Tag Archive | "Europe"

Mass Incarceration at Home and Decarceration Abroad

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Around the world, there are around ten million people in prison at any given time. While the world’s criminal justice systems struggle to ensure access to legal representation, a fair trial, and freedom from torture, some countries have been more successful than others. Other western countries are moving toward decarceration,[1] but politicians in the United States have been slow to recognize the devastating effects of the United States criminal justice system.

In the United States, over the last 40 years there has been incredible growth in the prison population. In 1972, United States prisons contained nearly 170,000 inmates; by 2012, prisons housed 1.5 million inmates. This 705 percent increase resulted from tough on crime laws and an increase in the number of criminalized activities. Michelle Alexander, author of The New Jim Crow: Mass Incarceration in the Age of Colorblindness, explains that not only have prison rates increased, they have disproportionately affected people of color, particularly black men. Not only is the United States quickly becoming famous for its “mass incarceration,” as Professor Alexander points out, it has stunted the social and economic wellbeing of low-income communities and communities of color. Ironically, studies have actually found that mass incarceration has not enhanced public safety.

Recently, there has been a shift in public opinion around incarceration. In 2012, a plurality of the United States public believed that too many people were in prison. In an effort to reduce the prison population, last October the Justice Department committed to releasing 6,000 inmates through reducing sentence lengths. President Obama has also commuted the sentences for the most individuals in recent history, a total of 348. Currently, mass incarceration is a leading issue in the presidential race as both republicans and democrats have criticized incarceration rates.

The rate of incarceration in the United States, compared to other nations, is more than five times higher. However, similarly industrialized nations have comparable crime rates.  A fundamental difference is that the United States interprets punishment to mean incapacitation and retribution, whereas other jurisdictions focus on resocialization and rehabilitation.

Germany and the Netherlands are examples of countries that focus on rehabilitating offenders. In the United States, the average rate of incarceration is 716 per 100,000 residents, whereas Germany’s rate is 79 per 100,000 residents, and Netherlands’ rate is 82 per 100,000 residents. Both countries primarily utilize non-custodial sanctions and diversion. Generally, other Western democracies use fines as the primary sanction. Compare this with the United States where 70 percent of convicted offenders are sentenced to a prison term for at least part of the sentence.

The German Prison Act states that the “sole aim of incarceration is to enable prisoners to lead a life of social responsibility free of crime upon release.” While the Netherlands’ 1998 Penitentiary Principles Act focuses on re-socialization. Notably, “prisoners are encouraged to maintain and cultivate relationships with others both within and outside the prison walls.” While prison sentences are utilized in Germany and the Netherlands, the length of prison terms are also generally much shorter than those in the United States. There are also fewer mandatory prison sentences. The United States sentences offenders to lengthy prison terms and makes more use of the death penalty compared to other Western democracies.[2]

While incarcerated, prisoners in Germany and the Netherlands are treated differently than United States prisoners. Because rehabilitation is the primary goal, prisoners are allowed to wear their own cloths, prepare meals, learn job skills, and continue their education. The prisons themselves are designed with a lot of windows, lights, and wide hallways. Prison staff are trained similar to social workers and behavior specialists. Whereas the United States’ imprisonment method is principally punitive. To a degree, the United States’ method has become an American export. The supermax model originated within the United States and by 1999, there were 57 supermaxes in 34 states. This supermax model has now appeared in nine countries, including Brazil, which has one of the fasts growing prison populations. Supermax prisons utilize solitary confinement, largely eliminate common areas, and restrict prisoner interaction.

While Germany and the Netherlands provide a useful example of what the United States could aim for, Finland demonstrates a change theory for decarceration. In the 1950s, Finland had a rate of incarceration of 200 per 100,000. For the time, this was three to four times greater than other Nordic countries and nearly twice the United States’ incarceration rate.[3] Finland experienced a cultural shift toward penal severity, minimum sentencing, and severe sentences for common crimes.[4] By recognizing the limited capabilities of traditional imprisonment, Finland initiated several legislative and policy reforms. Finland’s movement toward decarceration critically relied on an ideological shift. The implemented reforms included reducing penalties, using noncustodial alternatives, and sentencing options designed to reduce the number of offenders sentenced to prison.[5] By introducing more gradient-based sentences and increasing the use of community service sentences, Finland was able to reduce its prison population.

