area, this was the first, unofficial, obstruction to the principle of abolishing border controls.

  • 4 See for example: Internazionale (2015) A Ventimiglia va in scena l’assurdo, 13 luglio; or Il giorna (...)
  • 5 Law No. 55-385 of 3 April 1955.
  • 6 Article 26-1 of Regulation (EU) No. 1051/2013 of the European Parliament and of the Council of 22 O (...)
  • 7 Ibid.
  • 8 The most recent extension took place in May 2019, justified by the organisation of the G7 in Biarri (...)
  • 9 Law No. 2017-1510 of 30 October 2017 renforçant la sécurité intérieure et la lutte contre le terror (...)

2Although the reintroduction of checks in 2011 only lasted for a limited time, the so-called “migration crisis” of 2015 led the French government to resort to this same normative circumvention. From June 2015 and throughout the summer, the actions of the French police forces returning people to the border appeared on Italian screens, offering spectators images of officers dragging exiles from trains at Menton station.4 In France, the re-establishment of systematic controls was officially denied, as was the case in 2011. It was ultimately the terrorist attack of 13 November 2015 that enabled France to formalise the practice of controls on the French-Italian borders. Two separate measures, which are often confused, were then taken by the government: the introduction of a state of emergency, based on an internal law,5 and the re-establishment of border controls, on the basis of the Schengen Borders Code. The Code allows for the temporary reintroduction of controls6 “[i]n exceptional circumstances where the overall functioning of the area without internal border control is put at risk as a result of persistent serious deficiencies relating to external border control as referred to in Article 19a, and insofar as those circumstances constitute a serious threat to public policy or internal security within the area without internal border control”.7 However, the re-establishment of border controls has been extended until the present day8 and laws have been passed to maintain some of the prerogatives granted to law enforcement authorities in the context of emergency measures, in particular the right to carry out identity checks.9

  • 10 On the basis of Article L. 211-1 of the French Code de l’entrée et du séjour des étrangers et du dr (...)
  • 11 Article 32 SBC: “Where border control at internal borders is reintroduced, the relevant provisions (...)

3When the Schengen area was established, adjoining states were invited to establish cross-border cooperation agreements in order to define the rules for direct cooperation between police and customs officers. Accordingly, Italy and France signed the Chambéry agreement of 3 October 1997. This agreement sets out a system for the simplified readmission of non-European nationals crossing the border without the documents authorising their residence in the neighbouring country. Although the procedure is simplified, it requires the country to apply to the authorities of the country from which the person in question entered, in order to obtain their agreement for the readmission of that person. However, since 2015, this agreement has been little used by France during border stops. Individuals are now refused entry,10 an expeditious refoulement procedure requiring fewer steps to be taken with the authorities in the country of origin. This procedure is, in fact, intended for the external borders of the Schengen area, but Article 32 of the SBC allows it to be used at internal borders in the event that the borders are re-established.11 Yet, at this border, the French authorities do not respect the rights relating to the procedure for refusing entry (such as the right of the person to benefit from a clear day before being returned under Article L. 221-4 of the French Code de l’entrée et du séjour des étrangers et du droit d’asile (Code on the Entry and Residence of Foreigners and the Right of Asylum - CESEDA), or the obligation to carry out a thorough and individual examination under Article L. 213-2 of CESEDA) (ANAFE, 2019: 18-19 and 51-67; CNCDH, 2018: 7).

  • 12 We use these terms interchangeably in this column.

4A full arsenal of regulations was thus put in place, enabling the State to mount a vast offensive against non-European nationals seeking to come to or pass through France. On the Italian side of the border, the situation rapidly became difficult: since exiles were unable to cross the border, their numbers increased, while infrastructures remained non-existent and assistance insufficiently organised. Attempting to cross the border, while living on the streets, exiles found themselves in a state of increasing vulnerability and insecurity. Inhabitants on both sides of the border, moved by the living conditions of these people, came to their assistance. They can be referred to as “helpers” (coming to the aid to those in exile) or as “solidarity actors” (for those who refute the notion of help - suggesting a more vertical relationship - and who prefer the concept of solidarity).12 These local actors were rapidly joined by other people from different backgrounds who had been informed of the situation at the border. Little by little, the government began to confront a section of the European population in disagreement with its migration policies. At the outset, the actions undertaken by these “solidarity actors” were mainly of a “humanitarian” nature (material and medical), but they diversified their actions as the situation became more permanent, gradually building up a wider repertoire (Lendaro, 2018). While some helpers favoured “discreet action” (Lendaro, 2018: 186), other solidarity actors decided to confront state policies more openly by denouncing abuses of the law and the situation at the border, leading to advocacy actions and gradually to the use of legal tools. Helpers sought to better understand and use the law in order to defend the exiles. In response to such actions in support of exiles, the state authorities began to prosecute helpers, notably by invoking what has been called the “offence of solidarity”. This counterattack by the State prompted “solidarity actors” to establish legal defence strategies. Initially a weapon for the defence of exiles, the law then became a weapon for the defence of solidarity actors. This strengthening of legal knowledge subsequently led solidarity actors to use the law in attack, directed against the State.

