Base de données Jurisprudence

Trafic illicite de migrants

Délit(s) / Infranction(s)

• Fait de permettre l’entrée illégale
• Fait de permettre le séjour illégal

No. 2018-717/718 QPC

Résumé des faits

Subject of the case are legal proceedings initiated by Cédric H. and his colleagues to challenge the constitutionality of Articles L.622-1 and L 622-4 of the French Code on the Entry and Residence of Foreign Nationals and the Right to Asylum. The applicants claimed that the offence of facilitating the illegal entry, movement and residence of a foreign person infringed upon the principle of fraternity, as it did not sufficiently take into account humanitarian assistance to irregular migrants without material or financial compensation.
The French Constitutional court, first of all, clarified that the principle of fraternity enjoyed constitutional value as it is enshrined in Art. 2 and 72-3 of the Constitution and, secondly, that it comprised the freedom to help one another without consideration as to whether the assisted person is legally residing within the French territory. On the other hand, the principle of fraternity must be balanced against the legislature’s responsibility to safeguard public order.  Applied to the legislation at hand, the Court found that criminalizing any assistance to irregular migrants, including when it is given for humanitarian reasons, did not strike a fair balance between the afore-mentioned principles and violated the constitutional provisions on fraternity. The Court, however, dismissed arguments based on the necessity and proportionality principles, legal certainty principle, protection of human dignity, and equality before the law which it considered not to be infringed upon by the legislation in question.

Commentaire / Faits marquants

The Constitutional Court, as well as the French Code on the Entry and Residence of Foreign Nationals and Right to Asylum, both refer to the Protocol against the Smuggling of Migrants by Land, Sea and Air supplementing the United Nations Convention against Transnational Organized Crime. Following the judgment, the French legislator adopted Law No. 2018-778 of 10 September 2018 to exempt humanitarian assistance without any material or financial benefit from criminal liabilty.
Also note that the judgment attached below is the unofficial English translation provided by the Constitutional Court.

Date de la peine:


Protocol against the Smuggling of Migrants:
Article 5 Criminalization of participation in an organized criminal group

Informations sur la procédure

Système juridique:
Droit civil
Décision judiciaire la plus récente:
Cour constitutionnelle
Type d'Action Juridique:

After finding parts of the legislation unconstitutional, criminal courts, such as the Cour de Cassation and the Appellate Courts, were asked to adapt their judgments accordingly (see for example Case No. 2923 ( and Case No. 33 (



Conseil constitutionnel