Finally, an issue related to the criminal justice system in the United States, beyond incarceration itself is the collateral consequences of conviction. Professor Alexander reported that these collateral consequences include restrictions on access to social services, housing, employment, and the right to vote. Collateral consequences contribute to the recidivism cycle that also plagues the United States criminal justice system. In Germany and the Netherlands, however, ex-offenders retain their rights to vote and access to certain social services. This is not surprising though, as the United States does not prioritize social services in the same way as other Western countries and spends less on these programs.[6]

Change will not come quickly to the United States criminal justice system, but as Finland demonstrated, change is possible. Incarceration rates in the United States have begun to slow, albeit they are not yet declining.[7] Further, a recent bipartisan publication, with contributors including Vice President Joseph Biden, Hillary Rodham Clinton, Marco Rubio, and Ted Cruz, proposes changes to address the problem of mass incarceration in the United States. In appeal to this attention, the United States should take the steps recommended by the Vera Institute of Justice. First, expand prosecutorial discretion to divert offenders. Second, reduce the reliance on incarceration as a first response and expand the use of community-based sanctions. Third, adapt the disciplinary structure and expand the menu of sanctions. Finally, normalize the conditions within prisons. These steps will require significant dedication to reform; however, it may yet be possible.

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[1] Douglas B. Weiss & Doris MacKenzie, A Global Perspective on Incarceration: How an International Focus can Help the United States Reconsider Its Incarceration Rates, 5 Victims & Offenders 268, 270 (2010).

[2] Matthew B. Kugler, Friederike Funk, Judith Braun, Mario Gollwitzer, Aaron C. Kay, & John M. Darley, Differences in Punitiveness Across Three Cultures: A Test of American Exceptionalism in Justice Attitudes, 103 J. of Crim. L. & Criminology 1071, 1074 (2013).

[3] Weiss & MacKenzie, supra note 1, at 275.

[4] Id. at 276.

[5] Id.

[6] Id. at 273.

[7] Id. at 269.

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EU-Turkey Agreement: What’s the Deal?

Photo Credit: AmnestyUSA

Photo Credit: AmnestyUSA

On March 8, 2016, the European Union (EU) and Turkey reached an agreement aimed at resolving the migrant crisis, which has grown exponentially over the past several years.

Since the beginning of the conflict, a total of 9 million migrants, have fled war-torn areas such as Syria, Afghanistan, and Iraq. In search of safety, most of these refugees have found a new home in neighboring countries like Turkey, Lebanon, Jordan, Iraq and Egypt. More than 1 million migrants have relocated to southern Europe, primarily Greece and Italy.

During the September 2015 meeting, EU members pledged to resettle 160,000 refugees in need of immediate protection. However, as of March 15, 2016, only 937 asylum applicants were relocated from Greece and Italy to other EU Member States.

Refugees typically arrive in Europe after crossing the Mediterranean Sea by boat. The journey that the migrants take is incredibly dangerous and has already claimed thousands of lives. Despite the difficulties, an average of 2,000 to 3,000 refugees continue to arrive in Greece every day.

The EU-Turkey deal is an attempt to find a mutual solution to the crisis.

According to the agreement, which came into effect on March 20, 2016, migrants arriving in Greece after March 20, 2016 would be sent back to Turkey if they do not apply for asylum or if their application is denied. In exchange for every returned Syrian, one legally registered Syrian refugee from Turkey may be resettled in Europe, and only up to a maximum of 72,000 refugees.  This so called “one-for-one” deal does not extend to illegal migrants. Further still, the agreement does not extend to the non-Syrian refugees who have fled the brutal violence in Afghanistan and Iraq. For these people, the route to Europe is now closed, and if they arrive in Europe illegally, they will be quickly expelled to Turkey.

Under the pact, the EU agreed to allocate €3 billion to Turkey to help finance readmission and resettlement of refugees arriving from Greece. These funds are also intended to help Turkey cope with almost 3 million Syrian refugees currently sheltered within its borders. In addition, by the end of June 2016, the EU has promised to grant Turkish citizens the right to visa-free travel within the EU’s Schengen zone. Turkey also asked the EU to reconsider its application to become an EU member state.

Even though the EU and Turkey are taking steps to ensure that the return of refugees and migrants is legal under international law norms, the United Nation High Commissioner for Refugees (UNHCR), as well as many humanitarian organizations, are gravely concerned about the blanket application of the terms of the agreement to all individuals seeking asylum. According to the UNHCR, the terms of the agreement violate the main principles of European and international law. Specifically, refugee advocates argue that international law requires that States assess each refugee case on an individual basis. Put another way, no automatic returns are allowed.

While the details of the agreement continue to be worked out, more than 50, 000 men, women and children remain stranded at the border between Macedonia and Greece awaiting their fate to be handed down by leaders of the EU and Turkey.

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The Migrant Crisis: A Test of European Coherence?

By Alexandra Esmel

Europe is facing one of its largest refugee crisis since the end of the Second Word War. Violent conflicts in the Middle East (mostly from Syria, Iraq, Afghanistan) and in Sub-Saharan Africa (mostly from Eritrea, Somalia) have generated the flight of thousands of men, women and children from war zones, persecutions and/or extreme poverty. The impact of these conflicts is ever increasing on the civilian’s side hence, the large number of displaced (forced or voluntary) civilians into foreign countries. The wealth of Europe where most members have ratified the 1951 Refugee Convention have made it an attractive choice for these persons looking for a safe place to stay. Whether legal or illegal, for economic or humanitarian reasons, migration towards the EU is nothing new, however the numbers of migrants reaching the EU or dying trying is now too high not to make the news.hhh

The right of free movement of the persons within the Schengen is a sacrosanct element of the European Union and raise the crisis to a supranational level. However, as the crisis escalated, the EU has lacked of steadfastness in comparison with its individual members which in turn led to important disparities in the way the crisis is handled.

