French President sets out his vision on human rights
European Union – Turkey/Russia/migration – Speech by M. Emmanuel Macron, President of the Republic, to the European Court of Human Rights
Strasbourg, 1 November 2017
Mr President of the European Court of Human Rights,
Mr Secretary General of the Council of Europe,
Ladies and gentlemen judges at the ECHR,
Ladies and gentlemen ambassadors,
Madam Keeper of the Seals, Minister of Justice,
Madam Minister for European Affairs, attached to the Minister for Europe and Foreign Affairs,
Mr President of the Constitutional Court,
Mr President of the Court of Cassation,
Mr Principal State Prosecutor at the Court of Cassation,
Mr President of the Litigation Section of the Conseil d’Etat [supreme administrative court which also advises the government on legislation],
Mr Prefect of the Grand Est region,
Mr President of the Regional Council,
Mr President of the Departmental Council,
Ladies and gentlemen deputies and senators of Bas-Rhin,
Mr First Deputy to the Mayor of Strasbourg,
Ladies and gentlemen,
European Court of Human Rights
The European Court of Human Rights is a unique achievement that is a credit to Europe in at least two respects.
Firstly because it was built on the ruins of the Second World War, as you’ve just recalled, to provide – in response to barbarity – some shared principles of humanity and respect.
Secondly because over the years it has made human rights the common good of all Europe, its hallmark, as it were, even before any European community was envisaged. It thus prevails in a circle of countries much wider than the current European Union, making the convention underpinning it, its law and its rulings, the glue that binds together a unique group of nations.
What makes your position unique, ladies and gentlemen judges, is that you work passionately to serve 820 million Europeans belonging to the nations that have ratified the European Convention on Human Rights.
France’s commitment to the principles advocated by the Convention is long-standing. The Declaration of the Rights of Man and of the Citizen of 1789 is, of course, its main foundation. But its roots go back even further, to the crucible of humanism in the Renaissance, to the legacy of the ancients, to the idea of the human being that France has forged over the centuries, and with it the ideas of freedom, emancipation and education.
The human rights set out at the time of the French Revolution, then repeatedly reaffirmed and reinterpreted by our country’s great thinkers and statesmen, are inseparable from this deep identity, which goes back much further. It’s no accident that the Universal Declaration of Human Rights was adopted in Paris in 1948; and it’s not insignificant that a French city, Strasbourg, is your home today. Rest assured that for us French people, this is extremely meaningful.
As I’ve said, Europe goes far beyond the European Union’s borders. It’s Europe in the most historic sense of the term, from the Atlantic to the Urals, a Europe that goes back to its ancient marches, like Turkey. The borders of that Europe are not those of a legal or even a political entity. They’re those of a civilization.
The 47 member states have recognized that their shared roots lie in these principles upheld by the Court. They’ve accepted that they contain a share of their laws, beliefs and principles. And defending human rights is part of Europeans’ history and heritage. We’re not defending them for today’s citizens alone! We’re defending them because we owe it to yesterday’s citizens, who fought for those human rights, and to tomorrow’s citizens, who will have to be able to enjoy them.
Political and geopolitical changes often blur that unity. Multipolar globalization is sometimes accompanied by a temptation to question things. And yet, beyond circumstances, beyond political and governmental systems, we remain members of this 47-strong community. We continue to share the same foundation; I welcome it, and we must constantly highlight this factual, historical reality in order to counter all those who see our globalization only as a planetary process wherein we lose our bearings. The European Court of Human Rights is and remains a major reference point for Europeans.
This situation must not conceal the many challenges we have yet to tackle. The first one I’ll highlight, from France’s point of view, is the relationship between states’ legal sovereignty and that of the Court.
The second challenge is the growing threats we face in our era, which are forcing us to strike legal and political balances to ensure that respect for human rights is guaranteed.
The third challenge is a world in upheaval. It’s the way things are increasingly being called into question, and contemporary phenomena too, particularly scientific ones, which we haven’t fully appreciated but which, in future, will collide with our legal system. So we must grasp them now.
France and the ECHR
For us, the French, the freedoms project is a matter of honour but also of our very existence. As General de Gaulle put it in 1941, “there is a pact, 20 centuries old, between the greatness of France and the liberty of the world”. I believe this too, and it imposes special duties on us.
France’s commitment to the European Convention on Human Rights and to the Court enforcing its rules is, as I’ve said, profound. I can’t fail to mention here, as you have done, René Cassin, who – after leaving his mark on the Universal Declaration of Human Rights, whose 70th anniversary we’ll be celebrating next year – had the foresight to realize that the rights thus proclaimed could not be guaranteed and therefore be effective without an appeal mechanism making states subject to the primacy of individual rights, and that Europe was the appropriate level for such a mechanism.
