AEDH

European democracy: the big challenge. What’s left for democracy with security and defence setting the agenda?

This post is also available in: frFrançais (French)

On 19 February 2018, AEDH was invited to speak at the European Civic Forum event #MEGA – MAKE EUROPE GREAT FOR ALL. Represented by its Secretary General, Claude Debrulle, AEDH focused on the following theme: ‘What’s left for democracy with security and defence setting the agenda?’

Ever since the signature of the Treaty of Rome on 25 March 1957, Europe has been built around an ideal of peace and freedom following the worldwide conflicts that ravaged the continent on several occasions. At the origin of these conflicts: exacerbated nationalisms and political agendas dominated by imperatives of security and defence considering the Other, the neighbour, the foreigner, the Jew, the homo, the Gypsy, the group different and discriminated as responsible for all the evils, in particular, the social ills resulting from the crises generated by the successive globalisations.

After more than 60 years of European construction, its immense success lies in the peace established through the use of law at the expense of armed force. This peace is based on common values such as the rule of law, democracy, solidarity, and civil and political freedoms. A stability inscribed in a diversity of cultures, ideas and traditions that extends over 4 million square km and includes 500 million inhabitants. Thanks to Schengen and the Euro, this peace makes it possible to travel, study and work across national borders without practically changing money. An area of ​​relative prosperity as well: between 1990 and 2015, the GDP per capita increased faster in the European Union (+ 159%) than in the United States (+ 134%).

Nevertheless, today and since somewhat fifteen years, security and defence dominate once again national and European political agendas. Many factors have created a strong sense of fear within a substantial part of the European public opinion as well as self-centred attitudes from many Member State governments: acts of terrorism since 2001, the 2008 economic crisis, the massive influx of migrants in early 2011 and even more massive in 2015. There is no denying that this new reality is reflected in the freedoms restriction, the growing shrinking of civil space and the threat to the fundamental rights of European citizens and civil society.

This is particularly the case in the context of the legitimate fight against terrorism.

The recent FRA report on the Challenges facing civil society organisations working on human rights in the EU focuses on the negative impact of states of emergency and anti-terrorist laws or measures.

Let’s mention few examples of the drift:

  • In France, the law of 30 October 2017 reinforcing internal security and the fight against terrorism replaces the state of emergency in force since 15 November 2015. Several provisions of this law provide for measures such as house arrests, the wearing of an electronic bracelet or even private house searches. These measures are no longer decided by the judicial authority but by an administrative authority, in this case, a Prefect. And they apply to any person “in respect of whom there is reason to think” that his or her behaviour constitutes a threat of participation in the perpetuation of terrorist acts. A magic formula that paves the way to a logic of suspicion that may lead to a degraded mode of proof preventing anyone from predictably knowing the type of behaviour targeted. The French LDH introduced priority constitutionality questions before the Conseil d’État against these provisions. Let’s hope LDH will be successful.

 

  • The European Union is not outdone in terms of restrictions to freedom of expression that are made possible through a Framework Decision of 28 November 2008 and confirmed by the Directive on combating terrorism adopted on 15 March 2017. Article 5 of the Directive criminalises any public call, direct or indirect, incitement to the commission of a terrorist offense, whether or not there was an offense committed as a result of this call. How judges will be able to appreciate the scope of an “indirect appeal” to the commission of a terrorist offense, especially if no offense is committed as a result of this indirect call? Let’s remember the terrorist attack in Paris against Charlie Hebdo: would a person writing at the time on Facebook “I’m not Charlie” be guilty of an “indirect” incentive to the commission of terrorist offenses?

 

  • Another symptomatic example of individual freedoms sacrificed, or at least trimmed, on the altar of the fight against terrorism: the PNR – European Passenger Name Record. During a parliamentary debate in Belgium on the transposition of this massive and intrusive system of passenger identification in air transport, a Belgian MP carried out a macabre examination of the 39 terrorist attacks committed in France and Belgium between March 2012 and the end of 2017. In none of these 39 attacks would the PNR have been effective in preventing the attacks or in facilitating the identification of their perpetrators. Indeed, none of them travelled by plane. In the vast majority of cases, the trips took place with rented motor vehicles.