Italy was the first member of the EU to respond to the humanitarian crisis of migrants with the Operation Mare Nostrum in 2013. Italy carried out its own rescue and search missions from its borders all the way to the coast of Libya.  The operation was unfortunately discontinued after the Italian request for additional funds to other EU Member States remained unsuccessful. Operation Mare Nostrum was then replaced by the EU Frontex mission which contrary to its predecessor only aims at securing the European borders. In 2015 alone, more than 300, 000 persons in distress illegally reached Europe via the Mediterranean Sea in hope of safer and better lives.

Up north, the Western Balkans route (via Turkey; Greece then Macedonia, Serbia, Hungary, Slovenia, etc…) is also one the busiest routes to the EU. More importantly, many refugees and economic migrants call upon the services of unscrupulous smugglers who charge them thousands of dollars for a life-threatening trip to their final destination by sea and/or land.

They embark on a very long and very dangerous journey to reach Europe by sea and land, risking everything they have: their lives and that of their families coming along. In August 2015, Austrian authorities made the macabre discovery on a highway of 71 dead corpses of migrants (assumed to be from sub-Saharan Africa) locked in an abandoned truck.  Before that, in 2013, a boat carrying more or less than 500 African migrants sank by the coast of Italy by Lampedusa. An outraging number of 360 persons died and 155 were rescued by the Italian navy. At the time of writing of this article, the humanitarian crisis is intensifying, the UNCHR has called on governments to strengthen rescue operations, provide swift access to asylum procedures for those in need of protection, and offer legal alternatives to dangerous sea crossings. The UN Agency also estimated that 3,500 persons died in 2014 as a result of the crisis.

As it has been demonstrated with Operation Mare Nostrum, leaving one country to deal with the influx of migrants in the hope that it will fade away is a mistake (Italy and now Hungary). By law, every non-EU country person must register in the first European country they set foot in to initiate the appropriate immigration status procedure, may it be that of an asylum seeker or of an economic migrant. Hence, the clogging of small countries of entry to the EU such as Slovenia (2 million inhabitants) or Hungary (10 million inhabitants).

Hungary, the first state in the Schengen zone for migrants traveling via the Western Balkans route, just built a fence on its border with Serbia (not in the Schengen zone) to prevent the arrival of migrants into Hungary and thereby the Schengen zone.

Finally, the Hungarian government unilaterally decided in October 2015 to close its border with Croatia (a candidate to the Schengen area) to migrants albeit “just” being countries of transit for migrants who generally wish to settle further west in Germany or France. On the measure, the Hungarian government’s spokesman stated that “The Hungarian government has taken the steps […] to protect the internal European freedoms and the security of the citizens of Hungary and Europe”.

More alarming, Austria which is a member of the Schengen has now moved to erect a physical border with another member of the Schengen zone: Slovenia. Certainly, it is for the purpose of deterring illegal entry into its territory but inherently it interferes with the EU principle of free movement in the Schengen area. The impossibility to reach Hungary will deviate migrants from Hungary to Slovenia and other neighboring states, the same goes with Austria and Slovenia. Changing the route will not solve the challenge that Europe is facing as a political and economic union. 

In April 2015, the European Parliament adopted a resolution to impose mandatory migrants’ quotas on its Members in order to distribute equally the responsibility inherent with the arrival of migrants. The European Commission stated itself that the migration crisis is not an Austrian crisis. This is not an Italian, French, German or a Greek or a Hungarian crisis. This is a European crisis and it requires a collective European response. France and Germany are in favor of the scheme while others oppose it vigorously. Several Balkans states have denoted their opposition to binding quotas, Slovakia is even considering challenging the decision before the Court of Justice of the European Union.

In May 2015, the European Parliament announced the establishment of an emergency mechanism for relocating migrants, a resettlement scheme to take in migrants from countries outside the EU and more funds for securing borders.  Finally, the Balkan summit of 25th October 2015 resulted in a 17-point plan agreement between Europe and the Balkans states. The plan includes a “deal” still under negotiation with Turkey to help with the flux of migrants in exchange of visa-free travel for Turkish citizens and financial support. The implementation of the plan will be monitored by the European Commission on a weekly basis notably regarding the management of borders and of the flow of migrant (exchange of information; coordination with Frontex etc…).

Looking at the future, it is important to realize that this debate should also focus on “immigrants-to-be”: persons wishing to establish their residence in the EU for at least 12 months. The bottom line is that many economic migrants and asylum seekers, legal or illegal, are not simply in transit and actually intend to work, put their children to school and/or to stay in the host country for some time. Once they have reached Europe, they still have to fulfill the conditions for residence or work in the host country.

