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Αρχική arrow newsitems arrow CoE Rule of Law Criteria include Eurofora idea on Dialogue with Citizens before important Decisions

CoE Rule of Law Criteria include Eurofora idea on Dialogue with Citizens before important Decisions

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Thursday, 12 October 2017
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*Strasbourg/CoE/Angelo Marcopolo/- The Parliamentary Assembly (PACE) of the PanEuropean Organisation for Democracy, Rule of Law and Human Rights, CoE, has just decided to Start Implementing, in real life, vis a vis all States and other Public Authorities, a List of Legal "Criteria" for "Rule of Law", which includes a Core part of "Eurofora"'s project on Dialogue with Citizens before Public Decisions affecting their Lives and/or Society at large (Comp. also : http://www.eurofora.net/newsflashes/news/eucoeabdcitizensinpublicdecisionmaking.html , etc) :


This is contained in a relevant "Check-List", drafted between 2012 - 2016, and re-Published on 2017, by the Prestigious PanEuropean CoE's Top Legal Experts' body known as "Venice Commission" for "Democracy + Human Rights through Law",  currently Chaired by experienced former Long-Time CoE's Senior Officer, Jean-Claude Buqicchio, who actively participated in PACE's Debate.


PACE had invited (already from 2007) the Venice Commission's Top Legal Experts to Study the concept of "Rule of Law" (alias : "Rechts-Staat"/"Etat de Droit", etc) in Depth, and the latter Found that, despite some more or less differences, nevertheless, un "Consensus" seemed to Exist, among 47 CoE's Member States, Observers a.o., as far as it concerns its "Core Elements" :


They include not only "Legality" and "Certainty", as well as "Non-Discrimination and Equality", but also "Access to Justice", and, in particular, "Prohibition of Arbitrariness".


The latter, aiming to "Prevent Abuse (or Misuse) of Power", (aka : "Detournement de Pouvoir"), by "Public Authorities", concerns "Legal Restrictions to Discretionary Power", when "exerciced by the Executive in Administrative Action", (a Frequent Phenomenon in Modern Societies). It consists in "Mechanisms to Prevent, Correct and Sanction" any "Abuse of Discretionary Power", including the "Judicial Review of the Exercice of such Power" when it's "given to Officials".


In particular, "Public Authorities" must be "Required to Provide Adequate Reasons for their Decisions", especially "when they they Affect the Rights of Individuals". So that "the Failure to state (such) Reasons", should be "a Valid Ground for Challenging such Decisions in Courts".


This is contained in CoE's "Venice Commission" Top Legal Experts' "Rule of Law CheckList" ("Critères de l'Etat de Droit") Booklet, which was Endorsed by the Highest Political body of the PanEuropean Organisation : its Committee of Ministers and Printed 3 Times on 2016, the Use of which was, Yesterday Evening, strongly advised by CoE's Parliamentary Assembly's Legal/Human Rights Committee's new President, Ms Olena Sotnyk, (See relevant "Eurofora" Photo).


As it was clearly explained, during PACE's Plenary Debates Yesterday Evening, this concerns a set of Principles, more or less Common to All concerned Countries, but in Each of which, the Concrete Ways to Implement them, might appear to be quite Diversified, in real Practice.


In Substance, what is really Common, is that all this concerns the use of Discretionary Powers by Public Authorities (and/or "Private Actors in charge of Public Tasks"), when the take Decisions which Affect Citizens' Rights and/or Society at large. And the Scope on which Bears the Monitoring by independent Courts, is Not the concrete Content, the Conditions, and/or the Aim of a Decision, as such, But, rather, the Decision-Making Process :


- I.e., particularly its Internal, Logical aspects, as far as it concerns an "Obligation to Give Reasons", and the Reality, Legality, Pertinence or Sufficiency of such a Motivation, (including, f.ex., if it Replies Adequately, or Not, to eventual legitimate Objections with Arguments that the Affected Citizens might have raised, etc). No "Detournement de Pouvoir" or "Abuse of Power", i.e. No Misusing a Power given by the Law only for a concrete Aim, in fact, for slyly seeking to obtain another, illegitimate aim, etc.


