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Checks and balances

Checks and balances

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.

Trust among citizens and between citizens and the public administration

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.

NHRIs as part of the system of checks and balances

Reporting by ENNHRI members offers numerous examples of the role NHRIs play in the system of checks and balances. These include the active engagement of NHRIs in advising State authorities on ways to strengthen the checks and balances system itself, as reflected in recommendations and statements issued by the NHRI from Albania, or, in Belgium, NHRIs’ recommendations on the review of administrative decisions denying access to public information and, in Ukraine, on better access to public information. NHRIs in Bulgaria, Croatia, Cyprus, France, Georgia, Germany, Great Britain, Greece, Ireland, Luxembourg, Montenegro, Poland, Slovakia, Slovenia and Spain have been providing advice to authorities on the need to improve the quality of the legislative process. Such engagement adds to NHRIs’ regular efforts to provide advice and review laws in the making, as examples show in Austria, Belgium, Bosnia and Herzegovina, Bulgaria, Cyprus, the Czech Republic, Denmark, France, Germany, Great Britain, Greece, Hungary, Ireland, Kosovo, Liechtenstein, Lithuania, Luxembourg, Moldova, Northern Ireland and Slovakia. NHRIs’ handling and acting upon complaints concerning good administration, as mentioned in particular by ENNHRI members in Bulgaria, Croatia, Cyprus, Estonia, Finland and North Macedonia, also contributes to a more effective checks and balances system. NHRIs also provided several examples of relevant monitoring activities, for instance during general elections, as reported by members from Albania, Liechtenstein and the Russian Federation, as well as strategic litigation initiatives, as illustrated in country reports on Armenia, Bulgaria, Belgium, Denmark, Ireland, Latvia and Northern Ireland. Many NHRIs also actively feed monitoring and reporting mechanisms at regional and international level, and encourage follow-up action by State authorities on recommendations and decisions, as reported in Belgium, the Czech Republic, Finland, Greece and Ireland. In addition, numerous European NHRIs showcased their engagement before national Constitutional Courts as regards the submission of opinions and motions to repeal unconstitutional acts, as illustrated in country reports on Albania, Armenia, Bulgaria, Georgia, Kosovo, Lithuania, Moldova and Serbia. In Montenegro, ENNHRI member was also particularly active in providing recommendations to relevant authorities on laws on the functioning of the constitutional court. All these efforts translate into a rather high level of public trust in the NHRIs’ institutions, even in countries where trust in public authorities is generally considered low – as reflected for example in reports on Albania and Armenia.

Yet, as also reflected in the chapter on the independence and effectiveness of NHRIs, many ENNHRI members experience obstacles and challenges in fulfilling this role. These include a lack of information, cooperation and consultation on the side of the authorities, reported by ENNHRI members in France, Georgia, Greece, Luxembourg and Poland; the failure or unwillingness to implement NHRIs’ recommendations, as particularly flagged by ENNHRI members in Poland and Slovenia; and a lack of capacity and resources, as reported in Lithuania. The NHRI from Lithuania particularly regrets the inability of the institution to directly file motions to the Constitutional Court. On a positive note, in Cyprus, the Commissioner’s role as part of the system of checks and balances was further strengthened by the creation, pursuant to a decision by the Council of Ministers, of an Advisory Committee on Human Rights, whose members – human rights experts and stakeholders, including from civil society – will be appointed by the Commissioner, who will also act as the Committee’s Chairman.

Against this background, many ENNHRI members have become more vocal on the need to strengthen the independence and effectiveness of NHRIs and other independent institutions, including data protection authorities, equality bodies and ombudspersons – as reported in Belgium, Finland, Georgia, Germany and Lithuania. At the same time, some are investing in achieving closer cooperation with national authorities, such as the NHRIs in Greece and Northern Ireland as regards the Parliament; or enhancing their engagement at regional and local level, such as ENNHRI member in Hungary, through the creation of regional offices.

Key recommendations

1. Reinforcing human rights impact assessment procedures and tools, including by better leveraging the role of independent expert bodies such as NHRIs, to ensure full alignment and compliance of national laws and policies with international and regional human rights standards;

2. Improving public consultation practices at all stages of law-making procedures, paying particular attention to ensuring meaningful representation and participation of vulnerable and marginalised groups, and organisations representing their interests;

3. Ensuring increased accountability of public authorities, including by improving audit and control procedures, better monitoring the exercise of law enforcement powers, and ensuring that media and civil society actors have access to information;

4. Addressing existing shortcomings in the judicial review of acts by public authorities, including as regards the implementation of decisions by constitutional and regional courts.