The arrival of migrants coincides not only with important economic difficulties in the EU but also with the recent rise of far-right parties across the continent. As much as the Grexit drama was an important test for Europe as a financial union, the migrants’ crisis might as well be the test for the defined idea of a European solidarity, identity and union.

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VW Under Fire: Legal fallout of the emissions sensor deception

Volkswagen (VW) has faced hurdles in the company’s almost 78-year history. As a company formed under infamous Nazi leader Adolph Hitler’s vision and direction, reformation was in order for the car to ultimately live up to its name as the “people’s car.” However, after World War II ended, the company did succeed in creating well-built, affordable cars.

Now, VW is facing another hurdle that may be worse than previous ones. VW was recently exposed for using software to “rig” diesel emissions tests in the United States and across Europe. The software was used to cover-up emission outputs in order to meet the emission regulations of countries in which their cars and products were sold. Over 482,0000 vehicles in the U.S. are thought to be affected by this scandal and estimates of up to 11 million cars effected worldwide. In the U.S., alone, the carmaker could face penalties from the Environmental Protection Agency of up to $18 billion, and, again, that is only from the less than 500,000 cars affected within the U.S.

Potential Fall-Out

Germany is currently considered the most economically sound country within the European Union, has often been looked to for bailouts for other countries, i.e. Greece, and has been at the forefront of most recent EU stimulus and growth plans. The Country may now be in for a massive storm.

One in seven workers in Germany are dependent on the car industry, 274,000 of those workers are employed directly by VW, and 18% of Germany’s exports are VW cars and parts. VW has already admitted to “rigging” emissions tests on 2.8 million vehicles in Germany. Results from European Road Tests showed a 40% higher nitrogen oxides emission than standard allow and was advertised by the company. Due to these revelations, VW stock has dropped over 34% as of September 25th, 2015 and the threat of astronomical fines and consumer lawsuits that are very likely to arise or have already been filed, looms large over Germany and her citizens. If VW is not able to pull through this scandal or has to sell-off additional assets or subsidiaries, there is no telling what the damage might be to Germany’s economy, and, in turn, the EU as a whole. Additionally, in regards to the current migrant crisis and Germany at the helm of plans to relocate and assimilate such people, the depression of the German economy may thwart governmental plans and avenues for which support and jobs may have been provided.

The fall-out is likely to reach other countries as well, and, in fact, has already affected some industries in China and Japan. Some stocks in the Japanese markets fell as much as 16% and carmakers across the board saw dips in their shares. The most affected stocks were manufacturers of car parts and specifically parts used in diesel engines.

Another aspect of the fall-out of this massive scandal will be trust in corporate social responsibility programs. In Volkswagen’s 2014 Sustainability Report, environmental issues are named as a top priority. The quote leading the Environmental section of the report is as follows: “We have set ourselves ambitious targets with regard to environmental protection, because we’re aiming to be the leading player in ecological terms.”

The company touts its accomplishments of being the first automobile manufacturer to commit to the EU’s emission standards, with an achievement of this goal by the year 2020. While the company still has time to reach such a goal, however unlikely, one has to wonder if they committed to such high expectations with the thought of mind to cheat the system and will likely be skeptical of all future goals and sustainability reports.

Not only did Volkswagen damage the image of their own Corporate Social Responsibility programs, but investors and consumers across the globe may now question the motives, intentions, and sincerity of good deeds committed by all corporations and wonder whether the company is contributing as they say. With a growing distrust of corporations due to greed and massively disproportionate wealth and power, many consumers now a day are researching what they buy, from whom they buy, and many are deciding to “buy local” so as to avoid just this type of deception. This type of scandal reinforces the need for consumers to spot check corporations and holds them to higher standards. Volkswagen has severely damaged their image as the “people’s car” and has likely destroyed their ability to meet any of their goals, including becoming the most “successful, fascinating, and sustainable automobile manufacturer in the world.”

Current Investigations and Potential Liability

At this point in time, it is unclear how far up the ladder the deception at VW went. It is not known whether the CEO, Winterkorn, who has since resigned, directed the use of the rigging devices or if he knew the devices were in use. There are clues that he was or should have been aware, as evidence has surfaced that the company was previously warned against their usage. If there was deliberate fraud or malfeasance, Winterkorn and other directors and officers of the company may become personally liable for damages.

An investigation regarding the company’s liability for Securities fraud is also underway. Investigators are attempting to determine whether VW provided intentionally false information to investors and the public as a whole. A lawsuit has already been commenced claiming such fraud; however, there does not seem to be enough information, as mentioned before, to determine the intentionality of the misleading and deceptive information or who within the company was aware of the use of the “rigging” devices.

Additionally, any product liability or product recall insurance VW may have held will likely not pay out on any or most of the claims against the company. Because of the deliberate nature of the act, the company will most definitely pay fines and legal fees out of their own reserves and future profits.

