Introduction

About ENNHRI and NHRIs

The European Network of National Human Rights Institutions (ENNHRI) brings together over 40 National Human Rights Institutions (NHRIs) across wider Europe. It provides a platform for collaboration and solidarity in addressing human rights challenges and a common voice for NHRIs at the European level to enhance the promotion and protection of human rights in the region. ENNHRI is one of four regional NHRI networks, which together form GANHRI, the Global Alliance of NHRIs.

National human rights institutions (NHRIs) are state-mandated bodies, independent of government, with a broad constitutional or legal mandate to protect and promote fundamental rights. They work with government, parliament and the judiciary as well as with civil society organisations and human rights defenders (HRDs). They are established and function with reference to the UN Paris Principles which require NHRIs to carry out their work independently and promote respect for fundamental rights, democratic principles and rule of law in all circumstances, including in situations of state of emergency. 

While the specific mandate of each NHRI may vary, the general role of NHRIs is to promote and protect human rights, including civil, political, economic, social and cultural rights, and address discrimination in all its forms. Given the breadth of their mandate, each NHRI selects strategic priorities for their work, based on objective criteria related to the national context. Different models of NHRIs exist across all regions of the world, including across Europe, namely: human rights commissions, human rights ombuds institutions, consultative and advisory bodies, institutes, and hybrid institutions. Information on ENNHRI members, including on the institutions’ type and mandate, can be found here. 

Irrespective of their specific mandate, NHRIs are unique in that their independence, pluralism, accountability and effectiveness is periodically assessed and subject to international accreditation. This accreditation is performed by GANHRI’s Sub-Committee on Accreditation (SCA) , supported by the UN’s Human Rights Office, and involves reviewing each NHRI’s compliance with the UN Paris Principles, international standards on the independent and effective functioning of NHRIs. This accreditation reinforces NHRIs as key interlocutors on the ground for rights holders, civil society organisations, state actors, and international bodies. More information on NHRI accreditation can be found here.

NHRIs and the rule of law

Given the close interconnection and mutually reinforcing relationship between the rule of law, democracy and human rights, NHRIs are in a key position to report and participate in rule of law monitoring initiatives. European NHRIs are already working in this area and have chosen ‘democracy and rule of law’ to be one of ENNHRI’s priorities in its Strategic Plan 2018-21. This is reflected, for example, in ENNHRI’s Regional Action Plan on Promoting and Protecting Human Rights Defenders and Democratic Space. 

Three key considerations lie at the core of NHRIs reporting to and participation in rule of law monitoring initiatives:

• The international recognition of NHRIs as a rule of law indicator, based on the need for independent institutions (see SDG 16), which is tested through the standards set by the UN Paris Principles for their formal and functional independence, pluralism, accountability and effectiveness. 
• NHRIs’ unique position, based on their broad human rights mandate and taking into account their accreditation status, to provide information that can help international and European actors to get a more accurate picture of the national rule of law environment. In this respect, monitoring and reporting on the situation of human rights in their country is an obligation under the Paris Principles and a central function of all NHRIs – NHRIs accredited as fully independent and effective (A-status NHRIs) being given independent reporting rights before the UN Human Rights Council, Treaty Bodies and other UN mechanisms.
• NHRIs’ engagement in rule of law mechanisms forms an integral part of their mandate to promote and protect human rights. By contributing to a more comprehensive and accurate assessment of the situation in each country, and recommending action needed to address challenges, NHRIs’ engagement within their strategic priorities can help to enhance the impact of existing frameworks and related initiatives, and thus achieve better promotion and protection of human rights, rule of law and democracy. 

Similarly, regional mechanisms’ awareness of NHRI reporting and recommendations in relation to rule of law can lead to enhanced follow-up to those recommendations, through multilateral or independent processes at regional level.

Relevance of a united approach to rule of law reporting across the region

The contribution to European rule of law, democracy and human rights monitoring and enforcement frameworks has been identified since 2018 as one of the key thematic priorities for regional cooperation by ENNHRI members. Recent developments at European level confirmed the added value and the existence of key opportunities for the engagement in European rule of law monitoring initiatives. 

