1. Introduction
1. France is a founder member
of the Council of Europe. It is a parliamentary republic with strong presidential
powers. It comprises territory both in Europe (metropolitan France)
and overseas (overseas regions and territories of Guadeloupe, Martinique,
French Guiana, Réunion and Mayotte
). Metropolitan France has a population
of 66 318 000 inhabitants.
2. The official language of France is French.
The
French Constitution recognises regional languages as part of the
heritage of the country.
France has not ratified
the European Charter for Regional and Minority Languages (ETS No.
148, “the Charter”), signed on 7 May 1999, despite the fact that
the United Nations Educational, Scientific and Cultural Organization
(UNESCO) has recorded 26 spoken languages in the country.
Ever since the Charter was signed
by France, the issue of its ratification has raised controversy
and generated heated debates in the political life of the country
(see section 5.4 below).
3. The last presidential election in France was held in May 2012
with a remarkable turnout of 80.35%. The candidate of the Socialist
Party (“Parti Socialiste”, hereinafter “PS”), François Hollande,
obtained 51.64% of the votes and prevailed over his opponent Nicolas Sarkozy
(Union for a Popular Movement, “Union pour un Mouvement Populaire”,
hereinafter “UMP”) in the second round of voting, thus becoming
the seventh President of the Fifth Republic and the first Socialist
candidate to win a French presidential election since François Mitterrand's
re-election in 1988. Capitalising
inter
alia on the dissatisfaction generated by the socio-economic crisis
that hit Europe and did not leave France unaffected, and on the
unprecedented migratory movements of the last years followed by
a growing anti-migrant sentiment of the French population, the candidate
of the far-right party “National Front” (“Front National”, hereinafter
“FN”), Marine Le Pen, obtained 17.90% of the total votes cast in
the first round.
This
record result, which beat the FN’s previous best in 2002 when Jean-Marie Le
Pen won a place in the second round of the presidential election
with 17% of votes, made international headlines.
4. The country’s latest legislative elections were also held
in June 2012, with a turnout of 55.40% (second round). The PS won
the majority of the seats (280) and control of the legislature.
The UMP obtained 194 seats, the Greens (“Europe–Ecologie–Les Verts”)
17 and Radical Left (“Radical de Gauche”)
12 seats. The remainder of the seats were divided among smaller
parties. The FN’s upward trend continued. The party captured 2 seats, a
seemingly meagre result, but which signalled its first return to
parliament since the mid-1980s.
5. The FN shook France and the whole of Europe at the European
Parliament elections of May 2014, by coming out top with 24.86%,
thus winning 23 of France’s 74 seats,
a stunning increase compared to the
three seats they had won in 2009.
The UMP was pushed into second place,
with 20.81% and 20 seats won, while the PS obtained 13.98% of the
total votes cast and 13 seats, recording a historic low at a European
election.
6. The last local/regional elections were held on 6 and 13 December
2015. These elections were the first to be held in the redrawn regions
that came into effect on 1 January 2016 in accordance with the territorial reform
that reduced the number of regions in metropolitan France from 22
to 13 (see section 4.3 below).
With a turnout of 58.53%, the Republicans
(LR – successor of “UMP”) won 478 seats, the Socialists 339 seats
and the FN 358 seats (of a total of 1 722 seats). These results
clearly confirmed the trend of a rising popularity of the far-right
FN.
7. France’s economy is the fifth largest in the world and represents
around one fifth of the euro area gross domestic product (GDP),
with over 70% of its GDP stemming from the services sector, but
manufacturing remains an important contributor to the country’s
economy. The French economy endured “relatively well” the global
economic crisis which kicked off following the United States banking
collapse in 2008,
compared to its peers, but the country
has been facing several economic challenges. Government tax revenue
has shrunk, consumer purchasing power has declined, consumption
has slowed down and unemployment, especially among young people,
has skyrocketed.
French governments had to take unpopular
measures to modernise the country’s economy with a view to exiting
the crisis, which affected political balances.
8. In my report, I will not go back over France’s achievements
with regard to the construction of a State based on the rule of
law, respect for fundamental freedoms, or the French democratic
tradition, none of which now needs to be demonstrated. France provides
a high degree of protection of human rights, a field in which it
possesses comprehensive legislation and plays an important role
on the international stage. The country is characterised by sound
institutions with a democratic tradition and its system is truly
based on the rule of law. This general remark runs through this
entire report, the purpose of which is to address the major challenges facing
France today.
9. As at 1 August 2016, France had ratified 178 Council of Europe
treaties and signed 37 others without having ratified them. It ratified
the Convention on Preventing and Combating Violence against Women
and Domestic Violence (CETS No. 210) on 1 August 2014. On 8 December
2015, it ratified the Council of Europe Convention on Laundering,
Search, Seizure and Confiscation of the Proceeds from Crime and
on the Financing of Terrorism (CETS No. 198) and, on 21 September
2016, the Council of Europe Convention on the counterfeiting of
medical products and similar crimes involving threats to public
health (CETS No. 211). It signed the Additional Protocol to the
Council of Europe Convention on the Prevention of Terrorism (CETS No. 217)
on 22 October 2015 and the Council of Europe Convention on an Integrated
Safety, Security and Service Approach at Football Matches and Other
Sports Events (CETS No. 218) on 3 July 2016.
10. This periodic report has been drawn up in application of
Resolution 2018 (2014) and the explanatory note approved by the committee on
17 March 2015. It is based,
inter alia,
on the most recent conclusions of the Council of Europe's monitoring
mechanisms, reports by the Parliamentary Assembly and the Council
of Europe Commissioner for Human Rights and, where appropriate,
reports produced by other international organisations and civil
society.
11. I wish to thank the French delegation to the Parliamentary
Assembly and the country’s authorities for their active and constructive
co-operation. I also thank them for the detailed information and
many comments provided on a number of issues.
2. Background
information
12. In 2015 and 2016, France suffered
some of the worst terrorist attacks in the country’s and Europe’s history.
13. On 7 January 2015, a massacre at the offices of
Charlie Hebdo in Paris – a satirical
magazine, famous for its “risqué cartoons and daring takedowns of
politicians, public figures and religious symbols of all faiths”,
including cartoons satirising the
Prophet Mohammed which outraged part of the Muslim world – was committed by
two masked and heavily armed gunmen who shot dead 12 people, including
its editor and four cartoonists. The
Charlie
Hebdo attack was claimed by a branch of Al-Qaeda in Yemen
(AQAP).
On 8 January 2015, another gunman
shot dead a policewoman in the Paris suburb of Montrouge, in an
attack which later proved to be linked to the
Charlie
Hebdo massacre. One day later, the same gunman took hostages
at a Kosher store in the Paris suburb of Porte de Vincennes. Four
hostages lost their lives.
14. On the night of 13 November 2015, seven co-ordinated terrorist
attacks claimed by the terrorist group “Islamic State” (hereinafter
“IS”) were perpetrated simultaneously in different parts of Paris.
A first group of three suicide bombers blew themselves up outside
the Stade de France, where
a football match was taking place. A second group of masked and
heavily armed gunmen opened fire on people dining in four restaurants and
bars in the 10th and 11th districts (arrondissements)
of Paris. A third group of terrorists invaded the Bataclan concert
hall, where a rock concert was underway. The terrorists executed
90 people. The attacks left 130 dead and 368 wounded.
15. “IS” has urged that attacks be carried out in France by all
possible means in the form of operations organised from abroad or
action by individuals living in France. The response has been individual
actions, unsuccessful attacks and terrorist attacks perpetrated
in several French towns by various means, as described below in
a non-exhaustive manner.
16. On 21 August 2015, an armed terrorist attack on the Thalys
train between Amsterdam and Paris was thwarted by passengers. An
attack was committed in Yvelines on 13 June 2016 and a police officer
and his wife were killed. The Amaq news agency, which has links
to “IS”/Daesh claimed responsibility for the double murder. Ten
months after the Paris attacks, a new terrorist attack took place
in Nice on 14 July 2016 and involved a lorry driving into a crowd
on the Promenade des Anglais during celebrations to mark the French national
holiday. It left 86 dead and 434 injured, many of them children.
Responsibility was claimed by “IS”. On 26 July 2016, a new terrorist
attack was perpetrated in a church in Saint-Étienne-du-Rouvray,
near Rouen, during which Father Jacques Hamel was assassinated and
a parishioner seriously injured. Responsibility was claimed the
same day by “IS”.
17. After the co-ordinated attacks that struck Paris on 13 November
2015, a state of emergency was declared by means of Decree No. 2015-1475
of 14 November 2015 and pursuant to the Act of 3 April 1955. In view
of the serious nature of the attacks, their simultaneous character
and the continuing threat at a level hitherto unseen in the country,
extensions were approved by Act No. 2016-162 of 19 February 2016
for a period of three months, followed by Act No. 2016-629 of 20
May 2016 for a period of two months. In response to the Nice attack,
Act No. 2016-987 of 21 July 2016 extended the state of emergency
by six months. This law modifies some of the measures provided for
by the Act of 3 April 1955.
18. A state of emergency has been proclaimed in France on six
occasions: in 1955, 1958, 1961, 1984 and 2005.
A
state of emergency having its basis in Act No 55-385 of 3 April
1955, as amended by Act No. 2015-1501 of 20 November 2015, is applicable
either “when there is an imminent danger resulting from serious attacks
on public order or when events by their very nature and seriousness
are such as to cause a public disaster”. Declared by means of a
decree issued by the Council of Ministers, it grants the civil authorities
in the geographical area to which it applies exceptional law-enforcement
powers relating to the regulation of the movement and residence
of persons, the closure of places open to the public and the requisition
of firearms. Where expressly provided, it can enable the administrative
authorities to carry out administrative searches or impose house
arrest. The extension of a state of emergency beyond 12 days can
only be authorised by enacting a law.
19. The French authorities have provided detailed information
on house arrest, searches and the Act of 20 November 2015,
pointing
out that the latter Act has clarified the legal framework for measures
that can be ordered. For example, the provisions on house arrest
have been amended to provide for new measures (keeping the person
under house arrest at a specific place for 12 hours, possibility
of ordering the surrender of passports and identity documents, ordering
the wearing of an electronic tagging device, etc.). In addition,
the arrangements for conducting administrative searches have been
clarified (protection of protected professions, informing the Public
Prosecutor’s Office, presence of a criminal police officer, etc.).
According to the authorities, the Act of 20 November 2015 also strengthened
the procedures for monitoring the implementation of these measures:
it systematically provides for judicial oversight by the administrative
court and for parliamentary oversight. In this connection, it created
in particular a specialised body within the Ministry of the Interior
charged with responding within 48 hours to any request by MPs to
provide precise and detailed answers to questions on any individual
case. Moreover, the Ministry of the Interior issues every day in
real time a detailed statement of the individual measures implemented.
I will not set out these elements in detail in the report, since
a new law has in the meantime come into force, on 21 July 2016,
in response to a decision of the Constitutional Council, which strongly
criticised some of the provisions of the 2015 law. In particular,
this new law establishes new investigation methods and strengthens
the monitoring procedures (see below). Human rights organisations
are worried about the reinforcement
of the antiterrorist arsenal.
20. On 23 December 2015, the Council of Ministers adopted, upon
a proposal by the Prime Minister, a draft constitutional law “on
the protection of the nation” and submitted it to the National Assembly.
The aim was to enshrine in the Constitution both the state of emergency
and the withdrawal of citizenship for a person born French but also
possessing another nationality if that person is convicted for a
crime constituting a serious attack on the life of the nation. At
the request of the Parliamentary Assembly,
the European Commission for Democracy
through Law (Venice Commission) issued an opinion on 12 March 2016
in which it pointed out that the
constitutional reform in France could be better regulated, noting
in particular that “[a]ny decision on deprivation of nationality
must respect the principles of fair trial and proportionality”.
It welcomed the initiative to put the state of emergency on a constitutional
footing, but recommended enshrining in the Constitution not only
the possibility of declaring (and prolonging) a state of emergency
but also the “formal, material and time limits which must govern
such regimes”. The draft law that had been adopted at first reading,
with amendments, by the National Assembly on 10 February 2016, as
well as by the Senate, with amendments, on 22 March 2016, and which
was the subject of heated political debate, was finally withdrawn
on 30 March 2016.
21. The Act of 21 July 2016 on extending the application of Act
No. 55-385 of 3 April 1955 on a state of emergency and on strengthening
counterterrorism measures
once again authorises the use of
administrative searches, as provided for by section 11 of the 1955
Act. It permits the seizure and use of data contained in any computer
system or any communication equipment present at the search location.
