In the small town of Hajnówka, near the Polish-Belarussian border, proceedings are ongoing against five individuals for having provided food and transport to a group of asylum seekers. They face charges for assistance of illegal stay, i.e. smuggling, in what seems to be a twisted interpretation of the Polish criminal code which, for this offence, requires the presence of material or personal benefit. The prosecutor claims the element of personal benefit is present, as the individuals acted for the personal benefit of the asylum seekers.This case has sparked debate, including a call from the Polish Bar Council President to withdraw the accusation act.
The case shows that the presence of the material benefit requirement is not enough to eliminate the risk of criminalisation of humanitarian assistance. More generally, the case is illustrative of the flaws that can characterise the current national anti-smuggling legislation. These are based on an EU directive in force which leaves Member States the option to include a humanitarian clause, rather than imposing them to introduce one.
At the end of 2023, the European Commission (EC) proposed to update the anti-smuggling framework with a new directive and a regulation. Regarding the directive (COM(2023) 755 final), the proposal explained that the general objective is to put in place an instrument that “clearly defines and effectively sanctions the offence of facilitation of unauthorised entry, transit and stay in the EU.” The declared objective of the new proposal is to clarify which offences should be criminalised.
The EC has itself recognised that the broad definition of the offence of ‘facilitation’ in the current framework is problematic. Its explanatory statement to the proposal pointed out that there were cases where, as a result of this broad definition, people have been prosecuted for providing services to irregular migrants in the context of their professional activities, or for providing assistance for humanitarian reasons. Civil society has time and again highlighted the risk of criminalisation of assistance provided by NGOs or individuals to irregular migrants. However, the Commission has failed to conclude that the introduction of a binding exemption is necessary.
The Council’s general approach adopted in December 2024 seemingly introduces a narrower definition of ‘smuggling’ by requiring a material benefit component. This serves as a justification for not including a solidarity clause to the legally binding part of the text. However, this approach also includes a possibility for Member States to define as offences the activities which are not characterised by material benefit. This addition effectively nullifies the limitative effect of the Council definition and opens the way for the criminalisation of humanitarian assistance in practice.
Due to the complexity of the situations on the ground, the sole requirement of material benefit might not be enough to avoid the criminalisation of solidarity or regular professional activities. One should think about the insufficiency of such a solution for lawyers providing advice on migration avenues in accordance with laws and receiving compensation. Also, migrants who are forced to drive boats could be accused of benefiting from those actions, and therefore fall into the scope of the provisions in the same way as organised smuggling groups.
Lawyers, volunteers, family members of migrants, professional care providers and civil society organisations should be able to provide medical assistance, food, clothing, shelter and advice. They cannot be prosecuted or punished for these activities, or discouraged from providing help, and certainly not under an anti-smuggling framework. If the objective of the directive is to tackle organised crime, why not explicitly exclude behaviours that shall not be criminalised, for the sake of clarity and certainty? Legal certainty must also be seen as an element of the rule of law.
Against this background, in its position paper of 17 th May 2024, the Council of Bars and Law Societies of Europe (CCBE), has called on the EU’s co-legislators to adopt clearer wording in key provisions of the proposal and include a mandatory, explicit, unambiguous and broad-in-scope “solidarity clause”. This is the only way to bring clarity and legal certainty, and make sure that legal, humanitarian or family assistance to migrants is not criminalised in Member States. In other words, it is the only way to guarantee that the objective of the directive – tackling organised crime – is achieved throughout the EU.
There has been some debate around the question whether a mandatory humanitarian exemption can be included in the body of the text, as EU criminal law is only meant to set minimum standards and, therefore, cannot contain such prescriptive provisions. In this regard, the EU directive on the definition of criminal offences and penalties for the violation of Union restrictive measures (Directive (EU) 2024/1226) can serve as inspiration for inserting an exemption into the anti-smuggling directive. Indeed, Article 3 par. 5 (and Recital 20) of this directive states that “5. Nothing in paragraphs 1, 2 and 3 shall be understood as criminalising humanitarian assistance for persons in need or activities in support of basic human needs provided in accordance with the principles of impartiality, humanity, neutrality and independence and, where applicable, with international humanitarian law.” It is therefore clear that there is a precedent and inserting a mandatory exemption in an EU criminal law directive is possible.
To conclude, it is important to mention that the Polish Council Presidency, when presenting its priorities in December 2024, declared that "The issue of rule of law is of utmost importance. (…) It is crucial to empower civil society through mechanisms that enable its participation in building and safeguarding the rule of law.”
The crucial role of civil society – including lawyers and NGOs – must be safeguarded across all areas of EU law, including anti-smuggling legislation. The potential chilling effect of an anti-smuggling directive without a binding solidarity clause would instead weaken civil society and, thus, the rule of law.
As the European Parliament is now working on its position, it is important that MEPs acknowledge the important role civil society plays in ensuring dignity, safeguarding the fundamental rights of migrants and assisting Member States where their capacities are lacking. It can do this by adopting a position that shields civil society and professionals, such as lawyers, from any application of the directive that departs from its stated objective. The final text must include a narrow definition of the offence and, in addition, a binding exemption in order to achieve legislation that helps Member States in fighting organised crime, while protecting those who act for humanitarian or family reasons, are under constraint, or carry out their professional duties.
Noemí Alarcón is the Chair of the CCBE Migration Committee.
Anna Smolińska is a Senior Legal Advisor to the CCBE Migration Committee.