Criminal charges are likely also pending against all involved in the scandal, both officer and director level and engineers or other workers involved in implementing the illegal devices. The U.S. may have trouble prosecuting those involved, however, because most of the activity involved, occurred overseas and European countries will likely have first “dibs” on prosecutions.

VW has hired Kirkland & Ellis LLP to defend against all charges. The firm defended BP after the oil spill disaster in the Gulf Coast in 2010. It is yet to be determined if any defenses will be put forth or if a settlement will be forthcoming. One quote from Volkswagen’s Corporate Social Responsibility Report sticks out as a great way to end this blog: “One-time certainties are being consigned to the past; uncertainty is becoming our constant companion.” Hans Dieter Potsch, Member of the Group Board of Management responsible for Finance and Controlling.

It will be interesting to see how or if Volkswagen may recover from the greedy and deceitful actions of the company’s leadership and how Europe will react to the scandal over the long term. Uncertainty will definitely remain a  “constant companion” to VW, Europe (specifically Germany), VW consumers, environmentalists and corporate- watchdogs, alike, well into the future.

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Schengen Fails Under Weight of Migrant Influx as Sovereignty Trumps

 

The migrant crisis is forcing tensions between the free-movement created by the Schengen Agreement and notions of state sovereignty.  The crisis has brought into questions of European solidarity as countries force migrants from one country to the next.  In practice the EU’s Dublin Regulation, which requires that a migrant’s asylum claim be processed in the European country where he/she first arrives, has been de facto suspended.  Some have suggested, which this author agrees with, that the Dublin Regulation needs to be completely revamped to respond to the current crisis.

Just this weekend, the Hungarian government has accused Croatia of breaching international law by failing to register migrants.  At the same time, Hungary is currently building a razor wire fence in an attempt to stem the flow of migrants into the country.  Additionally, a number of migrants who reached Austria via Hungary have told the BBC they had not been registered in Hungary either, simply driven in buses across the country and told to walk over a railway line into Austria.

Meanwhile, in the last 24 hours, Austria has seen the arrival of tens of thousands of migrants.  Migrants were sent first to Hungary by Croatia, who stated it was unable to accommodate the 20,000 plus migrants who had arrived since Wednesday. While initially welcoming them, Croatia later state said it was unable to cope, sending them to Hungary.  Hungary then turned to Austria, while accusing Croatia of breaking rules by failing to register migrants.

EU Crisis - Boheme
Migrants queue as they wait to board a regional train at the main railway station in Munich, Germany. (Reuters)

Countries like Germany, which have welcomed refugees and have offered to take in records numbers of migrants are now finding that such offerings are untenable.  In his State of the Union speech on 9 September the EU Commission President, Jean-Claude Juncker, called free movement under Schengen “a unique symbol of European integration”.  However, such integration is now being tested.  While Mr. Juncker called for “better joint management of our external borders and more solidarity in coping” with the influx, the reality is that few countries have demonstrated solidarity in order to find a durable solution to the crisis.

While EU nations desperately guard their sovereignty and shift the burden from one country to the next, the conflicts in Syria, Iraq, Afghanistan, Libya and Eritrea continue raging, forcing migrants to choose between enduring extremely dangerous and dire situations at home, or leaving their homes and embarking on perilous journeys towards what they hope will be safety. Illustrating the dangers many migrants face in their flee towards safety is a recent warning from Croatia of the risk of landmines if migrants venture off the main roads in border areas, where Croat and Serb forces clashed in the early 1990s. Yet many migrants are still reported to be entering Croatia across those dangerous fields in an attempt to bypass border controls.

One migrant who made it safely to Austria told the Associated Press, “I feel like I’ve been born anew. It makes no difference whether I am delayed, whether I stay here two days. The important thing is that I’ve finally arrived and that I am now finally safe.”  However, the travel options for migrants remain dangerous, with the Greek coastguard reported that a five-year-old girl died when the boat taking her from Turkey to the Greek island of Lesbos sank, and at least 13 other migrants on board are missing.

What is clear is that the conflicts in countries such Syria, Iraq, and Afghanistan shows no signs of stopping, and as a result, migrants will continue to seek safe haven in Europe.  With attempts such as the EC’s recent proposal for mandatory quotas to distribute 160,000 migrants EU-wide being rejected, countries need to do much more to address this issue which will not disappear any time soon.  However, the problem is incredibly complex, as migration expert Demetrios Papademetriou, president of the Migration Policy Institute Europe has suggested.

