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Human rights defenders and civil society space

Human rights defenders and
civil society space

Reporting by ENNHRI members reveals an overall deterioration of the enabling environment for human rights defenders (HRDs) and civil society space more generally in several countries across the region.

Threats and attacks, including strategic litigation against public participation (SLAPPs)

HRDs and civil society organisations (CSOs) continue to be the target of attacks, smears, public criticism and threats in many European states. In some countries, NHRIs generally point to a less favourable environment for HRDs and CSOs defending human rights, as reflected in particular in reports on Albania, Armenia, Bosnia and Herzegovina, Moldova and Montenegro. Challenges facing HRDs and CSOs continued to be exacerbated by the measures adopted to respond to the pandemic, as reported by ENNHRI member in Moldova, which raised concerns about the impact on HRDs of the exercise of strengthened government powers. Attacks reportedly target in particular HRDs and CSOs working on women and sexual and reproductive rights, LGBTI+ rights, rights of migrants and asylum seekers and environmental protection, as reported by ENNHRI members in France, Georgia, Greece, Northern Ireland, Poland and Slovakia. In Northern Ireland, ENNHRI member raised particular concern about attacks against minority women, which may be seen as a tool to diminish their public participation.

In Greece, the NHRI explains how such attacks occur in a broader, concerning context of racist violence. In Albania and Poland, ENNHRI’s members also alerts about activists being targeted by police during demonstrations, and retaliations against prosecutors opposing controversial judicial reforms. Cases of legal harassment, including Strategic Lawsuits Against Public Participation (SLAPPs), also seem to be on the rise, as reflected in reports on Armenia, Great Britain, Kosovo, Luxembourg and Slovenia. The ENNHRI member from Armenia alerts about ongoing attempts to terminate the operations of the Open Society Foundation in Armenia, through legal proceedings which the NHRI considers abusive litigation against public participation (SLAPP). ENNHRI member in Great Britain has noted that there have been reports of abusive court proceedings being filed before British courts even though cases bear little or no connection with the country.

Reports by ENNHRI members also expose how defenders are increasingly subject to hate speech, which the public authorities often fail to effectively address or even perpetrate themselves. This trend is particularly visible in Armenia, Georgia and Moldova. In Moldova, ENNHRI member raised specific concerns about harassment and intimidation of CSOs by politicians.

Against this background, some ENNHRI members regret the inadequacy of the legal framework for the protection of HRDs – with NHRIs in Georgia and Moldova, in particular, stressing how the concept of HRD is still not defined or protected by existing law. Elsewhere, too, such as in Albania and Croatia, ENNHRI members point to the failure to implement an overall framework for the development of a healthy civic space.

Laws and practices negatively impacting on civil society space and/or on human rights defenders’ activities

Many ENNHRI members further pointed to laws unduly restricting HRDs’ and CSOs’ activities.

In this respect, a new emerging trend, in particular in EU countries, concerns provisions providing for the dissolution of associations which undermine basic values and principles. While requiring associations to align their objectives and activities with human rights standards and democratic principles is indeed a legitimate aim, legal provisions foreseeing the dissolution of associations based on vague formulations risk leading to disproportionate and arbitrary interferences with the right to freedom of association – as mentioned by ENNHRI members in Belgium as regards the bill on associations inciting hatred and discrimination and by ENNHRI’s member in France as regards the law on the respect of republican values. Such objective can, by contrast, be supported through positive measures, as reflected in a bill under discussion in Germany aimed at fostering and strengthening the democratic engagement of civil society organisations.

Restrictive laws governing the establishment and operations of CSOs are reported in a number of countries, in particular outside the EU. The report on Albania alerts about a new law introducing disproportionate obligatory registration requirements for all CSOs, deemed contrary to international standards on freedom of association. In the Transnistrian region of Moldova, ENNHRI member reports that the rights and activities of HRDs were the object of severe restrictions by law.

At the same time, in particular in the EU, problems persist with laws criminalising HRDs’ activities, especially in the area of migration. In Hungary, the CJEU recently intervened to declare Hungarian provisions criminalising and obstructing the provision of assistance to asylum seekers as incompatible with EU law. ENNHRI members from Croatia and Lithuania reported concerns as regards the application of laws criminalising HRD’s activities in this area. Elsewhere, ENNHRI members report how HRDs and CSOs active on the protection and promotion of the rights of migrants and asylum seekers are also increasingly the object of restrictive measures and practices, as reflected in the burdensome registration requirements introduced in Greece, where the NHRI also raises concern on the lack of transparency and consistency as regards their application; in Croatia and France, where authorities continue to limit access to information and physical access to migrants settlements; and in Poland, where the emergency regime and related rules applicable to the Belarus border zone have obstructed monitoring and humanitarian assistance by HRDs and civil society.

