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Guaranteeing fundamental rights effectively

October 7th 2016

In this joint article written following a meeting in Paris on 20 September, the Director of the European Union Agency for Fundamental Rights, Michael O’Flaherty, and the French Defender of Rights, Jacques Toubon, express their disquiet about the state of human rights in the EU and offer suggestions to improve the situation in particular areas of concern.

At a time when national security policies are getting tougher in Europe, public discourse is becoming radicalised and new walls are being built, we believe it is essential to recall the principles and values that our societies share, particularly pluralism, equality, tolerance, solidarity and respect for freedoms and fundamental rights.

Guaranteeing the protection of fundamental rights for all citizens is at the heart of the mission of both the European Union Agency for Fundamental Rights and of the French Defender of Rights. Today, there are three major concerns that merit our particular attention.

First of all, the situation of the most vulnerable group: children. Whether they are nationals or foreigners, separated from their famlies or accompanied, children must be able to exercise their rights: the right to education, access to healthcare and the right to receive the protection and assistance necessary to their wellbeing. These rights are protected in law, not least by the Charter of Fundamental Rights of the EU or the UN Convention on the Rights of the Child. Despite government commitments to integrate the rights of the child into national policies, we are conscious that much remains to be done to ensure these rights are realised for all children in all areas (edcuation, health, justice, online…).

Secondly, at a time when national and European legislations are being strengthened to combat terrorism, prevent threats, and guarantee greater security for citizens, we hope to introduce some calm into what has become such an anxious and emotional debate. The right to live in safety is a legitimate demand that the state is duty-bound to protect. However, respect for the rule of law and fundamental rights must remain the cornerstone of any action taken in this regard. Anti-terrorism laws and measures taken to implement them must respect the principles of legality, necessity and proportionnality, and must come with the necessary guarantees to protect all individuals against abusive and arbitrary actions.

Finally, EU and national legislation prohibits discriminatory treatment in most areas of everyday life, such as social protection, childhood, health and housing. In reports published by our institutions, however, we see not only infringements of this legislation, such as the refusal to grant access to education or to healthcare, but also that the legislation itself can limit effective access to the fundamental rights of migrants even through seemingly neutral criteria.

Indeed, it is not rare that individuals are firstly perceived as ‘foreigners’ before being considered for what they are: rights holders such as children, patients, people with disabilities, workers or users of public services. The current approach often significantly reduces their access to justice and fundamental rights.

The EU Agency for Fundamental Rights is an independent body that provides evidence-based advice to the EU Institutions and Member States on fundamental rights. The Agency cooperates closely with national organisations such as the Defender of Rights, whose establishment is stipulated in the French constitution and which responds to 100,000 individual requests each year. The Defender of Rights makes every effort, primarily through mediation, to ensure the full enjoyment of rights for everyone.

More than ever, the institutions tasked with protecting fundamental rights in the EU must must play a role in alerting and informing national authorities and EU institutions about fundamental rights, as well as promoting them wherever possible.

While respect for fundamental rights is primarily the responsibility of the state, it must also be upheld by independent institutions such as the Defender of Rights and the Fundamental Rights Agency, public institutions at the EU, national and local level, civil society organisations. This in turn is also dependent on the long-term cooperation between all these stakeholders. It is the responsibility of each of us.

Fundamental rights are not for some; they are for all.’

Michael O’Flaherty, Director of the EU Agency for Fundamental Rights

Jacques Toubon, Défenseur des droits (Defender of Rights)

Taken from the website of the EU Agency for Fundamental Rights
Read the letter in French on the website of the Defender of Rights