Papdemtriou stated recently that to address the migrant crisis, Europe will have to invest in creating real opportunities for refugees so that they can stay in neighboring countries, make a livelihood, get an education, and access health services. He suggests further that Europe should work with countries that are a launching pad, by targeting three or four key countries on the pathway from countries experiencing large patterns of migrations, and do as much as it takes to get their cooperation — to stop traffickers, to create opportunities for people to stay, and create a safe pathway.  This of course requires the cooperation of European countries and governments, something that has been in short supply during the crisis.  This is not to oversimplify the fact that governments have genuine security concerns, and real concerns regarding resources both economic and otherwise, and this crisis is incredibly complicated.  There is no “easy” solution.  However, what this situation requires is a strategic response, which cannot be achieved without the cooperation of affected countries, including a possible revamp of the Dublin Regulation and an open dialogue on the functioning of the Schengen Agreement within the framework of the current crisis.

Emily Boehme is a 3L at University of Denver Sturm College of Law and Senior Managing Editor on the Denver Journal of International Law and Policy.

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LIBERTÉ, EGALITÉ, NON VOILÉE* : THE BURQA BAN IN FRANCE

* “Liberté, Égalité, Fraternité” is defined as a “principle” of the French Republic

 

 

Credit: www.aufait.ma

In 2010, France banned the wearing of the full-face veil in public pursuant to Law no. 2010-1192 of the 11th October 2010 (herein after as the Law). The Law strictly forbids anyone to conceal their faces in public places on pain of criminal sanctions (punishable by a fine of 150 euros maximum and an obligation to follow a citizenship course). Its application is not contingent to any religious practice and is limited in the subject matter:  only the concealment of the face is prohibited irrespective of the reason.

Still, the fact and the matter is, it primarily affects Muslim women wearing the full-face veil in public places and thereby of expressing their religious beliefs.

In 2014, a French national lodged a complaint before the European Court of Human Rights (herein after as ECtHR) against France claiming that the ban was depriving her of the exercise of certain rights protected in the European Convention of Human Rights (herein after as the Convention). The case called SAS v. France, has attracted numerous reactions in the academic world and reignited a long debate in France on the expression of religious beliefs in public. This article purports to understand the grounds upon which the applicant’s claim was dismissed and the ban upheld. For this purpose, we will later ask the opinion of Professor Maleiha Malik, Professor in Law at King’s College London, Author, Barrister and specialist on discrimination law.

In SAS v. France, the applicant alleged that there had been a violation of Article 3 (Prohibition of Torture and Inhuman Treatment), Article 8 (Right to a private and family life), Article 9 (Freedom of Thought, Conscience and Religion), Article 10 (Freedom of Expression) and Article 11 (Right to Protest and Freedom of Association) of the Convention, taken separately and together with Article 14 (Non-Discrimination) of the Convention.

The Court found the parts of the complaint based on Articles 3, 10 and 11 ill-founded and therefore inadmissible. The debate was more intense with regards to alleged violations of Articles 8 (Right to a private and family life), 9 (Freedom of Thought, Conscience and Religion) and 14 (Non-Discrimination) of the Convention.

The Court found the Law, as a measure which restricts a choice of clothing, constitutive of an interference with or a limitation of the exercise of the rights protected by Articles 8 and 9 of the Convention [para.110]. However, the limitation to the exercise of a freedom can only be justified by a legitimate aim as enumerated in the second paragraphs of Articles 8 and 9.

The French Government had two lines of defense:  First, the wearing of the full-face veil in public was banned on grounds of public safety. Second, the wearing of the full-face veil in public was banned on account of the principle of “vivre ensemble” (living together) and the respect for the minimum set of values of an open and democratic society.

Regarding public safety, the Court found that the ban could only be deemed proportionate in the context of a general threat to public safety [para. 139]. Yet, the arguments of the French government fell very short to demonstrate such a situation in France.

Finally, with respect to the second legitimate aim raised by France, the Court had to “link” it with the aim of protecting of the rights and freedoms of others enshrined in the second paragraphs of Articles 8, 9. On the latter, the Court stated that it falls within the powers of the State to secure the conditions whereby individuals can live together in their diversity and that a State may find it essential to give particular weight in this connection to the interaction between individuals and may consider this to be adversely affected by the fact that some conceal their faces in public places [para. 141]. Consequently, the ban was justified as far as it seeks to guarantee the conditions of “living together” [para. 142].

It must be noted here that the Court, compliant with its jurisprudence, afforded Frances a wide margin of appreciation in deciding upon what enters the realm of private or public interest (See ECHR – Evans v. the United Kingdom [GC]). As such, it does not determine at any point the legal or legitimate status of the wearing of the full-face veil in public with regards to the provisions of the Convention. Simply, it undertakes an analysis based on the particularities of the French society and its “compatibility” with the wearing of the full-face veil in public. And here lies the challenge!

Indeed, the Court dismissed the gender equality argument insofar as the practice at hand was defended by women. In addition, the public safety aim was also rejected although, arguably, a ban was possible for public safety reasons and growing extremism, as it is the case in some Muslim states and regions in the world (Chad, Congo, Muslim region of Xinjiang in China, banned and later relaxed in Syria etc…). In SAS v. France, the crux of the case laid in the fact that women decided on their own, for religious and other personal reasons to wear the full-face veil in public. Righteously, one can feel in discomfort at the first sight of a fully veiled women but discomfort is no harm.