Similarly, ENNHRI members in particular within the EU continue to point to the impact of existing laws on the advocacy and campaigning work of associations, such as laws on citizens’ security (in Spain), counterterrorism (in Belgium and France) and political advertising (in Ireland).

Limitations on access to funding and donations and an unfavourable financing framework for civil society organisations also remain an issue ENNHRI members across the region continue to point to, for example in Albania, Bulgaria, Croatia, Germany, North Macedonia, Portugal, and Slovakia. This has an impact also on access to EU funding, as reported in particular by ENNHRI member in Croatia, while public financing remains inaccessible to organisations working on LGBTI+ and women rights in Slovakia. In Denmark, ENNHRI member reiterates its concerns over the introduction in 2021 of rules banning donations from persons or organisations attempting to undermine democracy and human rights, which in the Institution’s view pose a risk of arbitrariness and legal uncertainty.

ENNHRI members across the region have also continued to raise concerns on laws restricting civic space and the exercise of civic freedoms. ENNHRI members in Albania, Finland, Moldova and Portugal made general reference to the impact on civic space of measures adopted in response to the COVID-19 pandemic, while in a number of countries including Albania, Armenia, Georgia, Great Britain, Hungary, Lithuania, Moldova, Slovenia and the Russian Federation (as well as Poland, but in connection to the emergency regime declared in response to developments at the Belarus border), ENNHRI members reported about persisting interferences with the exercise of the freedom of peaceful assembly. This prompted interventions by constitutional courts: for example, in Hungary, the Constitutional Court recently recommended to the government to ensure a regular review of restrictions; in Slovenia, the Court declared restrictions disproportionate.

By contrast, measures were considered balanced by ENNHRI’s member in Estonia, allowing protests to take place peacefully. In Denmark, ENNHRI’s member reported that the security bill aimed to restrict gatherings and activities in the public space was eventually rejected by the parliament. NHRIs in some countries, and namely Armenia and Georgia, particularly reported the disproportionate use of police powers towards peaceful protesters and the inadequate protection measures taken by law enforcement to prevent and address violence during protests.

Access to and involvement of civil society actors in law and policy making

Reporting by ENNHRI members also reveals little efforts by State authorities to ensure access to and involvement in law and policy making for CSOs. ENNHRI members in Albania, Bosnia and Herzegovina, Bulgaria, Croatia, France, Georgia, Germany, Ireland, Kosovo, Moldova, Northern Ireland, Luxembourg, Slovenia and Slovakia expose several gaps affecting consultation frameworks and practices. These include late consultations, the absence of consultations when expedited procedures are used, the lack of inclusiveness as well as inadequate timeframes.

ENNHRI members in Finland, Ireland and Northern Ireland especially regret the limited involvement of rightsholders and organisations representing affected groups or minority communities, such as children, women, persons with disabilities, victims of racism and discrimination and migrants and asylum seekers. This is coupled with limited access, or undue restrictions on access, to public interest information, as reported for example in Kosovo, Luxembourg, Moldova and Ukraine, as well as in Croatia as regards the field of migration. In Latvia, limited CSOs’ access and participation is mentioned as an issue in particular at the local level. As a result, ENNHRI members deplore an inefficient use of civil society groups’ knowledge and expertise.

NHRI’s role in promoting and protecting civil society space and human rights defenders

At the same time, ENNHRI members reiterated and illustrated their active engagement in supporting and cooperating with HRDs and CSOs. Several NHRIs’ reported of their efforts to monitor and alert about problematic issues and support HRDs and CSOs at national as well as international level, as illustrated in country reports on Armenia, Bulgaria, Croatia, Estonia, Finland, France, Georgia, Germany, Great Britain, Ireland, Lithuania, Moldova, Serbia, Slovenia, Spain and the Russian Federation. Others have examples of support to HRDs under threat, as illustrated in the report on Moldova, and in the appointment of the ENNHRI member as focal point for HRDs in Albania. Many NHRIs engage in advocacy to ensure better protection of civic space and HRDs, as exemplified by efforts made by the NHRI in Moldova and Ukraine to push for the adoption of bills on the recognition and protection of HRDs (including, in Moldova, a particular attention for children HRDs), or efforts by ENNHRI member in Great Britain to improve the legal framework on freedom of assembly. Some also undertake strategic litigation to uphold civic freedoms, as reflected in interventions in relevant court proceedings concerning the exercise of freedom of assembly of ENNHRI member in the Russian Federation. NHRIs are further making efforts to mobilise and cooperate with public authorities on the protection of HRDs, as illustrated by ENNHRI members in Armenia and Moldova, as well as efforts to secure CSOs’ involvement and participation in law and policy making, as mentioned by ENNHRI member in Bulgaria, Bosnia and Herzegovina, Latvia and Moldova. ENNHRI members in Azerbaijan, France, Greece, Turkey and Ukraine reported of organising capacity building activities, as well as, in Romania, trainings for public authorities. ENNHRI member in Ireland also offered to CSOs financial support.