The Organisation of the Legal and Judicial Defence of Exiles

  • 13 Conseil d’État (CE), emergency summary proceedings, 29 June 2015, Gisti et al., Nos. 391 192, 391 2 (...)

5Individual legal support at the border was initially non-existent. Several organisations specialising in immigration law and border observation took action against the overall situation from the outset,13 but there were not at that time people regularly present in the field to provide legal support or carry out observation missions. Thus, at first, no legal action was taken against refusals of entry in cases where rights were not respected, as no one was in a position to provide information and legal advice.

  • 14 Coordination des Acteurs à la Frontière Franco-Italienne (which has now become Coordination des Act (...)

6On the French side, national NGOs then decided to create positions at these borders in order to be able to coordinate actions between the different French actors, to make contact with “solidarity actors” on the Italian side of the border, to closely observe the situation and to undertake collective actions. CAFFIM was thus set up at the initiative of several NGOs.14 ANAFE also created a specific position in the area. These positions, occupied mainly by legal experts, contributed to the efforts to develop the legal aspect of solidarity actions at the border. Legal experts also became involved on the Italian side. They liaised with French organisations, contributing to observation and a degree of coordination on both sides of the border. In addition, lawyers from the region focused on the legal issues raised by the border. In parallel to the development of the legal aspects by professionals, solidarity actors who were not legal experts attempted to grasp areas of immigration law for guidance, alert and even advice purposes.

7While the “law is most often regarded as a political weapon at the service and in the hands of those in power”, it “is also characterised by a form of reversibility” (Israel, 2009: 17-38), which was seized upon by these “solidarity actors”. They strengthened the legal aspects of their action, gradually making use of the law as a weapon (Israel, 2009: 142), to the point of entering the judicial arena (Israel, 2009: 63-90) to defend the rights of individuals. The processes of strengthening the legal and judicial aspects of their actions differ in that the former refers to use of the law in general, while the latter involves actors bringing their cases before the various relevant jurisdictions (Pélisse, 2009; Commaille and Dumoulin, 2009). Strengthening the legal aspects of an action is therefore a condition for developing the judicial aspects. Among the first successful judicial actions undertaken by the “helpers” were the orders issued by the Nice Administrative Court on 22 January and 23 February 2018 (M. M. H. and ANAFE versus the Prefect of the Alpes Maritimes region). In summary proceedings, the court noted the manifest illegality of refusing entry to unaccompanied minors, who were immediately sent back to Italy.

The Criminalisation of Assistance to Exiles: the “Offence of Solidarity”

8As solidarity grew on the French-Italian borders, the law that the authorities had hitherto invoked against those in exile was extended to the “helpers” of the exiles.

9Several legal bases were used by law enforcement authorities to prosecute these individuals, such as traffic penalties imposed during systematic and in-depth vehicle checks (Human Rights Watch, 2019: 67-79; ANAFE, 2019: 95-98; Défenseur des droits, 2018: 68; CNCDH, 2017: 10). These deterrence techniques, already in existence, were particularly widely employed on the French-Italian border, to the extent that the organisation Human Rights Watch characterised them as “police harassment” (Human Rights Watch, 2019: 67-79).

10In addition, the authorities used the so-called “solidarity offence” to charge “solidarity actors”. This long-standing offence, which dates back to the 1938 Daladier Decree (Lazergues, 2018; Observatory for the Protection of Human Rights Defenders, 2009) is currently codified in Article L. 622-1 of CESEDA. The first paragraph of this Article states that:

“Subject to the exemptions set out in Article L. 622-4, any person who has, by means of direct or indirect assistance, facilitated or attempted to facilitate the unauthorised entry, circulation or residence of a foreigner in France will be punished by five years’ imprisonment and a fine of 30,000 euros”.