As the Court admitted, the second legitimate aim raised by France (the principle of living together and the respect for the minimum set of values of an open and democratic society) is not listed in the articles of the Convention concerned.  However, one can argue that the concept of “living together” is non-legal per se and quite subjective. On this note, Professor Maleiha Malik, explains in The Return of a Persecuting Society (Malik, 2014), that “a value-based reasoning can construct certain religion as “radical” and incompatible with French citizenship” thereby forcing a compulsory clash of cultures.

Indeed, this principle of “living together” rests on the fact that France is based upon the constitutional principle of “Laïcité” :  as provided by the 1905 law, the State is separated from the Churches and must remained independent of any religious practice. Furthermore, the insertion of immigrants in France is based, since colonial time, on the idea of their assimilation to the French culture. In other words, immigrants are required to integrate with the dominant culture in place of individualistic self-identity. Consequently in the application of assimilation of immigrants, there is a French culture versus another culture :  a marriage of the two must automatically undermine one culture for the other to prevail.

By stating that wearing the full-face veil in public is “incompatible” with the idea of living together in the French society [para. 141], France takes a huge risk in trying to define a stagnant French society to which people should either integrate or be in conflict with it.

Professor Maleiha Malik notes in “Complex Equality :  Muslim Women and the ‘Headscarf’”, that the law has a constitutive role in society and plays an important p in constructing behaviour :  giving it sense and meaning, and influencing the self-interpretation of the participants. It is therefore very alarming to read that the rationale behind the ban, according to the Report of the French parliamentary commission, is that the full-face veil represented a denial of fraternity, constituting the negation of contact with others and a flagrant infringement of the French principle of living together – “vivre ensemble[para. 17].

I asked additional questions to Professor Maleiha Malik on this decision, cultural relativism and more. Here is what she had to say:

Alexandra Esmel (AE) : In SAS v. France, the French Government argued that the reciprocal exposure of faces was fundamental in French society to which the applicant responded that this argument failed to take into account the cultural practices of minorities which do not share this philosophy. Where do you draw the line, if you believe there is, between cultural relativism and multiculturalism.

Professor Maleiha Malik (MM) : I use the harm principle – if the practice is not causing substantial harm and it is freely chosen by an adult (as with the face veil) then what is the justification for using state coercion?”

AE : The main argument of the French Government in S.A.S argument is the principle of “living together” in the French society. The question is therefore whether or not you can force somebody to reveal their faces in public. Is that/ should it be a requirement in society? What are your views on the fact that there could be a social contract which require its participants to respect written (i.e. the law) and unspoken rules (politeness; revealing one‘s face)?

MM : “I think living together may be an important value or goal for a country. The problem with SAS v. France is that they recognised that her human right to wear the face veil is part of her freedom of religion that is protected, but they compromise this individual human right for the sake of the collective goal of living together. This is a serious contradiction of the principles of liberal constitutionalism that require us to give priority to individual human rights. I think a restriction on the face veil may be justified in some circumstances such as giving evidence or teaching in school etc, but it is wrong to have a vague general ban using the criminal law in all public spaces as in France.”

AE : The term “incompatible” was heavily cited in the decision and France insisted that the wearing of the full-face veil was “incompatible” with the French society and with the “objective of ensuring the social integration of groups of immigrant origin”. What are your thoughts on this? – Is the French Law of 11 October 2010 simply a reflection of France rejecting a societal change? Do you assimilate that notion of the “incompatible” to the “Bad Other” as explained in your introduction to Anti-Muslim prejudice in the West, past and present: an introduction?

MM :“ As I argue in my chapter, I think the French law is a product of far-right racism and exclusionary nationalism that has moved from the Front National [extreme-right French Party] far right into the mainstream. I believe the ban is harmful. It persecutes the women. It perpetuates discrimination. It is an authoritarian law.

The ECtHR noted itself in SAS v. France that the role of the authorities is not to remove the cause of tension [between groups] by eliminating pluralism, but to ensure that the competing groups tolerate each other. France is demographically changing and is meant to change with time. Only, the interaction of these changes with internal policy will shape the present and future identity of France.

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Critical Analysis: The Resurgence of the Modern Baby Box

Baby hatches (also called baby boxes) are not an entirely modern concept, as their use can be traced back to medieval times.  Their purpose has also largely remained the same: to allow a mother to anonymously leave the child in a safe and protected place, the baby box, when she feels she is not capable of providing for the child.  The child’s father or other family members can utilize the baby box as well.  Whether the mother is leaving the baby at a local hospital, church, or charity, mothers do so for different reasons, be it to avoid having an abortion or female infanticide (in some countries), or to leave an illegitimate or disfigured child in the care of others.  However, the resurgence of the baby box in numerous countries throughout Europe and Asia has spurred a hotly contested debate between the desire of the mother to leave the baby anonymously and the right of the child to discover the identity of his or her parents, a conflict that may never be resolved.