+ At the same time, it includes relevant Key aspects of the External Procedure of a monitored decision taken by a Public Administration in order to Regulate one or another area, such as, f.ex. : To be "Debated Publicly" and "Adequately Justified", with, previously, "the Public having Access to the Draft", and "a Meaningful Opportunity to Provide Input", (as CoE's above mentioned Booklet stresses, Referring, f.ex., to relevant Official Documents of UNO's Human Rights Committee, of the OSCE, etc), i.e. at least an elementary "Procedure Contradictoire" (according also to French Administrative Law, etc), sometimes going as far as to speak also of "Citizens' participation in the conduct of Public Affairs, by exerting Influence through Public Debate" (UNHRC, 1996).


++ But also the Absence of Excessive Dis-Proportionality between the Measure taken by a Public Authority, compared to its Legal Aim, and the way it Affects the Citizens. An Estimation of the Impact of a planed Measure to Citizens' Rights, Compared to the General Interest Benefits expected from it, in order to "allow to strike a Fair Balance, between the various conflicting Interests at stake", (ECHR). At least, withOut any "Erreur Manifeste d' Appreciation" about that, (in French Administrative Courts' case-law),  according to the usual denominations of relevant Judicial Monitoring on Public Administration's Decisions, in the real practice of several CoE's Member States, even of ECHR itself (on 2 out of those 3 points).


(Such Legal points have been extensively Analyzed by "Eurofora" Co-Founder's original Comparative Law University Research, already Started as Early as since 1980 -with a 1.000 pages-long Report, presented² by Strasbourg's Faculty of Law for a Prize awarded to PhD. Thesis, after written proposal by Paris II Universiy Professor Paul Amselek. But also more Recently, Since an active Participation in a landmark 2012 Scientific Colloquy at Strasbourg University, in cooperation with those of Rennes, Paris II, including a Report on a relevant Environmental Impact Committee's Public Debates with Citizens, set up by Michel Barnier when he was Minister, etc).


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    + The Fact that such a Legal Structure of Relations between Citizens and Public Administrations is considered by the CoE as corresponding widely to a certain Level of Development in Modern Democratic Societies in general, throughout the whole World, and Not Only in Europe, became Obvious, inter alia, also by the inclusion, among the 9 Top Legal Experts on the basis of whose "Comments" CoE's Venice Commission adopted this "Rule of Law CheckList", also of a Member from the USA. While, in Addition, Yesterday's PACE's relevant Debate in Strasbourg included also Representatives from Morocco up to Canada and Other Non-European Countries. Moreover, in a Resolution Voted and Adopted at the Conclusion of Yesterday's Debate, PACE clearly Asks all Venice Commission's "Member and (even) Observer States", (several among which, notoriously are located also in Other Continents accross the World), to "actively ...Defend and Promote" this "Rule of Law Checklist", them too.


    >>> However, the Most Important Decision taken Now by CoE's 47Member States-strong, PanEuropean Parliamentary Assembly , obviously is that this adopted 2017 Resolution, not only "Endorses" the "Rule of Law CheckList", but, Moreover, it also goes on to Add even its intention, for the 1st Time, to Start "Us(ing) it Systematically" , "particularly" ... in order to accurately Identify any structural and systemic (Legal) Problems in CoE's Member-States", whenever the Situations existing in them are checked by PACE's competent "Committees" on "Legal/Human Rights" affairs and/or its "Monitoring Committee", "on the Honouring of Obligations and Commitments by Member States".


    => I.e., in other words, it's as if PACE clearly and explicitly Decided, Now, in real Practice, to Start Using, at least from October 2017 onwards, that Venice Commission's "Rule of Law CheckList", (including the Above-Mentioned Key Legal Points), as if it had become a Legally Binding set of Rules nowadays !


    + For that purpose, PACE's Resolution also "invite(s)", Now, All "the National Parliaments and Government bodies", as well as "CoE's Secretary General", to "Systematically" "Refer" to, and/or "take into Account" that same "Rule of Law CheckList"'s Criteria, whenever the First have to work on various National "Reforms", or the Latter to make his "Annual Report on the Situation of Democracy, Human Rights and the Rule of Law in Europe", (as he Already Started to do so, from 2017).


