NHRI Academy 2023:

Rule of Law

 

19-23 June, Skopje, Macedonia

NHRI Academy 2023:

Rule of Law

 

19-23 June, Skopje, Macedonia

About the event

This year’s NHRI Academy – the event’s tenth edition – focused on the rule of law. With backsliding on the rule of law across Europe, the central role that NHRIs play in upholding it is more critical than ever.

At the Academy, participants from 24 NHRIs learnt more about major rule of law challenges and using their institutions’ mandates to address them. They examined topics including:

  • Independent and effective NHRIs as rule of law indicators
  • Civic space and human rights defenders
  • Access to justice and independence and impartiality of judges and the judiciary
  • Strategic lawsuits against public participation (SLAPPS)
  • Implementing recommendations and decisions issued by international, regional, and national mechanisms and courts

Among other topics covered were institutional independence – including the Paris Principles – and gender mainstreaming in the work of NHRIs. They looked at how these issues interrelate with human rights and democracy.

By the end of the week, participants had been equipped with a toolkit for tackling these challenges.

The Academy is an annual flagship capacity building event organised by ENNHRI and the OSCE Office for Democratic Institutions and Human Rights (ODIHR). Alongside practical training for senior- and mid-level NHRI staff, it offers an open environment for sharing good practices and networking between NHRIs in the OSCE region, ODIHR, ENNHRI and other relevant organisations.

Read about previous NHRI Academies and see related resources on democracy and the rule of law below.

Trainers

Pavol Žilinčík

Lawyer, Co-founder of Via Iuris

Kersty McCourt

Senior Advocacy Advisor, Open Society Justice Initiative

Antonius Van Den Brandt

Principal Adviser to the OSCE Representative
on Freedom of the Media

Flutura Kusari

Senior Legal Advisor, European Centre for Press and Media Freedom

Session summaries and materials

In this session, Paula Nowek from ENNHRI presented the UN Paris Principles and explained how they can serve as a guide for NHRIs’ work in the field of rule of law. Participants were presented with the General Observations of GANHRI’s Sub-Committee on Accreditation and explored together their added value and concrete application in this field. As a result, participants learned to identify the international standards underpinning NHRIs’ work that make them unique actors in the field of rule of law and human rights.Participants also discussed why NHRIs are considered as rule of law indicators 

In this session, Sophie Hale from ENNHRI and Katerina Simonova from ODIHR looked at how NHRIs can go about mainstreaming gender in their work. They opened by looking at three key terms: gender, gender equality and gender mainstreaming. They then set out why gender mainstreaming is important for NHRIs, both in terms of their internal and external work, while linking this to rule of law.   

In this introductory session, participants looked at what the rule of law is, how it is linked to human rights and considered some of the key trends in the region. 

Kersty McCourt opened by presenting some of the key foundational texts that set out our rights relevant to the rule of law, including the Magna Carta and the Mande Charter. She continued by presenting the four universal principles of rule of law: accountability, just law, open government, and accessible and impartial justice.  

She introduced participants to the World Justice Project (WJP) Rule of Law index which monitors and ranks countries based on their adherence to the rule of law. Participants ranked their own country where they believed it should be on the scale and compared to the actual findings of the WJP. 

Kersty added that adherence to the rule of law is declining across Europe and globally, only 3.4% of the world’s population live in countries where freedoms of association, expression and peaceful assembly are adequately protected. 

Participants learnt about measuring and monitoring the rule of law, including through the rule of law checklist and other monitoring mechanisms, such as the Venice Commission, the EU rule of law reports and the relevant UN mechanisms. Anna Máriássyová from the Slovak National Centre for Human Rights presented on their innovative monitoring tool, the rule of law tracker.  

Kersty closed by presenting enforcement mechanisms both internal and external to the EU and introduced some of early warning signs that appear when a country’s rule of law situation is deteriorating.  

During this session, participants were given an overview of the right to access information, protection under the law, concepts of legal empowerment and examples of community based justice initiatives.

Pavol Žilinčík presented on access to justice and fair trial rights in the “pre-court” phases, including the concept, meaning and importance of the fair trial rights. Participants broke into groups to brainstorm a list of fair trial rights and created a catalogue of fair trial rights and possible NHRI responses.  