 

One can legitimately wonder why adopting such an extremely expensive tool characterised by a sharp intrusion into the privacy of millions of air passengers, including of European citizens, without checking first the effectiveness of this massive control? Would it not have been more reasonable to devote straight away these enormous budgetary and human resources to a substancial strengthening of the police and community intelligence. The exchange and cross-checking of information collected in the field by these services would have demonstrated the targeted effectiveness of this approach, particularly in the fight against terrorist radicalism.

  • How about the use of armed drones to perform extrajudicial executions on “terrorist” targets in territories of states with which they are not at war? A means extensively used by the United States. President Hollande admitted he authorised such use in West Africa in a book of confidences that caused quite a stir. On 5 September 2017, the French Minister of the Armed Forces declared that a future European armed drone could be realised in cooperation with Germany, Italy and Spain. Which European legal institution will regulate its use in accordance with international humanitarian law?

 

  • Last example: In 2004, a judgment of the Karlsruhe Court in Germany revived a 1933 Nazi law on security detention which had not been repealed but fell into disuse until then.

Building on this last example, let’s finish with a lesson drawn from a history not so distant on our continent:

Our democracies are fragile. They shall not, in the name of guarantees that they provide today, grant themselves the right to promulgate laws of exception to fight in an inappropriate way overvalued dangers.

The risk entailed is that these exceptional laws could be massively used for other purposes, should the democratic guarantees and the rule of law disappear,.

Let’s remember the so-called « Regime of the Colonels » that came to power through a putsch on 21 April 1967. Into order to exercise their dictatorship, they barely changed the Greek law that was obsessed by the communist danger. A Greek dictatorship that went on for seven years without ever being excluded from the Council of Europe!

Hence the long-lasting formal recommendation made by AEDH and its member associations urging both the European Union and its Member States to make a regular evaluation of the criminal legislative and regulatory inflation that characterises the fight against terrorism, to ensure not only the adequacy of national law to the European legislation but also, and above all, their perfect conformity, in the spirit and in their implementation, with the strict respect of human rights and the rule of law. Gil Robles, the then Commissioner for Human Rights of the Council of Europe, stated in the wake of the of 9/11 attacks that the fight against terrorism finds its legitimacy – and the guarantee of its effectiveness – in the strict respect of the values ​​and principles of our democratic society. They are particularly incarnated not in the balance but in the pre-eminence of human rights and fundamental freedoms.

Such qualitative assessment has eventually been provided for by the aforementioned Directive on combating terrorism. An evaluation report must be submitted by 8 September 2021 by the European Commission to the European Parliament and the Council.

As an organisation representing the civil society, we can and must participate in the evaluation. This very important work awaits us in each of our respective countries.

We also call on the EU to adhere to the ECHR so as to enable the latter to assess, on a case-by-case basis, the compatibility of the European legislative instruments with the requirements of respect for human rights.

On the European Union’s migration policies

To assess the damage, we must start from the success of the Schengen area of which 23 EU Member States are members. For years, the Schengen area resulted in qualitative progress for millions of Europeans: the freedom to come and go without border control on a common territory going from the Atlantic to the Vistula and from Gibraltar to the Barents Sea.

Following the massive migratory flows of early 2011 and especially 2015 with nearly one million arrivals, this success is now seriously compromised. Hastily, barbed and electric barriers as well as hotspots devoted to the detention of migrants, families and children included, have multiplied at the borders of almost all Schengen countries.bShriveled examination procedures for asylum applications, shorter time limits for appeals, longer periods of internal border controls, ever growing lists of safe third countries, clauses of exercise of sovereignty in the process of extinction. All justified by three dogmas whose inanity must be shown:

  • The fight against the so-called “suction effect”, while we know that migratory routes are governed by strategies that respond to other logics;
  • The absolute respect for the Dublin Regulation, which, by returning migrants to Greece or Italy, most often leads to repatriation to Turkey or Libya, and, finally,
  • Expulsion practices that other Member States apply on the pretext that they comply with European and international law.