This adaptation of the 1955 Act is a response to the Constitutional
Council’s decision of 19 February 2016 severely criticising this provision
owing to the lack of legal safeguards to ensure a balance between
the protection of public order and the right to respect for private
life. The law provides that if a search enables the existence of
another location frequented by the person targeted to be revealed
then, under the right of pursuit, the immediate conduct of an interlocutory
search at that other location is permitted. The Act permits prefects
to authorise, by a reasoned decision sent to the Public Prosecutor’s
Office, for a period of 24 hours (renewable for as long as the state
of emergency is in force) criminal police officers to carry out
identity checks and bag searches at specific public places and searches
of vehicles on the public highway. It authorises the National Prison
Administration to implement “the processing of personal data relating
to video-surveillance systems installed in detention cells in prisons”,
the aim being to carry out checks by conducting video-surveillance
of cells in which detainees have been placed in solitary confinement
because their escape or suicide could have a significant impact
on public order given the particular circumstances that have led
to their imprisonment and the impact of those circumstances on public
opinion. The Act also makes it easier to close places of worship
where preachers incite hatred and violence. Furthermore, it permits
gatherings of people on a public thoroughfare to be prohibited when
security cannot be guaranteed.
When they presented the law to the
National Assembly, the Prime Minister and the Minister of the Interior
said that all the measures implemented in connection with the state
of emergency would continue to be subject to dual supervision, by
the administrative courts on the one hand and the parliament on
the other.
22. The Act of 21 July 2016 has been strongly criticised by human
rights organisations,
in particular because it extends
the already broadened powers of the police with regard to carrying
out checks, searches and seizures and detaining suspects. It also
tightens several terrorism-related provisions in statutory laws,
the French Criminal Code and the Code of Internal Security, which
will remain in force once the state of emergency is lifted.
23. On 16 September 2016, the Constitutional Council referred
to the Council of State an application for a priority preliminary
ruling on constitutionality (question
prioritaire de constitutionnalité) concerning the system for
conducting computer searches. The Constitutional Council is required
to rule on the compliance with the Constitution of the arrangements
for seizing computer data following an administrative search carried
out during the state of emergency, as provided for by the Act of
21 July 2016. The Constitutional Council has three months to give
its ruling.
24. On 24 November 2015, France informed the Secretary General
of the Council of Europe that it intended to have recourse to the
derogations permitted by Article 15 of the European Convention on
Human Rights (ETS No. 5, “the Convention”). New information was
provided on the new extensions to the state of emergency approved
by the Act of 19 February 2016, the Act of 20 May 2016 and the Act
of 21 July 2016.
25. While recognising that the protection of the population is
rightly a priority concern, human rights organisations have warned
about the consequences of the emergency powers attributed to the
authorities, and of the potential further or indefinite extension
of such powers.
The media have reported a rising
number of incidents where the measures taken against individuals
by virtue of the state of emergency raise serious doubts as to their
proportionality.
France's Human Rights League stated
that very few of the raids carried out under the current state of
emergency since November have led to terrorism-related probes. Out
of the 3 336 searches carried out under the state of emergency,
only 28 have led to such probes, the bulk of them for “defending terrorism”.
According to human rights organisations,
the emotion and fears justifiably aroused by the tragic attack in
Nice on 14 July 2016 led to the passing of the Act of 21 July 2016,
which, they say, weakens the rule of law without it being possible
to demonstrate the effectiveness of the measures adopted.
26. The French authorities stated in their observations
that,
as at 1 June 2016, 57 individuals had been put under house arrest
on the basis of section 6 of the Act of 3 April 1955 and 344 measures
had been taken in the first period of the state of emergency and
70 in the second. Since the beginning of the state of emergency,
210 interlocutory applications had been made to the administrative
courts against these house arrest orders. Only 16 had been suspended
and 12 lifted by the courts following judicial proceedings. The authorities
concluded that the oversight exercised by the administrative courts
had been strict and that the administration had acted with discernment
because it had been confirmed that the vast majority of the measures
taken were justified.
27. The rapporteur refers to
Resolution 2090 (2016) on combating international terrorism while protecting Council
of Europe standards and values, in which the Parliamentary Assembly,
while acknowledging the need for member States to have access to
sufficient legal instruments to combat terrorism efficiently, pointed
to the existence of a risk that “counterterrorism measures may introduce
disproportionate restrictions or sap democratic control and thus
violate fundamental freedoms and the rule of law, in the name of
safeguarding State security”. The rapporteur reiterates that the
Assembly has voiced its concerns about the declaration and extension
of the state of emergency in France.
28. The rapporteur reiterates the Assembly’s recommendations in
this regard, especially the need to ensure, when adopting and implementing
legislation or other administrative measures, that a fair balance
is struck between defending freedom and security on the one hand
and avoiding the violation of those very rights on the other. Moreover,
it is essential to ensure that law-enforcement bodies do not abuse
their powers or circumvent basic legal requirements and do not disproportionately
restrict individual freedoms, bearing in mind that any administrative
decisions taken in this context should always be subject to judicial
review. Finally, it is important to ensure that a state of emergency
is limited to the strict minimum in both time and space. The parliamentary oversight
established in this connection is essential.
3. Institutional
framework
29. The functioning of the French
institutions is governed by the Constitution of 4 October 1958,
which is largely based on the principles of the accountability of
the government to the parliament, and the accountability of the
President of the Republic to the people.
30. The President of the Republic is the Head of State. The President
is elected for five years by direct universal suffrage.
Following
the constitutional referendum of 24 September 2000, the presidential
term of office was reduced from seven to five years (
quinquennat). The aim of the
quinquennat was to have the legislative
election immediately succeed the presidential election, thus providing
similar electoral results and reducing (although not completely
eliminating) the risk of cohabitation.
31. The President of the Republic appoints the Prime Minister
and, upon proposal of the latter, the members of the government.
However,
the President does not have the authority to revoke the Prime Minister
and his government, but can only ask for their resignation given
that, according to the Constitution, the government is not responsible
to the Head of State.
This situation arose repeatedly
under the 5th Republic.
32. As Head of State, the President chairs the Council of Ministers,
promulgates laws and is the Chief of the Army.
He may dissolve the National
Assembly
and, in case of emergency,
exercise special powers vested in him by virtue of Article 16 of
the Constitution.
As Head of Government, the Prime
Minister directs its actions,
ensures implementation
of laws and exercises regulatory power subject to the signature
by the Head of State of ordinances and decrees which have been deliberated
upon in the Council of Ministers. The nature of the relationship
between the President and the Prime Minister, as well as the exact
delimitation of their respective powers, depends on whether or not
the country experiences a period of cohabitation. At times of cohesion
between the presidential and parliamentary majorities, the Prime
Minister in principle implements the essential political guidelines
set out by the President, who, based on the legitimacy conferred
on him by his election by direct universal suffrage, exercises powers
over and above those granted by legislation. In a period of cohabitation,
however, the President is reduced to exercising the only power conferred
on him by the Constitution (an active role solely in the fields
of defence and foreign policy) and the Prime Minister recovers all
his prerogatives pertaining to his policy-setting role.
33. The parliament is bicameral and is made up of the National
Assembly (
Assemblée nationale, Lower House)
and the Senate (
Sénat, Upper
House), which examine and pass laws, monitor the government, and assess
public policies.
Members of the two Houses
are elected through two different electoral systems. The 577 members
of the National Assembly are elected by direct universal suffrage
for a term of five years. The last election was held in June 2012.
The Senate consists of 348 senators. It is elected by indirect universal suffrage
for a term of six years (nine years until 2003), and is renewable
by half every three years.
The last election was held in September
2011 in respect of half of the members of the Senate, and in September
2014 in respect of the other half. The Senate represents the local
and regional authorities.
34. Bills are examined successively by the two assemblies of the
parliament with a view to passing an identical text, in which case
the bill becomes definitive. The procedure which leads to the definitive
adoption of a bill consists in a to-and-fro movement between the
two assemblies (hence the term “shuttle” (“
navette”)
is used to characterise it). Each assembly is called upon to examine,
and possibly to modify, the bill adopted by the other. At each stage
of the procedure, only the articles over which there exists divergence
remain in discussion. The shuttle comes to an end when one of the
two assemblies passes the bill without modification and with all
its articles, as it has been previously passed by the other assembly.
Under Article 45 of the Constitution,
in case of disagreement between the two assemblies, the prime minister,
or the presidents of the two assemblies jointly if it concerns
private member’s bills (
propositions
de loi), can refer the matter to a Joint Committee (
Commission Mixte Paritaire), which
is composed of seven National Assembly members and seven senators.
The Joint Committee tries to reach a consensus, in the eventual
absence of which the final word may be given by the government to
the National Assembly.
This feature highlights
the body’s predominant role in the legislative procedure. However,
a large majority of laws are adopted by agreement between the National Assembly
and the Senate at the end of the “shuttle”. Only a minority of laws
are the subject of the “last word” procedure in the National Assembly.
35. Apart from the standard legislative procedure, Article 49.3
provides for the possibility to legislate by engaging the responsibility
of the government. This constitutional provision stipulates that,
after deliberating with the Council of the Ministers, “[t]he Prime
Minister may engage the responsibility of the government before the
National Assembly on the vote of a finance bill or a bill concerning
the financing of social security. In this case, the bill is considered
adopted unless a motion of no confidence, tabled within twenty-four
hours, is carried ...”. In other words, this extraordinary legislative
procedure overrides a scheduled vote in parliament, passing the
bill as if it were adopted by the chamber in question. French governments
have rarely invoked Article 49.3 of the Constitution.
They have usually chosen to have
recourse to it in cases when bills of primary importance, touching
upon issues considered as a cornerstone of their policies, or issues
bringing about fundamental reforms were brought before the parliament.
Invoking this provision thus bears a symbolic significance, as it
is indicative of the importance the government places on a certain
bill. It can also serve the practical purpose of avoiding a direct
parliamentary vote in cases where the majority is feared to be slim.
During the 2014-15 parliamentary session, the Prime Minister, Manuel
Valls, had recourse to Article 49.3 three times for the adoption
of the Act of 6 August 2015 aimed at improving economic growth,
economic activity and equal economic opportunities (the so-called
“Macron Act”). He had already engaged the government's responsibility for
the adoption of the draft of the “Labour Act” (
“loi travail”) on first reading.
On 5 July 2016, the Prime Minister announced that he was engaging
the government's responsibility before the National Assembly for
the vote, upon a new reading, on the draft Act on work, the modernisation
of social dialogue and improvements to the security of professional
careers, the so-called “El Khomri Act”.
4. Democracy
4.1. Parliamentary
oversight over the executive
36. France is characterised by
a “flexible separation of powers”.
The government is politically
responsible before the parliament and can, in turn, dissolve the
National Assembly. A “rationalised parliamentary regime” (
parlementarisme rationalisé) was
established by the 1958 Constitution, framing the powers of the
parliament in favour of the government.
However, the constitutional reform
of 2008 rebalanced the relationship between the parliament and the
government in favour of the former.
37. The parliamentary control over the executive is provided for
in Article 24 and regulated in detail under Title V (Articles 34
to 51-2) of the Constitution. It is put into operation by: engagement
of the responsibility of the government; information procedures;
and investigation procedures.
38. The government is accountable to the parliament under the
conditions laid down in Article 49 of the Constitution. The government
may itself engage its responsibility before the National Assembly
by asking for a vote of confidence on its programme or by making
a statement of general policy. The confidence of the National Assembly
in the government may also be raised by means of a vote on a censure
motion declared by one tenth and adopted by the absolute majority
of the members of the Assembly. Article 49.3 specifically regulates
the possibility to table a censure motion seeking to object to legislation
being adopted without a vote (see above).
39. The National Assembly and the Senate are provided with the
information needed to enable them to carry out their monitoring
role over government policy through answers to oral and written
questions raised by deputies and senators,
and through information reports
the government periodically submits to the parliamentary assemblies.
A significant aspect of the parliamentary monitoring over the executive
consists in the setting up of standing committees (
commissions permanentes), mandated
to examine bills before being discussed in plenary, and to exercise
control over particular sectors of governmental work.
The National Assembly currently
comprises eight standing committees, the maximum number allowed
by the Constitution,
and the Senate comprises seven.
In particular, these committees assess finance and social security
laws and generally monitor the implementation of legislation.
They have played an increasing role
in the control of the executive following the 2008 constitutional
reform.
The main tools they possess to access
necessary information are hearings and fact-finding missions.
40. The investigative powers of the parliament are mainly exercised
through the function of inquiry committees (
commissions
d’enquête), whose existence and mission are now laid
down in Article 51.2 of the Constitution, following the 2008 constitutional
reform. Each house of the parliament may set up an enquiry committee
mandated to collect information on issues pertaining to the function
of public services and national companies or to sensitive social
issues. This means that two separate inquiry committees may well
be simultaneously set up by the two houses to investigate the same
issue; nevertheless, a period of one year must separate the establishment
of two committees investigating the same facts in the same house.
To respect the separation of powers, no investigation can be conducted
on issues pertaining to cases that are pending before the national
courts.
41. Furthermore, standing committees are entitled to exercise
investigative powers within the context of specific missions, the
duration of which may not exceed six months. This possibility allows
standing committees to enjoy the prerogatives of a parliamentary
body vested with investigative powers without the heavy constraints
inherent to the function of inquiry committees.
Finally, the Finance Committee and
the Social Affairs Committee enjoy broad powers of investigation
on performing control functions over budgetary issues and the financing
of social security respectively.
