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Understanding Populism and Defending Europe’s Democracies: The Council of Europe in 2017

Strasbourg , 

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Populism on the rise

It gives me great pleasure to see you all here. 2017 will be a big year for Europe – and a highly political one.

In France, Germany, the Netherlands, Northern Ireland, possibly Italy, and elsewhere millions of Europeans will go to the polls.

I will wager that the word you will hear, more than any other, will be “populist”. It has become the political fashion to declare “populist” any person or party you disagree with. The left says it about the right; the right about the left; the mainstream to discredit the margins.

But if everything is populism, populism is nothing. It’s time to be clear about what we mean.

Populists are almost always anti-establishment. They offer simple solutions to complex problems. They appeal to voters’ emotions. But so do most, if not all, politicians.

For an act or individual to be truly populist, it must go one step further. Populism relies on the claim that we, and only we, whoever we are, represent “the true people”. Only we understand their real concerns. This, they claim, gives populists an exclusive moral authority to act, on “the people’s” behalf.

How do they then seek to use this moral authority? To take over state institutions and, when it suits them, to bypass existing democratic constraints.

Inconvenient passages in the Constitution are rewritten. Parliamentary opposition is sidelined. Disobedient judiciaries are declared self-interested or corrupt. The same for unsympathetic media. Indeed, the latest tactic of populists is to dismiss every story they dislike as “fake news” – even though they are usually the most guilty of spreading it.

International law becomes an unacceptable impediment to national sovereignty. Minority rights are an insult to the nation’s values. Human rights, an elite preoccupation.

All are dismissed in the name of the forgotten, ordinary man and woman.

In Europe we see all this more and more. From fringe parties and, increasingly, mimicked by parties of government, too. It goes against everything we have learnt over the past 70 years.

Since the horrors of the Second World War Europeans have worked, painstakingly, to restrain the notion of absolute sovereignty of “the people”. We have built constitutional, parliamentary democracies precisely because our societies are plural by nature. We have established constitutional courts; independent judiciaries; free media; vibrant civil society; binding international treaties and human rights law.

We have done these things to protect citizens from aggressive interests, who claim to act in their name and to safeguard individuals and minorities from majoritarian rule.

Responding to the populist threat

This precious legacy must now be protected. 

It is true that populists often enjoy broad support because they are responding to voters’ real and legitimate grievances. It is true that many national, democratic institutions have their shortcomings. And that Europe’s international organisations, including the Council of Europe, must do more to speak to ordinary people’s concerns.

But the answer to the frustration we see in many of our societies is not populism. It is not the slow unravelling of careful democratic safeguards to suit one interest, or one party. It is getting our own houses in order: renewing our institutions so that they better represent and serve our citizens.

For weeks now, many in Europe have been despairing about what Donald Trump in the Whitehouse, backed – they say – by the Kremlin, will mean for our democratic values. But are our democracies so weak that our fates can be decided by these shifts? We should be spending less time worrying about developments across the Atlantic, and more time focusing on ourselves.

Europeans are not rejecting the mainstream because of what one politician puts on Twitter.

They have lost trust in their institutions. Many live with unemployment; widening inequality; prolonged austerity; badly managed migration; housing shortages and poor public services. Their needs aren’t met by globalisation; on the contrary, they feel left behind.

The only way to tackle populism effectively is to come up with answers to these problems.

We need to show that our way – our democratic and internationalist way – helps these people and materially improves our citizens’ lives.

My fourth annual report will be devoted to this challenge. It will set out how the Council of Europe and responsible politicians can work together to head off the populist threat: by giving citizens effective parliaments; vibrant and plural media; courts they can trust; civil society which empowers them; and, crucially, social rights – in work, in healthcare and in education – in inclusive societies.

More broadly, over the coming year, the Council of Europe will strive to show our best side. Helping find constructive and common solutions to Europe’s big stability challenges, based on our shared values. Helping nation states achieve things they could not otherwise do alone.

Fake News

High on that agenda is helping governments address fake news.

You have probably now heard this phrase almost as many times as you have heard the word populist. Fake news is not a new problem, but it has been put in the spotlight by the US election. And there is a very real risk that it will interfere with Europe’s upcoming elections, too.

A big question for us is: how can states prevent fake news, without overly censoring the Internet? We need proper deterrents. But, equally, we must minimise the degree to which powerful interests can label all criticism “fake news” – abusing the term to dismiss dissent.

Europe already has robust legal tools to help governments criminalise certain types of fake news, while safeguarding free speech. Here I am talking about hateful and violent fake news. The kind which targets minorities and vulnerable groups: for instance migrants, Muslims, Roma and ethnic minorities. Stories which are especially dangerous in the current climate.

