50th anniversary of France's ratification of the Convention for the Protection of Human Rights and Fundamental Freedoms

29/05/2024

The Cour de cassation was delighted to host a conference celebrating the 50th anniversary of France's ratification of the European Convention for the Protection of Human Rights and Fundamental Freedoms, introduced by Eric Dupond-Moretti, Minister of Justice. This commemorative event was organised jointly with the supreme court lawyers (Ordre des avocats au Conseil d'Etat et à la Cour de cassation) and the Conseil national des barreaux on 3 May 2024, 50 years after France ratified the European Convention on Human Rights on 3 May 1974.

The conference was opened by Eric Dupond-Moretti, Minister of Justice, Christophe Soulard, First President, Rémy Heitz, Prosecutor-General, Julie Couturier, President of the Conseil National des Barreaux, and Thomas Lyon-Caen, President of the Supreme Court Lawyers. These introductory remarks were followed by two round table discussions moderated by Robert Spano, Honorary President of the European Court of Human Rights and partner at Gibson Dunn, and Jean-Pierre Marguénaud, Professor of Private Law and Criminal Sciences and researcher at the Institute for European Human Rights Law (IDEDH). The conference was closed by Claire Hédon, the French Human Rights Defender, who highlighted the way in which the institution of the Human Rights Defender is "a partner of the courts and legal professions, with which it collaborates in a spirit of dialogue and complementarity".

This event, organised into two round tables - attended by the presidents of chambers and the first advocate general of the criminal chamber of the Cour de cassation, the judge elected on behalf of France to the European Court of Human Rights, the director of legal affairs at the Ministry of Europe and Foreign Affairs and lawyers, including the president of the Supreme court Lawyers- provided an opportunity to discuss the transformation of the legal professions in the era of subsidiarity. These speakers, with their expertise and technical knowledge of the treaty system, highlighted the advances made in human rights thanks to this ratification. This was perfectly underlined by the Minister of Justice in his introductory remarks: "50 years of case law from the European Court of Human Rights have transformed whole areas of our law [...]in retrospect, 50 years of case law shed light on our 21 years of hesitation [...] to ratify the Convention was in effect to make the choice of progress, of democracy, of the rule of law against conservatism on all sides, of confidence in individual rights and freedoms".

Throughout his speech, the Minister of Justice emphasised the beacons that the Convention and case law of the European Court of Human Rights represent for legal professionals ("The Court is more than ever 'a beacon, a watchtower, a warning light and a source of hope', in the words of President Jean-Paul Costa"). The Minister also mentioned the major development represented by the introduction of individual applications to the European Court of Human Rights, a fight championed by Robert Badinter, as well as the deepening of the dialogue between judges, particularly since the entry into force of Protocol No. 16. This conference follows on from the previous event organised at the Court, in partnership with the Conseil national des barreaux, celebrating the 40th anniversary of France's recognition of the right of individual application to the European Court of Human Rights, a colloquium that was closed by the Minister of Justice. These two events paid tribute to the projects championed by Robert Badinter, "whose name will forever be associated with the history of the European Convention on Human Rights in France", in the words of the Minister of Justice

In his introductory remarks, First President Christophe Soulard spoke of the influence of the Convention, as interpreted by the case law of the European Court, on our law in both civil and criminal matters. Indeed, to quote the First President, certain judgments have forced "our legal system to reinvent itself, to review its positions". However, "what was once seen as a constraint has become a fruitful exchange [...] just a few years ago, President Spielmann might have worried in his opening speech about the acceptability of ECHR decisions... whereas today, we have largely moved beyond this in France, to achieve what I would call 'predictive subsidiarity'". The Cour de cassation has thus "embarked on a proactive approach" in that the "national judge does not simply apply the law, but actively participates in its creation and perpetual reinvention, working hand in hand with the European courts".

Similarly, in his introductory speech, the Prosecutor-General Rémy Heitz also recalled the impact of this ratification on the work of the advocate general. Indeed, "the Slimane-Kaïd and Reinhardt v France judgments were a turning point [...] the position and role of the Advocate General at the Cour de cassation have been reconsidered". Nevertheless, the Public Prosecutor's Office has been able to renew itself and now the "European Court of Human Rights does not fail, where relevant, to give a careful reading to the opinion of the Advocate General in the case under consideration and to refer expressly to it". Thus, thanks to the national margin of appreciation left to the higher courts by the European Court, the Public Prosecution's Office of the Cour de cassation "independently advises the Court in the name of the general interest and the common good and [...] informs legal professionals and the public about the case law it is called upon to deliver. This means that he plays a full part in the Court's jurisprudence".

