The 'Good Samaritan' factor: Why some judges in France are not enforcing the law

Faced with cases where the legal code and the public perception of what's right do not overlap, some French judges are declining to find 'Good Samaritan' defendants guilty – which is empowering social activists.

Jon Palais did not dispute the facts. On Oct. 15, 2015, he led a group of activists into a branch of BNP Paribas and walked out with 14 office chairs.

It was a political publicity stunt – one of several similar actions drawing attention to the French bank’s alleged role in facilitating tax evasion by its wealthy customers. But the bank took Mr. Palais to court. Charged with gang robbery, he faced a possible five-year jail sentence and an $80,000 fine.

Last week he got off scot free; even the public prosecutor had told the judge he did not want to see Palais punished, stolen chairs or no.

With the French public angry about revelations of widespread tax evasion, the trial was the latest in a string of recent cases in which moral legitimacy has trumped strict legality. It has echoes of the Anglo-American tradition in which jurors can vote to acquit because they believe it is the moral thing to do.

But in France, judges – not juries – decide guilt and sentencing. That means it is the legal machine itself that is accommodating public opinion on issues where the legal parameters of wrongdoing and the broader perception of morality do not match. And that is a boon to activists trying to draw attention to their causes – and to do the "right" thing, even where the law disagrees.

“When there is a gap between the text of the law and a public sense of what is just, there is a certain suppleness” that political and social activists can exploit, says Eva Joly, the well known former anticorruption judge and Green party presidential candidate who acted as Palais’ defense lawyer. “Judges and prosecutors don’t work in a vacuum.”

Good Samaritans

That is clear from recent trials of “Good Samaritans.” Refugees from Syria, Sudan, Eritrea, and elsewhere who slip across the border from Italy do not always enjoy much sympathy. But citizens who shelter and feed them, or who help them on their way by putting them on trains, nonetheless earn respect.

The law was changed in 2012 so as not to criminalize people who simply give illegal immigrants a place to stay, so long as they receive nothing in return. But it remains a crime to transport them.

That did not stop a court from letting Pierre-Alain Mannoni off earlier this month, even though he had admitted carrying three young Eritrean women in his car, with the intention of dropping them later at a train station.

In a public statement, Mr. Mannoni, a scientific researcher, said his action was “neither political nor militant, it was simply human; any citizen could have done it, and whether it be for the honor of our motherland, for our dignity as free men, for our values, our beliefs, for love or for compassion, we cannot leave victims to die on our doorsteps.”

The court ruled that it would be “neither just nor proportionate” in the circumstances to punish Mr. Mannoni, and discharged him – a decision that parallels the phenomenon of "jury nullification" in the US and Britain. In such situations, despite believing a defendant to be guilty of a legal wrong, jurors vote to acquit because they believe it is the moral thing to do.

Other people who have helped refugees and migrants have not been so lucky; a retired university teacher was fined 1,500 euros ($1,600) in December for helping two Eritreans avoid a police checkpoint.

Next month Cedric Herrou, an olive farmer who has drawn national attention to his efforts on behalf of migrants in southern France, comes up for sentencing. The prosecutor, Jean-Michel Prêtre is asking only for a suspended sentence, and said during the trial that he respected Mr. Herrou’s “noble” cause.

But Mr. Prêtre argued that “it is not up to the courts to change the law,” and complained that the trial had become “a political platform.”

Flexibility for the law

That is exactly how Ms. Joly used Palais’s trial, which she calls a “magnificent” morality play pitting an innocent young protester against a greedy multinational bank. The trial was a valuable tool to mobilize public opinion, she believes, and “changes happen from the bottom up.”

In some cases change is not possible and the law is strictly applied, points out Bernard Harcourt, a law professor at the School for Advanced Study of Social Sciences (EHESS) in Paris. In terrorism cases, for example, “the moral questions are already decided and entrenched in ways that they are not with homelessness or immigration,” he says.

When “there is a gap to engage the ethical and moral questions of how to treat others,” he adds, “where the political debate remains somewhat open, there will be flexibility” for prosecutors and judges to be lenient.

It helps, though, “if they see people are organized to say they don’t agree” with the status quo, says Marine de Haas, an official with La Cimade, a nongovernmental group working on behalf of migrants.

Which brings us back to Palais and his chairs. He made good use of them, first contributing them – along with 182 others that other demonstrators had taken from banks – to a meeting of 196 climate activists that coincided with the 196-nation Paris climate summit in December 2015.

And then he gave them back, sort of, in dramatic fashion. On Feb. 8 last year, he and his colleagues left all the chairs outside a Paris courthouse where another trial was starting. Jérôme Cahuzac, a former budget minister, was facing charges of … tax evasion. The court showed no leniency in his case. He was sentenced to three years in prison.