    >>> And, since, now, that "Rule of Law CheckList"'s "Criteria" have been Officially Adopted, Both by CoE's Parliamentary Assembly, and Secretary General, from 2017, (Comp. Supra), as they were Also Endorsed, from 2016, by CoE's inter-Governemental Committee of Ministers, following "Venice Committee"'s Independent Top Legal Experts on Constitutional Law, and Joined even by CoE's Congress of Local and Regional Authorities, etc, then, it concerns, practically, All Levels of Government : Local, Regional and National.


    ++ Furthermore, Advancing even anOher, Important Step towards "Eurofora"s Project, for Dialogue between Citizens and EU Institutions (including EU Parliament, etc) Before important Decisions are taken which seriously Affect their Lives and/or Society at large, CoE's PanEuropean Organisation for Democracy, Human Rights and Rule of Law's Parliamentary Assembly, (PACE), also Decided Now, to "invite" even "International and Regional Organisations, including ...the EU, to refer regularly to the Rule of Law Checklist" in their "work", as that Adopted Resolution adds.


    Already, Experienced former Twice EU Ombudsman/Citizens' Defendor, Headquartered in Strasbourg, Professor Diamantouros had told "Eurofora" in the recent Past, that, After the Entry into Force of EU's Lisbon Treaty (2010+), his Intention to Start Using its General Clause (contained in EU's "Charter of Fundamental Rights") about "Good Administration", in order to Check EU Decisions' legality also from the Precise point of view highighted by "Eurofora" above, (Comp. f.ex.: ...).


    And, Nowadays, even the Booklet with CoE's "Venice Commission"'s "Rule of Law CheckList", Published on 2016, (Comp. Supra), explicitly Refers to relevant "selected Standards", contained, f.ex., as far as "Hard Law" is concerned, also to "EU's Charter of Fundamental Rights (2009)", UNO's International Convent on Civil and Political Rights (1966), etc., and, as far as "Soft Law" is concerned, also to "EU Commission's Communication to EU Parliament and Council on "a New EU Framework, to Strengthen the Rule of Law" (2014), EU Council's Conclusions "on Fundamental Rights and Rule of Law, and on Commission's 2012 Report on the Application of EU's Charter of Fundamental Rights (2013)", as well as to the "EU Accession Criteria" ("Copenhagen Criteria"), etc. But also to OSCE's Copenhagen Conference "on the Human Dimension" (1989), as well as its Follow-up with a Similar "Moscow meeting Document" (1991), and OSCE's "Decision No. 7/08" about "Further Strengthening the Rule of Law in the OSCE Area (2008)". Concerning, particularly, "Eurofora"s Specific Viewpoint (Comp. Supra), CoE's "Rule of Law Checklist" refers, about "Preventioon of Abuse of Power", also to the "UN International Convenant on Civil and Political Rights' (1966) Article 17, about "Interference with Freedoms", as well as in Thematic UNO's Texts about "Migrants and their Families (1990)", "the Rights of the Child (1989)", etc., and even to "CoE's Committee of Ministers : "The CoE and the Rule of Law" (2008), UNO's "Universal Declaration of Human Rights (1948), Articles 9, 12, 17", etc.


    Naturally, such Texts could also Inspire, in the foreseeable Future, EU's Court of Justice, at nearby Luxemburg, in parallel with ECHR in Strasbourg, at their respective Case-Law.

 

    => Therefore, PACE's Resolution, adopted Yesterday Evening, significantly Concludes by "Encourag(ing) Civil Society to Use the <<Rule of Law CheckList>>", in order to "objectively Assess Respect for the Rule of Law" in real, Everyday Practice.  