42. Parliamentary control over the executive in France has not
always been adequate and effective in conformity with the requirements
of democracy. Until the adoption of the Military Programming Act, promulgated
on 18 December 2013, the Parliamentary Delegation on Intelligence
(
Délégation parlementaire au renseignement,
DPR), set up to facilitate parliamentary access to information on
the activity of the intelligence services, was not mandated to exercise
oversight over these services, its mission having been to “follow
the overall activity and the means of specialised services”. In
December 2013, the entry into force of Act No. 2013-1168 of 18 December
2104 on military programming for the years 2014 to 2019 and containing various
provisions on defence and national security
brought about profound changes in
the nature of the DPR, which saw its powers expand considerably
since it is now mandated to exercise “parliamentary scrutiny over
government action on intelligence matters”,
and
to evaluate State policy in this area. The DPR has broad powers
through the use of meetings, hearings, sight of documents (its members
have “defence secrecy” authorisation) and the experience it has
gained through its oversight activities. For example, after the 13 November
2015 attacks it interviewed, together, the Director General of External
Security and the Director General of Internal Security.
According
to the DPR’s sixth annual report, for 2014, the first to be published after
promulgation of the 2013 Act, “France finally has the legal means
to establish a real control over the activity of the government
in the field of intelligence”.
4.2. Elections
43. The Constitution reserves the
right to vote only to French citizens.
Nevertheless,
EU citizens residing in France may vote in local municipal elections
and for the French lists for the European Parliament.
According to research published
in the end of 2014, the majority of the French people are opposed
to the extension of the right to vote in municipal elections to
all foreigners.
44. French nationality can be acquired by birth, marriage or naturalisation.
Ius sanguinis and
ius solis co-exist, although the
latter was recently called into question by members of the opposition.
A child born to French parents acquires the French nationality
ipso jure. A child born in France
to foreign parents acquires French nationality upon coming of age
as long as he/she possesses a birth certificate in France, resides
in France and has lived in France for at least five years since
the age of eleven. France also recognises the double
ius soli. This means that a child
born in France to foreign parents who were also born in France acquires
French nationality upon birth. This is also the case for a child
born in France to unknown or stateless parents or to parents whose
nationality cannot be transmitted.
Marriage to a French citizen has
no automatic effect. Foreigners can acquire French nationality after
four years of marriage to a French citizen as long as they are still
married to each other, the spouse retains his/her French nationality,
and the person in question shows proof of good knowledge of the
French language. Finally, French nationality by naturalisation can
be granted to foreigners who can prove that they have been residing
in France for five consecutive years before lodging the relevant
application, and that they have sufficiently integrated into French
society.
45. The Office for Democratic Institutions and Human Rights of
the Organization for Security and Co-operation in Europe (OSCE/ODIHR)
deployed an Election Assessment Mission for the parliamentary elections of
2012. In their report,
they concluded that “the legal framework
provides a sound basis for the conduct of democratic elections,
although some of its elements are not fully compatible with OSCE
commitments and other international standards”. In particular, the
report notes that “consideration should be given to abolishing proxy
voting and to exploring alternative voting methods for those unable
to vote in their precinct on election day”. An important point was
the introduction of internet voting, which was available for the
first time to French citizens living abroad, in addition to voting
by post and at consulates, although several aspects of the procedure are
not set out in sufficient detail in the legislation.
4.3. Local
democracy
46. The rapporteur notes that significant
progress has been achieved over the years with regard to the decentralisation
process in France. In addition, France has made efforts with regard
to co-operation between local and regional authorities (especially
transfrontier co-operation), and those authorities have been granted more
financial autonomy, even though there continues to be an imbalance
between them. The rapporteur nonetheless sets out below some of
his concerns about the recent territorial reform process.
47. France is a unitary State organised on a decentralised basis.
Nevertheless, local government in France has a long history of centralisation.
Until the establishment of regions (régions),
France used to be a highly centralised country, with two tiers of
local government: the departments (départements)
and the municipalities (communes).
The decentralisation process was initiated by virtue of the Deferre
Acts of 1982 and 1983, which marked the State’s desire to alter
the balance of power between the State and local authorities. The decentralisation
laws abolished the State’s supervisory powers over the local authorities’
activities. The regions were turned into territorial authorities
run by directly elected assemblies. Decentralisation was further developed
by virtue of the 2003 constitutional reform by which the status
of the regions was constitutionally recognised and local authorities
became financially autonomous.
48. Until the end of 2015, there were three sub-levels of local
governance in France: the regions (régions), the
departments (départements)
and the municipalities (communes).
These entities had no legislative powers. There were 27 French regions,
including the Island of Corsica; 22 of them were located in metropolitan
France, whereas the other five constituted the “French overseas
departments and territories” (départements
et territoires d'outre-mer, colloquially referred to
as the “DOM-TOM”). There were
also 101 departments and 36 744 municipalities in France. The principle
of freedom of administration by local authorities, explicitly enshrined
in the Constitution, was completed by the principle of financial
autonomy of the local, intermediate and regional authorities, which
had general competence for the exercise of their functions. As a
result, shared competences were the rule. There was no hierarchy
between regional, intermediate and local government.
49. Over the years, in view of the new challenges with regard
to transparency, layering and democracy, successive governments
initiated territorial reforms and decentralisation processes, aimed
at rationalising the system. Despite the existing consensus amongst
all the stakeholders that the system was inefficient and costly, no
agreement could be reached on how the multilayered French local
and regional governance should be changed.
50. A major reform of local authorities was initiated by President
Hollande, which fundamentally transformed the territorial architecture
in France. A first phase of the reform was launched in January 2014
with a law on modernising territorial public action and on the strengthening
of metropolitan cities. A law “on new regional boundaries, regional
and departmental elections and modifying the electoral calendar”
was subsequently adopted in January 2015, which,
inter alia, reduced the number of
regions in mainland France from 22 to 13. The number of municipalities
in France decreased on 1 January 2016 in application of Act No.
2015-292 of 16 March 2015 on improving the system of “new municipalities”
for strong and vibrant local authorities. On 1 January 2016, 1 090
municipalities merged to form 317 new ones. France, therefore, now
has 35 885 municipalities.
51. The issue of the regional boundaries was very controversial
and was further aggravated by the government’s decision to follow
an accelerated procedure, such as that provided for by Article 45
of the Constitution, to steer the law on the “delimitation of the
regions, regional and departmental elections and modifying the electoral
calendar” through the upper and lower houses. A Joint Committee
was convened due to the absence of a common solution between the
two chambers. The National Assembly adopted the text in 17 December
2015 after the Joint Committee had failed to reach agreement.
52. The Act was referred to the Constitutional Council and the
Council of State on the basis of Article 5 of the European Charter
of Local Self-Government (ETS No. 122), especially owing to the
lack of prior consultation of the authorities concerned. Both applications
were rejected.
53. In some regions, the territorial reform met with severe opposition
at the level of citizens and their associations locally, as many
of the merged neighbouring regions have distinct identities and
cultural traditions. The opponents of the reform reproached the
process for lacking true and concrete democracy, asserting that the
government constantly refused to give the population the chance
to express their will, refusing the idea and the organisation of
local referendums or popular consultations.
The opposite examples of Brittany
and Alsace can be mentioned in this context. It was decided that
Brittany would not be reunited with the department of Loire-Atlantique
and its historical capital, Nantes, despite 80% of the Bretons being
clearly in favour of such reunification. On the other hand, more
than 90% of the Alsatians wished to maintain their political and administrative
autonomy and were against the prospect of reuniting with two big
neighbouring regions, which reconfigured the area into a huge and
artificial region.
Following
the adoption of the law on regional boundaries in January 2015,
heated discussions intensified throughout the year due to the hasty
adoption process.
54. On 22 March 2016, the Council of Europe Congress of Local
and Regional Authorities adopted a recommendation on the state of
local and regional democracy in France. It noted the progress made
on the question of the country’s decentralisation process, especially
as regards co-operation between local and regional authorities and
transfrontier co-operation. It also welcomed the greater autonomy
of these authorities as a result of having a growing proportion
of their own resources in their budget.
55. However, in its recommendation, the Congress expressed its
concern in particular regarding the procedures employed for passing
Act No. 2015-29 of 16 January 2015 on regional boundaries, regional
and departmental elections and changes to the election timetable,
in that there was no effective prior consultation of the regions.
It asked the authorities to review the process of consulting the
directly elected representatives of the local and regional authorities
on all decisions concerning them, especially those relating to territorial boundaries.
56. It also recommended that France review its equalisation system
to render it more equitable, transfer responsibility for deciding
local tax rates back to the local level and clarify the sources
of local authorities' financial resources. Lastly, the report calls
on the French authorities to clarify the division of responsibilities between
the different tiers of local government to avoid overlaps and continue
to increase the proportion of their own resources in local authorities'
budgets.
57. On this last point, the French authorities justify the abolition
of the general-competence clause under the Act on the new territorial
organisation of the Republic (“NOTRe” Act) by referring to the need
to clarify the powers and identify the responsibilities of each
tier of local and regional government. According to the authorities,
this clause was not conducive to the effective distribution of public
measures. They mention the appeals lodged, in particular, by the
Association of French Departments and currently pending before the administrative
courts against the French Government’s instructions of 22 December
2015. These instructions concern, on the one hand, the impact of
the abolition, in application of the “NOTRe” Act, of the clause
on the general competence of the départements and
regions in connection with the exercise of the powers of the territorial
authorities and, on the other hand, the new division of powers,
resulting from the application of the “NOTRe” Act, with respect
to the economic activities of the territorial authorities and their
consortia.
58. While acknowledging the progress made in the area of local
democracy in France in the last few years, the rapporteur calls
on the authorities to take all necessary steps to implement the
Congress’s recommendations.
5. Human
rights and fundamental freedoms
59. The European Court of Human
Rights dealt with 1 189 applications concerning France in 2015,
of which 1 156 were declared inadmissible or struck out. It delivered
33 judgments, in 17 of which it found at least one violation of
the European Convention on Human Rights.
5.1. Freedom
of expression, freedom of the media, access to information and protection
of privacy
60. Freedom of expression is a
fundamental right of constitutional value enshrined in Article 11
of the 1789
Declaration
of the Rights of Man and of the Citizen. A necessary foundation of this freedom is freedom of
the press, which is guaranteed by the Act of 29 July 1881 and the
Act of 4 January 2010 on the protection of the secrecy of journalists'
sources.
According
to the French authorities, their country’s legal framework enables effective
action to be taken against the various manifestations of racism
and intolerance while guaranteeing freedom of expression.
61. While it may be considered that the media operate freely and
represent a broad range of political opinions in France, the events
in 2015 had a considerable impact on press freedom. In the last
few years, the relationship between freedom of expression and prohibited
intolerant discourse generates heated debates. The recent terror
attacks and the need to effectively tackle potential new threats
to the safety and security of French citizens have reignited the
debate over the dividing line between freedom of expression and
protection of human rights. In the context of this debate, numerous
voices were raised to criticise the new measures as overly restrictive
of freedom of expression.
62. The legislative framework supports an open press environment
in France. French media are generally free to express a wide variety
of views without restrictions. They are subject to the same anti-defamation
laws that limit freedom of speech,
and restrictions on freedom of information
are in place to protect the reputation or rights of a third party.
In 2005, Albert Grimaldi, reigning
prince of Monaco, brought proceedings against the French magazine
Paris Match and its editor for having
published an interview with a woman who claimed that Prince Albert
was the father of her son. The national courts found that the article
and accompanying photos concerned the sphere of Prince Albert’s
private life and ordered that the publishing company pay compensation for
non-pecuniary damages. In its Grand Chamber judgment in the case
of
Couderc and Hachette Filipacchi Associés
v. France of 10 November 2015,
the European Court of Human Rights
(“the Court”) unanimously held that Article 10 of the European Convention
on Human Rights safeguarding freedom of expression had been violated.
The Court found in particular that the domestic courts had not given
due consideration to the criteria for balancing the right to respect
for private life and the right to freedom of expression as laid
down by its case law, and had failed to take into account that the
essential element of the information contained in the article went
beyond the private sphere, due to the hereditary nature of the Prince’s
functions as the Monegasque Head of State.
63. The tightening of the provisions on combating the dissemination
of messages on the internet in support of and defending terrorism
is based on the Act of 13 November 2014 on scaling up counterterrorism
provisions. The procedure for blocking and taking down websites
is the subject of an action before the administrative courts. The
above-mentioned Act of 13 November 2014 – fleshed out by two implementing
decrees No. 2015-125 of 5 February 2015 – enables the Ministry of
the Interior to request publishers or hosters to withdraw content
that incites or defends the commission of terrorist acts. If this
content is not withdrawn within 24 hours, internet access providers
are compelled by the Ministry of the Interior to prevent access
to these addresses without delay. The blocking measure is carried
out under the supervision of the National Commission for Information
Technology and Freedoms (CNIL), which checks the legality of these
applications and can if necessary recommend to the administrative
authorities that they put an end to a measure or refer the matter to
the administrative courts if the authority fails to comply.
64. Inciting and defending terrorism have been punishable under
French law since the entry into force of the Act of 9 September
1986, which complemented section 24 of the Freedom of the Press
Act of 1881. The Act of 13 November 2014 provides that the offences
of inciting and defending terrorism are aggravated when committed
on the internet. It removes them from the 1881 Act and inserts them
into the Criminal Code, thus opening up the possibility of seizing
content or initiating the procedure for issuing an immediate summons.