In this context, I will not talk about the barter agreement concluded on 18 March 2016 between Turkey and the European Union as part of a comprehensive plan to reduce migratory pressure. This plan sets the referral to Turkey, considered a safe third country, of all migrants present in Greece, whose asylum application has been dismissed or who are non-asylum seekers, in return for an envelope of three billion euros.

Je m’attarderai davantage sur d’autres accords qui lient l’aide au développement octroyée par l’U.E. à la sous-traitance des mouvements migratoires confiée à des pays tiers.

I will rather focus on other agreements that link development aid from the EU to the outsourcing of migratory movements to third countries.

This is the case of the Khartoum process, which was concluded in 2014 but has since been strengthened by action plans, including the Valetta Plan adopted in November 2015. This process allows the EU to outsource asylum applications directly to all countries in the Horn of Africa, in particular Eritrea and Sudan. The aim is not only to prevent migrants from reaching Europe by sea but also to facilitate their forced returns if their asylum application is dismissed or have not asked for asylum. This European collaboration does not hesitate to call on the security services of a country like Sudan to identify on the spot in Europe migrants likely to be returned in the dictatorship directed by Omar Al Bashir, a Head of State pursued by an arrest warrant issued by the International Criminal Court for genocide and war crimes. This practice of forced returns to Sudan took place in Italy, France and Belgium. In the case of Belgium, a report by an independent body – the CGRA (Commissariat général aux réfugiés et aux apatrides) – demonstrated that the procedure applied to Sudanese nationals does not comply with European law, in particular the verification of compliance with Article 3 of the ECHR Convention. This provision prohibits the return of a person to a country where he or she risks of being subjected to torture or inhuman or degrading treatment. In reality, the Belgian practice is to consider that if the Sudanese national refuses to apply for asylum, he/she is automatically considered to be forcibly returned to his/her country of origin without further verification of the risk incurred under Article 3 of the ECHR.

This security agenda is transforming Europe into an increasingly closed space, that refuses to establish legal and secure access to its territory. With the agreement with Turkey, the Khartoum process and the envisaged partnership with Libya, the European Union is flouting the very values on which it is based. It allows the forced return of migrants to dictatorial regimes, to countries where the rule of law is so fragile that refugees are sold as slaves. By validating de facto this situation, the threat does not come from abroad, but from the Union itself as it is killing its own model. A ‘suicide’ reflected by the increasing criminalisation of those who want to maintain an open Europe, a Europe that offers a refuge. The criminalisation is not the act of a mere Member State but spreads to the whole European territory instead:

–          In France, Martine Landry, an Amnesty International France and Anafé activist, is being tried in Nice. She is accused of having “facilitated the entry of two illegal foreign minors”. She faces up to five years in prison and a fine of € 30,000.

–          In Belgium, while tens of thousands of citizens are mobilising through a Citizen Refugee Support Platform in order to provide shelter for a few hundred migrants grouped together at the Maximilian Park in Brussels, the government is trying to pass legislation allowing searches housing and the administrative arrests of the migrants hosted by these individuals.

–          In Hungary, civil society faces a new government attack through a bill that is currently being debated, forcing civil society organisations working on migration, including legal migration, to apply for a prior permit from the competent Ministry. These organisations, if they benefit from foreign funding, will also have to pay a tax corresponding to 25% of this funding.

 

Europe is turning inward in the same way that Nations did in the early 1930s as the world was in the midst of an economic and social turmoil. While the European Pillar on Social Rights was adopted with great fanfare last November, how will this base translate into tangible rights for citizens? Too many times, social Europe has been relegated to the sidelines. For example, the European Union has still not acceded to the Turin Charter on Social Rights. Let us be sure, if we want to preserve our European model, if we want to strengthen the sense of belonging of citizens in the European project, it is not by venturing on the terrain of predilection of the extreme right that we will get there. No, the only way to succeed is by engaging body and soul in a European social policy at the service of the citizens. Security policies sow fear, social security policies hope.

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