  • 15 For example, advice on legal matters, food, accommodation or care or other types of assistance to “ (...)
  • 16 CE, emergency summary proceedings, 15 January 2010, No. 334879, Lexbase No.: A7598EQH; CE 2nd and 7(...)

11Thus, this provision makes no distinction between disinterested assistance and assistance for financial gain. Until the 1990s, there were few convictions for disinterested assistance, however since then this legal basis has been used more frequently to convict people helping exiles (Slama, 2017). This has led human rights organisations to label this article the “solidarity offence” and to call for its amendment or repeal. The article has thus been the subject of legislative reforms in recent years, in particular through Law 2012-1560 of 31 December 2012. These reforms introduced Paragraph 4 to Article L. 622, providing for a certain number of immunities, inter alia for family members and in the event that the act has not “given rise to any direct or indirect consideration”. However, the article also sets out a restricted list of the types of assistance which may be eligible for this immunity.15 Furthermore, limitations have also emerged through case law: the Conseil d’État (French Council of State, the highest administrative court in France) has in particular made it possible to invoke the state of necessity specified in Article L. 122-7 of the Criminal Code when the exemptions in Article L. 622-4 cannot be applied16 (Slama, 2017).

12However, the introduction of a system of exemptions was not sufficient to put an end to the convictions of individuals helping exiles on a not-for-profit basis, as this system still contained “gaps” to which immunity did not apply. Yet, the French government’s choice to maintain a general condemnation of assisting exiles in principle does not respond to European recommendations: European Directive No. 2002/90/EC of 28 November 2002, defining the facilitation of unauthorised entry, transit and residence, only recommends that states adopt sanctions in respect of “intentionally” assisting unauthorised entry into a country and assisting unauthorised residence “for financial gain” (Défenseur des droits, 2012: 11; CNCDH, 2017: 9). The Commission nationale consultative des droits de l’homme (National Consultative Commission on Human Rights - CNCDH) (2017) and the Défenseur des droits (Defender of Rights) (2012) issued opinions calling on the government to go further in reforming this article and to avoid any prosecutions in respect of assistance on a not-for-profit basis.

  • 17 These were ordinary constitutionality reviews prior to the enactment of the law. Such reviews could (...)
  • 18 ECtHR judgment, Mallah versus France, No. 28681/08, 10 November 2011.

13Nevertheless the government maintained this system, supported by the courts: constitutionality reviews were carried out in relation to the various legislative reforms of the article,17 however the Conseil constitutionnel (French Constitutional Council) had never criticised sanctions imposed for disinterested assistance. On each occasion, the Conseil constitutionnel conducted a proportionality test between respect for the rights of individuals and the importance of the fight against irregular immigration. The European Court of Human Rights, which was required to rule on the application of this article in the Mallah v. France judgment,18 also adopted this position.

  • 19 Gisti, on its website, lists several symbolic convictions on the basis of Article 622-1 of CESEDA a (...)

14In 2018, the course of this legislative provision took a new turn, due in particular to the context of increased tension between “solidarity actors” and state agents at the French-Italian border. Article L. 622-1 of CESEDA was used more and more frequently to charge “helpers”19 (ANAFE, 2019: 99); several cases such as the convictions of Cedric Herrou or the “Briançon 7” received particularly widespread media coverage. Lawyers therefore decided to develop their means of action.

Use of the Priority Preliminary Ruling on the Issue of Constitutionality and Recognition of the Principle of Fraternity

15Although, legal experts and lawyers had been specialising in immigration law for several years, the recurrent lawsuits against solidarity actors in this region led some lawyers to seize upon these lawsuits to demand a different reading of the law, by conducting an active defence.

  • 20 CE, emergency summary proceedings, 15 January 2010, No. 334879, Lexbase No.: A7598EQH; CE, 2nd and (...)