It was also a Frenchman – the second judge after René Cassin – who, during negotiations on the Convention, managed to impose the idea of a court responsible for ensuring that states comply with the Convention and for issuing binding decisions.
In contributing to the creation of these measures, France probably considered itself exempt at one point from ratifying the Convention itself. It didn’t do so until 1974. And not until 1981, under the impetus of Robert Badinter, did it subscribe to the individual right of appeal.
In so doing, France must have underestimated what René Cassin called “the price to pay for setting an example”. This has now been done.
It must still be a concrete example. I therefore welcome the fact that the number of disputes concerning France is, as you were kind enough to recall, declining. As I speak, our country is no longer involved in any mass disputes related to structural failings in its legislation.
Moreover, proper implementation of the Court’s rulings is essential to upholding its authority. In this regard, France constantly reiterates its commitment to the binding nature of the European Court of Human Rights’ rulings, as part of the follow-up guaranteed by the Committee of Ministers. It plays an active role in discussions on improving the implementation process, as it did during negotiations on the Brussels Declaration.
The Court has also played a major role in France when it comes to criminal proceedings, by calling on the French state, through its decisions, to increase safeguards for citizens.
Thanks to the Court, people in custody benefit from the assistance of a lawyer during their hearings and are informed of their right to remain silent. It was also the Court that enabled the legal system for phone tapping to be improved and a specific legal system to be created for people arrested at sea, in the act of 3 June 2016.
Obviously, these changes do not always go without saying, and France sometimes faces difficulties in implementing certain especially complex rulings.
However, I want to reaffirm the importance for France of the obligation to unconditionally implement the Court’s rulings. May I add that, in 2000, France introduced a domestic appeal procedure enabling people convicted by the ECHR in criminal cases to request that their case be re-examined in national courts. Very recently, in 2016, it extended this opportunity to civil rulings.
France would like to set an example, because this is how an international institution like the European Court of Human Rights is made strong and effective.
Nothing would be easier than to indulge in diversion tactics and half-measures. We’re sometimes encouraged to do so. But in the long run, the effect would be to fragment the Court’s authority, jeopardize and ruin it, and that would be irresponsible.
There are clearly people who would like to take us along that path, who would like us to play a cynical strategy of keeping one foot inside and the other out. During the French election campaign, voices were raised calling on France not to make the Court’s decisions binding, and even sometimes to go further.
ECHR and national sovereignty
However, does this mean a loss of sovereignty? I don’t think so. It means scrupulous respect for our principles and for conventions that we agreed, in full sovereignty, to sign and ratify. For the law, too, has its pro-sovereignty campaigners, who are quick to call for European values to be defended but who believe that it is best for each country to interpret them, behind the shelter of its borders.
As for me, I champion a European justice system, conceived as an area of dialogue and of complementary efforts. Dialogue between European judges, between the courts in Strasbourg and Luxembourg, which I would like to be intensive pending the European Union’s accession to the European Convention on Human Rights. Dialogue, too, between European judges and national judges.
The strength of the Convention’s system is that it provides external control and therefore additional impartiality and objectivity on disputes. Your scrutiny, ladies and gentlemen judges, is a different form of scrutiny, complementary to that of domestic judges, capable of identifying gaps and errors which domestic judges – like everyone – may sometimes allow to slip through.
But let’s delve deeper. What do we put at the centre of our national judges’ work? Human rights! So the strength of the Convention’s system is also that national judges are those who first implement the European Convention on Human Rights.
So we haven’t put our legal sovereignty into the hands of the Court! We’ve given Europeans an additional guarantee that human rights are protected.
Collectively, that’s tremendous protection, because we thus protect member countries’ populations not only from the temptations of illiberalism but also from those cases where the political world upholds outdated interests or practices contrary to those rights.
This situation is rooted in Europeans’ traumatic experience, in the feeling that democracy is a fragile asset and must be nurtured and surrounded by safeguards; that was the experience of the men of the wartime generation, especially René Cassin and those who worked with him.
Seventy years later, who would dare contradict them? Who would seriously say that the worst is behind us and that we can reduce the power we attach to the universal principles uniting us? How could anyone think that the dangers of illiberal democracy, self-absorption and the surreptitious or unabashed questioning of our values and principles are now a distant memory?
The truth is that the ECHR was a visionary creation, this vision still protects us today and protects our fellow citizens, and we must remain loyal to it.
Your jurisprudence is directly behind the decriminalization of homosexuality in Ireland, the abolition of corporal punishment in British schools, France’s adoption of legislation to regulate phone tapping, and the admission of women into the German army.
These changes didn’t happen without debates or challenges. And yet today, wherever the European Convention on Human Rights prevails, we see them as obvious – as unarguable elements in our shared foundation of basic rights. The relinquishment of sovereignty feared by some is, in fact, nothing but absurd nostalgia for practices which our principles should have prevented and which our habits preserved for too long.