In her speech, Julie Couturier, President of the Conseil national des barreaux, emphasised that lawyers are the primary actors in the defence of human rights. The profession has made the Convention its own, particularly since the opening up of the right of individual petition: "It is good to know, and even better to be able to refer to, a body which, as a matter of principle, protects human rights and the principles of the rule of law. Let's be clear about this: defending freedoms and rights is a constant battle […] we lawyers know this better than anyone, so we have to keep on saying, and saying again, and letting people know that respect for rights and freedoms must compel us even more to concentrate our efforts when the world is rocking". Lawyers are therefore fully committed to the international and European protection of human rights.

In the same spirit, Thomas Lyon-Caen, President of the Supreme Court Lawyers, concluded his introductory remarks by stating that "Supreme Court Lawyers and the European Convention were made to get along. Lawyers at the Paris Bar were quick to seize on the European Convention on Human Rights", in that "they very quickly saw in European conventional law an opportunity to break down barriers and transform domestic law by defending innovative interpretations, so much so that, ultimately, I think I can say that conventional law is now omnipresent in the day-to-day practice of lawyers at the Paris Bar".

These introductory remarks

were followed by two round tables, which provided an opportunity to take stock of developments in the law and the transformation of the legal professions. The first-round table retraced the history of the ratification of the Convention and the adoption of Convention law: historical developments and changes in judicial professions and practices [1], while the second-round table focused on the implementation of the Convention in the era of subsidiarity: a shared responsibility in the service of democracy and the rule of law in Europe [2]. This event offered us a "multi-professional dialogue between European judges, national magistrates, the administration, lawyers and Supreme Court Lawyers", to quote President Thomas Lyon-Caen.  

Below you find a brief overview of the discussions at this commemorative conference.

1) Ratification of the Convention and adoption of Convention law: historical developments and changes in judicial professions and practices

This first round table was introduced and chaired by Professor Jean-Pierre Marguénaud. His brief introduction provided an opportunity to explain the reasons why France has not yet ratified the Convention. In order to best moderate the round table, Professor Marguénaud recalled that the national judge has been recognized as first judge of the Convention. To this end, he referred to the Verein KlimaSeniorinnen Schweiz judgment of 9 April 2024 [§412] in which the European Court recalled that « Judicial intervention, including by this Court, cannot replace or provide any substitute for the action which must be taken by the legislative and executive branches of government. However, democracy cannot be reduced to the will of the majority of the electorate and elected representatives, in disregard of the requirements of the rule of law. The remit of domestic courts and the Court is therefore complementary to those democratic processes. ». Once this historical review had been made and this guiding principle established, the discussions could begin.

 

  • The Director of Legal Affairs at the Ministry of Europe and Foreign Affairs, Diego Colas, who acts as the government's agent before the European Court of Human Rights, captivated his audience with a speech that was both legal and practical, enabling everyone to better understand how the European Court of Human Rights works. The Director began his speech by pointing out that, in view of the statistics, it was important to "put into perspective the question of France being accused by the European Court of Human Rights or France being a bad pupil under the Convention [...] because the reality is that France accounts for a very small proportion of the applications lodged with the Court". He began by outlining France's relations with the European Court of Human Rights - both in terms of defending the French State before the Court and executing judgments - and then went on to describe the practice of the Government Agent before the Court. In support of his remarks, he referred to the case of Carême v. France[1], which gave him the opportunity to explain why, in that case France, had the opportunity to plead first, before the applicant.

 

  • The First Advocate General of the Criminal Chamber of the Cour de cassation, Frédéric Desportes, spoke of the progress made in applying the Convention in criminal matters since its ratification. In particular, he emphasised that the Criminal chamber of the Cour de cassation had fully adopted the provisions of the Convention and the European Court's methods and reasoning, by endeavouring "to place proportionality review at the heart of the criminal court's approach". Indeed, "the further removed the case before the national court is from those heard by the European Court, the greater the degree of anticipation, of reasoned imagination, that it must demonstrate in order to determine the solution required by compliance with the requirements of the Convention. On the basis of European case law, it often has to transpose, extrapolate or innovate. In the final analysis, it is not so much decisions that it has to adopt as a method of reasoning which, in the absence of precedents, is its European compass. The Criminal chamber is committed to this ».