16One of the best-known legal actions taken by these lawyers was in relation to an umpteenth lawsuit against Cedric Herrou and another helper, Pierre-Alain Mannoni. In the first case, the lawsuit concerned accommodation made available to the exiles by the “solidarity actor”. The second was prosecuted for having transported and provided shelter to three migrants. They were convicted by the Court of Appeal, which had not allowed them to claim immunity, and they appealed to the Cour de Cassation (Court of Cassation). Their lawyers decided to use the occasion to request a Priority Preliminary Ruling on the issue of constitutionality20 (Question Prioritaire de Constitutionnalité - QPC) on the subject of Article L. 622 of CESEDA. The approach of the lawyers for the two defendants was to pursue a proactive defence reflecting efforts aimed at bringing about changes to the legal framework: the confrontation with the State is not only about establishing whether the law has been respected. “On reading the decisions of the Court of Appeal [...] it quickly became clear that the issue at stake was not only to obtain the quashing of these criminal convictions, but also, and above all, to call into question the ‘offence of solidarity’ itself’” (Champeil-Desplats, 2019: 1). Lawyers called for an interpretation that was fairer in their view, more coherent from a human perspective, ultimately asking for legitimacy and legality to be reconciled, and for a search for the fundamental meaning of the law.

17The provision had not yet been examined by the Conseil Constitutionnel in the framework of a QPC. This procedure has the advantage of showing the legislative provision in the context of its concrete application to a particular case. The Cour de Cassation, in a ruling of 9 May 2018, referred the QPC to the Conseil constitutionnel. On 6 July 2018, it confirmed “the freedom to help others, for humanitarian purposes, regardless of whether or not they have regular residence status in national territory” on the basis of the principle of fraternity. Unlike freedom and equality, the legal nature of the principle of fraternity has been the subject of various debates in the past, due in particular to its specific nature and the difficulty in defining it (Borgetto, 2018). It was only on the occasion of this QPC that the Conseil constitutionnel, for the first time, enshrined fraternity as a constitutional principle, considering that, while it is indeed necessary to legislate in order to combat illegal immigration, this struggle must be reconciled with the principle of fraternity. The decision thus constitutes a turning point in the history of Article L. 622 of CESEDA in that it puts an end to the system of a list of specific immunities and recognises the freedom to help others in general.

  • 21 Conseil constitutionnel, Decision No. 2018-717/718 QPC of 6 July 2018, Mr. Cédric H. and other. The (...)

18However, reservations remain. The Conseil constitutionnel limited this freedom to assist others, to aid with irregular residence and, to a lesser extent, with circulation, thus excluding exemption in cases of assistance with unauthorised entry into the territory, even if such assistance is provided on a humanitarian basis.21 In addition, when the legislature amended Article L. 622-4 of CESEDA to bring it into line with the decision of the Conseil constitutionnel, it specified that assistance must have been provided for an exclusively humanitarian purpose, thereby creating a distinction between assistance that is “of a purely humanitarian nature” and assistance that is “of a partly humanitarian nature” (Défenseur des droits, 2018: 66).

  • 22 Gisti, on its website, lists several symbolic convictions on the basis of Article 622-1 of CESEDA a (...)
  • 23 Aix-en-Provence Court of Appeal, 16 January 2019, No. 2019-33.

19Since the decision of the Conseil constitutionnel, there have been several convictions of “solidarity actors” at the French-Italian border based on this provision.22 The sense that a battle is being waged against “solidarity actors” clearly emerges from the text of these decisions. Indeed, in some decisions, the activism of those prosecuted appears to be an obstacle to the immunity conferred under Article L. 622-4 of CESEDA. Thus, on 16 January 2019, the Aix-en-Provence Court of Appeal,23 convicted a young man who had not provided assistance to cross the border. The court considered that the young man had not acted in a humanitarian capacity, even though he had not gained any material or financial consideration: he was in fact an activist defending the rights of exiles, like his mother, and a fortiori as part of Cédric Herrou’s association Roya citoyenne, an element mentioned several times in the decision. The Court found that the acts “which are devoid of any spontaneity and constitute an intervention on request without knowledge of the possible distress of the migrants whom he knew to have entered France illegally, were generally part of an activist endeavour aimed at intentionally shielding foreigners from the controls implemented by the authorities to ensure application of legal provisions on immigration”. Thus, in the view of this court, activism constitutes a form of consideration.

  • 24 “4+3” was initially used in reference to the chronology of arrests. It has since been retained by h (...)
  • 25 Gap Tribunal de Grande Instance (Regional Court - TGI), Criminal Court judgment 803/2018 of 13 Dece (...)

