Conferences - Debates
Colloquies with the European Association of Jurists for Democracy & Human Rights
(WWW.ELDH)
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 democratic control of peoples and citizens over the European Union
The democratic deficit within the European Union has become an antiphon which one condemns without really thinking about the implications which it carries, which one is satisfied to note, by noting only, as a fatality, that it is structural from the start.
Each new treaty had, however, the ambition to restore the balance of the institutional triangle (commission, parliament, council) in a more democratic sense. This is how parliament saw its prerogatives gradually increased by 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. All that remains is the independence of the ECB to restrict the exercise of democracy. But, with the crisis, more and more voices are rising to demand the restoration of political control over the management of the European currency.
The democratic future would therefore be assured. It is undoubtedly not so simple and the financial crisis has revealed that, despite the progress made, the functioning and organization of the Union still come up against the granting to the peoples of genuine democratic control.
Three themes make it possible to define the conditions of such a 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, so that its power is limited. Each rule derives its validity from its compliance with the higher rules; the equality of subjects of law before legal norms is ensured, the existence of independent courts 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 by the foundation of a rational law, imposing itself on the State itself, to the constitution of a power answering 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 benchmark for judging existing regimes, on the one hand the weakening of the Nation-State, cradle of the State de jure, driven by European construction and globalization, on the other hand, the usury or the quasi-disappearance of the separation of powers (institutional at European level, visibly voluntary in France, under the current government) have come to profoundly transform the ideal of a triumphant right.
We must therefore ask ourselves if the rule of law retains a real scope at the level where it was created, which is the national level, if it can be transposed to the European and global level, finally if it truly constitutes the achievement of the democracy ?
Towards a constitutional court ?
With the constitutional revision of July 23, 2008 was introduced, by article 61-1, the priority question of constitutionality (QPC). It opens the control of constitutionality, traditionally remained closed, in France, to the citizens within the framework of a litigation, and potentially allows the control a posteriori of any law. The existence of the QPC thus constitutes a major advance for the rule of law. Marking the beginning of a transformation of the Constitutional Council into a jurisdictional organ, can we see in it the announcement of the emergence of a constitutional court? If this development is necessary to strengthen the rule of law, the QPC raises from this point of view many questions about the hierarchy of standards in the French internal order. What, in fact, is its priority in relation to conventionality checks? 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 standards”, as the President of the Council declared constitutional? What role is the QPC called to occupy in the face of conventionality control 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, one places oneself, with the word crisis, in the conjunctural, by avoiding the structural, the invariants which one does not see; as for talking about justice, that means everything and say 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 justice crisis are we talking about then? Of 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 on the constrained budget remains permanent; legal aid is no more effective; security detention has not been abolished; juvenile justice has not changed; identity checks on the facies remained a dead letter; the law on foreigners has not been changed; the Superior Council of the Judiciary is still in place and democracy within the jurisdictions is non-existent.
We must start from the observation that political parties, whatever they are, speak very little about justice, because this question lacks a politico-cultural base: if a political party presented a solid program for justice, it would not be not understood. If there is a 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 served 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 overpoliticization of the judicial question, which aims to seek behind every judicial decision a political intention. These two ideologies, "neutralist" and "intentionalist" complement each other and result in the discussion of neither the content of the laws nor the way in which justice should work.
It is necessary to deconstruct these two ideologies and, simultaneously, to ask a certain number of questions. The question of values must be asked again when talking about 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 ways of a re-politicization of the question of justice, that of popular education and that of the fight against the doxa, in the university or in the press, in an attempt to end the maintenance of the justice in a state of political, economic and cultural dependence. We can only note, moreover, that the magistrates are ordered to leave their subjectivity even when we are unraveling the procedures allowing objectivity. As for the victims, we either leave them to the right and the far 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 acceptance of justice. It is therefore urgent to restore justice to the heart of democracy.
Matthieu Bonduelle, former president of the Magistrates
From the right to safety to the right to security
The CNCDH was born by decree of the Minister of Foreign Affairs of March 17, 1947 to ensure the monitoring, at the international level, of France's commitments in the field of human rights. It was in 1986 that its competence in international matters was extended to the national level and that 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; it writes notes for the United Nations Committee on the methods by which France fulfills its commitments. She intervenes in third parties before the European Court of Human Rights and follows up on the execution of sentences against France.
Concerning the state of emergency, the CNCDH very quickly alerted to the risks of a limitation of certain freedoms which would not be punctual and temporary. The imbalance between the right to security and the right to security can undermine the rule of law which guarantees rights and freedoms.
The right to security is the right to be protected from arbitrary arrest and imprisonment. However, we are witnessing a semantic shift, a confusion, a crushing of the right to security towards the right to security. Security in the strict sense, was only recently established in 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 the security of people and property is not established in any international convention. Now we are witnessing a sort of seizure of power from the security of people and property, towards the construction of a "liquid" criminal law.
The state of emergency legitimizes all its deviances. The last law of July 21, 2016 includes more and more infringing 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 heavy with regard to freedom and national cohesion, by attacks on equality (controls always concern the same people) and fraternity (by manifestations of Islamophobia).
We enter, with this type of measure, into the policy of the enemy.
Christine LAZERGES,
President of the National Consultative Commission for Human Rights
Statements
Say no
The Association strongly condemns the assassination of twelve people in the Charlie Hebdo premises and the hostage-taking and the ensuing murders. This heinous act aims to silence journalists and cartoonists and as such they constitute an intolerable precedent for freedom of expression. Faced with such acts, the Republic must strongly reaffirm its values based on respect for democracy and freedom of the press and be more concerned than ever with respect for the rule of law. This does not imply choosing to reinforce a failed security policy but to promote, everywhere in France, effective equality between all, the only basis favoring living together, and to promote international conditions '' a lasting peace between and within States, a peace that does not go through arms but through the search for a just political solution to the conflicts in progress and by the creation of a true community of peoples.
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- Secrétariat Général Sous 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
