UNDERSTAND THE POLEMIC OF RIGHTS SUPPORTER
Source: Rue 89
Nicolas Sarkozy did not yet show his love of counterforce - the least to say[2]-it is natural that the Bill creating a defender of rights, as provided for in the constitutional July 23, 2008 reform[3], succeed with great scepticism.
It is discussed on Tuesday at the National Assembly, after having voted in first reading by the Senate last June.
"Towards a defender of the rights in the wall" title release[4]as Geneviève Garrigos, President of Amnesty international, France, in Le Monde[5], suspect the Government want to establish "a defender of rights at a discount. "Adopted in the State, the draft organic law […]". "would be a setback for the respect and protection of human rights in France" she writes.
What is it and why these critics?
Why Sarkozy has committed such a reform?
An independent authority powers and unique will be more effective than five institutions working each on their side: this is the rationale for this reform by Nicolas Sarkozy.
Reform therefore creates a mega advocate for victims, the defender of rights.Should both to deal with abuse of administration, police misconduct of children's rights, the fight against discrimination but State prisons. Indeed, it will replace five existing institutions:
the Médiateur de la République;
the National Commission of ethics of security (NSDC);
Advocate for children;
the Halde[6];
the Comptroller General of the places of deprivation of liberty.
The Government, it is thus a measure of common sense: the main objective of these five authorities being same - defend the citizen facing powers - and their tools are also the same, all pooled their resources and establish a clearly identifiable counter-power by citizens.
Behind this argument, the skills of the public defender of rights have yet wildly since the submission of the initial project:
Initially, it was to bring together the Médiateur de la République, NSDC and defender of children;
the Senate has added dump;
When reviewing the reform, the commission of the laws of the National Assembly also added control of prisons, but rights defender recovery this function in 2014, at the end of the mandate of the current controller.
For other balances, are not affected by this reform: for example, the Commission on access to administrative documents.
Why is this reform depicted as dangerous?
The idea to establish a rights advocate stronger than each of five authorities it replaces, and that everyone could understand, is not necessarily a bad idea. Must fulfill two conditions, be independent and have powers. However, everything indicates that the project does not go in that direction here.
► Independence
Defender of rights, independent authority receives obviously "no trial" the text says. But he was appointed by Council of Ministers, so by the President of the Republic.
In Spain, Defensor del Pueblo is elected by Parliament by a majority of three cinquièmes… In France, it is the opposite: the Parliament can only block the appointment, by three-fifths of the votes of the Permanent Commission of each Assemblée… A procedure designed to be unusable (see part 5 below).
► Powers
Rights activist overrides five authorities, together, addressing nearly 100,000 cases per year. An enormous charge shall not treat responsibly unless it is surrounded by assistants who are not only of performers.
Void power is conferred on them, however, no jurisdiction them is delegated. And 'colleges' which are intended to help defender have only a purely advisory role and are far from independent sections found in jurisdictions such as the Conseil d'Etat.
Were the authorities disappearing independent?
Officially, of course, it's "independent administrative authorities"[7]. Appointed by order in Council of Ministers for a generally non-renewable term, figures occupying these positions could criticize companies or institutions do not comply with legislation in their field of jurisdiction. But had no power of injunction.
The National Commission of ethics of security could be entered only by a parliamentarian, just as the Comptroller General of places of deprivation of liberty, which could also be conveying.
The dump, the Ombudsman and the defender of children could be seized directly by citizens. "About 10% of the references were carried out by children alone," explains Claire Brisset, first advocate for children from 2000 to 2006 (the last will be his successor Dominique Versini):
"With the defender of rights, it may be more difficult for them to do so, however, if they are aware of this function…. »
"In a general manner", Claire Brisset felt that its authority and independence were met, even when she criticized the first placement of children in the retention area. Single skirmish with Presidents of general advice on his criticism of child welfare : "They have threatened me cut my budget," says she.
The limit of these institutions equipped with a dual power of criticism and proposal lay in how Executive treated: thus, whereas the Act provides that the President of the Republic receives defender of children on 20 November and that it return a report, Nicolas Sarkozy has never received Dominique Versini.
Jean-Paul Delevoye, Médiateur de la République from 2004 to 2010 and ex-candidat to the position of rights defender (he now chairs the economic and social Council), supports this reform:
"Sometimes sought to blame me, lobbies, large law firms of avocats…". But I was always independent. »
For him, the creation of the "DDD" will be able to strengthen the independence of mediation in France:
"This is not a text which makes the quality of an institution, but how it handles".
How it will happen elsewhere?
By combining independent authorities in elevated to the constitutional structure, the France joins a few Member States of the European Union: the Defensor del pueblo, Spanish, Swedish and Finnish Ombudsmen or the Provedor de justiça Portuguese.
In its 2007 report, the Balladur Committee clearly advocated implementing a defender substitute "for all independent authorities in the field of the protection of civil liberties", as inspired by the "success in Spain the Ombudsman referred to in article 54 of the Constitution."
A special case, since in the Spanish Constitution of 1978, the Ombudsman was created to deal with administration still under the influence of the Franco regime.
Other countries have created similar structures at the legislative level, takingthe form of commissions, such as Greece, the Italy or Canada.
Please note that the Hellenic Republic also has a lawyer of the citizen, elevated to constitutional. "The trend is the entrenchment," explains Jean-Marie Pontier, Professor of public law at the Sorbonne.
Dominique Versini children Defender regrets that French exception relates to the lack of structure "except" for the defence of children:
"Even the Greece who was delegated as an Assistant to out better." It has very specific skills prescribed by law. This is not a lambda collaborator as provided by the French reform. »
Who will be at the head of this new authority?
If it is too early to know who will chair this authority, we talked to Bernard Kouchner[8]and Jack Lang. Françoise de Panafieu informed[9]Nicolas Sarkozy it was interested in the position.
The mode of appointment does not change: Médiateur de la République, the President of the NSDC, defender of children, the President of the dump and the Comptroller General of the places of deprivation of liberty were all appointed by the President of the Republic.
The name of the Defender will be also proposed by the President of the Republic[10]by Council of Ministers. It is appointed by the President for six years.
To ensure the independence of the institution, Defender cannot accumulate its function with elected and/or professional activity. It is behaviour, does "receive instruction from any authority" and enjoys the same regime of jurisdictional immunity as members of Parliament.
This mode of appointment was challenged by the National Advisory Committee of the human rights (CNCDH) in a notice of February 4, 2010[11]. Catherine Teitgen-Colly, Member of the CNCDH explains:
"Compared to existing institutions, the Ombudsman has authority over all the others; This is why it would have taken additional guarantees in its mode of appointment. As "Affiliate", responsible authorities, pile, CNDS…), are appointed by the Prime Minister on a proposal from the Defender himself. Otherwise, if the Defender is under order of the policy - what can happen-, it poses problem. »
Geneviève Garrigos, President of Amnesty International France, said she also the risk of abuses, including admitting that the appointment of the next defender is not a policy choice:
"It does not create an institution for a person but is made so that it works regardless of the person in his head."
François Krug, Nolwenn Le Blevennec, Pascal Riché, Augustin ScalbertFrançois krug, nolwenn blevennec, Pascal Riché, Augustin Scalbertand Zineb Dryef
Photo: the Declaration of the rights of man and the citizen of 1989, paint Jean-Jacques François Le Barbier de 1789.
The defender of rights: an ombudsman in Sham Note on TerraNova.fr[12]
The Government wants to introduce a defender of rights at a discount? on LeMonde.fr[5]
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