Moreover, one of the fundamental principles of the system for protecting human rights enshrined by the Court is indeed subsidiarity, expressly referred to in Protocol No. 15, which France has ratified and which we hope will come into force soon. The national authorities’ paramount role is thus constantly being reaffirmed!
The Court does not have a remit to usurp their role and act as a fourth level of jurisdiction! The paramount role of national judges is in no way being called into question, and I want to emphasize the excellent dialogue existing between the Court and national jurisdictions.
Recognizing the margin of national discretion is clearly the key to this excellent dialogue. The Court recognizes it in the way states implement the rights enshrined by the Convention, the extent of which nevertheless varies depending on the protected freedoms and rights in question.
In respecting the primary role of national authorities to maintain and guarantee the rights and freedoms protected by the Convention, the Court has achieved a balance – delicate and sometimes challenged –, and your task is especially difficult because it involves cases originating in different legal systems, with culturally diverse traditions and societies, and moments of tension that may sometimes arise.
However, by creating a body of case law that is both flexible and stringent, the Court has managed to respect this diversity without betraying its primary mission of protecting human rights. It’s also the essential respect for distinct national characteristics that has enabled you to establish full legitimacy.
Thus, when it examined the act of 11 October 2010 banning concealment of the face in public spaces, the Court – after recalling the broad margin of discretion France enjoys in this area – recognized the notion of “living together” put forward by the French government as part of one of the legitimate goals under Article 9 of the Convention and, in this case, allowed the freedom to manifest one’s religion as embodied in the wearing of the full-face veil to be restricted.
The Court also took into account the distinct nature of the French concept of laïcité [secularism] (1), ruling that the decision not to renew the contract of a social worker employed at a public hospital – who had refused to remove her veil in the context of her duties – did not infringe the freedom of religion.
I could also mention many more examples where the Court has ruled on very delicate societal issues, where our various member states have had profoundly different perceptions of traditions and where, in so doing, it has helped the countries concerned to achieve greater fairness without forgetting their history.
For its part, France has only made headway in the light of these rulings. That the representatives of France’s superior courts are here today – and I thank them for it – testifies to the fact that France sees this interaction with the ECHR as a path towards enrichment and progress.
But this dialogue can go even further. Proof of this is the establishment in 2015 of the information exchange network between the Court and the national superior courts – [in France’s case] the Court of Cassation, the Conseil d’Etat and the Constitutional Council –, a network which today includes 62 courts and 34 states.
I also want to pay tribute to the educational approach by the presidents of the ECHR, who come to talk to countries’ judges and authorities to explain to them its role and the scope of its activity.
This dialogue will certainly be strengthened when Protocol No. 16 comes into force, creating the opportunity for countries’ highest courts to request advisory opinions from the Court on issues of principle relating to the interpretation or application of the rights and freedoms set out in the Convention or its protocols.
The protocol will complete the legal edifice built on the Convention on Human Rights and will establish even more firmly the dialogue between national courts and the Court. It will also enable us to organize the discussion better at times, by giving us the option of requesting this opinion, instead of sometimes accumulating many cases.
This is why France has embarked resolutely on the process of ratifying the protocol, with the secret hope of being the 10th country to ratify and therefore the one enabling the protocol to come into force. For I am convinced that it will considerably strengthen Europe’s legal foundation for human rights and bring about collective progress in this area.
Over the decades, we’ve built this virtuous circle together. It protects us and our fellow citizens. It creates a kind of legal harmony among the 47 members. It makes Europe a unique haven of human rights. So it would be a mistake not to finish building it.
It would be a mistake because many threats today are testing the solidity of the edifice, testing our desire to hold onto it firmly and ensure it lasts. And in the face of the current challenges, we must stand even firmer. We must stand even firmer. Sometimes we must also reinvent the grammar of our collective action.
Terrorism and French state of emergency
You mentioned the first of these challenges, Mr President, namely terrorism. We’re resolutely combating Islamist terrorism. But we’re remaining within the framework of the rule of law, and particularly under judicial control.
Security is the primary task of the state, which must protect its citizens and ensure the security of its territory. This task must be accomplished resolutely, with due respect for rights and freedoms. This security is the precondition for ensuring our freedoms can then be fully respected and provided with a framework.
France’s Declaration of the Rights of Man guarantees safety, i.e. citizens are assured that the power of the state will not be arbitrarily and excessively directed against them. It would be wrong to confuse safety with a passion for security. And I say this all the more firmly because – make no mistake – this terrorism targets the government and state as much as European society and its mores. We are attacked for what we are.