On this basis, ENNHRI’s members committed to engage with a united approach to rule of law reporting. They engaged, in particular, in developing country-specific rule of law reports, using information extracted from relevant national reports and compiled on the basis of a structure and methodology common to all NHRIs, developed by ENNHRI. These country rule of law reports have been collated and are published by ENNHRI as one comprehensive regional report. 

In addition, sub-regional reports have also been compiled to feed in different consultation processes as relevant for NHRIs across ENNHRI’s membership (EU, Enlargement/Western Balkans, Eastern Partnership and other geographic areas).

Such a united approach reflects the spirit of cooperation and solidarity that underlies ENNHRI membership, while acknowledging the differences in roles, status, functioning and environment of NHRIs across the region. It is meant to frame a coherent engagement and timely and consistent reporting of ENNHRI in the different European rule of law monitoring processes as relevant to EU Member States, Enlargement/Western Balkans, Eastern Partnership and other countries – while supporting the overarching work of ENNHRI on supporting its members’ efforts to promote and protect democracy, rule of law and human rights at national level.

Scope of this report

The present report brings together the country rule of law reports developed by ENNHRI members  and offers an overview of trends developed by ENNHRI on the basis of analysis of the country reports received. The report also includes information provided by ENNHRI on NHRIs’ establishment and accreditation status for each country where ENNHRI has a member, as well as countries where ENNHRI is supporting the establishment of an institution which may apply for accreditation as an NHRI, or in contact with existing national bodies to exchange on the lack of NHRI in the country.[1] This is meant to inform considerations in relation to NHRIs as rule of law indicators.

This report covers 40 countries out of the 43 countries where ENNHRI has a member, and information on the process to establish an NHRI in eight other countries. In view of the ongoing process to establish an institution in compliance with the UN Paris Principles, the Swedish Equality Ombudsman (B-status NHRI) abstained from contributing to this reporting process. The ENNHRI members from Turkey and Liechtenstein, both non-accredited institutions, have not  contribute to this rule of law reporting process, due to lack of capacity. Contributing ENNHRI members thus include all the 27 A-status NHRIs across wider Europe, 8 B-status NHRIs and 5 non-accredited institutions.[2] The list of contributing NHRIs is included in the overview table at the end of this section. 

Considerations on methodology

A detailed methodology paper, available here, has been developed by ENNHRI to illustrate the common approach of its members to reporting and participation in European rule of law mechanisms. The key guiding principles and features underlying the agreed methodology are outlined below. 

In this respect, it is important to bear in mind that 2020 marks the first year of development and implementation of the common approach to NHRIs’ reporting and participation to European rule of law mechanisms. A challenging endeavour in itself, NHRIs’ reporting engagement has this year been also affected by the difficulties posed on NHRIs’ capacity and resources by the public health emergency related to the outbreak of the COVID-19 pandemic. 

ENNHRI will evaluate the common reporting structure and guiding principles through member-wide consultation at the end of the reporting cycle. This will ensure learning from experience and adaptation of the common methodology as appropriate, and will allow the identification of potential follow-up actions in the future. The evaluation will take into account the sustainability, effectiveness and impacts of the common approach at international and national level, as well as the development of European rule of law processes.  

A common reporting structure

ENNHRI developed a common reporting structure in order to facilitate and streamline the collection of country information on rule of law by all NHRIs in wider Europe. The related questionnaire is included as Annex I to this report.

Taking into account the priority areas and indicators identified by European institutions and bodies for the different rule of law mechanisms, the common reporting structure contains information provided by European NHRIs in relation to:

• the NHRI as indicator of rule of law, in particular in terms of changes in the regulatory framework and/or significant changes in the NHRI’s environment relevant for the independent and effective fulfilment of its mandate; 
• country-specific human rights reporting by NHRIs with relevance to the rule of law, in particular in terms of any evidence of problematic laws, measures or practices in five thematic areas: 
  • human rights defenders and civil society space; 
  • checks and balances;
  • functioning of justice systems;
  • media pluralism;
  • corruption. 

The questionnaire sent to NHRIs also included an open-ended question allowing NHRIs to report on any other area or issue not covered under the areas identified in the common reporting structure but relevant for the specific country situation. 

In addition, the common reporting structure features an in-focus section on measures taken at national level in response to the COVID-19 outbreak, as regards their impact on the rule of law as well as the challenges posed to the NHRI’s functioning – also building on ENNHRI’s statement and on its collection of members’ positions.

