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Maarten Henket has written (in this issue) a comprehensive analysis of the Cardot judgment and its implications. In this essay , I will highlight further the roles plots underlying the different positions of the European Convention bodies.
1. The theme
The European Court of Human Rights ( hence "the Court") has clarified the position of the European Convention of Human Rights on the production and testing of evidence before courts of law in Barbera, Mesengue and Jabardo . The Court ruled that the assessment of evidence is a matter for the domestic court within their margin of discretion, but it is of concern for the Court " whether the evidence for and against has been given in a way which guarantees a fair trial in the general conduct of the proceedings. In this connection , it is essential that the defence be given an opportunity to challenge any evidence produced before the Court and on which the Court bases its judgement".
The adversarial procedure is crucial because witnesses' statements, truth-claims as they are, can only produce rhetorical knowledge (one can debate whether expert witnesses do produce a knowledge that can claim to escape from the rhetorical domain). Despite being truth claims, the goal of witnesses' statements is the attainment of mere verisimilitude or plausibility, not truth . "(W)ithin the adversary system of procedure...- writes Jackson -it is not possible to demonstrate the truth in objective terms ; the court , rather, is concerned with the plausibility of the story as told" . A criminal trial battle is not so much between the parties as "a succession of combats between counsel and witnesses, in the course of which the role played by each counsel switches continually from 'helper' to 'opponent' and back again , depending upon whose witness is under examination"
As Quintilian seems to suggest, the cross-examination of a witness has the same verifying role than the endurance of physical pain in confession by torture - perseveraverit in eo quod coeperat , an aliquid dolore mutarit... The procedure that transforms testimony into a serious speech, capable of founding a juridical act, is the rigours of cross-examination.
But it is not only the possibility of examination that is important. The physical presence of the witness is essential for an adequate assessment of the sincerity conditions of her oral statements. On the basis of the Kostovski judgement, the Commission states: "It is also of the utmost importance that those courts should be able to observe the witnesses ' demeanour under questioning and to form their own impression of their reliability" . This is why Article 212 of the New Code of Civil Procedure forbids reading in the witness box
Mr. Cardot did not ask for the witnesses to be summoned. Perhaps for this reason, he was never given an opportunity to examine them, probably in breach of Article 427(2) of the French Code of Criminal Procedure which states that an adversarial procedure must be applied to the examination of relevant witnesses: "The court may only base its decision on evidence which has been adduced during the trial and discussed before it inter partes" . The European Court of Human Rights had stated in the Kostovski judgement : " In principle , all the evidence must be produced in the presence of the accused ...with a view to adversarial argument" .
In the circumstances, did Mr. Cardot have a fair trial within the meaning of Article 6 of the European Convention of Human Rights? And was he entitled to a remedy under this Convention?
The answers given to these questions by the Convention bodies can be read as a narrative on Cardot's demarches before the courts.
2. The story-tellers
As an applicant, Mr. Cardot tells his story first. It is simple and it is prima facie plausible ( at least for people with experience in these matters) : his co-accused's story is "untrue and malicious and ( has ) no other purpose that to minimise their own responsibility" . Mr. Cardot presents himself as a victim of falsehoods and as a victim of the lack of opportunity to expose these falsehoods. In Greimasian terms, the story tells us about Mr. Cardot's quest for justice, and the frustration of this goal in one court after another. His opponent is the Government, as Henket argues, but this Government includes the French Courts and acts on their behalf. The Commission of Human Rights is a helper, but what it delivers is finally struck down with a sudden blow by the Court of Human Rights.
In its Report, the Commission seems to accept this plot but there is a subtle difference. The Commission states that Mr. Cardot "was tried and convicted largely on the basis of evidence from other proceedings to which he had not been a party, and was given no opportunity of discussing in adversarial proceedings at a public hearing the statements made against him by his former co-accused" . The Commission defines itself as a narrator which allocates to the domestic courts the role of helpers insofar as it "legislates" ( as narrators do) that the Court of Cassation, at least, should have acted ex officio to protect Mr. Cardot's human rights ( and specifically his rights of defence). However, in the Commission's view the courts betrayed their role when they did not give Mr. Cardot the opportunity to examine the evidence in court.
The Court of Human Rights reverses this conclusion by changing the roles: it is Mr. Cardot who " did not provide the French courts with the opportunity ...of preventing or putting right the violations alleged against them" ( section 36 of the Judgement). In this version, the French courts are passive agents even in criminal proceedings and will act only on request.
3. The hermeneutical principles
Hermeneutically, one can infer from these different stories conflicting principles of interpretation and organisation. In the Commission version, the main actors in the drama of human rights are the courts, which must, actively and ex officio if necessary , protect the rights of victims asking for their protection. This is particularly the case in criminal trials. Judge Martens makes this point abundantly clear , applying a pro victim standard as the central principle of interpretation.
To repeat, in the Court's version, the courts are passive agents. The victims must perform the role of main actors, making choices and directing the proceedings . The courts will not help unless the right magical words are uttered. Mr. Cardot's appeal to the Court of Cassation "was too vague to draw the Court of Cassation's attention to the issue ..." . A pro government principle is applied .
The choice of one principle or the other will be dictated by the way the aims of the Convention are understood. Judge Morenilla, one of the dissenting judges, mentions a major principle of interpretation of Treaties, namely the preference for interpretations that make the Treaty more effective. The Court accepted this principle in the Soering judgment as requiring " that its provisions be interpreted and applied so as to make its safeguards practical and effective" . More generally, the principle of interpretation laid down in Article 17 of the Convention - that "nothing in the Convention may be interpreted as implying... limitation ( to the victims' rights) to a greater extent than is provided for in the Convention". These arguments seem to undermine the Court's position on Cardot.
