Conferences - Debates
Colloquies with the European Association of Jurists for Democracy & Human Rights
Evolution of labor law in Europe under pressure from the neoliberal economy
* See the website of the European Association: https://eldh.eu
European criminal justice
At a time when the development of the European Union and European law is more and more advanced, one of the major questions which is raised is that of police and judicial cooperation in criminal matters within the EU. On what foundations is this cooperation built and on which principles is it based? The aim of organizing police investigations and criminal judicial proceedings at European level, with joint bodies with powers at the level of the territory of all the Member States, aims to better combat transnational crime which is now organized in networks. But does it simply allow the necessary regulation of the new European area, or is it also the occasion for reinforced population control and a restriction of asylum policies? What are the dangers of protecting rights ?
Power of money and impotence of justice.
Globally, impunity for crimes against humanity and war crimes has decreased, in part due to the establishment of the International Criminal Court. But at the same time, new impunities appear. The misappropriation of wealth aggravates the lot of the most disadvantaged, economic development is hampered, the poorest are themselves the objects of trafficking (goods, capital, information circulate freely, but not men).
Human rights defenders must open a new front. As such, the issue of tax and judicial havens is emblematic.
A favorable situation arose in the 1990s to fight against tax havens, and more generally against financial crime.
The Geneva call gives a strong first signal. Part of the text alerts the public to the shortcomings of judicial cooperation in this area. Important institutional initiatives are also launched. In 1989, the FATF was created, an intergovernmental body aimed at developing and promoting national and international policies to combat money laundering and the financing of terrorism. The OECD published in 1998 a report on harmful tax competition. The conference of European parliaments against money laundering, which was held in Paris in 2002, adopted a number of recommendations in this area. In Europe, a working group made up of academics from 15 member states proposed in 1997 a Corpus Juris, notably aiming at the creation of a European public prosecutor's office.
Practices are also evolving: an economic and financial pole is created in Paris, liaison magistrates are set up, conventions are emerging and have been ratified, notably on bribery of public officials abroad.
The 1990s thus show that the questions of corruption, political and financial crime, the fight against tax havens can impose themselves on a political agenda.
But then we observe a turnaround in the economy. In April 2001, the United States refused to reiterate support for the OECD initiative to take action against certain non-cooperative countries. After September 11, 2001, if the question of using tax havens to finance terrorism was raised, it was only to fight against funds with an illicit destination and not to fight against hidden funds. In France, the laws of May 15, 2001, August 1, 2003 or March 10, 2004 do not deal with the issue as such of financial flows to offshore areas. The European Union’s Savings Directive in 2005 leaves many loopholes by not dealing with legal persons or trusts. By failing to put in place financial and economic supervision and regulation mechanisms, the Member States have allowed themselves to be dispossessed in favor of procedures which are often technocratic and which increasingly make room for the decisions of professional bodies, of which it is difficult for members not to be in a conflict of interest.
The Tax justice network (TJN) estimates the amount of private wealth placed in tax havens at $ 11 trillion. For Africa, the same TJN network estimates the wealth illegally transferred abroad by the equivalent of 30% of sub-Saharan Africa's GDP.
The fight against tax fraud and tax evasion, however, gained new political momentum on October 21, 2008 when 17 OECD countries agreed to intensify the full implementation of transparency and transparency standards. exchange of OECD information. The United Nations Convention against Corruption (Merida / Mexico, December 9, 2003) is the first global instrument to fight corruption. But the fight against economic and financial fraud must be accompanied by an overhaul of the police and judicial systems, structurally weak in this area. In summary, we must put an end to schizophrenic national and European policies, with proclaimed objectives of fighting financial crime and the persistence of obstacles to the administrations and justice responsible for this fight.
Efficiency today calls for the suppression of behavior harmful to free competition and likely to impoverish the State. As the parliamentary working group on the international financial crisis reminds us, this means calling into question a certain intellectual conformism and ending laissez-faire. The question is not only technical; it involves political choices and is therefore the responsibility of the public authorities. A new ethic of economic responsibility must underpin this ambition.
Eric Alt, vice-president of MEDEL
(European magistrates for democracy and freedoms)
For a World Constitutional Court and a World Court
of Human Rights
A gaping distance separates the great texts on human rights, with the promises they contain, and the reality of the conditions faced by humans in this 21st century. A few reasons can be discerned for this:
Firstly, the assertion of rights has certainly progressed considerably since the creation of the United Nations, but their implementation remains weak, as the mechanisms put in place by the United Nations do not have jurisdictional powers. The only exception: the European Court of Human Rights, a binding body for States, holding the power to condemn them for their violations of the European Charter of Human Rights. But it is a regional court with a limited geographical scope.