In filling the questionnaire, each NHRI was free to report on what it deemed appropriate, also on the basis of the NHRI’s mandate, capacity, and national context. Each country report therefore reflects the NHRI’s autonomous choice of scope of its country-specific reporting. Each NHRI is also solely responsible for the information provided as well as the positions or opinions expressed in connection to the issues reported on – without those positions or opinions being attributable to other NHRIs or to ENNHRI. 

In order to encourage concise data provision, the reporting structure allowed NHRIs to reference existing resources as appropriate — including their general or thematic reporting activities at national or international level (see below).

Building on NHRIs’ existing functions and expertise

As a means to ensure consistency and sustainability, NHRIs are encouraged to develop their engagement in European rule of law mechanisms in synergy with their relevant work at national and international level. In concrete terms, this means that NHRIs engagement at the different stages is meant to build on or feed into:

• General or thematic national reporting initiatives;
• General or thematic reporting to other international monitoring bodies;
• The formulation of and follow-up of recommendations to national authorities.

Role of ENNHRI in the analysis, processing, collation and dissemination of NHRIs’ reporting

ENNHRI members requested that the Secretariat support their engagement in European rule of law mechanisms, with a view to enhance relevance, impact and sustainability. This includes support in the analysis and processing, as well as in the collation and dissemination of NHRIs’ reporting. 

In particular, ENNHRI undertook the following tasks in relation to the analysis and processing of the country information by NHRIs:

• Verification and consistency checks, performed via consultation with the relevant NHRI to obtain clarification or complementary information and data included in a country report – each NHRI remaining in any case responsible for the information and data provided therein;
• Highlighting emerging trends, through analysis and processing of the information included in the country reports received;
• Provision of information on the accreditation status and on the latest report of the international accreditation committee with recommendations to improve compliance with the Paris Principles in each country report,  in connection to the recognition of NHRIs as rule of law indicator.

Looking ahead: seeking concrete impacts and follow-up

This report is a starting point for ENNHRI’s ongoing engagement with international and regional actors on rule of law, seeking to achieve positive change for fundamental rights, rule of law and democracy across wider Europe.  

Paris Principles-compliant NHRIs across wider Europe

The independent and effective functioning of an NHRI in each country is an indicator of the respect for rule of law. Accordingly, this report includes information on the establishment and international accreditation of an NHRI in compliance with the Paris Principles in each country across the region. It also compiles information submitted by NHRIs as regards developments and challenges affecting the legal framework governing their institutions and the enabling environment in which they function. Indeed, shortcomings affecting the formal and functional independence and effectiveness of NHRIs have an impact on the ability of NHRIs to effectively fulfil their mandate and therefore play their role as part of checks and balances safeguarding the rule of law framework.

One of ENNHRI’s core objectives is to support its members with accreditation – before, during and after the accreditation process. The number of NHRIs accredited by reference to the UN Paris Principles has risen significantly in Europe since the establishment of the ENNHRI Secretariat in 2015 – this number has increased by 42%, from 26 to 37 countries in Europe with an accredited NHRI. Among these, there was an increase of 40% in the number of European countries with an “A-status” NHRI (fully compliant with the Paris Principles), from 20 to 28 A-status NHRIs in European countries. 

ENNHRI underlines that the establishment of an NHRI in compliance with the Paris Principles in all countries across wider Europe, as well as the support to their effective functioning, should be regarded as a priority at European and national level also with a view to ensuring comprehensive and consistent collection of information on the state of fundamental rights, rule of law and democracy in Europe.[3]

Ongoing Engagement and Follow-up Measures

While this report is based on ongoing monitoring and reporting of NHRIs and their advice to state authorities, important added value can be created by international and regional actors, in particular at EU and Council of Europe level, through the use of this country-specific information in follow-up actions. While ENNHRI functions as focal point for engagement on rule of law of NHRIs at regional level, we encourage all relevant international and regional actors to engage with NHRIs directly in country-specific procedures and follow-up actions on rule of law.[4] Indeed, through their national mandate and their understanding of the situation on the ground, NHRIs will be well placed to contribute to the identification and implementation of appropriate follow-up measures in their countries, including the active promotion of a culture of understanding and respect for fundamental rights, rule of law and democracy.