Pavol continued by discussing the right to an independent court and gave an introduction to judicial independence. This involved a brief review of NHRIs’ mandates towards the judiciary, including trial monitoring and reporting; monitoring of judicial processes (i.e., selection of judges), investigation of individual complaints – delays in the court proceedings and improper behaviour; the right to initiate disciplinary proceedings; and complaints to the Constitutional Court to review the constitutionality of the law regarding the judiciary.   

Using an exercise of “scaling”, the participants spread themselves along a virtual scale in the room, basing this on the strength of their NHRI’s mandate with the specific forms of interventions in the judiciary. Subsequently, the participants presented the main challenges related to judicial independence in their countries (as grouped according to their position on the scale). This exercise showed that there is a wide diversity in powers and mandates among European NHRIs but many challenges they face are similar. 

Pavol Žilinčík opened this session by giving an overview of the concept of judicial independence and by defining and comparing ‘impartiality’ and ‘independence’. Participants ranked their NHRIs in terms of how strong their mandate is related to judicial affairs.  

Anna Białek, from the Polish Commissioner for Human Rights, presented the Polish case study related to the independence and impartiality of judges and judiciary. She covered four main topics: institutional independence of the Constitutional Court; reform of the National Council of the Judiciary; disciplinary regime; and the constitutional crisis in Poland and the role of the NHRI. Participants discussed forms of governmental pressure, including legislative changes, composition of judicial bodies, disciplinary actions, as well as possible NHRI interventions in case of similar independence challenges in their countries. 

Then the participants split into groups and discussed different ethical dilemmas focusing on perceptions of impartiality and propriety. The goal of this session was to create awareness about various aspects of impartiality and to stress the importance of asking additional questions before a decision is made.  

During this session, Pavol Žilinčík outlined mechanisms for the protection of fair trial rights inside the judiciary, including judicial accountability and integrity, disciplinary proceedings, and NHRIs’ responses. He gave some examples of judicial corruption and misconduct as well as a definition of integrity.  

There was a discussion on rule of law reforms, including on why judicial reforms failed in many central and Eastern European countries. It was concluded that this was due to a lack of focus on culture, ethics and professional standards, with the focus only on law and institutions. Participants discussed disciplinary proceedings and who should discipline or regulate judges. It was agreed that jurisprudence on this area is becoming more and more clear as more cases surface. 

The session then focused on accountability and the vetting of judges and trial monitoring. Tamar Abazadze of the Georgian Public Defender’s Office presented a case study on her NHRI’s work on trial monitoring and ODIHR presented their trial monitoring methodology.  

In this session, Kersty McCourt focused on civic space and the rule of law, discussing key trends, the legal and policy frameworks and the role of NHRIs in protecting human rights defenders (HRDs). She explained that freedom of association and of expression were declining worldwide and only a small number of people live in open societies globally. She presented definitions of civil society as a bridge between the public and private space.  

Participants discussed the term “human rights defender”, whether they felt it applied to them/their NHRI and what the essential criteria are to be considered a HRD.  

Kersty then highlighted the top five threats against HRDs globally and in Europe and Central Asia, which included legal action, surveillance, arrest/detention, physical attack and death threats. She presented the case of the removal by the Constitutional Court of the Polish Ombudsman, Adam Bodnar, and outlined the relevant legal framework and mechanisms.  

Kersty gave definitions for assembly and association and examined how these rights were treated during the pandemic in different countries. Then participants split into groups to examine two case studies, Hungary and Georgia, and their restrictive NGO laws. Participants discussed the laws, including what the justification was for the law, what the three main cluster of human rights violations were and which international and regional standards were violated.  

Kersty closed by highlighting some of the key drivers of restrictions and attacks on civil society and HRDs, including securitisation & counter-terrorism policies, the criminalisation of dissent and the capture of political systems, including media and technology platforms. 

Kersty McCourt opened the session by addressing the question of what national, regional and international mechanisms exist to ensure the protection of the rule of law.  

Paula Nowek presented general findings from ENNHRI’s 2022 regional rule of law report which showed trends for the region on the topic. Some of those trends included a lack of public trust in justice systems, the failure of state authorities to implement court judgements in a timely way, and a decline in media freedom with threats and attacks towards journalists. NHRIs also reported that civil society organisations and Human Rights Defenders (HRDs) are operating in worsening conditions and continue to be the target of attacks and harassment, also by public authorities. Finally, NHRIs face challenges themselves, including a lack of state authorities follow-up to their recommendations, lack of access to information and law-making, and insufficient resources to carry out their mandates.  