 
    >>>  - "It's one of the Most Important Pieces of Work we have Ever done !", stressed with Emphasis, Yesterday Evening, the experienced President of the PanEuropean Commission for Democracy through Law, (alias CoE's "Venice Commission")


    - Indeed, "the Rule of Law is Not Abstract, any more : We have just a Small Book", which, "in Reality, it's very Precious !", echoed further PACE's new Chair of its Legal/Human Rights Committee, MEP Olena  Sotnyk, concluding a long Debate.   

 

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     She was proudly Brandishing a Copy of that Booklet as if it was, mutatis-mutandis, somehing like the World-Famous ...Mao's little "Red-Book", notoriously used by Millions of People, during China's "Cultural Revolution", back in the 1960ies ...

 
    => Could, indeed, CoE be Launching, now, its own, Legal, and brand New, peaceful "Cultural Revolution" ?

 

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Mao + People brandishing the "Red Book", on 1966, at Tien an men Square, (Photo in Historic German Exhibition of 2017, covered by N-TV)

 

 

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Benedict's "Source" to revitalize Europe : - "The World needs Hope", Pope says, calling to relaunch E.U. via Human Rights !

Paris - Lourdes - Strasbourg : 12 - 17 September 2008.

The vital need to re-launch Europe can be succesfully met by defending fundamental Human Rights of the People, said Pope Benedict XVI in his 1st speech in France, at his meeting with President Nicolas Sarkozy, who currently chairs the EU.

Sarkozy replied by welcoming Christian and other religions' contribution to indispensable Public Debates on crucial issues which affect Human Dignity, Europe, even Humankind, as BioGenetics.

- "When Europeans will see and personally experience that the inalienable Rights of the Human Person .., those of their free Education, their Family life, their Work, ..their Religious Rights, ..are respected and promoted, then, these Europeans will fully understand the greatness of the European construction and will be actively involved in it", Benedict XVI stressed.

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- "It's important that during France's EU Presidency, there is, indeed, a desire for the Church to contribute to protect Human Person's integrity, and I think that there is also a growing Conscience, beyond any polemics, to defend Human Rights, and, thus, contribute to ensure respect for Human Dignity", added to "EuroFora" the Pope's Spokesman, Vatican's Press Director Federico Lombardi.

- "Nobody really told us here that Lisbon Treaty was good for this or that reason to the People. They only told us that we "had" to ratify it, and tried to scare us, but failed", said 2 Irish pilgrims to "EuroFora", after 2 Majority Abstentions in 1999 and 2004 EU Elections and 3 "NO" to Referenda in France and the Netherlands in 2005, followed by the Irish "No" in 2008, during a Decade of EU Crisis since the controversial Turkey EU- bid (1999-2008).

More than .."224 cases of Murders, Torture, "Disappearancies" or Destructions" by "agents of Turkish Security forces", where all those responsible for so heavy Crimes still remain scandalously unpunished, despite regular condemnations of Ankara by Strasbourg''s European Court of Human Rights from 1996 to 2008, were examined the same week by CoE's Ministers, who decided to launch a fresh call "urging" the Turkish Authorities to end this dangerous "virtual Impunity" of criminals, without comparison to European countries.

- "Why not Ukraine, instead of Turkey ?", asked EuroFora a Journalist from "Kiev : the city where it's enough to cross the streets in order to realize that it's a European town", as Sarkozy recently said, before solemnly declaring this week, together with Ukranian President Jushenko and EU Commission's chair Baroso, EU's "recognition that Ukraine is a fully European Country, linked to Europe by culture and History".

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Europe's "Christian roots" and Values, with "openess and mutual respect" to other cultures and beliefs, were highlighted by Sarkozy in harmony with Benedict XVI.

The Human person should be protected "from his inception until his natural death", added the Pope, faithful to BioEthic principles defended by his predecessor and collaborator, John Paul II, of topical importance in France, Europe and the World today, as Sarkozy announced :

- "Fast and important progres in Genetic Science and procreation raise delicate BioEthical Questions to our Democracies", which "involve our view of Humans and Life, and can lead to Social Mutations. That's why they cannot remain only a business of experts", hestressed.

- "It's Politician's responsibility to set a proper framework for such Public Debates", as "France will do on BioEthics in 2009". "Religious and Philosophic traditions must take part, with their ideas and centuries' long experience : A positive Laicity is an open invitation to Dialogue", he said.