For several years France has been struck at its heart. And these attacks haven’t just killed our fellow citizens. They’ve sought to attack our moral consensus, all of us, Europeans. They’ve sought to attack the common foundation we have built, the bedrock of which is human rights.
Jihadist terrorism wants to make us abandon principles which are an essential part of us. It wants us to make us believe that these principles are our Achilles’ heel, when in fact they are our indomitable strength. I would even go further: defending freedoms isn’t just a right, it’s a duty. And the state must defend them, of course, but so must citizens too. What is at stake? Well, our society of freedoms and the civilized condition in which we live.
Nevertheless, we must recognize that we weren’t sufficiently prepared for the jihadist terrorism confronting us today. The methods used by our attackers, their very behaviour, the deadly ideology leading to previously unprecedented acts, and the enduring nature of this threat have led us to completely reorganize our law.
This is why I wanted to give France appropriate legislation to make our fellow citizens safer, but also end this exceptional situation, the state of emergency.
I said very early on and have often explained that we had to end the state of emergency. The state of emergency was useful, particularly during the initial weeks and months following the 2015 attacks. But its usefulness has gradually diminished.
The state of emergency isn’t the same as martial law. In no way has the rule of law ended in France! Judicial supervision has been maintained; common-law courts have obviously continued to operate and there’s been no move towards setting up courts of special jurisdiction. The Constitutional Council has laid down a framework and limits. In no way has freedom of the press been hindered; Parliament has continuously assessed the legislation.
But the state of emergency, which was designed to deal with a situation whose timeframe is limited and which activates general legislation, couldn’t be extended indefinitely when there is an enduring, well-defined threat. That is what Islamist terrorism is.
So today I want to protect France from a permanent terrorist threat by means of common law legislation. My reply to those who think the state of emergency alone will protect us is that they are wrong. I know I won’t convince them and tomorrow there will be a great deal of debate about it in France.
But the state of emergency sadly failed to prevent several attacks in our country! The state of emergency is no longer effective! The state of emergency is no longer proportionate or appropriate. I say to those who think we should end the state of emergency without making any other changes that they are similarly wrong because the threat is there, and, given the enduring risk, we’ve got to adapt our rules, recreate a framework and consolidate it by means of assessment.
So France will end the state of emergency tomorrow, 1 November. It will do so with a new act on domestic security and the fight against terrorism, which adds to legislation decided over the past few years.
Our challenge is to protect the French people effectively against a permanent, protean threat, within the common law framework. The limited number of measures it provides for are targeted, proportionate and exclusively linked to the aim of preventing and fighting terrorism.
The act guarantees our fellow citizens a very high level of security, enhancing protection of freedoms, in particular through greater judicial supervision and the intervention of liberty and custody judges for house searches.
I’ve heard – as you most probably have – the criticisms sometimes levelled at the bill. The Council of Europe’s Commissioner for Human Rights himself expressed fears and doubts, which were also voiced by non-governmental organizations in France.
Other criticisms have been expressed, asserting exactly the opposite and how irresponsible the government is. These diametrically opposed criticisms could indicate a sort of balance and proportionality cherished by the ECHR.
But I rather think that the process of adopting the act shows how far we’ve progressed and the extent to which France is a law-based state.
Firstly, because democratic debate took place. The act was prepared beforehand by the government in a substantial debate between ministers, which was illuminated by the Conseil d’Etat. Civil society had its say; I also met a large number non-governmental organizations and certain lawyers, and I asked them to make amendments to the text.
So what was then simply a bill was improved as the process went on. We were keen to put the judiciary back at the centre and strengthen its position.
The debate continued in Parliament; the nation’s elected representatives made further improvements to the text and adopted it by a very large majority, going well beyond the group supporting the government. Above all, members of Parliament further enriched the text’s checks and balances and established a principle I think is particularly sound in these matters: a meeting, an assessment after three years to take stock of the provisions. If certain measures prove ineffective or unsuitable, they will be axed. On the other hand, if technological changes or changes in terrorists’ strategies require it, the law will be added to.
Rather than reacting to every event, every change by adopting one text after another, here we’ve built a framework which is designed to last, but to be looked at as and when things happen, in the framework of the balance struck.
This is why I think the legislation is effective and respectful and offers protection. It allows France to be fully consistent with European Convention common law and thus end the arrangements provided for by its Article 15.
Conscious of the fact that international stability is precarious, the Convention’s founding fathers actually provided, in order to protect its implementation, for a mechanism allowing states confronted with exceptional circumstances – of war or public danger threatening the life of the nation – to temporarily exceed the restrictions authorized by the Convention, under the Court’s supervision: this is Article 15 of the Convention, the so-called “derogation” clause, which is frequently misunderstood.