Participants then discussed the role of NHRIs and the work they are doing at national level on the topic, including monitoring, reporting and publishing statements. For instance, in Denmark the NHRI – together with UN OHCHR – has made a tool called “Right to Defend Rights”, which enables systematic monitoring of the enabling environment for HRDs in a community.  

Next, Kersty outlined the enforcement mechanisms at regional and international level, as well as those inside the EU. Then participants broke into groups to examine two case studies, one leading to engagement with the Venice Commission and the other leading to engagement at EU level. They discussed how they would approach these cases as an NHRI and what actions they could take. 

During this session, Kersty McCourt looked at challenges around implementation – why are decisions/ judgments not being implemented and what the research shows. She also covered steps towards implementation and gave some examples from recent cases.  

Kersty highlighted a report by the Open Society Justice Initiative called “From Judgment to Justice”  which found an “implementation crisis” afflicts the regional and international legal bodies charged with protecting human rights. The role that NHRIs can play in supporting implementation was discussed and Elina Hakala from the Finnish Human Rights Centre presented her NHRI’s work on monitoring the implementation of European Court of Human Rights’ judgments.  

It was noted that there is a growing resistance towards the implementation of judgments. Also some countries are not paying individual measures/ compensation. The majority of non-implementers are countries with systemic rule of law and human rights issues. 

Kersty closed this session by presenting some resources on implementing human rights decisions: reflections, successes, and new directions.  

During these two sessions with Flutura Kusari from the European Centre for Press and Media Freedom and Ton van den Brandt from the Office of the OSCE Representative on Freedom of the Media, participants learnt about strategic lawsuits against public participation (SLAPPs) and what role NHRIs can play  in combatting them.  

The session began with a discussion of what SLAPPs are and how they pose a threat to freedom of expression and media freedom. Ton explained that the debates about SLAPPs started in the USA and spread to other countries including Europe. He gave some concrete examples of SLAPP cases and explained that the aim was to harass, silence and suppress critics through lengthy and expensive legal proceedings.  

Flutura explained how her organisation, the European Centre for Press and Media Freedom, has been providing legal support to victims of SLAPPs. She gave some definitions of SLAPPs and explained that the targets of SLAPPs are usually the media, human rights defenders (HRDs) and public watchdogs. The people using SLAPPs are usually rich and powerful and can afford to employ a legal team for these lengthy proceedings. SLAPPs can be domestic, pursued in one legal jurisdiction, or cross-border, pursued in more than one legal jurisdiction/different jurisdiction. 

Next the participants learnt how to identify a SLAPP legal action using indicators and how to document them. Then Marius Mocanu from the Romanian Institute for human rights (RIHR) presented on his NHRI’s first steps as the new Focal Point on the EU SLAPP Recommendation. Participants discussed whether they thought their NHRI should be the focal point for SLAPPs or not. They then learnt about international initiatives to counter SLAPPs, including the Council of Europe SLAPP Recommendation, the draft EU directive on countering SLAPPs, and the EU Recommendation on SLAPPs. They also heard from Ton about the OSCE Representative on Freedom of the Media initiatives against SLAPPs, including a toolbox and reports, and from Flutura about the CASE Coalition, a group of CSOs which discuss how to address SLAPPs.  

Finally, participants discussed what NHRIs can do to address SLAPPs and support the victims, including mapping and documenting SLAPP cases; collaborating with the Council of Europe, the EU and civil society colleagues; and coordinating support for victims/targets of SLAPPs

Additional Resources

The Juridical Integrity Group

Committee of Ministers of the Council of Europe

Photos

NHRI Academy 2023

Organisers:

ENNHRI tenth anniversary logo.
ODIHR logo

In partnership with:

OSCE: (The Representative on Freedom of the Media) logo
ECPMF logo
Logo of the office of the Ombudsman of Republic of North Macedonia

This activity is supported by EEA and Norway Grants project “Supporting National Human Rights Institutions in monitoring fundamental rights and the fundamental rights aspects of the rule of law”. The project is led by the EU Fundamental Rights Agency (FRA) and implemented together with seven NHRIs and ENNHRI.