 

  • The President of the Second Civil Chamber of the Cour de cassation, Agnès Martinel, focused her speech on Article 6§1 of the Convention, which, in her words, is "the first of the rights. There are no concrete and effective rights without an independent and impartial tribunal and a fair trial". President Martinel's speech showed that the Cour de cassation has fully adopted the fair trial standards set out by the European Court of Human Rights. The President traced the history of this appropriation, in other words the development of case law on the principle of adversarial proceedings, access to an independent and impartial court and equality of arms. After presenting this "gradual acculturation of French courts to Convention law", the President of the Cour de cassation - who leads the working group on the enhanced statement of reasons set up by the First President of the Cour de cassation - presented the requirements set by the European Court of Human Rights with regard to the statement of reasons for judicial decisions, which have led the Cour de cassation to reform the statement of reasons for its judgments. This so-called enriched statement of reasons makes it possible to incorporate the proportionality review into the body of the judgment, drawing on the European Court's methods.

 

  •  Lastly, Mr Christophe Pettiti, lawyer, explained how the role of lawyers had changed following ratification of the Convention. Mr Pettiti described it as "a slow love affair". "Lawyers and judges were faced with a different legal culture, with the need to assimilate new concepts, as you said, Madam President, and to think differently". Lawyers have now become "players in the Convention" and "use it in highly technical areas where its applicability is not obvious". However, Mr Pettiti pointed out that "the practice of the Convention before the national courts requires, and still requires, a more demanding duty of argumentation on the part of the lawyer before a judge who, naturally, is not on a daily basis or not necessarily a specialist in the Convention, even if he is the natural judge of the Convention. This is the work required of the necessary dialogue, not simply between the national judge and the international courts, but the dialogue between the national judge and the lawyer". This highlights the transformation of judicial professions and practices.​​​​​​​

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2) Implementation of the Convention in the age of subsidiarity: a shared responsibility in the service of democracy and the rule of law in Europe

 


[1] Carême v France, n°7189/21

The second-round table was introduced and moderated by the Honorary President of the European Court of Human Rights, Robert Spano, who conceptualised "the era of subsidiarity". Mr Spano made three sets of remarks on the principle of subsidiarity, with a view to providing the best possible guidance to those involved, a principle that was endorsed by the adoption of Protocol No. 15 to the Convention. It emerged from these preliminary reflections that, firstly, the European Court of Human Rights must "reconcile the tensions between, on the one hand, the formulation of pan-European human rights standards and, on the other hand, the realities and political developments within the Member States (this is increasingly important). The system only works because international and national judges recognise each other's legitimacy and lasting trust". Secondly, since the European Court of Human Rights conducts "a direct ex post examination of a series of specific decisions taken in the past at the national level", it must "understand the national judges and respectfully respond to them and reason with them without dictating or preaching". Finally, President Spano reiterated that it was "crucial to have a solid understanding of how the Convention interacts with different areas of national law on a daily basis". And thus the round table began.

 

  • The President of the First Civil Chamber of the Cour de cassation, Carole Champalaune, began by explaining how the shared responsibility of the parties involved in the Convention rested in particular on compliance with the rule of exhaustion of remedies and on the establishment of a chain of control adapted to the national level. The rule of exhaustion is "consubstantial with the principle of subsidiarity". In the words of the President, such a rule "contributes to this era of subsidiarity insofar as it may act as a disincentive to refer cases to the ECtHR, but also as an incentive for litigants to assert as far as possible the protection owed to them by the national courts - once again reinforcing by symmetry this responsibility of the national court in implementing the rights guaranteed by the Convention". Thus, "both the trial courts and the Cour de cassation must rigorously examine the invocation of alleged breaches of the Convention. To do this, they must use a specific method of examining these violations". It was these methods of interpretation and the national margin of appreciation that the President set out to present next.

 

  • Sandrine Zientara-Logeay, Chamber President and Director of the Documentation, Research and Reporting Department (SDER) of the Cour de cassation, focused on two themes in her speech: shared responsibility between the Cour de cassation and the lower courts, and shared responsibility between national supreme courts and the executive and legislative powers. On the first point, she emphasised that "by making the national court the natural judge of the convention, the principle of subsidiarity allows treaty law to radiate down to the lower courts. This gives rise to a sharing of responsibility between the European Court and the Cour de cassation, as well as the Cour de cassation and the lower courts". As a result of this shared responsibility, the Cour de cassation has drawn up a "conventionality review handbook [...] which aims to provide both the judges of the Supreme Court and the trial courts with a methodology for the review"; some judgments are published with an explanatory note giving details to trial judges, particularly when they are faced with allegations of inhuman and degrading treatment by the detainee. The president presented all of these tools. Finally, in her second point, she dwelt on the issue of the dignity of detention conditions, reminding the audience that the "principle of subsidiarity has a dual acceptance, jurisdictional and legislative" and that responsibility is shared between the supreme courts, developing the example of the JMB v. France[1] rulings and their consequences on the case law of the Cour de cassation and then on national law.