20The “Briançon 4+3” case24 also raised the underlying issue of activism. The seven individuals took part in a demonstration that crossed the border on 22 April 2018. One of the demonstrators was a person with irregular status, and there is no evidence that the demonstrators were aware of this. Seven of them were, however, convicted under Article L. 622-1 of CESEDA. The Court considered that indirect assistance “constitutes a punishable act in itself, and presupposes, on the one hand, that evidence is provided of the unauthorised entry of at least one foreigner into the national territory and, on the other hand, one or more positive acts characterising indirect assistance (or attempted assistance)”.25 The seven demonstrators were therefore convicted of assisting the border crossing, despite the fact that there was no evidence before the court that they had been aware of any persons with irregular status present at the demonstration. Most of the defendants were already known for their commitment towards exiles, and this surprising decision therefore also raises the question of whether it is activism, shown here by their participation in the demonstration, that is being punished.

  • 26 See for example the decision of the Aix-en-Provence Court of Appeal, 1 April 2019, 2019-231: The ac (...)
  • 27 Dauphiné Libéré (2019) Comment condamner un jeune pour avoir eu trop d’empathie (How to convict a y (...)

21Moreover, it emerges from the accounts of “solidarity actors” at the northern end of the Italian border, that those under arrest are asked during hearings whether they are acting in defence of the rights of exiles. In several decisions concerning solidarity actions towards exiles with irregular status, the defendant’s membership of an association or activist movement is mentioned.26 Conversely, on 22 August 2019, a young man appeared before the Gap Criminal Court for having accompanied three young minors while he was at the border. The absence of activism in his action was highlighted and he was exempted from punishment.27 It would therefore appear that the immunity enshrined in Article L. 622-4 of CESEDA is more restrictively recognised in respect of individuals considered to be activists and that the accused’s prior commitment towards exiles works against her or him in the event of prosecution. This trend, should it be confirmed, opens up many questions. Can an action be carried out on a humanitarian basis when its author is an activist? Is it not the case that activist commitment to a human cause, such as that in support of exiles, is also motivated by the fact that it is a humanitarian and fraternal cause? Or could there be a political motivation hidden behind a humanitarian gesture which the judges would then seek to punish? This is a legal situation which is still rather unclear and which case law will need to clarify. What is the limit of humanitarian action? Is political commitment incompatible with humanitarian action (Champeil-Desplats, 2019: 4-5)?

Attack as the Best form of Defence?

  • 28 See for example the inter-association press release of 16 October 2018: FRONTIÈRE FRANCO-ITALIENNE/ (...)

22Initially, the use of the law by solidarity actors was relatively defensive. As the law became an increasingly familiar weapon to solidarity actors at the border, they sought to use it in an offensive manner, in order to take legal actions against the State and impose respect for the rights of exiles. Several observation missions were carried out at the borders aiming at collecting as much information and evidence as possible to document the situation, strengthen remedies, build actions and denounce violations of rights.28

  • 29 See the description of the proceedings on the Gisti website: Référé-liberté visant à obtenir la fer (...)

23A series of observations on police practices at the border carried out in May 2017 thus enabled several associations involved in the border issue to apply to the administrative judge for an emergency summary ruling for possible infringement of civil liberties concerning the conditions of detention of exiles arrested at the Menton railway station. These exiles are held in what could be called “algecos” or “pre-fabricated structures”, without respect of the rights relating to deprivation of liberty. The associations thus filed this application with the Administrative Court in Nice. In its order of 8 June 2017, the Court only partially recognised the illegality of this detention (considering that the individuals held in detention must be transferred to premises provided for under Article L. 221-1 of CESEDA, in the event that the detention exceeds four hours). The associations then lodged an appeal with the Conseil d’État, which, in an order dated 5 July 2017, rejected the associations’ application.29 The fact that the proceedings were unsuccessful is not the most interesting element here. The approach adopted by the solidarity actors to the collection of evidence in order to prepare a judicial attack against the State reveals a new way of using the law. The associations relied on several solidarity actors to carry out the observations and to participate in this legal action.

  • 30 See, in this regard, Le Dauphiné (2019) Identitaires au tribunal: “Tous migrants se devait d'être l (...)
  • 31 See Ouest France (2019) Le parquet classe sans suite le décès d’un migrant (The public prosecutor’s (...)

24In the same vein, the organisation “Tous migrants” has become a civil party in lawsuits related to the defence of fundamental rights at the borders, firstly in the context of the investigation against Génération identitaire30 and secondly, in the investigation into the death of Blessing Matthew, a young woman found dead, allegedly as a result of a fall following a chase by law enforcement authorities.31

25These legal actions are of particular interest in the context of the confrontation opposing the state authorities and solidarity actors, in that they reveal an increasingly comfortable and daring use of the law. Whereas initially the law was mainly used for protection through information or for defence purposes by way of legal actions in response to administrative measures or prosecutions, solidarity organisations are showing increased boldness and are even initiating legal action against the authorities, thereby effecting a form of reversal of the balance of power. These actions are still quite rare, but it can logically be surmised that other ideas for action may emerge that will strengthen the use of the law by those concerned.