France, following the terrible attacks of 13 November 2015, decided on the basis of Article 15 of the Convention to inform the Secretary General of the Council of Europe that a state of emergency had been established, and since then the government has repeated this each time the state of emergency has been extended.
As I emphasized, France’s invocation of this clause in no way signified that France was backing out of its international human rights obligations – quite the opposite. We have continued to act in the framework of our international commitments on the subject.
Consequently, measures are taken only when absolutely necessary, strictly when the situation requires, and can under no circumstances violate the most basic rights. Going beyond texts, clearly the spirit which prevails as laws are implemented is key.
I had the opportunity recently to talk to the security services to pay tribute to them and tell them that safeguarding individual freedoms, even when the threat level is severe, is one of their tasks and one of the noblest ones. I repeat it here, and it’s at the heart of what motivates us to draw a line under the use of Article 15 and end the state of emergency in France.
It is because I deeply believe in the balance that will be found. We need to resolutely protect our fellow citizens, but we also need to equally resolutely protect human rights and our fundamental rights, because this is the very crux of the battle we are waging against the Islamist terrorists. It is precisely what they want us to relinquish or set aside.
Our challenge is not unlike that faced by Churchill during the war when one of his ministers asked him to cut arts funding to support the war effort and Churchill responded, “Then what would we be fighting for?” Something of the same applies to the defence of our fundamental rights. What would we be fighting for if it’s to decide to no longer enforce them, when that is precisely what they’re looking for?
I must insist that the “freedoms project” is a transcendental project and the only project that stands up, the only project designed for man’s spiritual ends, if you believe in his intrinsic dignity.
During the state of emergency, more than 10 events or gatherings took place every day in Paris. The freedom of expression, of assembly, of protest was upheld. The French democratic verve was upheld. France has never yielded on its principles, its values, and will never yield on them. But today, here before you, it confirms its full commitment by ending the state of emergency and building a firm framework for security and full respect of human rights.
Migration and French asylum process
There is another phenomenon that concerns our rules and our habits, and that is the challenge of migratory flows, what is now being called the migrant issue. I am referring here to those women, men and children driven to our borders by geopolitical upheavals to seek protection here in Europe. I have expressed my strong convictions with respect to the right of asylum on this subject. I will entertain no word or deed that breaks with this right.
Those who seek asylum do so because of tragedy and persecution, but above all because they seek the dignity of subjects of law refused them by their own country.
So there’s no question of altering our own system of rights. However, it does need to be strengthened, made fairer and more effective; more effective because it is fairer and vice versa. We cannot serve the cause of refugees by refusing to discern the merits of each case, by refusing returns because refugees ask essentially for not only material shelter, but a space of rights forged over centuries at the cost of great suffering and struggle, a space with a history and a price.
This is why I would like France to step up its reception of persons in manifest need of international protection and for their dignity to be upheld at all costs.
I am aware that this is not always the case, that despite what I’ve been saying since July, it is not yet the case across the board. I will run to ground every abuse, every case of disrespect. I know this will sometimes take time, but I will do so in this spirit of efficiency and justice, humanity and stringency, saying it exactly the way it is. I want asylum seekers to be given a proper reception everywhere in our country. But, from the moment they are taken in, I want a necessary check to start, as the sine qua non for the proper exercise of our legislation and our law.
Today, we take weeks, sometimes months, to administratively appraise a procedure before the French Office for the Protection of Refugees and Stateless Persons (OFPRA) can start its work, and then appeals can be made, these also taking too long: it takes an average of 18 months for someone who has entered our country to reach the end of all of these procedures. We treat them poorly when they arrive. All too often, we leave them without shelter, on the streets, and we make them wait. We do little to integrate them once asylum is granted or a residence permit issued, but we do not do enough to check on them.
The repercussion of these inordinately long lead times is that only a very marginal proportion of those with neither asylum nor a residence permit at the end of this procedure are returned. We should do the exact opposite. And this mini-revolution that I’d like to come about is to start to see where protection is possible and where the asylum-granting process can start right from the source country or safe third country, to be uncompromising with those not eligible for the right of asylum and to radically speed up our procedures so that within six months, appeal procedure included, the picture is clear, the decision is notified, including to the administrative services, and is enforceable, and our detention times are aligned at European level to be able to effectively escort to the border those without these papers at the end of the procedure.
Today, we do not have the right humanity. Yet neither do we have the ability to explain this policy to our fellow citizens. I cannot explain why women and men sleep on the streets when they’re waiting for a residence permit. Nor can I explain why women and men who have been refused such a permit or asylum continue to stay in our country without any papers, and are entitled to benefits paid for by the French people without any control or effective return.
If human rights are to thrive, we need to be diligent, we need to be effective. And we can see that in this migration challenge and in the terrorism challenge. If we want to give back to our democracies the feel for principles, compliance with their law, they have to know how to be strong, how to stand firm and ensure that these principles are respected in their entirety, but also how to command respect when these principles are no longer respected. We currently have the exact opposite of this ideal balance.