But these arguments assume that the aim of Human Rights - as ratified in a Treaty or enacted in a Law - is only the protection of rights. Any cursory inspection of decisions of the Supreme Court in the United States and of the Court of Human Rights in Europe shows that human rights have also another objective, namely, providing governments with means of control and legitimacy. There is a long history of decisions that reinforce powers of governments on the grounds that governmental policies are also at the service of the good. The fact that these decisions are contestable and often attacked by strong dissenting opinions does not make them less valid.
As Henket says, we are witnessing here a confrontation between supporters of "the rights of thedefence" and those who emphasise "crime control" and social discipline and order in general. They correspond to what Americans call liberals and conservatives when analyzing the composition of the Supreme Court. Both factions are committed to human rights but they hold different conceptions of the good which, in turn, determine different understandings of the aims of human rights. In the area of human rights, the liberal claim to neutrality based on the independence of judgments about the right from assessments of the good breaks down, embarrassing as this inescapable fact may be for liberals who take rights seriously. It is inescapable because human rights are a form of discourse which stands for inherently contestable issues, the kind of moral and political issues that McIntyre has called "interminable" because they are the object of disputes which cannot have an end .
The public discourse of rights imposes limits to power yet it develops interpretations that keep moving ("transgressing") these limits; interpellates us as subjects yet treats us as legal objects; and can be the raw material of both conservative and of progressive interpretative strategies. Reversals of human rights decisions happen so frequently because human rights are inherently reversible.
To give a few examples based on actual human rights cases: does censorship (of an allegedly blasphemous poem) violate the author's right to free speech or does it protect the right of Christians not to be offended in their feelings? ; does the right to abort protect the right to private right and self-determination or does it violate the right to life?; did the banning of the Communist Party in Germany violate the right to free speech of members of this Party or did it protect the rights of German citizens? Formulating these questions in the language of rights does not help to find an answer. The answer depends on competing conceptions of the good. These answers are never ethically neutral in the liberal sense. Ironically, human rights - which are a cultural product of Liberalism - point to the essential failure of Liberalism. Debates among constitutionalists in the United States are mainly concerned with the unsolvable problem of the legitimacy of judicial constructions of human rights in a democracy. Judges are supposed to restrain democratic acts that violate human rights; and human rights standards are supposed to restrain judges. But human rights standards are interpreted by judges in the light of contingent conceptions of the good and not within the domain of Right. There is no rational method enabling us to choose between the "liberal" and the "conservative" story about Cardot's personal quest for Justice.
4. The Cardot Era?
The Cardot judgment looks like one of those judgments that break new ground and start a new era. Everybody was expecting a decision that would be consistent with the Commission Report. If human rights are mechanisms of protection, the pro victima principle would seem to be more consistent with the aims of the Convention.
Can we speak of the beginning of a new , more conservative era, in the construction of human rights in Europe? I do not think so. Even if Cardot proves not to be just a straw in the wind, it belongs to a long series of decisions that reinforce governmental powers in the name of human rights.
In my view, Cardot does not announce an abandonment of the adversarial system of examination of relevant evidence. On the contrary, a new reliance on the subject's initiative and a decrease in importance of ex officio powers of courts, is more consistent with the adversarial system than with the inquisitorial system. The ethics of self-interested individualism and rights can be used as the basis of social order and discipline. As Ignatieff comments, "(t)he administrative good conscience of our time seems to consist in respecting individuals' rights while demeaning them as persons" .
Stories in which the hero is a rights-bearer are also disciplinary stories. The rights-bearer has as its narrative correlative term the responsible individual . Hobbes wrote:
"In the act of our Submission , consisteth both our Obligation and our Liberty" . And Foucault, who was as interested as Hobbes in the problem of order and power: "He who is subjected... assumes responsibility for the constraints of power;... he inscribes in himself the power relation in which he simultaneously plays both roles " - that of the subject bound to the Sovereign and that of the rights-bearer. Those sectors of the population which have to be controlled and disciplined by techniques that are legitimised in terms of human rights have to be integrated into the ideology by a reciprocal movement: they must be able actively to use the machinery and the latter must respond by formally recognizing their status as autonomous (Kantian, liberal) subjects who choose whether to exercise their rights or not . The rights-holder is defined as a procedural subject, a hinge in the machinery of implementation of the law.
The rights-holder cannot transcend the law. She cannot oppose human rights principles to decisions by Human Rights bodies because the former can only be interpreted and implemented by the latter (the right to a fair trial is defined as the right to a court's decision on the fairness of a particular procedure; the right to liberty is defined as the right not to be arbitrarily arrested, that is, as the right to a court's decision on the legality of an arrest; etc.). Resistance derives its means of struggle from the prevailing legal order. Courts can be challenged only by other courts. The rights-holder cannot "repatriate" human rights from the courts since human rights are judicial discourses of justification. She will simply experience a "crisis", that is, the peculiar disorder of human rights meanings.
Insofar as the Cardot judgment is based on these assumptions, it takes the ethics of human rights seriously. It is a liberal-humanist ethics of autonomous human beings using the courts to protect their interests. The paternalism of the courts has no place within this conception. Like Smith's invisible hand, human rights can impose a collective discipline . But can they be a substitute for a genuinely humanitarian ethics?
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