65. According to Amnesty International, the new law singles out
these offences by removing their generic character, allowing prosecutions
to be fast-tracked by the authorities and rushed through the courts
for immediate sentencing.
In its 2015-2016 annual report,
it states that 87 websites were
blocked between January and November and that about 700 individuals
were prosecuted for defending terrorism on the basis of the 2014
counterterrorism law. According to Amnesty International, in view
of the very vague definition of this offence, the authorities have
often prosecuted people for statements that did not constitute incitement
to violence and fell within the scope of the legitimate exercise
of freedom of expression. According to human rights organisations,
internet freedom suffered in 2015 and 2016 from the consequences
of the terrorist attacks.
This development raises a number
of questions with regard to the limits to free speech.
66. At the same time, new mass surveillance legislation, adopted
in the wake of the January 2015 attacks, increased the surveillance
powers of the relevant French authorities, attracting criticism
from international human rights bodies, human rights groups, lawyers,
parliamentarians and the international media. For their part, the
French authorities
consider
that this law has, for the first time, defined a genuine public
intelligence policy and has given it a clear legal framework that
protects not only those working for these services but also all
citizens. The authorities argue – and provide detailed explanations
to back up their claim – that Act No. 2015-912 of 24 July 2015 on
intelligence-gathering provides for increased oversight through
the intervention of the National Commission for the Supervision
of Intelligence Techniques, which issues a prior opinion on an intelligence
technique (except in a case of absolute emergency), can refer a
matter to the Council of State (the judicial body with jurisdiction
for intelligence-related litigation) and receive applications from
anyone wishing to verify that no intelligence technique targeting
them is being unlawfully carried out. Although the Constitutional Council
has ruled that the key provisions
of this law comply with the Constitution, it has criticised the provisions
on international surveillance, considering that the legislature
did not make full use of its powers since it referred the enactment
of certain rules governing this technique to the regulatory authorities.
Act No. 2015-1556 of 30 November 2015 is a response to this criticism
by the Constitutional Council, as it sets out a strict legal framework
for international surveillance. The authorities also emphasise the
importance of parliamentary oversight.
67. The adoption of this law generated significant controversy.
In its concluding observations on the fifth periodic report of France
of August 2015,
the
United Nations Human Rights Committee expressed concerns about the
powers granted to the intelligence services for digital surveillance
both within and outside France. It was particularly concerned about
the fact that the law on intelligence gives the intelligence agencies excessively
broad, highly intrusive surveillance powers on the basis of broad
and insufficiently defined objectives, without the prior authorisation
of a judge and without an adequate and independent oversight mechanism.
The committee recommended that measures be taken to guarantee that
any interference in a person’s private life be in conformity with
the principles of legality, proportionality and necessity. It should
also ensure the effectiveness and independence of a monitoring system
for surveillance activities, in particular by making provision for
the judiciary to take part in the authorisation and monitoring of
surveillance measures.
68. The Parliamentary Assembly, in its
Resolution 2045 (2015) on mass surveillance, stated that mass surveillance
practices “endanger fundamental human rights” and called for better
judicial and parliamentary control of intelligence services, and
for the collection and analysis of personal data (including metadata)
without consent to be allowed only following “a court order granted
on the basis of reasonable suspicion of the target being involved
in criminal activities”.
69. On 26 June 2013, a motion for a resolution on “Serious setbacks
in the fields of human rights and the rule of law in France” was
tabled.
In this motion, the authors asserted
that the excess of authority and violence perpetrated by the law-enforcement
agencies during the demonstrations against the passing of the Taubira
law, and in particular the alleged abuse of police custody, as well
as the alleged compulsory teaching of gender theory from the age
of six, violated the European Convention on Human Rights and the
country’s obligations to the Council of Europe in the fields of
human rights and the rule of law. The authors therefore requested
that the Parliamentary Assembly open a monitoring procedure in respect
of France, in line with Article 2.iii of the terms of reference
of the Monitoring Committee. On 3 September 2015, the Monitoring Committee
adopted an opinion in which it concluded that the use of police
custody in general did not violate the strict legal framework that
governs police custody in France, although it expressed its concern
about the abuse of identity checks by the law-enforcement agencies
as a means of crowd control during demonstrations, in clear violation
of the legal provisions governing such checks. Moreover, although
the committee found that there were sufficient indications that,
in the tense context of the “
Manif pour
Tous” demonstrations, a number of police officers acted
in a manner that may have exceeded their authority or was disproportionate
in relation to the situation on the ground, these shortcomings in
police behaviour were not of a structural and systemic nature. It
therefore recommended that a monitoring procedure not be opened
in respect of France, a position that was confirmed by the Bureau
of the Assembly.
5.2. Prison
overcrowding and conditions of detention
70. On 1 January 2016, the total
prison population represented 66 678 persons, which marks an increase of
0.6% since January 2015 (66 270). There is a surplus of 12 964 prisoners
exceeding the capacity of penal institutions (compared to 9 280
in 2010). The occupancy level reaches 115%.
71. France has been condemned by the Council of Europe, non-governmental
organisations and human rights watchdogs for the condition of its
prisons. The European Court of Human Rights has repeatedly found violations
of the European Convention on Human Rights by France for its conditions
of detention; and yet the penitentiary system remains far below
minimum standards imposed by its jurisprudence.
72. In the judgment
Canali v.
France,
the
Court considered that the cumulative effect of the cramped detention
conditions amounted to degrading treatment, leading to a violation
of Article 3 of the Convention. This judgment follows a number of
previous violation judgments against France. This time, the Court
notably focused its decision on the “cramped conditions” that are
very closely linked to the issue of overcrowding.
73. The authorities have informed the rapporteur that conditions
of detention are a priority and have provided information on the
measures taken,
namely
an extension to and the renovation of the building stock, the use of
alternatives to imprisonment and the rehabilitation of convicted
persons. In particular, the intention of the Act of 15 August 2014
on the personalisation of sentences and increasing the effectiveness
of criminal penalties was to avoid imprisonment as far as possible
and promote rehabilitation.
74. In February 2015,
in
the case of
Helhal v.
France, the Court found that, although the severely disabled prisoner’s
continuing detention did not in itself constitute inhuman or degrading
treatment, the non-existent or inadequate treatment and the need
for him to be assisted by a fellow inmate in order to take a shower
had subjected him to a level of suffering exceeding that inherent
in detention, and therefore amounted to a violation of Article 3
of the Convention.
75. The authorities state
that
2% or 3% of cells in the new facilities built from 2005 onwards
are equipped for people with reduced mobility.
76. Numerous cases on conditions of detention have been sent before
the Council of State. For example, in July 2015, the Council of
State
instructed
the prison service to take measures in Nîmes prison with regard
to its security system, hygiene conditions, and the material installation
of inmates for the night in view of the overcrowding. The Council
of State noted that the prisons need to accommodate more inmates
in cells than capacity allows. This had led to difficulties, especially
at night, due to the lack of space, which exposed the inmates to
inhuman or degrading treatment. The Council of State acknowledged
the gravity of the situation. However, the Council of State considered
that the prison administration itself does not have control over committals
to prison – which are under the responsibility of the judiciary
– and therefore limited itself to calling on the penitentiary authorities
to take the necessary measures to improve the situation, pending
a sustainable solution. However, it is not clear how this will resolve
the problem of overcrowding without explicitly requiring the increase
of prison capacity.
77. In the context of the growing threat of radicalisation in
France, prisons clearly appear as a potent breeding ground for the
proliferation of extremist views, in addition to the sophisticated
recruitment techniques on social media platforms. The spread of
extreme Islamist ideologies and radicalisation in French prisons
are a concern for the French Government. The General Inspector of
places of deprivation of liberty (
Contrôleur général
des lieux de privation de liberté) issued an opinion
on
radicalisation of prisons in which she raised questions with regard
to a government initiative aimed at isolating radical Islamist inmates
in order to prevent recruitment among prisoners. She underlined
that overcrowding is an important factor in prison radicalisation.
78. As far as combating violent radicalisation is concerned, the
French authorities have informed the rapporteur
that
five dedicated units have been established under the counterterrorism
plan announced by the Prime Minister on 21 January 2015. These units
are operational at the Fleury-Mérogis, Osny and Annœullin prisons.
According to the authorities, they provide an appropriate regime
for radicalised detainees or inmates on the path to violent radicalisation,
but they have been criticised by civil society,
which disputes their effectiveness
and their justification as a solution to the problem of radicalisation.
79. The Council of Europe's Committee for the Prevention of Torture
and Inhuman or Degrading Treatment or Punishment (CPT) carried out
its twelfth visit to France in November 2015.
During the visit,
the delegation paid particular attention to the conditions of deprivation
of liberty in three remand prisons affected by overcrowding and
to the regime of certain categories of convicted prisoners in different
establishments, including in a unit holding “radicalised” prisoners.
In addition, the delegation carried out a detailed analysis of the
situation of involuntary patients in psychiatric establishments.
Twelve establishments of the police and gendarmerie were also visited,
notably with a view to examining the material conditions provided
there for persons deprived of their liberty. The CPT’s conclusions
have not yet been made public.
80. The rapporteur wishes to voice serious concerns regarding
the scourge of prison overcrowding, which is not getting any better
in France. The authorities need to take action to remedy this situation
and must do everything possible to improve conditions of detention.
It is essential that all steps be taken to implement the CPT’s recommendations
without delay.
5.3. Intolerance
and racism, discrimination and hate speech
81. France is particularly attached
to the principle of equality, “which holds a central place in its
legal order”.
In its most recent report,
in 2015,
the European Commission against
Racism and Intolerance (ECRI) considered that France had dealt resolutely
with the issue of combating racism and intolerance and welcomed
a number of measures taken by the country in the last few years.
The authorities have an elaborate legal and institutional framework
in their arsenal to combat racism and discrimination. This framework
is deemed to be “solid”. Reports published in recent years by international
bodies and institutions
reveal the serious and systemic
nature of discrimination and intolerance in France, which is further
exacerbated by the adverse economic conditions of recent years,
the significant migratory influxes and the recent terror attacks.
82. France has a legal framework that protects equal rights and
imposes penalties for demonstrations of racism and intolerance.
The Pleven
and Gayssot
Acts lay down the
general legal framework for combating intolerance and hate speech
in France, which is complemented by the following list of laws that
apply to hate speech and hate crime: Act of 3 February 2003 aimed
at increasing the sanctions for offences that have a racist, anti-Semite
or xenophobic dimension (
Loi 2003-88
du 3 février 2003 visant à aggraver les peines punissant les infractions
à caractèreraciste, antisémite
ou xénophobe),
Act of 9 March 2004 aiming at adapting
justice to the evolution of criminality (
Loi
2004-204 du 9 Mars 2004 portant adaptation de la justice aux évolutions de la criminalité),
Act of 21 June 2004 on confidence
in the digital economy (
Loi 2004-575 du
21 juin 2004 pour la confiance dans l’économie numérique),
the Criminal Code, the Code of Criminal Procedure
and the Sports Code. French law also provides for civil
and administrative liability
in this area. Measures of an administrative nature were recently
used “to dissolve a number of small extreme right-wing groups, to
prevent performances of shows deemed to have anti-Semitic content
and to prohibit demonstrations which the authorities believed might
well give rise to anti-Semitic language and acts”.
France
has not acceded to Protocol No. 12 to the European Convention on
Human Rights on the general prohibition of discrimination (ETS No.
177), despite ECRI’s recommendation of 2010. The rapporteur reiterates
the importance for France of ratifying this protocol, which is a
key element in the fight against racism and intolerance.
83. In its report of 8 December 2015, adopted on 1 March 2016,
ECRI congratulates the French authorities
on the progress made in combating racism and intolerance since its
previous report in 2010. It welcomes the new institutional framework
with the merger of the old institutions into a new single institution, the
Defender of Rights. With regard to combating hate crimes, ECRI notes
in particular that offenders have been prosecuted and convicted.
Regular reminders of the existing provisions and how to apply them
effectively have also been given to representatives of the law-enforcement
agencies and the courts concerned. However, despite the progress
achieved, some issues continue to be a cause for concern, in particular
the substantial rise in hate speech and, above all, violence driven
by racism and intolerance. This situation is all the more worrying
given the high level of underreporting of racist crime, the loopholes
in the criminal provisions covering hate crimes and the commonplace
use of political statements to stigmatise vulnerable groups that
help to trivialise racist and intolerant attitudes within the population.
84. The Muslim and Jewish communities in France – some of the
largest in Europe, with an estimated four to five million Muslims
and around 600 000 Jews – have been the targets of hate speech and
violent acts in recent years. Attacks against Muslims in France
were recorded well before the terror attacks of January and November
2015. According to figures provided by the French authorities
concerning
events leading to the filing of a complaint or police intervention
followed by a police report, 226 Islamophobic acts were recorded
in 2013 compared with 203 in 2012.
