FECL 46 (August 1996):


The French Constitutional Council has partly censured the two most controversial provisions of a bill on terrorism (see FECL No.39: "Government plans new anti-terrorist legislation"). In particular, the Constitutional Council annulled a provision defining "assistance" to an illegal alien as a terrorism-related offence.

The Bill was finally voted through by the French parliament's right wing majority in June, but the Socialist group filed a complaint against some of the law's most controversial provisions to the Constitutional Council. In its decision, the Council stated that the "automatic" connection established by the bill between "assistance to an illegal alien" and presumed involvement in terrorist activities breached the Constitution. The Council argued that, if a connection can actually be established in a particular case between an act of "assistance" (e.g. housing or hiding an illegal alien) and terrorist activities, existing punishable offences under the Penal Code - e.g. "complicity with terrorist acts" and "hiding of criminals" - already allow penal prosecution.

The Constitutional Court further censured a provision authorising the police to search private homes at night on presumption of a terrorism-related offence. Under the normal French penal procedure code, searches are prohibited between 9 pm and 6 am. The Council found that house searches at night breached the constitutional guarantee of the "inviolability of the home". The Council stated that night-time searches are acceptable in situations of "flagrancy" only - i.e. when a terrorist act is imminent or has just been committed.


The "delict of solidarity"

The Constitutional Council, however did not censure a provision, according to which persons assisting an illegal alien on humanitarian grounds face the same punishment as professional smuggler organisations acting for purposes of gain. The provision grants immunity from prosecution only to spouses, children and parents of illegal aliens. But helping a brother, a life companion or a childhood friend still is considered an offence.

In a common declaration following the decision of the Constitutional Court, some 30 French NGOs asked: "Must associations which are daily helping foreigners in difficulty also expect to be prosecuted some day?" Only "assistance" for purposes of gain should be punishable, the declaration stresses.


Sources: Le Monde, 19.7.96; Journal Officiel de la République Française, 23.7.96: Décision du Conseil Constitutionnel no 96-377 DC; Déclaration des Associations après la censure du Conseil Constitutionnel, Paris, 26.7.96.