Secondly, the disparities from one region of the world to another mean that many benefit only from lesser guarantees, or even suffer from a total absence of guarantees, this moreover in the parts of the planet most often plagued by to wars and subjected to the most dictatorial regimes.
Thirdly, and this is a structural cause, state sovereignty has limited international law to interstate agreements.
The opening of the world which promotes inequalities, which generate violence, requires large-scale responses: two avenues which have been recalled or recently opened up would constitute revolutionary advances: one is that of a World Court of Human Rights the man ; the other is that of an international constitutional court.
A World Court of Human Rights would have jurisdiction to enforce the International Bill of Human Rights; it could be seized under certain conditions by all humans and its decisions would be binding on States.
An International Constitutional Court could compel States to respect in their internal political systems the international commitments they have subscribed to in terms of human rights and democratic freedoms.
This project is not an alternative to the World Court of Human Rights. It is complementary. It appears that only binding mechanisms at the global level are able to guarantee, for all human beings, respect for their rights and freedoms.
For democratic control of peoples and citizens
over the European Union
The democratic deficit within the European Union has become a refrain that we mumble without really thinking about the implications it carries, that we are content to note, by simply noting, as a fatality, that it is structural from the outset.
Each new treaty has, however, had the ambition to restore the balance of the institutional triangle (commission, parliament, council) in a more democratic direction. This is how parliament saw its prerogatives gradually increase through the establishment of consultation, cooperation and then co-decision procedures, in addition to the vote on the Union budget. The Charter of Fundamental Rights of the European Union drawn up in 2000 clearly recalled that the Union is based on the principle of democracy and the principle of the rule of law. Only the independence of the ECB would remain to restrict the exercise of democracy. But, with the crisis, more and more voices are being raised to demand the restoration of political control over the management of the European currency.
The democratic future would therefore be assured. It is probably not that simple and the financial crisis has revealed that, despite progress, the functioning and organization of the Union are still hampered by the granting of genuine democratic control to the peoples.
Three themes make it possible to identify the conditions of such control :
- the chart
- decision-making (with, in particular, relations between national parliaments and the European parliament)
- the independence of the European Central Bank
What about the rule of law today ?
The rule of law can be defined as the State in which legal norms are hierarchical, such that its power is limited. Each rule draws its validity from its conformity to higher rules; the equality of legal subjects before legal standards is ensured, the existence of independent jurisdictions guaranteed and the denial of justice prohibited.
This model, born at the end of the 19th century in Germany, then in France, tended, in particular through the founding of a rational law, imposing itself on the State itself, towards the constitution of a power responding to the requirements of political liberalism, inherited from the Revolution.
But if, today, the rule of law remains as one of the obvious criteria of democracy, serving as a reference for judging existing regimes, on the one hand the weakening of the Nation-State, the cradle of the State of law, driven by European construction and globalization, on the other hand, the wear and tear or virtual disappearance of the separation of powers (institutional at the European level, visibly voluntary in France, under the current government) have come to profoundly transform the ideal of triumphant law.
We must therefore ask ourselves whether the rule of law retains real scope at the level where it was created, which is the national level, whether it can be transposed to the European and global level, and finally whether it truly constitutes the achievement of democracy ?
Towards a constitutional court ?
With the constitutional revision of July 23, 2008, article 61-1 introduced the priority question of constitutionality (QPC). It opens the constitutional review, traditionally remained closed, in France, to citizens in the context of a dispute, and potentially allows the control a posteriori of any law. The existence of the QPC is thus a major step forward for the rule of law. Marking the beginning of a transformation of the Constitutional Council into a judicial body, can we see there the announcement of the emergence of a constitutional court? If this development proves necessary to strengthen the rule of law, the QPC raises from this point of view many questions about the hierarchy of norms in the French internal order.
What about its priority in relation to the control of conventionality? By affirming the primacy in the internal order of the Constitution over international and European law, is the QPC the tool of a "reordering of our hierarchy of norms", as declared by the President of the Council constitutional? What role is the QPC then called upon to occupy in the face of the control of conventionality and the primacy in the internal order of European standards ?
The justice crisis
Justice is not a sufficiently discussed democratic subject, the movement of depoliticization of the judicial question being part of a long evolution.