85. The terrorist attacks in France led to a significant rise
in anti-Muslim sentiment within the French population. The French
authorities
state
that, after the terrorist attack on the weekly magazine
Charlie Hebdo on 7 January 2015
and the Paris and Saint-Denis attacks of November 2015, the number
of acts recorded in January 2015 alone (178) was higher than all
those recorded throughout 2014 (133). The authorities point out
that the figures declined in the months that followed.
86. The spike in anti-Semite attacks is equally alarming. Numbers
indicate a more than 100% increase in anti-Semitic threats and actions
perpetrated in 2014 (851 offences) compared with 2013 (423 offences), followed
by a fall of 5.1% in 2015 (808 offences), despite a peak noted in
January after the attack at the Hyper Cacher store in Paris.
According
to Commissioner Muižnieks’ recent report on France, “over 7 000
[of France’s Jews left the country] in 2014, whereas in 2012 there
had been only 1 900, and the approximate figure in the late 90s
had been 1 000 per year”.
87. In response to these developments, on 31 December 2014 President
Hollande declared combating racism and anti-Semitism “a major national
cause for 2015”. In this context, a new “Action Plan against Racism and
Anti-Semitism”
2015-2017 and measures to protect
places of worship and sensitive establishments should reinforce
the fight against racism and intolerance.
88. The authorities state that a fall of more than 80% was recorded
in the first quarter of 2016 both for anti-Muslim acts and acts
targeting the Jewish community.
89. Roma populations are regularly victims of hate speech and
hate crimes, while encountering systematic discrimination in terms
of work, housing, schooling and access to health services and help
in seeking employment, according to reports by international organisations
and human rights groups (for more information about the specific
situation of Roma in France, see section 5.5 below). The authorities
have
informed the rapporteur that, if cases of discrimination or exclusion
occur and are proven, penalties are based on the provisions of ordinary
law, which penalises any discrimination between individuals or legal
entities pursuant to Articles 225-1, 225-2 and 432-7 of the Criminal
Code. They refer to several decisions of French courts delivered
recently in cases involving speech stigmatising the Roma community.
90. According to Commissioner Muižnieks,
“the internet and social networks
increasingly seem to be the favoured vehicles for [such] language
of a hateful and discriminatory nature”. In 2013, SOS Homophobia recorded
1 327 homophobic incidents that occurred online, a 162% rise compared
to 2012, whereas in 2014, 40% of all reported incidents occurred
on the internet. At the same time, social media can also be an invaluable ally
in combating discrimination. In 2013, Twitter partnered with SOS
Homophobia to allow internet users to quickly and easily report
homophobic tweets to the organisation. In April 2015, the French
Government announced the launch of a major campaign to counteract
the country’s steep rise in intolerance. In the context of the campaign,
€100 million are expected to be spent on a three-year plan, which
foresees
inter alia the setting
up of a new unit to monitor and fight online hate speech.
91. The French authorities have provided details on the legislation
punishing racist and antireligious speech and incitement to hatred,
and also in respect of the specific nature of the act of publicising
content made available on the internet.
92. In its most recent report, published in 2016, ECRI notes an
increase in hate speech on the internet and social networks, despite
the authorities’ efforts to curb this phenomenon. It is also concerned
about political discourse and “the commonplace use of political
statements to stigmatise vulnerable groups which help to trivialise
racist and intolerant attitudes within the population”. These conclusions
echo the concerns of the Commissioner for Human Rights, who, while
welcoming the fact that the majority of French politicians reject intolerant
rhetoric, points out that some of them engage in hate speech and
thus contribute to its trivialisation.
93. The rapporteur welcomes the progress made by the French authorities
on fighting racism and intolerance. He reiterates the importance
of ratifying Protocol No. 12, which is a key element in that fight.
He expresses serious concerns about the increase in violence motivated
by racism and intolerance and urges the authorities to take the
additional measures recommended by ECRI.
5.4. Issues
related to the protection of national minorities as well as regional
and minority languages
94. France has neither signed nor
ratified the Framework Convention for the Protection of National
Minorities (ETS No. 157). Furthermore, it has signed but not ratified
the European Charter for Regional and Minority Languages.
95. Having been seized by the then President of the Republic,
Jacques Chirac, in 1999 the Constitutional Council considered, one
month after the Charter had been signed by France, that its ratification
would run contrary to the Constitution, stating that “the constitutional
principles of indivisibility of the Republic, of equality before
the law and of the oneness of the French people ... oppose the recognition
of collective rights to any group whatsoever defined by common origin,
culture, language or creed”. The issue of ratification has been delayed
ever since.
96. The debate on the potential ratification of the Charter was
reignited in early 2014 when the issue of ratification of the European
Charter for Regional and Minority Languages was reintroduced for
discussion before the National Assembly, in accordance with President
Hollande’s campaign commitment No. 56 of 2012.
On 22 January 2014, the Assembly
agreed, with 361 votes in favour and 146 against,
a draft constitutional law (“
proposition de loi constitutionnelle”)
envisaging a constitutional amendment which would allow for the
ratification of the Charter.
97. Seized by the government on the draft constitutional law that
was to be presented to the Council of Ministers by Minister of Justice
Christiane Taubira on 31 July 2015, the Council of State rendered
an unfavourable opinion on this text,
reiterating the same constitutional
principles that the Constitutional Council had evoked. It further
relied on the interpretative declaration France had made upon signing
the Charter, according to which, a) “the use of the term ‘groups’
[as regards] speakers [of certain languages] does not confer any
collective rights upon speakers of regional or minority languages”;
and b) the Charter would be “interpreted in a way that would be
consistent with the Preamble to the Constitution, which guarantees
equality for all citizens without distinction of origin, race or
religion”. According to the Council of State, this declaration “contradicts
the purpose of the Charter, which aims ... to give rights to speakers
of regional languages or minority groups, and to allow these speakers
to use their language in the public sphere.” As a result, the Council of
State said, “its potential inclusion in the Constitution would have
two consequences: first, the reference to two hardly compatible
texts, the Charter and the declaration, would introduce an internal
contradiction generating legal uncertainty. Second, it would produce
a contradiction between domestic law and the international legal
order, exposing both to uncertainties in national litigation and
to criticism from the organs of the Council of Europe responsible
for monitoring the application of the Charter”.
98. Despite this unfavourable opinion, the draft constitutional
law was approved by the Council of Ministers. Nevertheless, the
same draft law was rejected on 27 November 2015 by the Senate, which
adopted a motion to oppose deliberation on the draft constitutional
law, thus rendering impossible the convocation of the Congress to
discuss the adoption of the constitutional reform.
99. This development perpetuates the discussion on the ratification
of the Charter by France and renders its future highly uncertain,
despite the fact that, according to ECRI’s 2010 report, “the debate
in France on these questions, and more generally on diversity, is
continuing and intensifying”.
Indeed, according to a recent survey,
more than two thirds of the French people would not oppose the official
recognition of regional and minority languages.
The fact that the National Assembly
was largely in favour of the draft constitutional law that would
have allowed for the ratification of the Charter further corroborates
these findings.
100. ECRI (second,
third
and fourth
reports on France) and the
Commissioner for Human Rights (2015 report
on
France), have repeatedly encouraged the French authorities to sign
and ratify the Framework Convention and to reconsider their position
on the official recognition of ethnic, religious and linguistic
minorities, and thus ratify the Charter and sign and ratify the
Framework Convention. In their response to these recommendations,
the French authorities have steadily invoked the constitutional
principles of equality (“
égalité”)
among French citizens and the oneness (“
indivisibilité”)
of the French Republic, which are “traditionally interpreted as
excluding recognition of the collective rights conferred on a group
on a community basis”.
In this context, it has been argued that
“although France declines to recognise collective rights and to
pursue affirmative action policies based on race, culture and religion”,
it has nevertheless “introduced legislation to ensure genuine equality
for persons residing on French territory”.
101. The French authorities state
that
according to the French way of thinking the affirmation of identity
is the result of a personal choice and not of criteria that define
a particular group from the outset. This is the reason for the refusal
to consider the different components of the French people as forming
one or more minorities. France endeavours to protect the human rights
of all nationals of a State on the basis of equality and non-discrimination
and has accordingly adopted measures and policies that, while promoting
the principle of equal treatment between people irrespective of
their origin, give everyone in practice, whether or not they identify
themselves with one or more groups, the right to enjoy their own
culture, profess and practise their religion or use their own language
in community with the other members of their group.
102. The rapporteur wishes to recall the remark made in the Preamble
to the Framework Convention: “The protection of national minorities
is essential to stability, democratic security and peace in this
continent.” Under no circumstances has respect for minority rights
compromised a State’s unity. Moreover, France’s general anti-discrimination
legislation is not capable of fully protecting members of minority
groups and of addressing all issues that might arise from their
situation. Notwithstanding the promulgation of pertinent legislation,
the principle of equality is not always efficiently safeguarded
in practice, and the existing general legislation does not provide
the legal basis for ensuring protection of minorities’ rights in
all possible scenarios, given that their particular situation and
its non-recognition create legal vacuums that prevent their efficient
protection.
103. France is therefore encouraged to take all necessary measures,
including the possible retraction of the reservations made when
signing the Charter, to accede to the Charter and the Framework
Convention.
5.5. Fighting
discrimination against Roma and travellers
104. In France, the term “traveller”
includes several populations, both of Roma (Manush, Gypsies (
Gitans), Gypsies (
Tsiganes) or Roma from eastern Europe)
and of non-Roma (Yenniches) origin. Their number is estimated at
300 000. Approximately 30% of them are sedentary, 30% are semi-sedentary,
and another 30% are nomads. By and large they have French nationality.
The number of Roma migrants is estimated
at about 15 000. Most of the migrant Roma living in France emigrated
from Romania, Bulgaria and, to a lesser extent, certain states of
the western Balkans in the 1990s.
Although present for many years
on French territory, they still encounter great difficulties in
integrating into French society, despite the lifting, as from 1
January 2014, of the remaining restrictions on the free movement
of workers imposed on Romania and Bulgaria – the two countries from
which the majority of Roma populations originate – upon their accession
to the European Union.
105. The French authorities
have
provided a detailed description of the measures taken since the
early 1990s to give travellers better access to their rights: the
Act of 31 May 1990 obliges local authorities with more than 5 000
inhabitants to set aside land for campsites; the Act of 5 July 2000
strengthens these provisions by promoting the establishment of permanent
halting sites; and the Circular of 28 August 2010 of the Minister
for Ecology, Energy, Sustainable Development and Sea concerns the
revision of the departmental schemes for accommodating travellers
(
schémas départementaux d’accueil des
gens du voyage). The cost of grants for the management
of halting sites for travellers is shared equally between the State
budget and the budget of the National Family Insurance Fund (
Caisse nationale des allocations familiales).
The authorities have informed the rapporteur that a private member’s
bill is currently passing through parliament to reform the Act of
5 July 2000. Its aim is to strengthen the mechanisms for establishing
halting sites and make the procedures more flexible, while respecting
people’s rights, in the event of the unlawful occupation of land
in the territory of a local authority that has complied with its
obligations or is not subject to an obligation.
106. Worryingly, anti-Gypsyism seems to be well-entrenched into
French society. According to recent research conducted by the Pew
Research Centre, 66% of French interviewees said that they had a
negative opinion of Roma.
Commissioner Muižnieks considered
this phenomenon not to be “unrelated to statements by political
leaders stigmatising migrant Roma”,
including anti-Roma language used during
election campaigns. Bias in the media, which often ignores or fails
to report cases of successful integration, also contributes to this
effect. Migrant Roma are not only targeted and stigmatised by hate
speech: in recent years, several cases of harassment and violence
perpetrated against Roma migrants both by individuals and the police
have been reported by the media and civil society organisations.
107. The French authorities point out
that
the President of the Republic made the fight against racism and antisemitism
a “major national cause” in 2015 and that a new interministerial
plan has been adopted for the period 2015-2017. They refer to the
arsenal of legal instruments providing for the punishment of any
racist or antisemitic act and any act or remarks denying the Holocaust,
as well as stiffer penalties for certain racially motivated offences.
They also provide examples of recent convictions of French politicians
for speeches stigmatising the Roma community. Regular letters and
circulars on combating discrimination, including against the Roma
population, and calling for a firm response to racist, antisemitic
and xenophobic acts have been sent to public prosecutor’s offices.
108. Lack of access to adequate housing is another problem facing
the Roma population in France. Roma families often live in slums
or informal settlements, without access to water and electricity,
and in appalling conditions of hygiene. In its 2010 report, ECRI
deplored their installation in rudimentary camps “with sometimes disastrous
consequences for their health”.
The risk of eviction from these, usually
unlawful, shanty towns is added to the material difficulties Roma
families are confronted with. According to a report by the Human
Rights League and the European Roma Rights Centre, in 2014, 13 483
Roma were evicted from 138 different places;
in other words, four out of five
slum dwellers in France were evicted in 2014,
without having been offered alternative
lawful housing solutions. International monitoring bodies and human
rights groups have repeatedly called on the French authorities to
remedy the highly precarious conditions in which the majority of migrant
Roma live. Importantly, in 2012, the European Committee of Social
Rights, in its decision on the case of
Médecins
du Monde–International v. France, found that France had violated the
European Social Charter in respect of Roma migrants’ right to adequate
housing. The committee noted in particular that concrete governmental
action in this area was “too limited in nature to alter the unworthy
living conditions of a large number of the Roma”.