 


[1] JMB and others v France,  n° 9671/15 et 31 others

  • Thomas Lyon-Caen, President of the Supreme Court Lawyers, spoke about the tasks and responsibilities of lawyers at Supreme courts since the rule of subsidiarity was enshrined and became increasingly important. In this respect, the President referred to the horizontal applicability of the Convention - in other words, the responsibility to correctly invoke the provisions and case law before the higher courts - but also the responsibility of the Supreme Court Lawyers to verify the conditions of admissibility, in particular the exhaustion of remedies to bring a case before the European Court of Human Rights within 4 months, and finally the techniques of cassation which have been enriched by subsidiarity. With regard to this last aspect, it emerged from the President's speech that the Supreme Court Lawyers "may sometimes go so far as to invite the judge of cassation to weigh up the interests involved himself, as is the case in press matters". In this way, all legal professionals, including lawyers and Supreme court lawyers, "key players in subsidiarity", are "at the service of greater effectiveness of conventional European law and thus at the service of democracy and the rule of law", an argument that echoes the comments made earlier by President Julie Couturier and Mr Christophe Pettiti.

 

  • Finally, the judge elected to represent France at the European Court of Human Rights, Mattias Guyomar, offered his audience a valuable analysis of the principle of subsidiarity from a supranational perspective. The judge put forward three proposals, which he supported with concrete illustrations. Firstly, he presented the relationship between France and the treaty system in that France played a leading role in the development of this system, even though the Convention was ratified late (which he referred to as a "yo-yo movement") and triggered the entry into force of Protocol No. 16 by being the tenth State to sign it. On the other hand, the judge emphasised that in terms of French litigation and statistics, "the system works well". The statistics "reflect the overall compatibility of the French legal order as it emanates from the law adopted by the legislative and regulatory powers and implemented by the domestic courts with the requirements of the Convention as interpreted by our Court", which reinforces the remarks made by Director Diego Colas during the first round table. In this regard, he cited a number of high-stakes cases, often covered by the media, that do not end up before the European Court "because, from the point of view of the Convention and the requirements of our case law, they have been dealt with correctly in the domestic system". Finally, the judge presented the shared responsibility between the French domestic courts and the European Court for ensuring effective compliance with the rule of law. To this end, he mentioned a series of cases highlighting the proactive reception of the European Court's reasoning by the higher courts.

 

To conclude these two round tables, and to quote President Lyon-Caen, "this subsidiarity also invites lawyers to show anticipation and imagination by suggesting to national courts that they adopt solutions that the European Court could adopt, particularly in the light of the solutions it has already adopted with regard to other states". The audience was able to find this idea of anticipation throughout the conference, particularly in the introductory remarks by the First President (through the concept of "predictive subsidiarity"), in the speeches by the President of the Supreme Court Lawyers, the First Advocate General and Mr Christophe Pettiti. It was expressed by all the professions present and speaking, which highlights the profound transformation of the judicial professions in the era of subsidiarity.

The French Human Rights Defender Claire Hédon honoured the organizers and guests by concluding this eventful conference. Her remarks illustrated the extent to which the Convention, a living instrument, permeates and inspires all French institutions. As a partner of the courts and other professions, the Human Rights Defender relies "on the provisions of the Convention for the Protection of Human Rights and Fundamental Freedoms" in the decisions, opinions and observations she issues before the courts. "The Human Rights Defender therefore draws on the provisions of the Convention". The Human Rights Defender emphasised that this has led to a number of advances, such as in the area of discriminatory identity checks, before the judicial and administrative courts. In addition, the Human Rights Defender stated that she also favours the application of the provisions of the Convention by the European Court of Human Rights to new situations in that "over the last ten years, the Human Rights Defender has submitted some thirty third-party interventions to the Court". To illustrate her point, the Human Rights Defender referred to the case of Khan v. France[1], in which "the Court cited the observations and findings of the Human Rights Defender some twenty times". However, the role of the Human Rights Defender is not limited to these third-party interventions, in that she also monitors the proper execution of judgments by "regularly submitting observations to the Court's department for the execution of judgments".

Nevertheless, "the execution of these decisions does not always appear to be compulsory, even to those who are responsible for them", which may necessarily result in its legitimacy being called into question and the criticisms levelled at it being revived. However, there is no doubt, as President Julie Couturier pointed out, that "the legal battle for rights has a bright future ahead of it, and I can tell you that lawyers will be relentless in taking it all the way to the European Court of Human Rights, and for as long as necessary" - a sentiment shared by the French Human Rights Defender, for whom "even if there is cause for concern [...] the strength of the provisions of the Convention, of which the Court, the national courts and the Human Rights Defender are the armed forces, remains undiminished".

 


[1] [1]Khan v France, n°12267/16

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