By evoking the crisis of justice, we immediately place ourselves, with the word crisis, in the conjunctural, avoiding the structural, the invariants that we do not see; as for talking about justice, that means everything and nothing: there is criminal justice, social justice, administrative justice and, beyond these specialties, a multidimensional dimension, justice can be seen as a regulator social, a public institution, a public service. What crisis of justice are we talking about then? An institutional, moral, economic crisis? In reality everything is linked.
The crisis is old and since 2005, institutionally, nothing has changed: the bureaucracy is still there; the shortage is too old for recruitment to be sufficient; the discourse of the constrained budget remains permanent; legal aid is not more effective; security detention has not been abolished; juvenile justice has not evolved; facial identity checks have remained a dead letter; the law on foreigners has not been modified; the Superior Council of the Judiciary is still in place and democracy within the courts is non-existent.
We must start from the observation that political parties, whatever they may be, talk very little about justice, because this question lacks a politico-cultural foundation: if a political party presented a solid program for justice, it would not be Not understood. If there is depoliticization of the judicial question, it is because there is a neutralist ideology, the idea of the neutrality of law and justice. The law would be disconnected from the purposes for which it serves and the debate would be left to the experts. Magistrates, moreover, generally think that there is no politics in their office. At the same time, there is a movement of apparent over-politicization of the judicial question, which aims to seek a political intention behind each judicial decision. These two ideologies, "neutralist" and "intentionalist" complement each other and lead to the fact that we no longer talk about the content of the laws or the way justice should work.
It is necessary to deconstruct these two ideologies and, simultaneously, to pose a certain number of questions. It is necessary to raise the question of values when we speak of justice and perhaps seek from civil associations, from those who live the judicial institution as litigants, the elements of a political reflection.
We can specify the paths of a repoliticization of the question of justice, that of popular education and that of the fight against the doxa, at the university or in the press, in an attempt to put an end to the maintenance of justice in a state of political, economic and cultural dependence. We can, moreover, only note that magistrates are ordered to abandon their subjectivity even as the procedures allowing objectivity are unraveled. As for the victims, either we leave them to the right and the extreme right, or we give them a status, when such a status cannot exist. It is not surprising that we are witnessing a crisis in society's adherence to justice. It is therefore urgent to put justice back at the heart of democracy.
Matthieu Bonduelle, former president of the Syndicat de la magistrature
From the right to safety to the right to security
The CNCDH was created by order of the Minister of Foreign Affairs of March 17, 1947 to monitor, at the international level, France's commitments in the area of human rights. It was in 1986 that its jurisdiction over international issues was extended to the national level and it was directly attached to the Prime Minister.
The CNCDH is independent and pluralist; it is made up of representatives of 24 associations for the defense and promotion of human rights and the main representative trade union confederations, as well as various personalities.
It issues 12 to 15 opinions per year; she writes notes for the United Nations Committee on the modalities of execution by France of its commitments. She intervenes in third party interventions before the European Court of Human Rights and monitors the execution of convictions against France.
Concerning the state of emergency, the CNCDH very quickly warned of the risks of a limitation of certain freedoms which would not be one-off and temporary. The imbalance between the right to security and the right to safety can undermine the rule of law which guarantees rights and freedoms.
The right to security is the right to be protected against arbitrary arrest and imprisonment. However, we are witnessing a semantic shift, a confusion, a crushing of the right to safety towards the right to security. Security in the strict sense has only recently been established as a law; it is defined as a fundamental right and one of the conditions for the exercise of individual and collective freedoms, even though it is restrictive of freedoms. It should also be noted that the right to security of persons and property is not established in any international convention. However, we are witnessing a sort of takeover of the security of people and property, towards the construction of “liquid” criminal law.
The state of emergency legitimizes all its deviations. The latest law of July 21, 2016 includes more and more offensive measures. Without forgetting France's decision to derogate from Article 15 of the European Convention on Human Rights, which allows, under conditions, to derogate from certain rights and freedoms protected by the Convention.
The consequences are serious with regard to freedom and national cohesion, through attacks on equality (controls always concern the same people) and fraternity (through manifestations of Islamophobia).
We are entering, with this type of measures, into the policy of the enemy.
President of the National Consultative Commission on Human Rights
Works of the CNCDH
CNCDH- General Secretariat Sub-Commission B
Contribution to the examination of the 3rd periodic report of France by the United Nations Committee on Economic, Social and Cultural Rights
CNCDH- General Secretariat Sub-Commission B
Responses of the French government to questions from the Committee on Economic, Social and Cultural Rights.
Consideration of the 3rd periodic report on articles 1 to 15 of the International Covenant on Economic, Social and Cultural Rights