Therefore,
it concluded that migrant Roma had been subjected to discriminatory treatment.
The committee also found a violation of the Charter in respect of
the eviction procedure of Roma migrants from the sites where they
were installed.
109. The French authorities have provided detailed information
on the long-term work carried out by the State to address the precarious
living conditions of Roma populations, especially the support given
for access to accommodation, the policy of support for specific
measures aimed at clearing illegal camps, and the assistance programmes
provided by the large urban centres. In addition, France is endeavouring
to develop partnerships with the countries of origin of these groups.
As far as the clearance of illegal camps is concerned, the authorities point
out that these measures are carried out, on a case-by-case basis,
within a legal framework involving decisions by judicial or administrative
authorities under the supervision of the administrative courts.
When the relevant conditions are met, long-term solutions are found
to permit in-depth integration. On the other hand, the solutions
may be more short term in areas that have limited resources or in
cases of emergency and imminent danger. Basing their remarks on
figures provided by the Human Rights League, the authorities point out
that these efforts have enabled the number of clearances to be reduced
in the last three years (11 500 persons removed in 2015 compared
with 20 000 in 2013).
110. In a letter dated 20 January 2016,
the Commissioner for Human Rights
expressed his concern about the continuing high number of forced
clearances in 2015. Out of 111 forced clearances of 11 128 migrant Roma,
only 29 had led to rehousing proposals. In its report published
in March 2016, ECRI welcomed the adoption of the 2012 interministerial
circular aimed at ensuring that clearances of illegal camps are accompanied
by measures to provide social assistance and recommended that the
French authorities ensure that the arrangements for assessing people
and for identifying and taking measures to provide social assistance,
including in particular rehousing individuals and monitoring children’s
schooling, are effectively applied nationwide before any illegal
camps are cleared.
111. Obstacles encountered by Roma families in terms of housing
and living conditions renders schooling of migrant Roma children
problematic. The situation is exacerbated by the refusal of a number
of municipalities to enrol them in schools. In its most recent report,
ECRI recommended to the French authorities that they take immediate
and proactive measures to ensure that no legitimate “residence”
application submitted by persons belonging to vulnerable groups
such as Roma is turned down and that the periods for processing
these applications are reduced to the absolute minimum. In its decision
in the case of
Médecins du Monde–International
v. France, the European Committee of Social Rights underlined
that the French authorities had failed to adopt special measures
“which should be taken for the benefit of members of a vulnerable
group, in order to ensure equal access to education for Roma children
of Romanian and Bulgarian origin”.
It
therefore concluded, logically, that “the French education system
is not sufficiently accessible to these children”, thus finding
a violation of the Charter in this respect.
112. The French authorities
have
provided details on measures taken, in particular the establishment
of a national co-ordinated network of academic centres for the schooling
of newly arrived children with a foreign language as their mother
tongue as well as traveller children and children from itinerant
families. In 2014, 1 255 children attended school as a result of
projects funded by specific grants provided under the multiannual
plan to combat poverty. 1 262 children (out of 1 930 minors involved
in these projects) were enrolled in schools under local integration
schemes.
113. The rapporteur is concerned about the anti-Gypsy climate in
France. Noting the measures taken by the authorities to improve
the living conditions of the Roma population, he invites the authorities
to redouble their efforts to guarantee their access to rights, in
particular when it comes to access to housing and schooling.
5.6. Migrants
and asylum seekers
114. According to data provided
by the United Nations High Commissioner for Refugees, France receives
the second biggest number of asylum requests among European Union
member States. As the Asylum Information Database’s report shows,
between January and September 2015 France received 50 840 asylum
applications, 41 595 of which were rejected (rejection rate: 74.1%).
11 945 asylum seekers were granted refugee status (recognition rate:
21.2%), while 2 640 of them were granted subsidiary protection (subsidiary
protection rate: 4.7%).
115. While recognising the adverse conditions set by the unprecedented
migratory movements of recent years, and the efforts made by the
French authorities to keep the financial and social balances on
the one hand, and to safeguard the rights of the people on the move
on the other, until recently the French asylum system presented
serious deficiencies, which had long been criticised. In his latest
report on France, Commissioner Muižnieks highlighted the chronic
inadequacies in the reception of asylum seekers, which force many
of them to live in extremely vulnerable and degrading conditions.
The Commissioner urged the authorities to find lasting solutions
as a matter of urgency in order to ensure that everyone has effective
access to reception centres and social protection. He underlined
the need to improve the effectiveness of remedies in the asylum
and immigration field, by expediting the introduction of suspensive
appeals against all decisions taken in these matters.
116. Another source of concern was the reception and care of unaccompanied
migrant minors. There are between 7 000 and 12 000 such children
living in France, many of whom are left without any social or educational
support or medical care, while some are even homeless. Their age
is often determined following questionable procedures, especially
when these involve bone age tests. The Commissioner called on the French
authorities to put an end to these practices. With regard to the
detention of minors in reception centres, it is important that the
jurisprudence of the European Court of Human Rights in the area
of the administrative detention of children is fully respected.
In the case
Popov
v. France that is still pending execution before the Committee
of Ministers,
the
Court found a violation of Articles 3, 5.1 and 5.4 of the European
Convention on Human Rights with regard to the children, as well
as Article 8 of the Convention. The Court considered that the child’s
best interests called not only for families to be kept together
but also for the authorities to do everything in their power to
limit the detention of families with young children and effectively
protect their right to respect for family life.
117. Act No. 2015-925
, adopted on 29 July 2015 and entered
into force on 2 November 2015, brings about a substantial and ambitious
reform of the French asylum system, mainly seeking to take into
account the recast Asylum Procedures Directive and Reception Conditions
Directive. The French authorities have provided a detailed description
of the asylum reform.
The
reform aspires to address the deficiencies of the previous legal
regime governing the granting of international protection along
two axes: strengthening guarantees for asylum seekers; and ruling
quickly on asylum requests.
The new law has introduced the “single
desk” (
guichet unique) where
the Prefecture and the French Office on Immigration and Integration
(OFII) both have offices, its aim being to register the asylum claim,
and to conduct, on the same day and in the same location, a vulnerability
assessment that allows tailored material reception conditions to
be proposed. The assessment of vulnerabilities and their consideration
throughout the asylum procedure is a completely new element that has
been brought in by the asylum reform. A claim can be channelled
under accelerated procedures on 10 different grounds, among which
three are applicable to unaccompanied minors. Appeals before the
National Court on the Right to Asylum (CNDA) under the accelerated
procedure now also have a suspensive effect. The CNDA must give
a decision on the case within five months under regular procedures
and within five weeks under accelerated procedures.
The authorities point
out that measures have been taken to improve the housing and care
of asylum seekers.
119. The rapporteur reiterates that the child’s best interests
call not only for families to be kept together but also for the
authorities to do everything in their power to limit the detention
of families with young children and effectively protect their right
to respect for family life.
120. France, like the United Kingdom, faces a specific problem
resulting from the situation of irregular migrants and asylum seekers
residing in temporary camps in the Calais area, who regularly attempt
to cross the Channel from France to England. In 1999, the controversial
Sangatte refugee camp was opened in Calais, attracting thousands
of would-be asylum seekers. Its closure in 2001 and 2002 on the
orders of France's then Minister of the Interior, Nicolas Sarkozy,
led to riots.
Migrants’ efforts to cross the Channel
continue unabated, causing delays and disruption to train services.
According to the United Kingdom Home Office, the UK Border Force
and the French authorities together prevented more than 39 000 attempts
to cross the Channel illegally in 2014/15 – more than double the
number prevented the previous year. Eurotunnel, which operates the
Channel Tunnel, reported in October 2015 that it had blocked 37 000
attempts since the beginning of the year
, while 13 people have died trying
to reach the United Kingdom since late June 2015. According to a
count carried out by government services in October 2016, the number
of persons present in the “Jungle” (the nickname given to the area
because of the deplorable living conditions of migrants and asylum
seekers) was 5 684, a reduction compared with the number in August
(6 901 migrants).
121. International monitoring bodies and non-governmental organisations
have said they are highly concerned at the dire living and reception
conditions in the makeshift sites around Calais. In August 2015,
the Office of the United Nations High Commissioner for Refugees
(UNHCR) encouraged the French authorities to gradually relocate
people from the current informal settlements and provide them with
adequate reception conditions in the Nord-Pas-de-Calais region.
Commissioner Muižnieks considered
that the situation cannot be resolved by security measures alone.
He therefore invited the authorities to offer long-term reception facilities
to the migrants who are in Calais and its region and to protect
them from violent acts by the extremist groups who are active in
that area.
122. The operation to dismantle the “Jungle” began on 24 October
2016. At the time of writing, the first busloads of migrants were
on their way to centres located throughout France.
5.7. Trafficking
in human beings
123. France ratified the Council
of Europe Convention on Action against Trafficking in Human Beings
(CETS No. 197) on 9 January 2008. Following its visit to France
in March 2012, the Group of Experts on Action against Trafficking
in Human Beings (GRETA) published its evaluation report
and the government’s comments in January
2013.
Inter alia, the experts
urged the French authorities to launch, as a matter of priority,
a national action plan against trafficking in human beings, and
to set up a data-collecting statistical system on trafficking victims,
which would give the authorities an overview of the national situation
with regard to trafficking. They also called on the authorities
to clarify the process of detection and identification of victims
through a national referral framework, and to take all the steps
needed for the effective implementation of assistance support measures,
irrespective of the victims’ nationality. Following a fact-finding
mission on prostitution organised by the National Assembly in 2011,
which concluded that the vast majority of prostitutes on French
territory were supplied by trafficking networks,
GRETA urged the authorities “to
step up their efforts to discourage the demand for services provided
by persons subjected to trafficking”. Furthermore, GRETA observed
that the definition of the offence of “trafficking in human beings”
as incorporated in the French Criminal Code was lacking several
important elements, which created obstacles to the characterisation
of certain acts as trafficking and the recognition of trafficking
in human beings cases as such, thus negatively impacting the rights
of its victims, the severity of punishment of traffickers, and the
number of sentences imposed. Nevertheless, the experts noted that
the French authorities were at the time revising the offence of
trafficking in connection with the transposition of Directive 2011/36/EU
of the European Parliament and of the Council of 5 April 2011 on preventing
and combating trafficking in human beings.
124. In February 2013, the Committee of the Parties to the convention
recommended
that the French authorities implement
the proposals made by GRETA in its report, and that they inform
the committee of the measures taken to comply with this recommendation.
In its reply
of February 2015, the French Government
inter alia informed the Committee
of the Parties that, through Act No. 2013-711 of 5 August 2013,
France had transposed Directive
2011/36. This law extended the forms of exploitation covered in
Article 225-4-1 of the French Criminal Code to include enslavement,
subjecting a person to forced labour or services, servitude and removal
of organs. It also introduced new alternative constituent elements
to the definition of the crime of trafficking to include the notions
of coercion, abuse of position of vulnerability and abuse of authority,
in conformity with Article 4 of the Council of Europe Convention
on Action against Trafficking in Human Beings.
125. The authorities
mention
that the French government presented a national action plan on 14
May 2014 to combat all forms of human exploitation, laying the foundations
of a public policy against all kinds of human trafficking. The plan
is based on a three-pronged strategy: identifying and assisting
victims of trafficking, pursuing and dismantling trafficking networks,
and making the combating of trafficking a fully-fledged public policy.
One of the priorities is the protection of minor victims of human
trafficking. An agreement on the introduction of experimental arrangements
to protect these minors has been drawn up and is in the process
of being signed by the various parties (Paris City Hall, the Paris
Chief of Police, the Public Prosecutor’s Office, the President of
the Paris Regional Court, the Director of the Youth Judicial Protection
Service, the Paris Bar Association and the
Hors
la Rue association). In addition, the Interministerial
Mission for the Protection of Women against Violence and the Fight
against Human Trafficking (MIPROF) is working in association with
the Ministry of Justice on a project to set up a European platform
with the aim of improving information-sharing between the relevant
services involved in each member State in order to make it easier
to identify minor victims at European level.
126. The rapporteur takes due note of these important measures
taken by the authorities, which will be assessed in connection with
the next GRETA report.
6. Rule
of law
6.1. Fight
against corruption
127. France has been a member of
the Group of States against Corruption (GRECO) since 1999, having
also ratified the Civil Law Convention on Corruption (ETS No. 174)
as well as the Criminal Law Convention on Corruption (ETS No. 173)
and the Additional Protocol (ETS No. 191) thereto in April 2008.
It was among the first States to sign the 2000 Convention of the
Organisation for Economic Co-operation and Development (OECD) on
Combating Bribery of Foreign Public Officials in International Business
Transactions (OECD Anti-Bribery Convention) and the 2004 United
Nations Convention against Corruption (UNCAC). It actively contributed
to the establishment of the G20 Anti-Corruption Working Group in
2010.