Therefore, the coming months will be spent tirelessly changing our practices and our organization to relentlessly combat the criminal exploitation of poverty, dismantle everywhere the mafia groups often associated with terrorism that create these operations, treat with humanity those who arrive in our country, and also diligently return those who don’t have the right to stay.
Prison overcrowding and reform
France needs to take up one last challenge, this time endemic. I’m referring to our prisons. France can’t be proud of the conditions in which a number of people are held in our country, due to chronic overcrowding with an average occupancy rate of 139%. This rate reaches unbearable levels in certain establishments. In recent years, this overcrowding has been expressed by an intolerable statistic in the form of the number of mattresses on the floor, which stands at approximately 1,300.
The Ombudsman and the Controller-General for Places of Deprivation of Liberty have consistently spoken out against this state of affairs. The Minister of Justice, here with me today, has launched an extensive reform to meet this challenge.
There is obviously first of all the matter of making more space available and creating new resources, but more fundamentally, of what this intolerable prison problem in our country means. This is the very issue of the prison sentence, the very status of the prison sentence in our country and in our societies.
Our dysfunctions mean that prison sentences are sometimes handed down when they aren’t necessarily the most useful response. They are such that not enough is done to ensure they are put to good use, and you only have to look at the last 15 years to see that as we’ve created prison space, we’ve handed down prison sentences and filled those prisons. And I am well aware that carrying on like this would not be an end in itself.
It is therefore essential to hold in-depth philosophical and practical discussions on our penal policy, its real purpose and the place of the prison sentence, but also the vital reintegration of detainees into society. With the prison conditions that I have just described, there is no place for this patient, sometimes thankless work that consists of giving a chance, a place back to those offenders who have served their sentence.
It is therefore vital for us to be able to reconsider the purpose of this, to take advantage of the legal revolution, reform the organization of the courts and procedural law, and also to consider how to improve the effectiveness of prison sentences, their full enforcement, and also develop what are known as alternative sentences.
I would like, in particular, to develop the use of community service sentences, which account for just 7% of sentences when, as a restorative sanction, it is based on the active participation of the sentenced person and comprises an educational aspect.
It should also be a factor for integration and could form a doorway to employment. The main problem is that it calls for coordinated engagement by all the players: judges, probation and integration services, local government and business.
This is an immense project, Minister, and you are aware of that, but as you have repeatedly said, it is a vital project for our society. When we don’t want to see this accursed part of the national community, when we seek to hide them, sometimes deport them, and make them live in unfit conditions, we are doomed to enabling no one to resume their place in society, which is the very purpose of the prison sentence and the very purpose of our shared struggle for civilization, that is to say the end of the death sentence, the idea that at some point we have redeemed this debt to society.
If we don’t find the means or build the conditions to effectively make it so, we will be doomed to seeing a rise in the ills of society as a whole, repeat offences, and sometimes radicalization, which also feeds on these overcrowded prisons.
This is why I plan to create, as part of the work that the Keeper of the Seals will be conducting, an agency to manage and develop community service so that confinement is not the only prospect, so that incarceration is not a breeding ground for extremism, failed lives and shattered fortunes.
Behind these challenges, behind these three major challenges, clearly lies the question of how to make our rights effective in the way Simone Veil meant, and nothing would be worse than self-satisfaction. A country that contents itself with 25% youth unemployment is not a model. It flouts the right to work, in a way. A country that accepts that hundreds of thousands of citizens do not know how to read is not a model country. It flouts the right to education, as it were.
I am aware that the road to empowerment remains long in France. It is at the heart of the economic, social and legal battle we have to fight. Yet the three challenges I’ve just spoken about are vital and we need to take them up together.
Making these rights effective will also enable you to operate normally, to deliver your decisions in a timely manner. You receive 50,000 applications every year. Nearly 54,000 were allocated to a judicial formation of the Court in 2016. The Court has clearly evolved and adjusted. Protocol No. 14, which entered into force in 2010, has enabled the Court to work more efficiently by streamlining your working methods to cope with an ever-growing number of applications.
A few figures bear witness to this development: the number of cases pending before the Court rose from less than 10,000 at the end of 2000 to the record figure of 160,000 cases in 2011 before falling to 65,000 at the end of 2015. Over 63,000 cases are currently awaiting judgment. Work obviously needs to continue on reducing this number, in particular by prioritizing cases concerning the most serious violations.
But if I’m citing these few figures, it is because more than any other court, your judicial statistics are also the accurate, implacable barometer of the human rights situation on our continent. They reflect the structural and sometimes highly worrying problems experienced by certain members of the Council of Europe, as three-quarters of these cases concern just five countries.