This is a baby hatch fixed in a wall near a hospital in Berlin, Germany. Image Source: AP

This is a baby hatch fixed in a wall near a hospital in Berlin, Germany. Image Source: AP

In Germany, there are nearly 100 baby boxes in existence.  Generally, the baby is cared for by the providers of the baby box before going through Germany’s legal system for adoption.  In some instances, a mother has the opportunity to return to the site where she left her baby and reclaim him or her within a certain time period.  After a set time, however, the mother cannot return to reclaim the baby and the adoption will be final.  However, the entire operation of baby boxes in Germany is at odds with the country’s laws.

Abandoning a baby is illegal in Germany, and the country’s Constitution provides its citizens with the right to know who their parents are and gives fathers a right to help raise their children.  So allowing the continued operation of the baby boxes falls within a legally gray zone, one that strongly nods towards the social policy that is the foundation of its existence.  Supporters of the baby boxes view them as a last hope for women who are unable to shoulder the burden of taking care of their baby.  Those in opposition believe that baby boxes send the wrong message to society that women can hide their pregnancies and then abandon their babies.  For now, Germany appears to be allowing the operation of the baby boxes despite strong criticism against their existence.

In France, the law gives women the right to have an anonymous birth and a right for their identity be kept secret from their child if they so desire.  The European Court of Human Rights upheld the law in 2003, stating it does not violate the European Convention on Human Rights.  However, the operation of baby boxes in France, Germany, and other countries clashes with the right of a child to know or preserve his or her identity, which is guaranteed in Article 8 of the United Nations Convention on the Rights of the Child.  Article 7 also gives a child the right, as far as possible, to know and be cared for by his or her parents.  If a country allows a mother to legally leave her child in a baby box, the child will never know the identity of his or her parents let alone be given the opportunity to be cared for by them.

The continuing conflict between the mother’s desire and (in some countries) right to give birth anonymously and the child’s right to know and be cared for by his or her parents is prevalent in not only Europe but other corners of the world as well.  Whether or not governments will continue to allow the operation of baby boxes in the midst of a debate with no clear right or wrong answer is yet to be determined.

Laura Brodie is a 2L and a Staff Editor on the Denver Journal of International Law and Policy

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Critical Analysis: Horse Meat? No Thank You!

Grocery stores throughout Europe are pulling products "contaminated" with horse meat. (The Daily Beast)

Grocery stores throughout Europe are pulling products “contaminated” with horse meat. (The Daily Beast)

Europe is currently in an uproar over issues in the meat industry.  Most recently, large quantities of horse meat were found in products that are supposed to be 100% beef, sold in Sweden, the United Kingdom, and France, among others.  Although there are no health issues directly related to the use of horse meat, and it is perfectly acceptable to eat, this is nevertheless a huge issue affecting an industry in which everyone is now playing the blame game.

Grocery stores in the affected countries are pulling the Comigel products “contaminated” with horse meat from their shelves.  At least one chain of grocery stores has initiated legal proceedings against Comigel, with many more likely to follow.  France also seems to be pushing hard for sanctions, although the Agriculture Minister acknowledges the difficulties in traceability.  Such difficulties are already apparent as Comigel is claiming that it was “fooled” by a supplier.  Really, this is a question of how deep the fraud runs.

Comigel is now claiming that the horse meat in question originally came from Romania, which exports 10 to 12 million euros worth of horse meat every year.  Romanian Prime Minister, Victor Ponta, says there has been no breach of rules or standards by any Romanian countries.  It is not yet clear how Romanian involvement may affect any lawsuits relating to the use of horse meat in beef products, but it is an indication of how many companies might ultimately be involved in such lawsuits.  Since the legal action is only just beginning, it seems that there is a great likelihood that there will be significant, widespread litigation.

Currently, many of the affected countries are initiating investigations and testing to determine the extent of the problem, how to proceed, and how to prevent this sort of fraud in the future.  Great Britain is instituting product testing from here on out to ensure the integrity of meat used in certain food products.  Others countries are also expressing intent to do increased, randomized testing to prevent this from happening again.  These countries are also investigating to determine the sources of the horse meat and how best to proceed in litigation.

Despite the somewhat understandable uproar, there are currently no indications that the use of horse meat in these products has harmed anyone.  Certainly these companies have a serious issue on their hands due to the fraud and misrepresentation, as well as many people’s preconceived notions about eating horse meat.  Some have also expressed concern about veterinary drugs commonly used to treat horses showing up in the meat.  This concern is well-founded in that these drugs can be harmful to humans, but, so far, there is no evidence that these drugs have actually shown up in the meat.  Although this is a huge legal issue in which many have a significant stake, it is interesting to see how the notions developed by modern society greatly influence issues such as this.

Rachel Sipkin is a 3L and the Training Editor of the Denver Journal of International Law and Policy.

 

 

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