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Bibliographie

ANAFE (2019) Persona non grata, conséquences des politiques sécuritaires et migratoires à la frontière franco-italienne, Rapport d’observation 2017-2018, 148 p.

ANAFE-GISTI (2011) L’Europe vacille sous le fantasme de l’invasion tunisienne, Rapport d’observations suite à une mission exploratoire commune à la frontière franco-italienne.

Borgetto Michel (2018) Sur le principe constitutionnel de fraternité, Revue des droits et libertés fondamentaux, chronique 14, [en ligne]. URL : http://www.revuedlf.com/droit-constitutionnel/sur-le-principe-constitutionnel-de-fraternite/

Champeil-Desplats Véronique (2019) Le principe constitutionnel de fraternité : entretien avec Patrice Spinosi et Nicolas Hervieu, La Revue des droits de l’homme, 15, [en ligne]. URL : https://journals.openedition.org/revdh/5881

Commaille Jacques et Dumoulin Laurence (2009) « Heurs et malheurs de la légalité dans les sociétés contemporaines. Une sociologie politique de la “judiciarisation” », L’Année sociologique, 59 (1), pp. 63-107. ‬‬‬‬‬‬‬‬‬‬‬‬‬‬‬‬‬‬‬‬‬

Défenseur des droits (2018) Exilés et droits fondamentaux, trois ans après le rapport Calais, Rapport, 76 p.

Human Rights Watch (2019) « Ça dépend de leur humeur ». Traitement des enfants migrants non accompagnés dans les Hautes-Alpes, 95 p.

Israël Liora (2009) L’arme du droit, Paris, Presses de Sciences Po, 142 p.

Lazerges Christine (2018) Le délit de solidarité, une atteinte aux valeurs de la République, Revue de sciences criminelles et de droit pénal comparé, 1 (1), pp. 267-274.

Lendaro Annalisa (2018) Désobéir en faveur des migrants. Répertoires d’action à la frontière franco-italienne, Journal des anthropologues, 1 (152-153), pp. 171-192.‬‬‬‬‬‬‬‬‬‬‬‬‬‬‬‬‬‬‬‬‬‬‬‬‬‬‬‬‬‬‬‬‬‬‬‬‬‬‬‬‬‬‬‬‬‬

Observatoire pour la protection des défenseurs des droits de l’Homme (FIDH-OMCT) (2009) Délit de solidarité : Stigmatisation, répression et intimidation des défenseurs des droits des migrants.

Pélisse Jérôme (2009) « Judiciarisation ou juridicisation ? Usages et réappropriations du droit dans les conflits du travail », Politix, 86 (2), pp. 73-96.

Slama Serge (2007) Délit de solidarité : actualité d’une autre époque, 11 p., [en ligne]. URL : https://www.gisti.org/IMG/pdf/art_slama_2017-04-20.pdf

Legal documents

Opinion of the défenseur des droits (Defender of Rights), 12/03, 15 November 2012.

Conseil d’État (Council of State, highest administrative court in France - CE), Preliminary Ruling, 15 January 2010, No. 334879 No. Lexbase: A7598EQH.

CE, 2nd and 7th combined sub-sections, 19 July 2010, No. 334878, published in Recueil Lebon Lexbase No.: A9998E43.

CE, Order, 5 July 2017, No. 411575.

ECtHR, Mallah v. France, No. 28681/08, 10 November 2011.

Commission nationale consultative des droits de l’homme (National Consultative Commission on Human Rights, French National Human Rights Institution), Mettre fin au délit de solidarité (Put an end to the solidarity offence), Opinion, 18 May 2017.

Commission nationale consultative des droits de l’homme, Avis sur la situation des personnes migrantes à la frontière franco-italienne (Opinion on the situation of migrant persons at the French-Italian border), June 2018.

Conseil constitutionnel (French Constitutional Court), Decision No. 2018-717/718, Priority Preliminary Ruling on the issue of Constitutionality (QPC) of 6 July 2018, Mr. Cédric H. et al.

Aix-en-Provence Court of Appeal, Decision 2019-231, 1 April 2019.