They also reflect the fact that the response to the Court’s congestion is a responsibility shared by the Court and the member states. It’s for the states to prevent human rights violations, to correctly and swiftly enforce the Court’s judgments, and I see this as a fundamental point on which to be vigilant. It is our direct responsibility, it is political and pragmatic, and I hope that the question of means to ensure the Court’s continuity, but also that of the correct enforcement of its judgments, will be a core focus of the future French presidency of the Committee of Ministers of the Council of Europe in 2019.
Human rights watchdogs
However, punishment is not everything. The Council of Europe also has watchdogs working daily among its bodies – well-informed, alert observers whose task is to prevent violations of human rights, promote their respect, help member states progress down what is far from always a smooth road and steer them towards the highest democratic, human-rights and rule-of-law standards.
I’d like to pay tribute to them here. First, there is the European Commission for Democracy through Law, better known as the Venice Commission. Its totally unique role as an independent advisory body on constitutional matters was vital in helping the Central and Eastern European countries and the Balkan countries attain the rule of law. Its expertise, now renowned well beyond the bounds of the Council of Europe since 14 non-European countries are now members, is just as essential to us today. Cases can be referred to the Venice Commission by the Council of Europe’s Parliamentary Assembly, and it does not fail to do so.
Such was the case with the constitutional reform in Turkey and, more recently, the Polish Law on the Ordinary Courts Organization alongside the draft laws on the National Council of the Judiciary and on the Supreme Court. Yet the states themselves also often request opinions of the Venice Commission, as was the case, again this year, with Ukraine’s Law on Education and Armenia’s draft law on referendums. I believe this is a very strong mark of its authority and the recognition of the independence and impartiality of its expertise.
Second, there is the Council of Europe’s Commissioner for Human Rights. As a true “human rights pilgrim”, the Commissioner’s task is to promote effective observance of human rights in the member states that he visits all year round in total independence and often with a great freedom of tone – from which France, I must say, has not been spared, and quite rightly so. It is for this eminent and vital office that France has presented Pierre-Yves Le Borgn’s candidacy, and I’d like to express my full support for him here.
Human rights violations/Turkey and Russia
Yet in addition to these challenges, we are caught up today in a maelstrom of profound international changes and transformations which, I must say – whatever the commitments I have just made before you to address the three subjects I’ve mentioned and relations between France and the ECHR – are jeopardizing our stability and raising the possibility of a backslide in human rights in a number of places in Europe.
We must take a clear-headed view of this situation. It is not undermining the Court. It is not undermining the Convention. It could undermine us collectively if we were to decide not to address it, not to look at it or to do so in an ill-chosen manner.
Just yesterday, human rights seemed to be a given. Many signatory states to the Convention even aspired to join the European Union, when they were not already members. Yet we find ourselves today in a situation where a number of member states are obviously, almost boldly, failing to comply with the very terms of the Convention and are rocking, or trying to rock, the legitimacy of the Convention and the Court: Turkey and Russia to name but these two states, but they are not alone and the risk is closing in.
We’re seeing a powerful resurgence of authoritarian regimes and fascination with illiberal democracies in many places in Europe, and I believe that this sets the stage for the consistency and strength of the responses we need to find to the challenges I’ve just mentioned.
If democracies are weak, if we consider that defending human rights means tying our hands while not protecting our fellow citizens, that protecting our values means accepting the huge excesses that sometimes threaten the cohesion of our societies, then we lay ourselves open to the risk that the fascination with illiberal democracies and authoritarian regimes will gradually spread throughout Europe.
This is why I believe that our response is found in our attachment to our principles through strong, steady-handed democracy. This is the vital balance that enables our peoples to embrace the consensuses we achieve.
Today, however, a number of countries have changed sides either out of fear or because extremes have got the upper hand or growing authoritarian excesses have prevailed.
Where are human rights when civilians are targeted, when entire populations are cut off from all humanitarian access, basic healthcare and food, as is the case with hundreds of thousands of people in Syria, and when children are used as human shields and human bombs?
Our human rights are deteriorating in many places beyond our jurisdiction: in Syria, Libya and Burma/Myanmar. They are threatened when, everywhere, as is the case today, including on the European continent, and not just in situations of crisis or conflict, these authoritarian regimes I mentioned spread, fuelled by the lure of self-absorption.
For all these reasons, respect for human rights is under attack. Human rights are seen as a weakness by those who seek to overturn or diminish them when they are a strength, a source of distinctiveness, when they are universal. They are presented as an option when they are an obligation.
In the face of these excesses, especially from within, we need to look at the situation head-on and denounce it, and never resign ourselves to it. This is the work that the Secretary General is doing, that you are doing and for which you have my full support.