- "France engaged in Europe at another Debate on how to make Financial Capitalism more moral", and the "Social doctrine of the Church fits well what is at stake in modern Globalized Economy"

- "But, a "Real Dialogue is not for an elite of a Globalized world : It penetrates deep into the People : That's why Churches should actively participate : .. It's bringing New Oxygen to Public Debates", stressed Sarkozy.

- "Democracy must not be cut off Reason", which is "compatible with Faith", thanks to "the meeting between Christianism and Greek philosophy ", he added, referring to Pope's views. "It means to advance with logic arguments, search what's best and respect common principles of thinking :... It's an everyday need for Public Administration and the Political Debate", he added.
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Pope Benedict's 1st visit to France looked like the start of a brillant, manifold demonstration that this was well-founded and could become true in the lives of the People : After its Theoretical foundations unfolded at a "speech to the world of Culture", inaugurating Bernadins' cultural centre, and its dogmatic instrument shaped at an address to the Clergy in the Historic Notre Dame' Cathedral, he started to resolutely reach out to the People :

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The move went upwards like Bach's music : Begining with a call to more than fifteen thousand enthousiastic Youngsters gathered at Notre Dame's parvis with overnight celebrations, it gained strength in an impressive open-air Mass at Paris'central Invalides'area facing Alexander III's bridge, attended by more than 150.000 people, French Prime Minister Fillon, many Ministers, Foreign Ambassadors, etc, and culminated in a series of pan-European Mega-meetings at Lourdes 150th anniversary, together with all French Bishops, EU Commission's vice-Chairman Barrot, and some 200.000 enthousiastic People from all over Europe and beyond : After a Sea of Lights astonishingly braved Saturday Night's rain, an open-air mass at riverside fields among Pyrenees' Mountains Sunday Morning, was followed on Monday by a Sea of "Compassion" to those facing Health or Life threats, surrounded by an endless gathering of People, whose gigantic dimensions obviously surprised the organisers..

Meanwhile, Benedict had the occasion to speak to the French Priests at Notre Dame of Paris, and with the Bishops at Lourdes, where they prepare a crucial November plenary meeting, due to take important decisions on imminent EU debates and choices about Europe's identity, BioEthics, etc.
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- "A new way of thinking about Laicity has become necessary", agreed the Pope with President Sarkozy at Elysee. While keeping the "distinction between Politics and Religion, to guarantee Citizens' Liberty", "religion is important for shaping Consciousness and contributing, together with others, to create a basic Ethical Consensus in society".

- "Searching Essential realities", (as "God" for christians), needs "Speech : "Logos" in greek, i.e. Reason", "able to shape a Community","with creative work transforming Human History". But "Dialogue" is instrumental for "Reason", because it's the way to "search" for Truth", in "Liberty", according to Greek Platonic Philosophy, with Socrates' dialectics. "Reason" implies "Spirit and Liberty", hence the polyphonic "Music" of "Dialogue", in a responsible, "well balanced" way, to avoid "destruction".

Starting with a "Dialogue between christians and intellectual or artistic movements" highlighted at Bernardins' Cultural Center. with former Presidents Chirac and Giscard d'Estain, UNESCO's chair Anastassopoulos, etc., as well as representatives of Muslim Communities, (including a separate Turkish), after contacts with Jews at Vatican's Embassy, the Pope turned towards the People :

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To French Priests : "Church built on the rock" !
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- Speaking to thousands of French Priests at Notre Dame's Cathedral, Benedict highlighted a solid "Church built on the Rock" of conscious and active persons, transmitting "a lively, energetic and sharp" "God's Speech, actively working on Human History".

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"Praying together" with "representatives of Christian Churches and ecclesiastic communities", (as Orthodoxes, Armenians, Protestants, etc), he called "to reinforce the Unity of the church", against "any form of Division", around Holy Spirit', "the Word","Christ's Justice", and "Love" to fellow- humans : Essentials which "resume all holy scripts", as he said.