The European Court of Human Rights has clear case law demonstrating when statements are no longer free speech, but have become hate speech. And our very successful Cyber Crime Convention, otherwise known as the Budapest Convention, contains a Protocol explicitly outlawing “acts of a racist and xenophobic nature committed through computer systems”.

Both the Court’s case law and the Budapest Convention give states a solid basis on which to criminalise material which promotes or incites hatred, discrimination or violence – while still protecting freedom of expression.

Through the Budapest Convention, we are also helping Europe’s police get the evidence they need to seek prosecutions for violent and hateful fake news. Gone are the days when all you needed to do was enter a suspect’s home and seize their hard-drive. Today much evidence is held virtually, in “the cloud”.

The police may know that the information they need is stored by a given Internet company.  But companies continually move data from one server to another, often crossing national borders. It can be a jurisdictional nightmare. So we are drafting new rules by which states will co-operate, in order to maximise their access to evidence in the cloud. 

Migration

Over the coming months, we will continue to be a staunch defender for the rights of migrants and refugees. These groups are an easy target for populists. This Assembly has been exemplary in this regard.  And I am pleased to say that all of our monitoring bodies are now doing work in this space, including to help states integrate newcomers.

I continue to raise the human rights of migrants at the highest political level. Last week, for example, I expressed my concern over draft Slovenian legislation which, if implemented could lead to collective expulsions and contravene the commitment to non-refoulement.

The Slovenian Government responded quickly, offering to work with us on the legislation. My Special Representative is now on his way to Ljubljana.

We are striving to help the many children affected by this crisis – particularly unaccompanied minors. We will shortly publish an Action Plan dedicated to their welfare. I am deeply concerned about the migrant children now going missing in Europe. Unable to reunite with their families, or fearful that they will be deported once they turn 18, many are believed to be disappearing.

They prefer to take their chances in the underbellies of our societies where they are most likely to be exposed to traffickers, gangs, crime, drugs. What then? We need to help these children make homes and build lives. If governments pursue short-sighted policies which drive them into the shadows, our societies will be dealing with consequences for years to come.

Turkey

On Turkey, we will seek to continue to play an active and useful role. Last July’s coup-attempt was outrageous. We cannot say it enough. And I stand in continued solidarity with our member state in its fight against terrorism. Terrorism is terrorism, wherever we find it.  No country should have to deal with so many attacks, of such a barbaric nature.

Last Friday, Turkey’s Parliament agreed a package of constitutional amendments which are expected to be put to a popular vote. Whether the country moves to a more presidential system of government is a matter for Turkish democracy: Europe contains a mix of systems.

However, asking the people to approve this during a state of emergency, when there are restrictions on civil rights, is of very great concern for us. I hope that the state of emergency will be lifted before the referendum.

When it comes to the constitutional changes themselves, our position is always to ask whether effective checks and balances are in place. Our Venice Commission – one of the most credible authorities on these issues in the world – will now assess the detail. It will deliver its opinion of the proposed amendments in March, ahead of a spring referendum.

Regarding measures which have been taken by the Government following the coup-attempt, vast numbers of people have been imprisoned or dismissed – and many do not even know why. Journalists, teachers, academics, members of Parliament, mayors, members of the judiciary, civil servants.

I am not a judge. I cannot say who was or wasn’t responsible for the failed coup or who does or does not pose a threat to Turkish security. But I – we – can and must do everything in our power to ensure that the rights of all those accused or dismissed, as enshrined in the European Convention on Human Rights, are properly applied.

This includes, among others, rights in detention, the right to fair trial, the right of appeal, freedom of expression and association. And, of course, all in Turkey have the right to come to our Court here in Strasbourg.

But, before that, they have the right to a fair process at home – and this is what I, we, are working hard to improve. Because, until now, it has not been the case.

We have been engaged in an ongoing dialogue with the Turkish authorities to make specific recommendations on this front. I can confirm that we are now seeing some results. In the early hours of yesterday morning, a number of our recommendations were acted on by the authorities.

Under a previous decree law, those held in custody could be denied access to a lawyer for five days. This will no longer be the case. 

The period of time that those accused can be held in custody has been reduced from 30 days to seven. As I understand it, the Public Prosecutor will be able to extend it by a further seven, but only in specific circumstances.

This is an improvement and it will now be up to our Court to decide – if a case is brought to it – whether this period is necessary and proportionate, under the current state of emergency, according to the Convention.  

It was also announced yesterday that Turkey will establish a new, national commission to look at the cases of individuals affected by the decree laws. This was our most important recommendation.