We need to talk to everyone, and this is the method I’ve adopted since day one. It serves no purpose to exclude those who do not respect our fundamental rights today, those who want to turn their backs on their own history.
It’s my firm belief that Russia and Turkey’s future will not be built by turning their backs on Europe, because these two great nations are bound to Europe, because their history, their geography, their literature and their political conscience have been built side by side with Europe.
So they need to be told each time, denounced not by closing the door, not by excluding them from everything or by letting them exclude themselves from everything, but by holding this intense, difficult and sometimes thankless dialogue punctuated with small victories and also sometimes small defeats, but which consists of holding course because their peoples deserve it, because their fellow citizens are Europeans, because the nationals of all these countries, whatever their leaders’ decisions, are worth fighting for, deserve access to this right, to the protection of their rights.
So we’ll do so and we’ll continue to do so, because I don’t believe in the supposed divide between our values and our interests, and I’m aware that injustice, impunity and violations of rights are not just the consequence of, but the most fertile breeding ground for instability.
The countries most often summoned before the ECHR are fully-fledged members of the community united around the Convention, and should remain so. This is in any event my firm belief and one that I will work for. It’s also why I will continue to speak to everyone, to champion our arguments, to promote our voice and our values in Turkey, in Russia and elsewhere, without accepting the slightest compromise, but without resigning myself to the slightest silence.
Far from it. We have here a new need. We need to stand up and be counted for what we are, because at some point when we are not expecting it, there will be light, and a firm interest will reappear where the peoples will rise up, and we will be there.
Respect for human rights is a legal obligation. Defence of human rights is a political and diplomatic act. It’s a battle fought with the tremendously effective weapons of dialogue. Naïve optimism and giving up are often merely synonymous with impotence.
I want to be very clear with you, with all the countries, whether signatories to the Convention or not. France will accept no criticism of human rights designed to hide an agenda, to promote supposedly superior national interests. We will not be dragged into debates that allege that human rights are merely the translation of Western “values” that have no place elsewhere in the world.
Our values, these rights that you defend, are universal. Sometimes, some of them have to be allowed to make their own way. We have to guard against our countries telling others what to do, especially when they are sometimes embroiled in extremely difficult situations, in insecurity, in combating terrorism. Yet we always have to hold course, the very course that has made us, and avoid both confrontation and denial.
Here are the three convictions I wanted to share with you today. Your work, our work also faces serious challenges from innovations within our societies. You mentioned this when talking about host surrogacy and the children subsequently born outside of our borders. Our civilizations are living entities. Attitudes change and social structures evolve. We are seeing sweeping technological changes and, over and above these new geopolitical circumstances I have just raised, which are rocking our stability, we will see debates in the years to come that will also rock our vision of human rights and our discussions about human rights.
Augmented humanity, big data and technological innovations such as bioethics will inevitably call for vital debates within our societies. None of these debates will be easy. None of these debates in France will be conducted aggressively or with an imperious conception of politics that would overshadow the ways of thinking and the vital interplay of these ways of thinking, of philosophical and religious beliefs. Yet to live together in society, rules of law will have to be gradually enacted as circumstances will gradually require it.
We therefore have to start rethinking the protection of rights, including constitutional rights, in a deterritorialized world where humanity itself is being transformed. This will also be one of the challenges of the decade because, although it’s true that France promotes scientific progress and does not shy away from what is happening, we are determined to uphold the principle of equality. Following the fundamental rights established in 1789 and the social rights established in 1946, today sees the dawn of a third period of new rights for which we’ll need to be inventive and which I hope we’ll be able to consider within the constitutional framework opened a few months ago. We are ready for this.
As you see, ladies and gentlemen, upholding human rights is a battle, including for countries such as France, which are passionately attached to them. The European Court of Human Rights stands more than ever before as a vital bastion to protect nationals from the 47 member states from abuses, the lure of totalitarianism and the dangers that tomorrow’s world brings.
What is being put to the test today is the unity surrounding the ECHR and the Convention it upholds. What is being put to the test is support for this daily battle. We must not stop fighting for this unity to remain intact. If this support is to last, we have to fight the lure of self-absorption, cynicism and the spirit of renunciation.
Europe, ladies and gentlemen, should take pride in having created a supranational body responsible for enforcing human rights. It’s an edifice that we must pass on intact to future generations and that we must adapt to future challenges. It will be a struggle. This struggle must be tireless. This struggle must always be renewed. This struggle will also be France’s struggle, because in this area, as Victor Hugo so beautifully put it and Clemenceau made one of his mottos, there will always be more promised lands than lands won.
This conquest of the promised lands is our age-old mission. It is our duty. It is our history, and France will never cease to play its full part in it. Thank you./.
(1) laïcité goes beyond the concept of secularism, embracing the strict neutrality of the state.