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To Young People : "New Horizons"
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To some 15.000 enthousiastic Young People at Notre Dame's parvis, along Seine's river, Benedict spoke about "the Energy of the Holy Spirit" and "the Mystery of the Cross" : - "The Holy Spirit opens New Horizons to Human Intelligence .. and makes it conscious of the real greatness of Christ's sacrifice, dying and resurecting for World's life".

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Some "may slander you as crazy, laugh at you, or even persecute you. But, "the Holy Cross is a symbol of God's love", and "givesmoral strength" : "Witness of People's pains, it's at the same time, a precious, unique expression of their Hopes", he told them at Paris' dawn.

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Invalides' plateau : "People chosen to become God's friends"
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At the 1st open-air Mass in Paris' center area of Invalides, facing the Grand Palais, along the river Seine, during an impressive gathering of more than 150.000, French Prime Minister Fillon, Ministers Alliot-Marie, Bachelot, Dati, Jouyet, Assembly's President Accoyer, Senate's Chair Poncelet, former 1st Lady Bernadette Chirac, former Prime Minister Raffarin, many foreign Ambassadors, and other political personalities were present. (While earlier, from the Socialist opposition, Paris' Mayor Delanoye, artist Robert Hussein a.o. assisted at the Elysee meeting).

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But the "Entry Song" focused on the "People chosen to become God's Friends". The September 11 mass was Dedicated to "Saint Chrysostomus, that great priest of Constantinople", with his "wonderful eloquence and great courage to face challenges", who "made out of despaired and godless people, a people of brothers", opening a possibility to "become all one complete entity", as Pope Benedict reminded.

- "Reason never enters in real contradiction with Faith", stressed Pope Benedict, who prepared his speeches for France during a short Summer rest at Brixen/Bressanone's Seminar, whose Library honors both "Faith and Science".. - "We must use not only our Reason, but also our Faith" : "Get away from Idolatry", "cupidity", "avidity for money, power or even knowledge deviating from essential aims", and other "falses appearances". and "build your Home on the Rock", "with the force that Holy Spirit gives to those who let it act in them", he said to the People of Paris.

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Benedict at Lourdes : - "Become Light (even) in the Dark !"
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- "Our World needs Hope", stressed Pope Benedict, addressing an impressive TorchLight procession at Lourdes' sanctuaries, where a Sea of Lights held by Hundreds of Thousands of People gathered at Pyrenee's Mountains from all over Europe astonishingly kept their flames despite a heavy Rain at a windy Dark Night...

- "150 years earlier (1858 - 2008), ..here, in the cave, ... a simple young girl, Bernadette .. saw a Light". "The everyday life of her Family was, however, made of Misery, Sadness, Sickness, Misunderstandings, Rejection and Poverty... It was hard to live in Jail". Today, "we think to all Human Beings who suffer : The innocent Victims who face Violence, War, Terrorism, Hunger, Injustices, Catastrophes, Hate and Oppression, Violations of Human Dignity and of their fundamental Rights, of their Liberty to act and think. We also think to those who face Familial problems, sufferings from Unemployment, Sickness, Infirmity, Isolation, or their situation as Immigrants, without forgetting those who suffer and die for the name of Christ", he said.

- "But the Shadows of the Earth, did not hinder Sky's Light to shine : <<The Light shines in the Dark>>" ..."A Way full of Light opens in Human History even in its Darkest moments" : ..."As Night falls, Christ tels us : <<- Keep your Lamps alight !>>."Hold a Light while walking in the Night .. sums up our condition as Christians on their way : "We need light, and we are called to become Light !", Benedict stressed to People setting in motion Lights, Flags and Songs with enthousiasm.

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"<<- She looked at me as a Person, who speaks to another Person>>, the poor girl had noted."Light emerges from such a Dialogue", stressed the Pope : "A small Flame called Hope, Compassion and Tenderness dwells inside those who return after being moved by Lourdes' experience". "Christ .. entrusts us with the Mission to let the Light of Charity shine : To make of our Prayers an Act of Love to our brothers and to Fraternal Charity", he concluded.

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