Case Law Database

Smuggling of migrants


• Enabling illegal stay

Jugement du 14 Septembre 2014

Fact Summary

The defendant – a priest – provided accommodation to irregular migrants in the Parish Centre of Montreynaud (France), property of the diocesan association, the president of which was the Bishop of Saint Etienne (France).
He was accused of having breached the municipal regulation of 4 February 2013 that determined the closure of the establishment in question. It was argued against the defendant that the Parish Centre did not fully comply with regulations on public safety and sanitation.
In ascertaining the facts, authorities relied much on testimonial evidence, including from the defendant.
Legal findings:
The Prosecution demanded a fine of 12 000 Euro. It was argued that the “accommodation policy” favoured by the defendant was an incentive to irregular migration. The Court of First Instance of Saint Étienne acquitted the defendant.
For further details see “History of Proceedings” and “Commentary”.
Note: The case against the defendant was not pursued on grounds of migrant smuggling. However, for the connections it has with this crime type, it is taken and analysed in the context of migrant smuggling.

Commentary and Significant Features

The Court of First Instance of Saint Étienne (France) acquitted the defendant. In so doing, it highlighted inter alia:
  • Disrespecting an order of closure issued by municipal authorities on grounds that the establishment does not meet minimal conditions of public safety and sanitation constitutes conduct criminally punished.
  • The defendant was the de facto manager of the Parish Centre of Montreynaud (France). He had been invested as such by the Bishop of Saint Étienne. As acknowledged by the defendant himself, he was the person with the authority to open the doors of the establishment to receive persons in need. He was the individual addressed by public authorities in this regard. Thus, the case had been correctly addressed to him.
  • The defendant provided accommodation in the Parish Centre convinced that by doing so he prevented a greater harm to the persons lodged, who otherwise would have been subjected to the insecurity and difficulties of the street. He indeed mentioned examples of people who could not have endured the outdoors, such as a three-month old baby, sick individuals, aged couple.
  • The defendant only provided lodging to the homeless (including irregular migrants and asylum seekers) as a last resort, when other establishments were not in the position of doing so. He always advised individuals to promptly contact 115 in order to assess the availability of lodging in other locations.
  • The defendant had considerably improved the safety conditions (smoke detectors, fire extinguisher, night lights) and was in the process of improving sanitation conditions (by building a new set of bathrooms) in the Parish Centre.
  • The (i) danger of spending the night outdoors and related insecurity, (ii) lack of alternative accommodation, and (iii) reduction of risk of panic and fires in the Parish Centre, are realities that must be considered and trigger the application of the cause of exclusion of criminal prosecution based on action under a state of necessity. It is legitimate to assume that the defendant acted for the purpose of safeguarding a superior interest.
  • Article L 345-2-2- Code Social Action and Families determines that people who are “homeless, in a state of medical, physical or social distress, are entitled to urgent accommodation”. On 12 February 2012, the Conseil d’Étatelevated this entitlement to the rank of fundamental right. If the State is not in the position to ensure this fundamental right, it must delegate its realisation to legal and physical person in the position to do so. The State may not contradict this parameter by arguing that the regulation on safety and sanitation are not fully complied with since Council Directive 2003/9/EC of 27 January 2003 laying down minimum standards for the reception of asylum seekers allowed EU Member States to derogate, for a reasonable period of time, from minimal norms on material conditions re reception of asylum seekers when the resources of the State are temporarily exhausted.
  • It is paradoxical that the State aims to prosecute the defendant for having done what the State itself should have ensured. The State may not punish someone who gave effect to a fundamental right, the main responsible for the realisation of which was the State.
  • The principle of non-contradiction (vis-à-vis fundamental norms and critical obligations) is a pillar of legal science and EU philosophy. The action of the State in the instant case breaches such principle. The conviction of the defendant would equally be a breach thereof. The assessment of this principle should not be tainted by judgments on the opportunity of receiving and or supporting the entry and stay or further irregular migrants in France.
This case invites reflection on the possibility of resorting to other branches of law – rather than criminal law – to address conduct deemed or perceived as an incentive to irregular migration. In so doing, there is the danger of overriding the “humanitarian exemption” explicitly established under French law. The Court of First Instance of Saint Étienne comprehensively expounded on the matter.
NOTE: As per French national law, the purpose of obtaining a financial or other material benefit is not a constitutive element of the crime but rather an aggravating circumstance (see SHERLOC Database on Legislation – France).
Sentence Date:

Cross-Cutting Issues


... for

• completed offence

... based on

• criminal intention

... as involves

• principal offender(s)

Investigation Procedure

Involved Agencies

• Criminal Police
• Public Prosecutor

Procedural Information

Legal System:
Civil Law
Latest Court Ruling:
Court of 1st Instance
Type of Proceeding:

Defendants / Respondents in the first instance

Retired priest
Legal Reasoning:
On appeal, the Defence argued inter alia that the breach of municipal regulation of 4 February 2013 could not be imputed to defendant since he was neither the owner not the manager of the property.
Most importantly for the purposes of this analysis, he argued that the situation in which the individuals who received assistance in the Parish Centre found themselves in, led the defendant to act under a state of necessity which exempted him from criminal prosecution (ex Article 122-7 Criminal Code). It was recalled that all people who are “homeless, in a state of medical, physical or social distress, are entitled to urgent accommodation”. This entitlement was recognised as a fundamental right by the Conseil d’État on 10 February 2012. Given the saturation and incapacity of State public mechanisms to deal entirely with the situation, it was the defendant’s duty as a citizen to receive people in need in the Paricsh Centre, including irregular migrants and asylum seekers. Furthermore, Council Directive 2003/9/EC of 27 January 2003 laying down minimum standards for the reception of asylum seekers, allowed EU Member States to derogate from minimal norms on material conditions re reception of asylum seekers when the resources of the State were to be overwhelmed. This would have been the situation in the instant case. As proof thereof, it was invoked the fact that several public institutions managed by the State often requested for the defendant’s support given that they had no more lodging capabilities.
It was further argued that the present criminal prosecution amounted to an attempt of circumventing the “humanitarian exemption” from prosecution established by reform of 21 December 2012 (which amended Article L 622-4 Code of entry and stay of foreigners and right of asylum  (CESEDA)), which came to exclude criminal action against individuals who provided assistance to irregular migrants for humanitarian reasons.

Charges / Claims / Decisions

Breaching of order of closure
Code of ConstructionArticle R 152-6 and 123-46
Not Guilty


Tribunal de grande instance de Saint-Étienne

Sources / Citations

Cour de Grande Instance de Saint Étienne
14 September 2014