Aix-en-Provence Court of Appeal, Decision 2019-33, 16 January 2019.

Gap Tribunal de Grande Instance, Criminal Court judgment 803/2018, 13 December 2018.

Gap Tribunal de Grande Instance, Criminal Court judgment 6/2019, 10 January 2019.

Regulation (EU) 2016/399 of the European Parliament and the Council, of 9 March 2016 on a Union Code on the rules governing the movement of persons across borders.

Circular IOCK1100748C of 6 April 2011 relative aux autorisations de séjour délivrées à des ressortissants de pays tiers par les États membres de Schengen (on residence permits issued to third-country nationals by Schengen Member States).

European Directive No. 2002/90/CE of 28 November 2002 defining the facilitation of entry, transit and residence.

Law No. 2018-778 of 10 September 2018 pour une immigration maîtrisée, un droit d’asile effectif et une intégration réussie (for controlled immigration, effective asylum and successful integration).

Law No. 2012-1560 of 31 December 2012 relative à la retenue pour vérification du droit au séjour et modifiant le délit d’aide au séjour irrégulier pour en exclure les actions humanitaires et désintéressées (on detaining for the purposes of verifying the right of residency and amending the offence of assisting irregular residence to exclude humanitarian and disinterested actions).

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Notes

1 Borders have been strengthened both legally (e.g. visa requirement, biometric identification system for foreigners) and physically (e.g. tighter controls, construction of massive walls, creation of FRONTEX).

2 Regulation (EU) 2016/399 of the European Parliament and of the Council of 9 March 2016 on a Union Code on the rules governing the movement of persons across borders (Schengen Borders Code) or Regulation (EC) 562/2006 of the European Parliament and of the Council of 15 March 2006 for events prior to 2016.

3 Circular IOCK1100748C of 6 April 2011 relative aux autorisations de séjour délivrées à des ressortissants de pays tiers par les États membres de Schengen (on residence permits issued to third-country nationals by Schengen Member States).

4 See for example: Internazionale (2015) A Ventimiglia va in scena l’assurdo, 13 luglio; or Il giornale.it (2015) La Francia respinge gli immigrati e ce li riporta tutti in Italia, 29 Maggio.

5 Law No. 55-385 of 3 April 1955.

6 Article 26-1 of Regulation (EU) No. 1051/2013 of the European Parliament and of the Council of 22 October 2013 amending Regulation (EC) No. 562/2006 in order to provide for common rules on the temporary reintroduction of border control at internal borders in exceptional circumstances. This Article amended Article 23 of the SBC 2006 and now appears in Article 25 of the SBC 2016.

7 Ibid.

8 The most recent extension took place in May 2019, justified by the organisation of the G7 in Biarritz, which took place from 24 to 26 August 2019.

9 Law No. 2017-1510 of 30 October 2017 renforçant la sécurité intérieure et la lutte contre le terrorisme (strengthening internal security and the fight against terrorism) and Law No. 2018-778 of 10 September 2018 pour une immigration maîtrisée, un droit d’asile effectif et une intégration (for controlled immigration, effective asylum and integration).

10 On the basis of Article L. 211-1 of the French Code de l’entrée et du séjour des étrangers et du droit d’asile (Code on the Entry and Residence of Foreigners and the Right of Asylum - CESEDA).

11 Article 32 SBC: “Where border control at internal borders is reintroduced, the relevant provisions of Title II [‘Control of external borders and refusal of entry’] shall apply mutatis mutandis”.

12 We use these terms interchangeably in this column.

13 Conseil d’État (CE), emergency summary proceedings, 29 June 2015, Gisti et al., Nos. 391 192, 391 275, 391 276, 391 278, 391 279.

14 Coordination des Acteurs à la Frontière Franco-Italienne (which has now become Coordination des Acteurs aux Frontières Internes) was established by La Cimade, Médecins du Monde, Amnesty International, Médecins sans frontières and Secours Catholique.

15 For example, advice on legal matters, food, accommodation or care or other types of assistance to “preserve dignity or physical integrity”.

16 CE, emergency summary proceedings, 15 January 2010, No. 334879, Lexbase No.: A7598EQH; CE 2nd and 7th combined subsections, 19 July 2010, No. 334878, published in the Recueil Lebon, Lexbase No.: A9998E43.

