In continuity with the findings of last year’s report, many of the challenges affecting the national systems of checks and balances reported by ENNHRI members relate to the way governments responded to the crisis situation created by the COVID-19 pandemic outbreak.

The most common concern shared by ENNHRI members is the persisting use of emergency legislation. In this respect, a number of ENNHRI members alert about issues of legality, including the lack of a clear legal framework regulating the adoption of restrictive measures during public health emergencies, as mentioned in country reports on Armenia, Ireland, Kosovo and Portugal. In other cases, concerns are raised as regards the proportionality of measures and their impact on the system of checks and balances – such as in Albania, where the NHRI deplores the decision to introduce an obligatory quarantine for those arriving in the country just before the general elections, which was seen as restricting citizens’ right to vote. Many ENNHRI members also voice concern over the low quality of law and policy making. This is mainly due to the widespread use of accelerated legislative procedures and the lack of transparency of decision making by the executive, as reported in Albania, Bulgaria, Croatia, Georgia and Luxembourg; and in the weak impact assessments of and lack of consultation on restrictive measures, in particular as regards impact on human rights and vulnerable groups such as persons with disabilities – as reported in particular in Armenia, Bulgaria, Georgia, the Czech Republic (which also regrets a lack of access to information), France and Ireland.

ENNHRI members in Armenia, France, Greece and Slovakia made particular note of how the protracted use of accelerated procedures and the increase in the executive powers risks have a long term impact on the system of checks and balances, as they were applied to laws not directly linked to the pandemic emergency undergo accelerated procedures (such as, in Slovakia, the law on motorway vignettes which was eventually vetoed by the President as not meeting the conditions for such accelerated procedure); or laws originally adopted to tackle the emergency are being progressively embedded in ordinary laws (such as, in France, law enforcement powers for home searches and surveillance).

However, concerns in this area go beyond challenges brought by the pandemic emergency.

The need for public consultations on laws to be more transparent, inclusive and effective is a general concern expressed by ENNHRI members in several countries across the region, including Armenia, Bulgaria, Croatia, Denmark, Finland, France, Georgia, Germany, Greece, Hungary, Ireland, Poland and Slovakia. In Poland, the NHRI particularly regrets the poor impact assessment and lack of consultation on the emergency legislation on the Belarus border zone, while similar concern is expressed by ENNHRI member in Luxembourg as regards the reform of the constitution. In Bulgaria, the NHRI regrets the government’s failure to submit a draft law on combatting domestic violence despite intense discussions and contributions among political forces, rightsholders and stakeholders facilitated by the Ombudsman.

Limitations on access to public interest information, and maladministration in handling requests for access, also frustrate participation in law and policy making. While in some cases this concern is raised in particular in relation to sensitive topics such as migration (in Belgium) or nuclear and military installations (in France), it is of a rather general nature in a substantive number of countries, including Albania, Armenia, Kosovo and Ukraine. Difficulties in access to information faced especially by persons with disabilities are also reported by ENNHRI members in Armenia and the Czech Republic. In some cases, such as in Poland and Slovakia, ENNHRI members have alerted about government attempts to weaken the existing legal framework regulating access to public interest information, while the NHRI from Ukraine highlights the need to establish mechanisms for the effective handling of abusive requests to access public interest information. Lastly, in Slovenia, ENNHRI member mentions the lack of equality data collection as another obstacle to sound law and policy making. On a positive note, ENNHRI member from Bosnia and Herzegovina points to the establishment of free access to the Database of Court Decisions as a commendable step forward to ensure more transparency in the work of the judiciary.

A number of ENNHRI members also point to gaps in accountability of certain public authorities, such as law enforcement authorities in Albania, France, Georgia and Germany, which come in some cases against the background of increased powers granted by means of recently introduced laws on police forces’ competences, security and counter-terrorism. In Georgia in particular, ENNHRI member reports about alleged uncontrolled and large-scale eavesdropping by the State Security Service pointing to it as a major concern in terms of lack of checks and balances and gaps in accountability of this body and other law enforcement authorities. ENNHRI member from Northern Ireland reports about unlawful acts by state authorities, while ENNHRI member from Kosovo alerts about attempts to secure political influence on prosecution authorities.

