NHRIs‘ contribution in monitoring and advancing the rule of law in Europe
Human rights and the rule of law are interlinked and mutually reinforcing principles: a strong regime of rule of law is vital to the protection of human rights, and the rule of law can only be fully realised in an environment that protects human rights. National human rights institutions (NHRIs), as independent, state-mandated bodies with a broad human rights mandate, are therefore key players in the protection and promotion of the rule of law in their countries.
The added value of NHRIs’ individual and, through their European Network ENNHRI, collective engagement in efforts to promote and protect rule of law, human rights and democracy in Europe has been the object of increasing recognition by regional actors over the past year.
Such recognition rests on the crucial role of NHRIs as an essential component of the national systems of checks and balances and as key actors in the human rights enforcement chain. This has been reaffirmed in the Recommendation on developing and strengthening NHRIs recently adopted by the Council of Europe’s Committee of Ministers. The Recommendation calls on each Council of Europe Member State to establish, maintain and strengthen an independent NHRI in compliance with the Paris Principles and to ensure an enabling environment for, and cooperate with NHRIs. At EU level, the important role of NHRIs as contributors and beneficiaries of the EU’s efforts to promote and protect rule of law, human rights and democracy within and outside its borders, is clearly stressed within the newly established review cycle of the rule of law situation in EU Member States, the European Commission Strategy for the effective implementation of the Charter of Fundamental Rights of the EU and the new EU Action Plan on Human Rights and Democracy 2020-2024 which underpins the EU’s external action, including in the context of the enlargement process and the Eastern Partnership policy. This has translated into an increased attention by regional actors to the need to support and cooperate with NHRIs when advancing and monitoring progress on rule of law, human rights and democracy across the region.
Building on their increased recognition, ENNHRI and its member NHRIs have further deepened their strategic engagement in European mechanisms and processes aimed at monitoring, promoting and protecting the rule of law, human rights and democracy. At the core of such engagement lies a united approach meant to enhance coherence and consistency while allowing to reflect the differences in NHRIs, national environments and regional processes relevant to each country across ENNHRI’s membership.
NHRIs’ joint rule of law reporting is one key aspect of such strategic engagement. Information on the extent to which NHRIs are able to independently and effectively fulfil their mandate is internationally recognized as an important rule of law indicator. Furthermore, reporting by NHRIs on the human rights situation on the ground – one of the core elements of their legal mandate – contributes to reflect a more accurate picture of the rule of law environment of each state, with a view to improving the rule of law situation across Europe. In turn, NHRIs find that joint reporting has a positive impact on NHRIs’ own work, from contributing to a strengthened focus on rule of law issues, to facilitating targeted initiatives, raising awareness and visibility of NHRIs’ work, fostering mutual learning and the exchange of information and strengthening solidarity among NHRIs – each of which can have a positive impact on rule of law.
Building on a first successful joint rule of law reporting experience last year, European NHRIs have again joined forces to reflect each institution’s perspectives on the state of the rule of law in their country, based on their human rights monitoring and reporting functions and having regard to their mandate and their national strategic priorities. The result is a comprehensive 2021 regional rule of law report bringing together all the country reports prepared by ENNHRI’s members in 42 countries across Europe, as well as information on NHRIs’ establishment and accreditation in 8 additional European countries.