128. France receives a score well above average in the fight against
corruption, which is nevertheless deemed to be below its potential
if account is taken of the performance
of other European countries. In the 2014 report by Transparency
International, which evaluates the performance of 175 States in
the field of corruption, France went up three places since the previous
year and obtained a score of 70 out of 100, ranking it 23rd in the
world, quite distant from the countries making the podium (Denmark,
Finland and Sweden), but also from neighbouring Germany (10th) and
Belgium (15th).
The crackdown
on corruption seems to have lost ground in France, given that the
country was ranking 18th in 2004.
This
development comes about as a result of several corruption scandals
that have made the news in recent years, involving important French companies
or high-ranking politicians. In the wake of these scandals, the
French authorities have taken several initiatives aimed at making
the country’s institutions more transparent. Positive developments
include promulgation or amendment of legislation that prohibits
accumulation of mandates, regulates the publication of declarations
of interests and assets of ministers and elected officials, and
offers better protection for whistle-blowers.
129. The French authorities have been reproached for their slow
reaction when it comes to convicting companies for corruption abroad.
In its phase 3 report on implementing the OECD Anti-Bribery Convention
in France, published in 2012, the OECD Working Group on Bribery
in International Transactions was “seriously concerned that, despite
the very significant role of French companies in the international
economy, only 33 foreign bribery proceedings [had] been initiated
and five convictions – of which only one, not yet final, concern[ed]
a legal entity– [had] been handed down since France became a party
to the convention in 2000”. The Working Group was particularly concerned
by the “lacklustre response of the French authorities in relation to
companies sanctioned by other Parties to the Convention”,
and recommended that France review
its overall approach towards enforcement in order to effectively
combat international bribery of foreign public officials. In its
2014 follow-up to the phase 3 report and recommendations, the Working
Group concluded that enforcement of the foreign bribery offence
continued to fall “far short”
of its
recommendations, given that no legislative action had been taken
to ensure conviction of companies for corruption abroad.
130. Similarly, the French authorities have been reproached for
their slow reaction in the framework of the implementation of GRECO
recommendations in the framework of the third evaluation round with
regard to criminalisation of corruption and transparency of party
funding. In its evaluation report of 2009,
GRECO had deplored that France had
severely restricted its jurisdiction and its ability to prosecute
cases with an international dimension which, given the country's
importance in the international economy and the scale of many of
its companies, was regrettable. It had also highlighted a number
of shortcomings with regard to party financing.
131. More than six years after the adoption of the GRECO evaluation
report, France has achieved mixed results. GRECO concluded in its
third interim compliance report published in February 2016 that
the current level of implementation of the recommendations is no
longer “globally unsatisfactory”. While noting some progress in
a number of areas, as a result of legislation being drafted, GRECO
regretted the lack of any progress in other areas, including in
areas which would enable France to extend its ability to prosecute corruption-related
offences committed in a transnational context. It also deplored
the absence of any other relevant new plans for legislation or any
other measures on the outstanding recommendations.
132. With regard to transparency of political funding, GRECO noted
modest progress in respect of the possibility to introduce the disclosure
of donors above a certain amount of donations. GRECO regretted the lack
of progress concerning the other reforms recommended. GRECO welcomed
the extensive consultations held recently at the National Assembly
on the assessment of the adequacy of laws and regulations governing the
financing of election campaigns and political parties and encouraged
the French authorities to redouble their efforts in this regard.
133. France has drawn criticism for its reportedly inadequate answers
to the problem of domestic corruption. In its first 2014 report
on the fight against corruption within European Union member States,
the European Commission was surprised at the paucity of convictions
for corruption in France, despite the abundance of relevant cases.
According to the report, the crime of favouritism, a breach of regulations
on public procurement, resulted in no jail sentences between 2007
and 2010, having only given rise to very modest fines. Furthermore, according
to the Commission, potential conflicts of interest resulting in
illicit enrichment were not sanctioned by the courts, taking into
account that, since 1988, only 12 relevant cases were forwarded
to the prosecutor, which were all dismissed.
134. In this context, the 2013 Act on transparency in public life
(
Loi n° 2013-907 du 11 octobre 2013 relative à
la transparence de la vie publique)
has been welcomed as a promising
development. In its evaluation report on France prepared in the
context of the fourth evaluation round dedicated to corruption prevention
in respect of members of parliament, judges and prosecutors,
published in January 2014, GRECO
concluded that the reforms implemented by the 2013 law represented
positive developments concerning the management of conflicts of
interest and the system for the declaration of assets and interests
of MPs, among other categories of public officials. GRECO acknowledged
that, little by little, France is developing a system for preventing
and managing conflicts of interest, including for members of parliament.
In its Compliance Report published on 3 June 2016,
it welcomed
the system for managing conflicts of interest put in place for the National
Assembly and the Senate, even though it expects further progress
to be made. As far as the National Assembly is concerned, GRECO
welcomed the incentive system, consisting in particular of Article
5 of the Code of Ethics. It also noted with interest the draft of
a new article, which will cover both reporting and withdrawal in
the event of a conflict of interest. As regards the Senate, GRECO
took note of the new definition of conflict of interest and the
embryonic good practice guide appended to the General Instruction
of the Bureau.
135. As regards incompatibilities, the 2014 GRECO report observed
that some elected representatives hold between 20 and 30 positions
of responsibility by combining local and national mandates. The
rapporteur recalls that in the meantime a new law was adopted in
2014 that prohibits cumulating local executive functions with a national
parliamentary mandate (deputy or senator) or a mandate at the European
Parliament, starting from 2017. The GRECO also noted that, despite
the legislature’s desire to prevent the plurality of contrasting
types of functions in accordance with the separation of powers principle,
the phenomenon of proliferation of “extra-parliamentary bodies”
has recently emerged, in the context of which seats are reserved
on an
ex officio, statutory
basis, for parliamentarians as appointed by their assemblies or
assembly presidents. The GRECO said that greater attention should
be paid to this phenomenon in France and called for the initiation
of wide-ranging consultations on this subject. Nevertheless, GRECO
welcomed the fact that the October 2013 reform prohibited plural
remunerations by banning parliamentarians from receiving, in addition
to their parliamentary allowances, remunerations or allowances for
functions in an extra-parliamentary body.
136. As regards declaration of assets, income, liabilities and
financial interests, the 2013 law amended the previous, fairly complex,
system that used to govern such declarations. From February 2014
onwards, parliamentarians have to submit: a declaration of assets
covering 10 separate sections to the Supreme Authority for Transparency
in Public Life (HATVP); and a declaration of interests and professional
(or unpaid) activities which the parliamentarian would like to retain,
to the HATVP and the Speaker of their Assembly. This declaration
must include paid activities currently exercised or exercised during
the previous five years, including functions held on the managing
boards of private or public bodies, consultancy activities, direct investment
in corporate capital, voluntary or unpaid activities, and current
activities exercised by the spouse or partner. Income must also
be notified. The question of the public nature of future declarations
has been extensively discussed, setting persons advocating general
publication (particularly the Senate) against those recommending
partial publication (mostly the Assembly). Since the Assembly was
responsible for the final adoption of the reform, the latter solution
was adopted. Accordingly, declarations of assets remain semi-confidential
and can be consulted
in situ exclusively
by voters from the elected representative’s constituency, whereby
disclosure of the relevant information is subject to a €45 000 fine.
GRECO regretted that the legislature finally opted for such a limited
mechanism, and called for a reform that would ensure broad transparency
including – as a logical consequence – the abolition of sanctions
applicable in case of illicit disclosure.
In
its 2016 Compliance Report, GRECO regretted that no measures had
been taken by the two Houses to give effect to the recommendation.
137. On the issue of resources made available to parliamentarians,
in three areas that seemed problematic in practice, the GRECO recommendations
have been taken into account by the National Assembly and the Senate:
the modalities for the hiring of parliamentary assistants and collaborators
(due to risks of disguised lobbying, of fictitious jobs and the
use of funds for unrelated purposes); the operational expenses allowance (IRFM),
paid to each member of parliament to cover the gross pay of employees
over and above the staffing budget (
crédit
collaborateur) and all the expenses relating to the exercise
of the parliamentary mandate that are not directly paid by the National
Assembly, the amount of which is fixed by the Bureau up to a statutory
limit (currently €5 770 gross per month); and, lastly, what it has
been agreed to call the “parliamentary reserve facility” (
réserve parlementaire), i.e. funds
that are managed by the ministries but the use of which is left
to the discretion of the deputies and senators (who allocate them
in practice to activities or acquisitions within their municipality
or to associations/foundations they support, etc.). In 2014, GRECO
recommended that the conditions relating to the use of parliamentary
assistants and collaborators, the operational expenses allowance
and the parliamentary reserve be thoroughly reformed in order to
ensure the transparency, accountability and supervision of the resources
concerned.
138. In its 2016 Compliance Report, GRECO welcomed the fact that
the French authorities had taken the various elements of the recommendation
into account. As far as the operational expenses allowance is concerned,
GRECO approved the measures taken by the Bureau of each of the Houses.
It reiterated that the recommendation called for more transparency
concerning that allowance. Concerning the operational expenses allowance,
the authorities
pointed
out that the Senate adopted a regulation on 15 April 2015 regulating
its use, that senators return the unused part of the allowance at
the end of their mandate and that the allowance cannot be used to
pay a contribution to a political party or fund an election campaign.
With regard to the parliamentary reserve facility, GRECO noted that
no further measures had been taken by the National Assembly. The
authorities mentioned that as far as the parliamentary action grant
is concerned, grants are made to fund investments undertaken by
local and regional authorities and that the list of attributions
is published by the Senate based on a decision of 15 April 2015.
The measures taken by the Senate are positive in that they regulate
to some extent the use of the parliamentary action grant, but they
do not fully satisfy the requirements of the recommendation. The
criteria for the allocation of subsidies, in particular, remain
fairly vague and do not seem sufficient to limit the risks of bias,
cronyism and conflicts of interest. The distribution of funds within
the political groups remains free and therefore potentially inequitable
between senators and there is currently no provision for auditing
the use of funds. According to the French authorities,
transparency
was reinforced regarding the recruitment of staff (“collaborateurs”,
in French). With regard to staff (“les collaborateurs”),
the explicit
recognition of their role and the legal framework governing their
employment in the regulations of each House was welcomed by GRECO
in its 2016 Compliance Report. The same applies, where the National
Assembly is concerned, to the upper limit set on the remuneration
of some assistants (inner circle or family members) – even though
GRECO takes the general view that it is preferable not to employ
such persons – and the initial thought being given to a fully-fledged
status for the profession. GRECO encourages the National Assembly
to continue and further develop that thinking.
139. France receives a score well above average in the fight against
corruption, which is nevertheless deemed to be below its potential.
The rapporteur welcomes the various recent reforms with regard to
the prevention of corruption in France but notes that there are
still some significant shortcomings. He urges the authorities to
implement GRECO’s recommendations without delay.
6.2. Independence
and efficiency of the judiciary
140. France has an independent judicial
system and the rule of law generally prevails in court proceedings.
The organisation of French justice
present three features: a) a dual system of courts. The administrative
courts and the ordinary courts are separate. Where jurisdiction
is difficult to determine, the
Tribunal
des conflits – which sits in the chambers of the
Conseil d’Etat – considers the case;
b) the principle of two levels of jurisdiction; c) the principle
of separation of the authorities responsible for prosecution (performed
by the prosecution service) and trial (carried out by the judiciary
proper), which is reiterated by the preliminary article of the penal
procedure code. France also uses the institution of investigating
judge.
141. In its fourth evaluation round report,
GRECO
observed that there are very many French courts which vary both
in nature and their
modus operandi and
the rules and conditions applicable to their members. As things
stand, it is therefore difficult to paint an exhaustive and concise
picture of the situation, which would go beyond the inevitably limited
scope of this report. A comprehensive reform of the judiciary is
currently ongoing in France.
We will look into some core aspects
of the judicial function and address issues that have raised concern.
142. The principle of independence is constitutionally guaranteed
(Article 64). It also appears in the amended order of 22 December
1958 on the status of the judiciary. Furthermore, it is reflected
in the principle of secure tenure and the rules on promotion and
discipline. As a result, a judge cannot be the subject of an individual measure
(dismissal, suspension, transfer) except in the cases and under
the conditions prescribed by law (Article 64 of the Constitution,
paragraph 4, and Article 4 of the amended order of 22 December 1958).
This also applies to administrative judges even though the irremovable
nature of their tenure is not specifically cited (Article L 231-3
of the Code of Administrative Justice). Members of the Conseil d’Etat are de facto irremovable by virtue of
an age-old custom albeit not specified by any statute; other judicial
officers also benefit explicitly from security of tenure, such as
State Audit Board members (Article L 120-1 of the Code of Financial
Courts). The principle of independence gives rise to the prohibition
of instructions being issued to judges by anyone whatsoever (in
contrast to the traditional situation of prosecutors, which has
nevertheless undergone amendments recently, as explained below).
143. France has a long-standing and effective tradition in the
area of recruitment and training of the vast majority of categories
of career judicial officers, the relevant schools being often cited
as examples internationally. The Ecole
nationale de la magistrature (ENM) offers initial and
continuous training for judges and prosecutors, which are both compulsory
since 2007.