At the same time, ENNHRI members alert about cases of maladministration, such as in Bulgaria, Cyprus, Estonia and Norway. Progress in ensuring accountability was mentioned in a few countries. ENNHRI member in Denmark reports about a new act allowing the Parliament to establish “scrutiny commissions” of independent experts with the purpose of examining cases which have been under heavy criticism either in the Parliament or in the public. In Albania, a legal provision allowing state police to carry out interceptions was revoked by the Constitutional Court following an intervention of the NHRI. Elsewhere, ENNHRI members call for the improvement of accountability frameworks, such as the role and operations of the State Security Service in Georgia, accountability for the adoption of unconstitutional legislation in Luxembourg or the need for a more transparent follow-up of the infringement case opened by the European Commission on the Constitutional Court’s ruling on primacy of EU law in Germany.

Some ENNHRI members, namely from Albania, Bulgaria and Great Britain, also point to numerous issues affecting the electoral system. For instance, in Great Britain the NHRI warns about a potential reduction in voter turnaround as a result of the requirement of the voter ID introduced by the Elections Act 2022 and points to limitations in the powers and independence of electoral institutions. In Albania and Kosovo, obstacles in access to polling stations for persons with disabilities were observed.

Challenges affecting the judicial and constitutional review of laws, also referred to in the chapter on the functioning of justice systems, are equally regarded by ENNHRI members in numerous European countries as having a negative impact on effective checks and balances. In Poland, the NHRI refers to the problematic consequences of the controversial jurisprudence of the Constitutional Court as regards primacy of EU and international law, as well as the lack of a full independence of courts and prosecutors, including the Constitutional Court itself. As regards the constitutional review of laws, ENNHRI member in Slovakia published its legal opinion on the amendment, reported on in last year’s report, which excludes the competence of the Constitutional Court to review constitutional acts, while ENNHRI member in Albania alerts that despite the establishment of the Constitutional Court, judicial posts remain unfilled.

Other ENNHRI members flag how gaps in the framework for judicial review generally impact checks and balances, including the courts’ reluctance to refer questions for preliminary rulings to the CJEU in Belgium, in particular in the area of migration; a huge backlog of cases in Cyprus and inadequate funding for the courts in Norway, which challenge the right to a trial within a reasonable time; and the lack of a “judicial review culture” in Luxembourg. Another worrying trend identified across many European countries is a lack of implementation of court decisions, including by the supreme, constitutional and supranational courts such as the ECtHR, as reported in Armenia, Bulgaria, Kosovo, Slovenia, Spain and Ukraine. ENNHRI members in Great Britain and Northern Ireland further alert about planned judicial reforms that could lead to violations of the right to an effective remedy, and how the ongoing work towards a reform of the Human Rights Act threaten the effectiveness of the ECHR system in the United Kingdom.

ENNHRI members in many Member States deplore the negative impact of these challenges on the level of public trust in institutions, as mentioned in country reports on Albania, Armenia, Belgium, Bosnia and Herzegovina, Croatia, Cyprus, Denmark, France, Germany, Greece, Hungary, Luxembourg, North Macedonia, Serbia, Slovakia, Slovenia, Spain. Trust is reported as especially low among marginalised and vulnerable groups, such as persons with disabilities and persons in precarious socio-economic conditions, as reported by ENNHRI member in Ireland; and impacting particularly on certain categories of public authorities such as police (as reported in Greece and Slovakia), the legislative power (as reported in Northern Ireland), and the judiciary (as reported in Bosnia and Herzegovina, Croatia, Slovakia and France). Other factors are also identified by ENNHRI members as negatively impacting on the level of public trust, including the high polarization of the public and political debate in Finland, Slovenia and Spain, the consequences of the pandemic, as mentioned in relation to Hungary, violations of citizens’ privacy and data protection rights in Albania, and the failure to effectively communicate with constituencies in the context of the COVID-19 pandemic, as flagged by ENNHRI members in Belgium.

By contrast, ENNHRI members in Kosovo and Ukraine report increasing levels of public trust, while ENNHRI members in Liechtenstein, Norway and Portugal continue to report a high level of public trust in institutions. ENNHRI’s members in Azerbaijan, Bulgaria and Finland record positive efforts to address identified challenges, as for example demonstrated, in Finland, by the recent launch of a dedicated public survey on the matter, and, in Azerbaijan, by the establishment of a new Citizens’ Reception Centre, including a hotline for citizens to facilitate submission of complaints.