Some indications of important follow-up actions can already be identified in this initial report of NHRIs on the rule of law. Importantly,  international and regional actors, in particular at EU and Council of Europe level, should actively explore and implement a variety of actions to support NHRIs when facing threats.[5] When doing so, account can be taken of ENNHRI’s Guidelines on support to NHRIs under threat, which include guarantees of confidentiality and clarify that public support is only appropriate at request of the NHRI concerned.

Synergies across Mechanisms and across ENNHRI’s Work

While the current report feeds into engagement of ENNHRI and its members in rule of law related process at the UN, EU and Council of Europe, the further development of synergies between the various processes will be of particular relevance. As a network connecting all European NHRIs, ENNHRI will continue to play a key role in further developing actions in support of NHRIs’ engagement in regional rule of law processes for creating change at national level. Depending on available capacity, ENNHRI could for example develop guidelines for NHRIs on rule of law, and tailored capacity-building activities. 

The current rule of law reporting process will also feed into other key areas of ENNHRI’s work. This includes further actions on implementation of fundamental rights in connection with regional instruments and in particular the European Convention on Human Rights and the EU Charter on Fundamental Rights.  

The information collected will also inform ENNHRI’s work on the promotion and support to human rights defenders and democratic space, which includes support to NHRIs in using their powers to contribute to the implementation of the Council of Europe Recommendation on the need to strengthen the protection and promotion of civil society space in Europe. 

In addition, NHRIs’ rule of law reporting will be considered within ENNHRI’s current work on NHRI monitoring of the human rights of migrants at borders, which takes into account rule of law and human rights accountability. 

In-focus section: NHRIs response to COVID-19 pandemic

The report shows that the COVID-19 context has created new and additional challenges for the rule of law and NHRIs, which requires a change in working methods and practices. NHRI face challenges – amongst others – concerning:

• Application of human rights, even when a state declares a state of emergency or a derogation from its human rights obligations
• Government measures not always are legally-based, proportionate and time-limited
• Not all government actions protected the rights of all people
• Situations of vulnerability not always adequately addressed
• Not always clear communication of measures in accessible ways, or not even published on journals
• Accountability has been undermined in some countries

NHRIs are adapting to the current challenges by for instance. “remote” human rights monitoring and assistance or complaints handling. ENNHRI will review all proposals for further work in this area, such as guidelines in the context of emergency measures, for follow-up with EU actors.

Strengthen NHRIs regional cooperation through ENNHRI

As part of the data collection, ENNHRI has consulted NHRIs on the kind of support they would need to promote and protect human rights and in particular the rule of law on national level. Overall, it is important to note that NHRIs stress regional cooperation – through ENNHRI – as crucial for strengthening their national and regional engagement in this area.

Notes:

1. This is the case, in particular, for Andorra, Belarus, Iceland, Italy, Malta, Monaco, San Marino and Switzerland.
2. Note that three Belgian institutions (one B-status accredited NHRI, and two non-accredited institutions) have contributed collectively to the Belgian national report; the three A-status NHRIs from the UK (from Great Britain, Scotland and Northern Ireland) have submitted each a report covering their territorial mandate . In the system of international accreditation, A-status NHRIs are considered fully in compliance with the UN Paris Principles and B-status partially. No status ENNHRI members committed to working towards becoming accredited institutions. All A-status NHRIs are periodically reviewed every 5 years. Deferral of accreditation is possible – this is currently the case, among ENNHRI members from the EU, for the Hungarian Commissioner for Human Rights.
3. The role of NHRIs in this regard has already been acknowledged by different regional actors in a variety of documents. See, for example, the 2019 Council Conclusions on the Charter, the 2019 Commission Annual Report on the Application of the EU Charter, the 2019 Parliament Resolution for a regulation on the protection of the Union’s budget in case of generalised deficiencies as regards the rule of law in MSs and the 2016 Parliament Resolution on the EU mechanism on democracy, the rule of law and fundamental rights, and CoE Committee of Ministers Recommendation (2018)11 on the need to strengthen the protection and promotion of civil society space in Europe.
4. Contact points for each NHRI that provided a national report for this collation are included in Annex II.
5. Existing mechanisms to prevent, monitor and address intimidation and reprisals can serve as source of inspiration, including the UN Secretary-General mechanism against reprisals or the EU’s Protect Defender programme.