144. Judicial service members are recruited by competition or on
the basis of qualifications (Article 18-1 of the amended order of
1958). On specifically regulated occasions, they may also fill a
post directly, either permanently or temporarily. Judicial officers
are appointed by decree of the President of the Republic, and belong
to the State civil service, but are subject to a specific statute.
In virtually all cases of appointment, including appointment of
principal State prosecutors since 2008, the Judicial Service Commission
(
Conseil superieur de la magistrature,
CSM)
makes proposals or delivers opinions,
either binding or advisory. Integrity and requisite qualifications
are verified on recruitment. Vetting is conducted prior to recruitment
of judicial officers and of community judges. Administrative judges,
recruited in particular from among graduates of the National College
of Administration, are civil servants by nature and therefore subject
to strict conditions of integrity on entering the civil service.
Members of the
Conseil d’Etat constitute
a separate group from that of the other administrative judges, but
their recruitment is also carried out via the National College of Administration
(ENA) as well as “externally”, thereby enabling personalities with
varied experience to enter the
Conseil
d’Etat.
145. A compendium of the judiciary’s ethical obligations was produced
and published in June 2010. The text lays down a series of basic
rules more specifically embodying,
inter
alia, the principles of independence, impartiality, integrity,
and compliance with the law. Furthermore, the Council of State produced
and published in 2011 an ethics charter for members of the administrative
courts, which deals with the same principles in a detailed way.
In the opinion of GRECO, this effort over the last few years to
adopt and publish rules of professional conduct for the judiciary
deserves to be emphasised. In general, these meet the concerns of GRECO.
146. The rules governing incompatibility are set out in the amended
order of 22 December 1958 and, amongst other things, prohibit: a)
all members of the national legal service from holding another public
office (including membership of various elected bodies) and from
any other professional or remunerated activity other than scientific,
literary or artistic work; b) all members or former members of the
national legal service from working as a lawyer, notary, bailiff,
commercial court registrar, court-appointed administrator or liquidator
in the area of a court where they have practised in the last five
years. None of the regulations examined by GRECO deal with the subject
of gifts and other advantages enjoyed by judicial officers. In some
cases, only the ethical rules recently introduced deal with the
subject. In this respect, GRECO recommends that the criteria for
the awarding of official honorary decorations and distinctions to
judges be reviewed in order to reduce any perceived risks to their
independence and impartiality.
In
its 2016 Compliance Report, GRECO noted the discussions underway
in France on the possibility of amending the statutory order to
make the award of honorary decorations and distinctions subject
to the approval of the CSM.
147. According to GRECO, the justice system has a reputation of
integrity when considered globally. It nevertheless found that there
are risks of the executive interfering in disciplinary proceedings
and the career of judges and, even more, of prosecutors. Disciplinary
proceedings may be initiated by the Minister of Justice, or by the
first president of the court of appeal in the jurisdiction in which
the magistrate in question is assigned. Following the constitutional
amendment of 2008, individuals can bring the matter directly to
the body in charge of disciplinary proceedings (applicable since
January 2011). Despite this possibility for individuals to directly address
a complaint against a judge to the High Council of the Judiciary,
the number of disciplinary procedures did not increase and even
decreased. In its 2014 report, GRECO recommended that disciplinary
authority over judges be concentrated in the hands of the section
of the Judicial Service Commission that has jurisdiction over judges.
In its 2016 Compliance Report, GRECO noted that no measure had been
taken in this connection.
148. The competence for initiating disciplinary procedures against
prosecutors belongs to the executive. Members of the public can
also initiate procedures against prosecutors. The Minister of Justice
is the only authority that can apply sanctions, but shall act upon
a reasoned opinion delivered by the Superior Council of Magistracy.
Disciplinary decisions can be challenged in court (respectively
before the Council of State and the High Court of Cassation and
Justice).
149. Prosecutors and the prosecution service form part of the national
legal service (Article 1 of the Order of 22 December 1958), but
they do not enjoy guarantees of independence and security of tenure.
The possibility for the Minister of Justice to give instructions
to the prosecution service, which derived from Article 30 of the Criminal
Procedure Code, has been the subject of much comment over many years.
Withdrawal of this possibility was advocated for several years,
and was the subject of recommendations by
inter
alia GRECO and the OECD. The lack of independence of
the prosecution service also underlay a decision of the European
Court of Human Rights (
Moulin v. France ). Although this
possibility of giving instructions had not been regularly used,
its very existence compromised the credibility of the prosecution
service and the French justice system. Criticism has also been voiced
about the lack of promptness shown by the prosecution service in
respect of the opening of politically sensitive cases, and about
its lack of interest in demanding that they be referred or in conducting
prosecutions, reportedly a consequence of the hierarchical link
between the prosecution service and the Minister of Justice. While,
in recent years, there have been some convictions in sensitive cases,
that was due to the intervention of “civil parties”, who had referred
the matter to an investigating judge (although GRECO was told that
complaints in which “civil parties” took part were few and far between
in the corruption sphere).
150. It was with satisfaction, therefore, that the international
legal community welcomed Act No. 2013-669 of 25 July 2013 on the
powers of the Minister of Justice and members of the prosecution
service in respect of crime policy and the taking of public action,
by virtue of which the power of the Minister of Justice to issue instructions
was completely withdrawn. Since the enactment of the law of 2013,
the Minister of Justice sends to the Public Prosecutor general circulars
of criminal policy but he cannot give any specific instructions concerning
individual cases.
A separate reform of the CSM in
terms of harmonisation of the appointment method and disciplinary
arrangements for prosecutors with those of judges figured among
the legislative and constitutional amendments intended to strengthen
the role and status of the prosecution service. However, this reform
was deferred after its examination by the Senate.
151. According to GRECO’s fourth evaluation round report, notwithstanding
the aforementioned reform, the prosecution service could still be
suspected of subordination to the executive, as manifested in many
other ways: sensitive cases are monitored by the executive, “confidentiality”
is at times given as the reason for not providing information to
investigators, and pressure is exerted (whether or not deliberately)
by the capacity to appoint prosecutors (even against the wishes
of the CSM) and to sanction them in the event of any failure in their
duties. In its evaluation report, GRECO recommended bringing the
procedure for appointing members of the prosecution service, and
the disciplinary procedure applicable in their case, into line with
the procedure applicable to judges, but noted no development in
this connection in its 2016 Compliance Report. The concentration
of these different powers gives the Minister of Justice an ascendancy
over the prosecution service which is difficult to reconcile with
the autonomy required by the sometimes exclusive or monopolistic task
entrusted to prosecutors by the Code of Criminal Procedure. In order
to avoid suspicions of disguised orders, GRECO calls for a better
regulation of the ability of the Ministry of Justice to solicit
information from prosecutors in real time in sensitive cases. It
also calls for stricter limits to be established on national security confidentiality,
so it cannot be misused in inquiries regarding sensitive cases or
major corruption. In its 2016 Compliance Report, GRECO took note
of the Circular of 31 January 2014 regulating the provision of information
to the Minister of Justice by prosecutors acting on their own initiative.
However, noting that the circular did not explicitly cover requests
for information from the Minister of Justice, it called on the authorities to
clarify this aspect. With regard to the question of referring to
national security confidentiality, GRECO considered that no measures
had been taken to implement the recommendation.
152. The European Court of Human Rights has on several occasions
held that one of the ways of guaranteeing the effectiveness and
credibility of judicial systems is to ensure that a case is dealt
with in a reasonable time (
H. v. France ). In terms of efficiency
of the judiciary, depending on subject matter, the principle of
reasonable length of proceedings is embodied in various texts or
secured by various means. For instance, the preliminary article
of the Penal Procedure Code provides that in respect of persons
prosecuted a final judgment shall be rendered within a reasonable
amount of time. In case of non-compliance with this principle, the
person concerned may lodge a complaint against the State on the
basis of Article L 141-1 of the Code on Judicial Organsation. The
State is required to redress the damage caused by the malfunctioning
of the justice system in the event of gross negligence or a denial
of justice. In 2012, 100 referrals for malfunctioning of the judicial
system were made to the Ministry of Justice.
153. As far as administrative justice is concerned, litigation
in France has increased on average by 6% per year for the last 40
years. In 2014, there was an increase of 12% with regard to the
caseload of administrative tribunals.
A recent report
by A. Lacabarats, President of Chamber
at the Court of Cassation stressed that delays are observed in the
proceedings before labour tribunals (
justice
prud’homale). Thus, an average procedure before a labour
tribunal is concluded within 12 months whereas proceedings before
a first instance tribunal take 5.8 months. Finally, with regard
to criminal justice, the European Court of Human Rights has condemned
France in a number of cases
that
are still pending execution before the Committee of Ministers. These
judgements found a violation of Article 5.3 of the Convention due
to the excessive length of detention on remand: a recurring problem
which has indirectly put into question the efficiency of criminal
justice, due to the overloading of the Paris
Cour
d’Assises.
7. Conclusions
and recommendations
154. France is characterised by
sound institutions with a democratic tradition based on the rule
of law and has an excellent record with regard to fundamental freedoms.
Overall, the operation of France's democratic institutions complies
with the standards of the Council of Europe. France generally meets
its obligations as a Council of Europe member State and has managed
to maintain a high level of human rights protection and respect
for the rule of law despite the troubled context of recent years.
155. France is indeed beset with serious challenges today. The
unprecedented terrorist attacks it has faced in recent months have
led it to declare a state of emergency and it has tightened its
counterterrorism legislation. The rapporteur emphasises the need
to ensure that a fair balance is struck in order, on the one hand,
to defend freedom and security and, on the other hand, to avoid
infringing these same rights when adopting and applying legislative
provisions or other administrative measures. This situation must
remain exceptional, as a state of emergency poses real dangers for
fundamental rights when the measures it entails are used in a discriminatory and
disproportionate way. The rapporteur urges the greatest vigilance
to ensure that the law-enforcement authorities do not abuse their
powers and do not disproportionately restrict individual freedoms.
He reminds the authorities that any administrative decision taken
in this context must always be subject to judicial supervision.
In this connection, parliamentary oversight is more important than
ever. The rapporteur reiterates the importance of ensuring that
the state of emergency is kept to an absolute minimum in terms of
time.
156. While recognising the progress made in France in the area
of local democracy in the last few years, the rapporteur urges the
authorities to take all necessary measures to implement the recommendations
of the Congress of Local and Regional Authorities. In particular,
he invites the authorities to review the process of consulting the
directly elected representatives of the local and regional authorities
on all decisions concerning them.
157. The rapporteur is extremely concerned about prison overcrowding
in France, which shows no sign of abating. The public authorities
need to act to deal with this. They should take all appropriate
measures to improve prison conditions, and it is essential for them
to do their utmost to implement the CPT’s recommendations.
158. The rapporteur welcomes the progress on combating intolerance
and racism made by the French authorities in the last few years.
He reiterates the importance of ratifying Protocol No. 12, which
is a key element in this regard. However, he is concerned about
the significant increase in hate speech and, above all, violence
motivated by racism and intolerance. He urges public figures to
refrain from any political discourse based on statements that stigmatise
vulnerable groups and contribute to trivialising racist and intolerant attitudes,
and he encourages the authorities to adopt a zero-tolerance policy
in this regard and to take the measures recommended by ECRI in this
area.
159. The rapporteur is concerned about the anti-Gypsy climate in
France and invites the authorities to redouble their efforts to
improve the living conditions of Roma people and guarantee their
access to rights.
160. The rapporteur encourages the authorities to take all necessary
measures to permit the ratification of the European Charter for
Regional or Minority Languages and to sign and ratify the Framework
Convention for the Protection of National Minorities.
161. With regard to migrants and asylum seekers, the rapporteur
reiterates that the overriding interests of the child dictate not
only that he/she is not separated from his/her parents but also
that the authorities do their utmost to limit the detention of families
with young children.
162. France ranks above average as far as its efforts to combat
corruption are concerned, even though its results still fall short
of its potential. The rapporteur welcomes the various recent reforms
with regard to the prevention of corruption in France, but notes
that significant shortcomings remain. He urges the authorities to implement
GRECO's recommendations without delay.
163. France has an independent justice system that has a reputation
for integrity when considered globally. Notwithstanding the reforms
carried out so far, the prosecution service could still be suspected
of subordination to the executive, which, in the view of the rapporteur,
is difficult to reconcile with the autonomy required by the sometimes
exclusive or monopolistic task entrusted to prosecutors. The rapporteur
invites the authorities to implement GRECO’s recommendations in
this regard. In addition, the excessive length of detention on remand is
a recurring problem which has indirectly put into question the efficiency
of the criminal justice system and against which measures should
be taken without delay.
164. In addition, the rapporteur reiterates the concerns expressed
in the opinion adopted by the Monitoring Committee on 3 September
2015
regarding the
abuse of identity checks by the law-enforcement agencies as a means
of crowd control during demonstrations, in clear violation of the
legal provisions governing such checks. The rapporteur invites the
authorities to look into this matter without delay.
165. The committee will assess the implementation of these recommendations
in its next cycle of periodical reviews of countries that are not
subject to monitoring sensu stricto or
engaged in a post-monitoring dialogue.