Up until this point, individuals who have been dismissed and organisations which have been closed have had no clarity or certainty about where to complain if they wish to contest a decision against them. Civil servants and public sector workers; closed associations, foundations and trade unions; private health and education institutions; newspapers, television companies, news agencies and other media outlets. Some have appealed to administrative courts; cases are piling up at the Constitutional Court; some are coming to our Court.

When I was in Ankara, in November, I therefore proposed, to the Prime Minister, a commission to look into their complaints in order to help give these people a functioning system of redress, at the national level.

This is in accordance with the principle of subsidiarity which says that, in Europe, you must be able to challenge decisions taken against you in the country in which they occur.

Such national remedies are essential for the functioning of our Convention system. And if the Strasbourg Court were now to be flooded with tens of thousands of cases from Turkey, its citizens could be forced to wait years for a judgment to be implemented.

Our proposal has been included in a new decree law. Separately, dismissed judges and prosecutors have also been given clarity over how to seek redress: they will be able to go directly to Turkey’s Council of State.

If the new commission rules in favour of an individual, we have been told that its decision will be binding. If it does not, the case will be referred to a national court. Then, if necessary, to the Constitutional Court. And the European Court of Human Rights will of course receive the cases of any individuals who still wish to appeal against the authorities.

We hope that this process will enable swifter justice and will reduce mistakes and arbitrariness. To do this, it must act independently. And, if it does not, our Court will say so.

Friends, these developments are an important step forward. And they demonstrate why the Council of Europe’s ongoing dialogue with the Turkish authorities remains vital. I welcome the willingness, on the part of the authorities, to heed our concerns on these points. I hope it is a sign of further progress to come.

We appreciate that our member state has been through a crisis. In such scenarios, it is easy to stand back and make simple judgments over complex situations. I firmly believe, however, that we can do more good for the Turkish people by remaining engaged and constructive as the challenging situation in Turkey continues to unfold.

Our informal joint working group with the authorities will continue its work, focusing particularly on freedom of expression. Also, on this point, I expect concrete results. Journalists and Members of Parliament play a special role in democratic society. Depriving them of their liberty has direct consequences for free speech and democratic debate. I strongly believe that they should be able to defend themselves from outside of the prison walls.

Terrorism

Finally, I would like to underline our work on terrorism. Because nowhere is it more essential for states to work together, bound by the rule of law in order to keep our citizens safe and to keep our values intact.

Since the attack at Charlie Hebdo’s offices in Paris, two years ago the Council of Europe has filled a major hole in international law: criminalising, for the first time, the early acts of preparation for terrorism to help Europe address the surge in foreign terrorist fighters.

We have equipped prison and probation officials across the continent with tools to spot and stop radicalisation. We have launched a ground-breaking new programme to teach peaceful, democratic culture across Europe’s schools.

This year we will launch two further, major initiatives. The first relates to terrorist financing. Right now wealthy Europeans are helping bankroll Daesh and others by buying artefacts looted in Syria and Iraq.

Cultural trafficking is not a new crime. But, thanks to the so-called Islamic State, the blood antiquities trade is believed to be booming. And Europe’s legal defences are inconsistent and weak.

Some states, such as France, Italy and Switzerland, have robust systems in place. There remain, however, many gaps which terrorists exploit. So we will produce the first international treaty to criminalise the specific acts supporting the blood antiquities trade.

The new Convention will help states punish the smugglers, the dodgy officials, the dealers and, where appropriate, the buyers too. The aim is for it to be adopted at the annual Ministerial session in May.

Second, we are revising our guidelines on the support states provide to victims of terrorism. Sadly, the number of such victims is growing. Currently the assistance received by survivors and their families after an attack is a lottery, depending on where they live. And, while most states will provide medical care, for example, or cover costs for people injured on their territory there are only patchy guarantees for European citizens harmed while travelling abroad.

Commemorations and minutes of silence are important. But these people need long-term healthcare; psychological support; help with loss of earnings. And governments have a special responsibility to them: they are the victims of terrorist attacks, which are, by definition, attacks on the state.

We will therefore seek a much clearer promise of support from our member states, sending a powerful message to Europe’s enemies: you may not value the lives of our citizens, but we do. And we stand with them until the end.

We will now move to questions – there are many things happening in Europe and the world for us to discuss.

I have sought to outline an agenda built on cooperation, shared values and the rule of law – for the sake of our shared stability. It is a very different offer to the one put forward by populists.  But one which, I believe, can make a huge difference to the lives of our citizens.

In an age of “post-truth”, “fake news”, and now even “alternative facts” – when everything is being challenged – our commitment to democracy, to decency and to each other is more important than ever. I look forward to working with you for a Europe built on common standards and trust.