Many ENNHRI members also invested in awareness raising initiatives to emphasize the importance of human rights and the role of CSO in democratic societies, as reported in Bosnia and Herzegovina, Denmark, Kosovo, Lichtenstein, Lithuania, Moldova, Montenegro and Ukraine. ENNHRI members also provided examples of successful cooperation with HRDs and civil society organisations. These include coordinated advocacy, joint events and dialogue fora (as reported by ENNHRI members in Armenia, Bulgaria, Estonia, Finland, Georgia and Ireland, particularly in the area of equality, Kosovo, Liechtenstein, Lithuania, North Macedonia, Northern Ireland, Serbia, Turkey). Elsewhere, NHRIs engaged with CSOs in joint monitoring activities (such as in Estonia in the context of the Universal Periodic Review; in Greece as regards the monitoring of the execution of ECtHR judgments, the monitoring of racist violence and of incidents of informal forced returns of migrants; in Hungary and Lithuania as regards detention conditions; in Bulgaria, North Macedonia and Northern Ireland as regards the monitoring of the implementation of the CRPD as well as, in North Macedonia, the Civil Control Mechanism and the monitoring work conducted by the institution as NPM and National Rapporteur on trafficking in human beings and illegal migration; in Slovenia as regards the rights of migrants and asylum seekers). In some countries, like Armenia, Kosovo, Liechtenstein and Serbia, such cooperation was formalised through the setting up of advisory councils, agreements and memoranda of understanding.

Key recommendations

ENNHRI members’ reporting confirm that civic space and HRDs continue to be negatively affected by restrictive laws and practices across the region. No substantive progress was made on challenges identified in this area last year, including limited funding, gaps in access to and participation in decision-making and measures negatively impacting the exercise of freedom of expression and peaceful assembly, while threats and attacks, including legal harassment, are reportedly on the rise in some European countries.

With a view to safeguard and restore an enabling environment for the free exercise of civic freedoms and the safe and unhindered work of civil society organisations and HRDs, ENNHRI and its members recommend to national authorities and regional and international actors to work together, in close cooperation with ENNHRI and NHRIs, to:

1. Ensure a framework for the protection of HRDs, including better monitoring of threats and attacks and measures to promptly investigate incidents and prosecute perpetrators, including where they are State authorities;

2. Take steps to protect civil society organisations and HRDs from the abuse of laws or procedural laws which result in forms of legal harassment, including undue prosecutions and SLAPPs;

3. Evaluate existing laws and practices regulating or otherwise affecting civic freedoms, civil society organisations and HRDs against national, European and international legislation, including regional and international human rights standards, and repeal or revise rules resulting in undue restrictions, in particular as regards rules on registration and dissolution, reporting and transparency obligations and criminalization of activities of civil society organisations, as well the exercise of civic freedoms such as freedom of peaceful assembly and freedom of expression and of information;

4. Secure a conducive legal and policy framework to enable civil society organizations and HRDs to carry out monitoring activities, humanitarian and advocacy work;

5. Ensure better involvement of civil society and HRDs in law and policy making, in particular to secure consultation and participation of vulnerable groups, including through representative associations and civil society organisations;

6. Secure an enabling financing framework for all civil society organisations and HRDs to carry out their work and prevent or eliminate any undue obstacles to access to funding, including from foreign sources;

7. Foster awareness about the relevance to rule of law and human rights protection of the work of civil society organisations and HRDs among public authorities, stakeholders and the general public, through awareness raising initiatives, civic education programmes as well as targeted trainings.

This will remain an important area of work for European NHRIs, on which ENNHRI will continue to foster collective action and collaboration as well as engagement with national authorities, regional and international actors, in accordance with its Regional Action Plan on HRDs.