17 These were ordinary constitutionality reviews prior to the enactment of the law. Such reviews could be conducted because of the legislative reform in progress. This type of review differs from review by way of exception, a priority preliminary ruling on the issue of constitutionality, which allows review of laws which have already been enacted. Within this framework, the parties to a legal action can raise the unconstitutionality of a law as a defence and request that a preliminary reference be made to the Conseil constitutionnel.

18 ECtHR judgment, Mallah versus France, No. 28681/08, 10 November 2011.

19 Gisti, on its website, lists several symbolic convictions on the basis of Article 622-1 of CESEDA and provides access to the legal decisions. See https://www.gisti.org/spip.php?article1621

20 CE, emergency summary proceedings, 15 January 2010, No. 334879, Lexbase No.: A7598EQH; CE, 2nd and 7th combined sub-sections, 19 July 2010, No. 334878, published in the Recueil Lebon, Lexbase No.: A9998E43.

21 Conseil constitutionnel, Decision No. 2018-717/718 QPC of 6 July 2018, Mr. Cédric H. and other. The principles laid down by the decision of the Conseil constitutionnel have been taken up in the new wording of Article L. 622-4 CESEDA resulting from Law No. 2018-778 of 10 September 2018 on controlled immigration, an effective right of asylum and successful integration.

22 Gisti, on its website, lists several symbolic convictions on the basis of Article 622-1 of CESEDA and provides access to the legal decisions. See https://www.gisti.org/spip.php?article1621

23 Aix-en-Provence Court of Appeal, 16 January 2019, No. 2019-33.

24 “4+3” was initially used in reference to the chronology of arrests. It has since been retained by human rights organisations to emphasise the cumulative aspect of prosecutions against “solidarity actors” (it is also possible to find ‘4+3+2+...’ in press releases).

25 Gap Tribunal de Grande Instance (Regional Court - TGI), Criminal Court judgment 803/2018 of 13 December 2018: 32.

26 See for example the decision of the Aix-en-Provence Court of Appeal, 1 April 2019, 2019-231: The accused “stated that he was a member of several associations helping migrants (Association pour la défense de la démocratie, Amnesty International, Habitat citoyenneté, Roya citoyenne, Défends ta citoyenneté)” or Decision 6/2019 of the Gap TGI of 10 January 2019: “He showed his humanitarian commitment to supporting migrants, in particular through the association Tous Migrants”.

27 Dauphiné Libéré (2019) Comment condamner un jeune pour avoir eu trop d’empathie (How to convict a young person for having shown too much empathy), 25 August 2019, p. 4.

28 See for example the inter-association press release of 16 October 2018: FRONTIÈRE FRANCO-ITALIENNE/À Briançon, les violations systématiques des droits des personnes exilées doivent cesser (FRENCH-ITALIAN BORDER/In Briançon, the systematic violations of the rights of exiles must stop), [online]. URL: http://www.anafe.org/spip.php?article497. In its Persona Non Grata Report, ANAFE looks back at the observation missions carried out over a period of several months.

29 See the description of the proceedings on the Gisti website: Référé-liberté visant à obtenir la fermeture d’une zone d’attente de fait à la frontière italienne (Summary ruling aimed at the closure of de facto detention premises at the Italian border), [online]. URL: https://gisti.org/spip.php?article5702

30 See, in this regard, Le Dauphiné (2019) Identitaires au tribunal: “Tous migrants se devait d'être là” (Identitaires brought to trial: “Tous migrants had to be present”), 11 July 2019.

31 See Ouest France (2019) Le parquet classe sans suite le décès d’un migrant (The public prosecutor’s office closes the case concerning the death of a migrant), 8 October 2019; or Libération (2019) Blessing, migrante noyée dans la Durance, des mois de silence et un dossier en souffrance (Blessing, migrant drowned in the Durance, months of silence and an unsettled case), 7 May 2019.

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Référence électronique

Oriana Philippe, « Legal Weapons in Action at the French-Italian border »Revue européenne des migrations internationales [En ligne], vol. 36 - n°1 | 2020, mis en ligne le 03 janvier 2022, consulté le 27 mai 2024. URL : http://journals.openedition.org/remi/14782 ; DOI : https://doi.org/10.4000/remi.14782

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Auteur

Oriana Philippe

Doctoral student, MIGRINTER, University of Poitiers/CNRS (French National Centre for Scientific Research), MSHS (Research Centre for Human and Social Sciences), Bât. A5, 5 rue Théodore Lefebvre, TSA 21103, 86073 Poitiers cedex 9; oriana.philippe@univ-poitiers.fr

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