The trends which emerge from these reports point to a number of challenges related to the rule of law environment across Europe. Key findings include the following:
- Persisting issues continue to affect the effectiveness of NHRIs in many states across the region, including limited mandates, lack of sufficient resources, poor implementation of NHRIs’ recommendation by state authorities, flawed consultation practices and, for some, worrying threats to independence. While steps were taken in a number of countries towards strengthening the mandates of NHRIs, in some states regressive regulatory amendments were adopted, and in those countries where an accredited NHRI does not exist yet, no significant steps were taken towards establishment and accreditation;
- Human rights defenders (HRDs) and civil society organisations (CSOs) are facing severe challenges in many states across the region, due to laws and practices restricting CSOs’ enabling space and operations, limited funding, gaps in access to and participation in decision-making, measures negatively impacting the exercise of freedom of expression and peaceful assembly, as well as threats and attacks, in particular targeting CSOs and HRDs working with minority groups such as migrants or LGBTI+ persons. Against this background, many NHRIs are investing to further support and protect HRDs and CSOs;
- Weakened democratic checks and balances, especially reported in connection to the emergency situation created by the COVID-19 pandemic, are regarded as a potential threat to the rule of law framework and on human rights protection – especially in those countries where more generalised deficiencies exist as regards key safeguards such as judicial oversight, access to information and transparency of law and policy making. Commonly reported challenges include the widespread use of accelerated legislative procedures, lack of impact assessment and consultations and reduced parliamentary oversight. In this respect, several examples demonstrate how NHRIs exercise their role as part of the national systems of checks and balances, although a number of them experience difficulties such as lack of cooperation and consultations, limited direct access to information held by state authorities and insufficient resources;
- Concerns persist over the functioning of justice systems in many states across Europe, including insufficient resources, deficiencies in the enforcement of judgments, excessive length of proceedings and challenges affecting the right to access to a court and to a fair trial. While issues relate to a persisting systemic inefficiency of the justice system in a number of countries, in particular in the enlargement and Eastern Partnership regions, NHRIs in some EU Member States also express concerns, in particular over the independence of the judiciary. In this context, NHRIs continue to contribute to promote fair and effective justice, including by advising on reforms, dealing with complaints on the administration of justice and improving access to justice for vulnerable groups;
- In a worrying number of states across the region, journalists are reportedly subject to threats, intimidation, harassment including through abusive lawsuits and hate speech, as well as, in some cases, arbitrary arrests and prosecutions and obstacles to reporting on the part of government authorities. In various states across Europe, the media sector reportedly suffers from concentration, political and economic pressure, while hate speech in the public discourse remains a concern. A number of NHRIs report being particularly active in this area, through monitoring and advising on reforms, litigation and public education initiatives to protect freedom of expression and foster media pluralism;
- Limited progress is reported in the fight against corruption, which remains at concerning levels in a number of states, also in connection with the reduced transparency and accountability determined by the pandemic context. Against this background, a number of NHRIs have been engaging in reforms of the anti-corruption framework and are actively contributing to the implementation of rules on whistle-blowers protection;
- Widespread human rights violations affect the national rule of law environment in some countries, including systemic violations of human rights of migrants and ineffective responses to hate speech and crime routinely targeting racialised groups and LGBTI+ people.
The country reports also reflect NHRIs’ views on the impacts of the COVID-19 outbreak and of the measures taken to address the pandemic on human rights and rule of law. Among the concerns most frequently raised, NHRIs point to the impact of emergency regimes on checks and balances and on the democratic process, the specific challenges affecting the functioning of justice systems, the severe implications for people in a situation of vulnerability (among others, persons with disabilities, the elderly, Roma, migrants and homeless people) and the impact of the crisis on women and children, including in terms of rising levels of domestic violence. Concerns over long term impacts are also expressed as regards access to education, shrinking civil society space, and reduced transparency and information. The crucial role of NHRIs in monitoring, assessing and addressing these challenges is exemplified in many concrete initiatives, which NHRIs carried out despite the difficult working conditions experienced during the pandemic.
Looking ahead: a continued engagement and strengthened impacts for tangible progress on the promotion and protection of human rights, rule of law and democracy in Europe
By engaging in a regular monitoring of the rule of law situation in their countries, NHRIs can help European policy makers reach a more comprehensive and informed assessment of the situation in each state. This, in turn, can lead to stronger impacts of follow up action to drive progress in the national rule of law and human rights environment and towards a stronger regional and global system for human rights and democracy.
With a view to making NHRIs’ engagement even more impactful, this year’s report contains a number of concrete and targeted recommendations addressed to regional actors, including as regards:
- Prioritising the strengthening of fully independent and effective NHRIs in each country across the region, including through a more systemic inclusion of NHRIs’ independence and enabling space – as reflected in NHRIs’ international accreditation status and related recommendations – as indicator of progress on rule of law;
- Enabling NHRIs in bridging key benchmarks and objectives set by EU and other regional actors with national realities, including through additional support for NHRIs’ regular rule of law reporting through ENNHRI, enhanced participation of NHRIs in key policy fora and effective support to NHRIs under threat;
- Supporting NHRIs in bridging national realities with efforts by regional actors, including by supporting follow-up by state authorities of NHRIs’ recommendations and reinforcing the need for national actors to respect NHRIs’ mandate, and facilitating mutual engagement;
- Strengthening complementarities across policy initiatives and enhancing cooperation among regional actors to address common concerns on the respect for rule of law, human rights and democracy, in particular through supporting, including through ENNHRI, implementation of the 2021 Council of Europe Committee of Ministers Recommendation on NHRIs.
ENNHRI and NHRIs are determined to invest, insofar as their resources and capacity allow, in a regular and comprehensive monitoring and follow-up of developments related to the rule of law in each State, as a means to making concrete progress in advancing rule of law, human rights and democracy across Europe.